Total penalty
The formation of a total penalty is in German and Swiss criminal predetermined procedure, when a plurality of actions, each other in the ratio of Tatmehrheit stand shall be punished.
Germany
Requirements for the overall sentence formation
In accordance with Section 53 of the Criminal Code , the prerequisite for the formation of a total sentence is that several crimes committed by an offender are tried at the same time. In the case of uniform offenses , the question of the formation of a total sentence does not arise because one act violates several criminal laws or the same criminal law multiple times, so that only one punishment has to be pronounced.
Formation of the total penalty
The determination of the total penalty is regulated in detail in Section 54 of the Criminal Code.
According to Section 54 (2) Sentence 1 of the Criminal Code, the total penalty may not reach the sum of the individual sentences. If at least one of the individual sentences is life imprisonment , then without prejudice to the other sentences, life imprisonment shall be imposed. If the total of the imposed sentences exceeds 15 years without a life sentence having to be imposed for one of the offenses convicted, a total sentence is formed which may not exceed 15 years imprisonment. The formation of an aggregate property fine is no longer possible because the property fine is unconstitutional . A total fine is based on daily rates in the same way as for the total imprisonment.
The total penalty is calculated according to the asperation principle by appropriately increasing the highest individual penalty (so-called deployment penalty ). Which increase is appropriate must be determined on the basis of the circumstances of the individual case, whereby the personality of the perpetrator and the connection between the individual acts play a role.
In practice, a rule of thumb is often used to calculate the total penalty: The deployment penalty is increased by half the total of the other individual penalties. In the opinion of the Federal Court of Justice , however, it is inadmissible to determine the total penalty purely arithmetically. The “deployment penalty plus half of the rest” cannot simply be imposed as a total penalty, but it must be asked in each individual case what the appropriate penalty increase is.
Overall penalty formation through judgment
Basically, the total penalty is to be formed in the judgment. It does not matter whether the court has to rule on all individual offenses, or whether penalties that have been imposed by previous, legally binding judgments must be included in the total penalty ( Section 55 StGB).
The judgment only shows the overall sentence in the sentence, but the reasons for the decision must indicate which individual sentences have been imposed.
Subsequent formation of the total penalty
The subsequent total sentence formation is regulated in § 55 StGB. The standard compensates for the fact that several offenses were not judged together, although in theory they could have been judged together. The "advantage" of a joint judgment for the offender is that a total sentence must be formed ( Section 54 of the Criminal Code) and that this must not reach the sum of the individual sentences . But there are also constellations in which the formation of the total sentence has a disadvantageous effect on the offender.
The prerequisite is § 54 Abs. 1 StGB an earlier conviction.
Example: A steals from B on January 1st, 2009. One month later, on February 1st, 2009, A beats the C. In March 2009, A is charged with assault and sentenced to one year probation. The trial of the theft will take place in April 2009. A is sentenced to 6 months probation for this act. If both offenses had been negotiated together, a total penalty would have been created, Section 53 of the Criminal Code. This should not have reached the sum of the individual sentences (here one year and six months). In the case described, the perpetrator is worse off than in the case in which both offenses were judged at the same time.
Section 55 of the Criminal Code is intended to prevent this result. His prerequisites are that the previous conviction (the one from March 2009) is neither enforced nor statute-barred or issued and the defendant is now convicted of a crime that he committed before the previous conviction (theft happened in January and thus before the conviction of the Assault in April). Both conditions are met in the case described.
However, even with reference to Section 55 of the Criminal Code, it is not always possible to treat the successive and simultaneous convictions in the same way. If necessary, compensation for hardship or disadvantages must then be carried out as part of the sentencing.
Making up for the omitted subsequent total penalty formation
It happens that when a judgment was issued, the court had no knowledge of the existence of another, legally enforceable sentence, so that the total sentence is not formed even though the requirements of Section 55 StGB would have been met.
In this case, § 460 StPO provides that the imposed penalties are retrospectively attributable to a total penalty. The court that has imposed the highest individual penalty is usually responsible for this decision. If several courts would have jurisdiction for this case, then the jurisdiction falls to the court whose judgment was last issued (Section 462a (3) StPO). The decision is made in a written procedure by resolution; it can be challenged with an immediate complaint .
Juvenile criminal law
In juvenile criminal law , no total penalty is imposed , but a standard penalty ( § 31 JGG ), which de lege ferenda itself was described by the Federal Court of Justice as a preferable regulation.
Switzerland
According to Swiss criminal law, if the offender fulfills the requirements for several similar penalties through one or more acts, he is sentenced to the most serious criminal offense, which is increased appropriately, but not more than half ( Art. 49 StGB - competition).
Individual evidence
- ↑ cf. BVerfGE 105, 135 .
- ↑ u. a. BGH, ruling of January 17, 2008 , Az.GSSt 1/07, full text.
