Nulla poena sine culpa
The Latin formula " nulla poena sine culpa " expresses one of the essential legal rules in criminal law : Nobody may be punished for an act if he is not guilty (principle of guilt, literal translation of the formula: "no punishment without guilt").
The guilt principle is the basis for:
- The reason for the punishment: A punishment may only be imposed if the offender can be personally accused of his act.
- The sentence: The only basis for the sentence is the guilt of the perpetrator, whereby the likely punitive effects must be taken into account.
- the guilt-wrong congruence: the guilt must encompass all elements of the wrong committed.
Germany
According to the case law of the Federal Constitutional Court (BVerfG), the principle of guilt is not only anchored in the rule of law in Article 20 paragraph 3 of the Basic Law , but also an expression of human dignity, which is part of the “constitutional identity”, which Article 79 III GG protects against changes. Therefore, extradition for the execution of a criminal judgment given in the absence of the convicted person without hearing his or her - for example on the basis of a European arrest warrant - is out of the question: "German sovereignty must not reach out to violate human dignity by other states. The scope and extent of the investigations, which the court is obliged to carry out with regard to compliance with the principle of guilt, depend on the type and weight of the evidence presented by the convicted person that the minimum standard required by Article 1, Paragraph 1 of the Basic Law is not met ”(cf. Decision of the 2nd Senate of December 15, 2015, 2 BvR 2735/14). The rule of law also includes the requirement of material justice: punishment of any kind (especially criminal punishment) may only be imposed if the person punished is guilty . Punishment is therefore only fair if and to the extent that the person punished can be reproached for the violation of the law he has committed. "Otherwise the punishment would be retribution, incompatible with the rule of law, for a process for which the person concerned is not responsible." (Cf. BVerfGE 20, 323 para. 31).
The old rule of law "nulla poena sine culpa" - often supplemented by " nulla poena sine lege " (no punishment without a law) - is also laid down in Art. 103 paragraph 2 of the Basic Law, according to which the behavior to be punished is prohibited or punished at the time of the act. must have been threatened with punishment. This principle can be divided into an objective component (the act must be prohibited) and a subjective component (the act must be personally accusable, principle of guilt).
In German criminal law, the principle of guilt is explicitly regulated in Section 46 , Paragraph 1, Sentence 1 of the Criminal Code: “The guilt of the perpetrator is the basis for the assessment of the penalty”. Reasons for incompetence can be found in §§ 19 f. StGB; the reduced culpability is described in § 21 StGB.
Switzerland
In Swiss criminal law, the principle of guilt is anchored in Art. 19 StGB . Anyone who is unable to see the injustice of his act or to act according to this insight is not liable to prosecution for lack of guilt. In the case of partial incapacity, the sentence is reduced. This does not affect guilt-independent measures such as inpatient and outpatient therapy, custody or the professional ban.
If the perpetrator was able to avoid the incapacity or the diminution of the culpability and foresee the act committed in this state, there is no mitigation or remission of sentences. The perpetrator is then not accused of the act itself, but of inducing the incapacity for guilt ( actio libera in causa ).
In 2009, Andrea Geissbühler called for the abolition of the principle of guilt by means of a parliamentary initiative co-signed by 39 SVP members .
Footnotes
- ↑ Guidelines for the decision of the Second Senate of December 15, 2015 - 2 BvR 2735/14 - . Federal Constitutional Court. Retrieved September 15, 2019.
- ↑ BVerfGE 20, 323 - 'nulla poena sine culpa' . BVerfGE. Retrieved September 15, 2019.
- ↑ Parliamentary Initiative 09500 of 2 December 2009, the Criminal Code. Deletion of Articles 19 and 20 .
