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Insanity (even insanity , clear accountability incompetence ) is the criminal one reason the legal liability of a plot to exclude. Its opposite is culpability . In between there is the so-called reduced debt capacity .

Criminal law of Germany

The criminal Germany based in accordance with the human image of the constitution on the liability and responsibility principle. Those who act without guilt can therefore not be punished (“ nulla poena sine culpa ”). In the German Criminal Code, incapacity is regulated in sections 19 and 20 , and reduced culpability in section 21 . Section 51 of the Criminal Code a. F., which has been superseded by the three paragraphs mentioned, was widely used in public and private discourse in Germany to denote the assumed insanity of a person. Incapacity is only assumed for 0.3% of all offenders, reduced culpability for 2 to 3% of offenders.

Incapacity is not to be equated with inability to commit a crime from civil law , although often both facts exist at the same time.

criminal code


In the case of all offenders who are not yet fourteen years old at the time of the offense (child in the legal sense), incapacity is irrefutably assumed by law . In a reform after the First World War, the age of criminal responsibility was increased from 12 to 14 years.

This is standardized in § 19 StGB .


Anyone who is between fourteen and eighteen years old at the time of the offense is criminally responsible under Section 1 (2) of the Youth Courts Act (JGG) and under Section 3 of the JGG if, at the time of the act, he is mature enough in terms of his moral and intellectual development To see injustice in the act and to act according to this insight. This must be positively determined by the court.


In the case of adolescents (18 to under 21 years of age), it must be checked in individual cases whether juvenile or adult criminal law is being applied ( Section 105 JGG).

Adult criminal law

In principle, adult offenders are legally presumed to be responsible. Evidence of the incapacity can often only be determined with medical, psychiatric or forensic-psychological reports . Nevertheless, it is a question of law that the court decides under its sole responsibility.

If the ability to see or control is not lacking, but is significantly reduced , a reduction in the sentence can take place according to § 21 StGB.

According to § 20 StGB, "who is unable to see the wrongdoing of the act or to act according to this insight when committing the act because of a pathological mental disorder, a profound disturbance of consciousness or because of feeble mind or another serious mental abnormality is acting without guilt." can therefore be who at the moment of the act does not recognize the culpability of his actions or is not able to control himself. The psychological causes listed (so-called “entry criteria” or “characteristics”) of a reduced or non-existent ability to control or understand represent categories that are not used in psychology and medicine and are basically only used in the legal system for assessing an affecting act .

A distinction is made between the following input characteristics:

  1. A pathological mental disorder is understood to mean states of the brain - also caused by psychotropic substances such as alcohol ( total intoxication ) - or psychoses .
  2. As a profound disturbance of consciousness phenomena are representing changes in consciousness or -einengungen that constitute no fault of psychopathological relevance. These include exhaustion, tiredness, drowsiness, especially parasomnia and, above all, emotional states of confusion, which can lead to an act being committed in the affect (for example, with loss of control). One attempt to make such conditions psychopathologically diagnosable in the field of psychiatry is to classify them as acute stress reactions . The blood alcohol concentration at the time of the crime is an important indicator for the existence of a profound impaired consciousness. From 2.0 per mille, a reduced culpability is generally assumed, in homicides from 2.2 per mille. Above 3.0 per mille, an incapacity is generally assumed, in the case of homicides, due to the higher inhibition threshold, generally only from 3.3 per mille.
  3. As bullshit levels are innate intelligence weakness without any apparent cause referred to ( mental retardation ). Intelligence weaknesses that arise in the course of dementia are assigned to the first entry criterion. To determine a mental disability, the intelligence quotient (IQ) is used. A distinction is made between mild intellectual disabilities (IQ 50 to 69), moderate intellectual disabilities (IQ 35 to 49), severe intellectual disabilities (IQ 20 to 34) and the most severe intellectual disabilities (IQ below 20).
  4. A whole series of psychiatric diagnoses fall under the entry criterion severe other mental abnormalities (often abbreviated as SASA ). This includes personality disorders , paraphilias , impulse control disorders , alcoholism and other substance-related and non-substance-related addictions .

Legal consequences

The culpable culprit cannot be punished, but mentally ill or addictive lawbreakers who are considered to be incapable of culpability or limited culpability within the meaning of Section 20 or Section 21 of the Criminal Code and who at the same time can be expected to pose a further threat, given the overall assessment of the perpetrator and his act can be accommodated in the penal system according to Sections 63 and 64 of the Criminal Code . These legal consequences are also applicable to young people from the age of 14 if § 3 JGG (criminal maturity) is affirmed. In these cases, the placement takes place in the prison for young people , which, however, has not yet been set up in all federal states.

