Imprisonment (Germany)
The imprisonment is a form of government sanction to an offense to atone . It must be imposed by a state court. The main punishment consists of depriving the person of their liberty .
Historical
Up until the Great Criminal Law Reform of 1969 there was a division into different forms of deprivation of liberty.
The most severe form was the prison sentence , for crimes with a minimum duration of one year and a maximum duration of 15 years or in the form of lifelong prison in the cases specified by law. It was always associated with the possibility of losing civil rights (so-called loss of honor ). In the penitentiary the prisoners were obliged to do heavy physical labor; they could also be obliged to work outside the institution, being kept separate from free workers.
A less severe form of imprisonment was jail time . It lasted at least a day and a maximum of five years. The prisoners should be appropriately employed here, but they also had the right to demand work. The sentence was intended for violations and lasted from one day to six weeks.
In addition, there was fortress detention until 1953 , which then continued until 1970 in the form of confinement . It was intended for certain crimes if the perpetrator showed an "honorable disposition".
The division ended with the entry into force of the First Law to Reform the Criminal Law in 1970 (1. StrRG). It was replaced by imprisonment.
Maximum and minimum dimensions
The maximum in Germany is life imprisonment . It is threatened for the most serious crimes , such as murder (in the case of a completed murder as an absolute threat of punishment ).
If the imprisonment is not for life, it is referred to as an early imprisonment ( Section 38 (1) of the Criminal Code of the Criminal Code). The temporary - limited in time - imprisonment may not exceed 15 years (Section 38, Paragraph 2, Clause 1 StGB).
A prison sentence of less than 6 months (instead of a fine ) is only possible in exceptional cases ( Section 47, Paragraph 2, Clause 1 StGB ). A custodial sentence of less than a month may not be imposed (Section 38, Paragraph 2, Clause 2 StGB and Art. 298 EGStGB ), unless it is a substitute custodial sentence or a youth sentence .
Assessment of the duration of detention
Depending on the offense, the Criminal Code provides for a certain range of penalties , e.g. B. for fraud a fine or imprisonment of up to 5 years. When assessing the duration of the sentence, the court also takes into account other aspects (e.g. gravity of the offense), the various purposes of the sentence, such as the aspect of atonement and the idea of rehabilitation . According to § 2 of the Prison Act (StVollzG), which formed the federal legal basis for the execution of the custodial sentence until 2006, “the prisoner should be enabled to lead a socially responsible life without criminal offenses in the future ( execution goal ). The execution of the prison sentence also serves to protect the general public from further criminal offenses. "
Serving the sentence
The term of imprisonment is served as a standard sentence in a correctional facility (not officially also called prison ). The primary objective is rehabilitation .
The execution of the prison sentence is regulated in Germany in the prison laws of the individual federal states. The Federal Working Group for Criminal Assistance, for example, deals with social benefits for prisoners .
The summons to commence the sentence leaves the convicted person a period of at least one week to organize their affairs (Section 27, Paragraph 2 of the StVollstrO ), for example to dissolve the household .
Suspension of the remainder of the sentence
If the prisoner agrees and it can be held responsible, taking into account the security interests of the general public, the remainder of the sentence is suspended after serving two thirds of the sentence . The assessment must take into account the personality of the prisoner, his or her previous history, the circumstances of the offense, the weight of the legal interest endangered in the event of a relapse, the prisoner's behavior in the prison system , his living conditions and the effects of the suspension on the prisoner. The respective criminal enforcement chamber is responsible for this (§§ 57, 57a StGB, §§ 454, 463 Abs. 3 StPO).
Parole suspension
The execution of a prison sentence of no more than one year, in special circumstances not more than two years, can also be suspended from the outset on probation ( Section 56 (1) StGB), which means that the convicted person does not have to go to prison. However, he must behave with impunity for a period of two to a maximum of five years ( Section 56a (1) sentence 2 StGB) and must meet certain conditions (e.g. compensation for damages ) and instructions (e.g. cooperation with probation officers ). The duration of the probationary period and the type of conditions are at the discretion of the court.
If the probation conditions are violated, the probation can be revoked and the prison sentence is then served in its full length. Such a suspension on probation is only possible in the case of imprisonment up to a duration of two years. It is also only granted if the perpetrator can be given a favorable social prognosis at the time of the judgment , ie if it can be expected that the perpetrator will in future be exempt from punishment even without the execution of a sentence.
Imprisonment in juvenile criminal law
A prison sentence can also be pronounced against young people ; it is known as a youth penalty. The duration of the youth penalty is a minimum of six months and a maximum of ten years. In contrast to adult criminal law , in juvenile criminal law the sentence as such can also be suspended. (In adult criminal law , only the execution of the sentence is suspended on probation.)
Obstacles to enforcement
In the case of certain serious illnesses of the convicted person, the start of the sentence can be postponed or an already executed prison sentence can be interrupted. Relevant is § 455 ff. StPO, which can also be applicable in inhumane detention conditions.
The Federal Constitutional Court does not consider the freedom rights defined in the Basic Law to be entirely subordinate when it comes to imprisonment. This is justified with the sometimes poor prison conditions in prisons, for example if there is neither ventilation of the toilet nor enough space or overcrowding. If the conditions listed - by the court - coincide and remedy is not possible, this can lead to the previously legally convicted prisoner being released temporarily or permanently into freedom.
In the aforementioned decision, the Federal Constitutional Court expressly did not focus on the (hypothetical) possibility of the penal institutions to accommodate the prisoner concerned in some other humane manner, but rather linked the legal consideration following from the requirement of respect for human dignity that the execution of sentences should be interrupted if and as long as further accommodation is only possible under inhumane conditions. In doing so, the Federal Constitutional Court has not only formulated the state's duty to immediately renounce the enforcement of the criminal claim in the event of inhumane conditions of detention, but - because this duty corresponds to the right of the prisoner concerned, to apply to the enforcement authority in accordance with § 455 StPO to apply for the interruption or postponement of the sentence - this also opens up a new way of legal defense.
In addition, the person concerned can be entitled to monetary compensation.
Prison costs
The cost of operation of imprisonment were in NRW in 2017 converted 135,65 € per prisoner per day. That equates to more than € 49,500 per year for each occupant. In Baden-Württemberg in 2016 they were € 118.09 per prisoner and day, relatively low in a nationwide comparison.
See also
literature
- Klaus Laubenthal , Nina Nestler: Enforcement of prison sentences , in: Strafvollstreckung, Berlin and Heidelberg, 2010, pp. 39-104. ISBN 978-3-642-05285-9
Web links
- Transitional management between the penal institutions, the Lower Saxony outpatient judicial social service, the public prosecutor's offices and the independent providers of criminal assistance (AV transition management) AV d. MJ v. July 12, 2011 (4260-403.116), nds. Rpfl. 1997 No. 5, p. 93 (on social care for prisoners in connection with their release from prison)
Individual evidence
- ↑ Social benefits ( Memento of the original from December 14, 2015 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Website of the BAG-S
- ↑ Right magnification: Inhumane detention conditions , March 10, 2011
- ↑ BVerfG, decision of February 22, 2011 - 1 BvR 409/09
- ^ Ministry of Justice of North Rhine-Westphalia: costs of execution. In: Ministry of Justice NRW. Ministry of Justice NRW, Department IV, accessed on July 20, 2018 .
- ^ Ministry of Justice Baden-Wuerttemberg: Law enforcement - data and facts. Retrieved July 20, 2018 .