Placement in the penal system is, however, excluded for minor offenses. Rather, it must be necessary as a last resort to protect the general public. The principle of proportionality applies.

Civil Law damages ( § 823 BGB) must pay a debt incompetents, if he does not simultaneously offense incapable is.


Incapacity can be determined in any stage of the proceedings (preliminary proceedings, interim proceedings, main proceedings) and the proceedings are ended. In the preliminary investigation, the public prosecutor's office can terminate the proceedings by way of an order.

In all cases, the termination of the procedure is registered in the Federal Central Register if the decision is based on the opinion of an expert and the opinion at the time of the decision is not older than 5 years ( Section 11 (1) BZRG ).

The entry is deleted after 10 or 20 years ( Section 24 (3) BZRG).

Actio libera in causa

A legal special issue illustrate cases where the offender before committing the act intentionally has put in a state of Insanity (such as by bringing about a full intoxication could have foreseen), or during the Intoxicating the later induced in schuldunfähigem state business, instead. This problem is called actio libera in causa . Whether and with what justification the perpetrator can be punished at the time of the offense, despite the fact that there is actually no guilt, is controversial in jurisprudence.


In criminal proceedings in the early 1960s to the competent magistrate doubts as to the arrived sanity of the accused. In order to clarify this question, the judge held a collection of cerebrospinal fluid , i. H. Cerebral and spinal fluid, as required, which would have been a painful and risk-free medical procedure . When the accused refused to consent to this intervention, the district court ordered him on the basis of a criminal procedure regulation (§ 81a StPO ). The defendant lodged a constitutional complaint against this with the Federal Constitutional Court (BVerfG). The BVerfG made the so-called liquor withdrawal decision in 1963 . It is historically and constitutionally significant as it delimits the reciprocal relationship between state powers to intervene and individual rights of freedom (here: right to physical integrity ) and clarified that, according to the principle of proportionality, the application of a constitutional law in individual cases can be unconstitutional.

Criminal law Switzerland

Incapacity and reduced culpability are regulated in Article 19 of the Swiss Criminal Code of December 21, 1937.

The then director of the Psychiatric University Clinic in Zurich (Burghölzli), Auguste Forel , was concerned that mentally ill criminals should be sent to a mental institution instead of a penal institution . So he led who u. a. worked as a doctor and professor, introduced the concept of reduced sanity and dedicated a highly acclaimed lecture to this topic in 1901 in the Swiss Society for Ethical Culture in Zurich, On the Responsibility of Normal People , which was published in 6 print editions by 1907.


In the German feature film M from 1931, the defense attorney (chosen by the criminals) refers to the then paragraph 51 in front of the assembled criminals and demands an acquittal or a surrender to the police for the multiple child murderer.

Related legal terms

More legal skills


  • Michael Brünger, Wolfgang Weissbeck (Ed.): Mentally ill offenders in adolescence . MWV, Berlin 2008, ISBN 978-3-939069-46-1 .
  • Frank Czerner: “Minors under lock and key ?” Measures that restrict or deprive children of their liberty, PDF document.
  • Klaus Förster, Ulrich Venzlaff: Psychiatric assessment. A practical manual for doctors and lawyers . 4th edition. Elsevier, Urban & Fischer, Munich 2004, ISBN 3-437-22900-1 .
  • Adrian Schmidt-Recla: Theories on culpability. Psychoscientific Concepts for Assessing Criminal Responsibility in the 19th and 20th Centuries. A guide to legal usability . Leipziger Universitäts-Verlag, Leipzig 2000, ISBN 3-933240-76-X ( Leipzig legal studies - criminal law department 4; also: Leipzig, Univ., Diss., 1999).
  • Claus Roxin : Criminal Law. General part. (Vol. 1). 3. Edition. Beck Verlag, Munich 1997, ISBN 3-406-42507-0 , pp. 752-792.
  • Markus C. Schulte von Drach : The foreign will . Kiepenheuer & Witsch, Cologne 2009, ISBN 978-3-462-04114-9 (as paperback: Der Parasit . Droemer / Knaur, Munich 2010, ISBN 978-3-426-50443-7 ).
  • Wolfgang Weissbeck: Youth measures in Germany . Basic documentation. MWV, Berlin 2009, ISBN 978-3-939069-94-2 .
  • Yuri Yamanaka: Measures against mentally ill offenders . Herbert Utz Verlag, Munich 2008, ISBN 978-3-8316-0829-4 .

Web links

Wiktionary: Responsibility  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. Konstantin Karyofilis (forensic psychiatrist) Medical Journal, 27-28. February 2015, p. 8.