Thwarting punishment

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Obstruction of justice , according to German criminal law , the deliberate or willful thwarting the punishment of the perpetrator or a subscriber of an unlawful offense . Protected legal interest is thus to the prevailing view of the criminal law to care in their task to impose penalties and to enforce. The prevention of punishment is regulated in § 258 StGB . Both the prevention of criminal prosecution ( prevention of persecution, Section 258 (1) of the Criminal Code) and the prevention of the execution of a sentence (prevention of enforcement, Section 258 (2) of the Criminal Code) are recorded. In colloquial language, obstruction of punishment is often equated with cover -up.

Prevention of punishment, § 258 StGB

classification

Like favoritism , stolen goods and money laundering , thwarting punishment is a follow-up offense . The threat of punishment is imprisonment for up to five years or a fine ( offense ), whereby the punishment may not be more severe than the punishment threatened for the predicate offense. The offense is an official offense and § 258a StGB counts as a spurious official offense . In contrast to receiving stolen goods according to Section 257 of the Criminal Code, the act is a successful offense with the criminal offense of attempting.

Offense

In order to prevent punishment from being completed, the punishment of another, the predecessor, must be thwarted in whole or in part. Thwarting does not mean permanent prevention. It is enough that the prosecution or action is prevented for a considerable period of time. What is necessary is an unlawful predecessor act , which can also have been committed negligently . The perpetrator of the obstruction of punishment can never be the perpetrator of the predicate offense (also Section 258 (5) StGB), as this would run counter to the procedural protection of the nemo tenetur se ipsum accusare (in Latin, nobody is required to accuse oneself , so-called self- favoring principle ). The thwarting can take place in all conceivable ways, for example by hindering the investigative work or by hiding the criminal. On the other hand, the standard does not rely on knowledge of the thwarting measure or the consent of the predecessor. It is also irrelevant that the predicate offense brought the predecessor an advantage. However, the protective purpose of the standard does not include actions such as medical treatment of the perpetrator or the provision of food in normal business operations. It is also possible to prevent it through failure . For this, the perpetrator of thwarting the criminal offense would have to hold a guarantee for the prosecution. As a rule, this guarantor status is only incumbent on the members of the law enforcement authorities , so that in such cases criminal obstruction is applicable in the office anyway . This offense, which represents the substantive safeguarding of the principle of legality , provides for an increased range of punishments. Obstruction of punishment, not obstruction of punishment in office, but is z. For example, if employees of subsidy authorities fail to report suspicion of subsidy fraud as required by the Subsidies Act . The same applies to administrative authorities who, contrary to Section 116 AO, do not report suspected tax offenses to the tax authorities.

Criminal defense and § 258 StGB

Preventing criminal offenses is problematic for defense lawyers : they are responsible for properly representing their clients ; Beyond that, however, he may not make any false statements or make any untruthful statements. The defense attorney may, however, ask the person injured who has suffered bodily harm to withdraw the complaint made. In this context, it is also permissible to offer reasonable compensation for pain and suffering.

Other scope

The prevention of punishment relates not only to penalties (including ancillary penalties such as the driving ban ), but also to other measures such as the measures for reform and security , forfeiture or confiscation . There is also no exemption from this if the offender was wrongly convicted in the sense of a miscarriage of justice, since in the rule of law it is always possible to resume proceedings and the convicted person can be expected to follow this path. The payment of a fine by a third party instead of the offender is controversially discussed in the literature as an obstruction of punishment. The case law here rejects the implementation of the offense of obstruction of the punishment, while the literary opinion takes the view that the punishment should always hit the perpetrator and that the purpose would be thwarted if someone else performed it.

Exclusion of the facts

If someone commits a (simple) thwarting of punishment in order to protect his relatives from punishment (or equivalent measures, see above), he cannot be punished for this ( Section 258 (6) StGB).

Thwarting punishment in office, § 258a StGB

Offense

The obstruction of punishment in office ( § 258a StGB) by public officials is a special form of obstruction and is one of the "spurious" official offenses . For these, the law provides for a tightening of penalties with the threat of imprisonment from six months to five years or a fine.

In contrast to the simple avoidance of punishment, the act in favor of relatives is not unpunished here (Section 258a (3) StGB). The interests of the general public, which the public official appointed to participate in criminal proceedings or in the execution of sentences, must take precedence over his consideration for relatives.

Blocking effect of perversion of the law, § 339 StGB

The offense of perversion of justice ( Section 339 of the Criminal Code) has a blocking effect, so that judges can only be prosecuted for criminal offenses that are intrinsically related to the management or decision of a legal matter if they have made themselves punishable for perversion at the same time.

literature

  • Philipp Hürtgen: thwarting those involved in the proceedings. Defense lawyers, judges and public prosecutors in the balancing act between profession and thwarting punishments (= Düsseldorfer jurisprudential writings. Volume 148). Nomos, Baden-Baden 2017, ISBN 978-3-8487-3631-7 (also dissertation, University of Düsseldorf , 2016).
  • Christian Neumann: Reform of the criminal offenses. Favoring, thwarting punishment and receiving stolen goods (§§ 257 ff. StGB). Discussion of reform and legislation since 1870. Monsenstein and Vannerdat, Münster 2007, ISBN 978-3-86582-441-7 (also dissertation, Fernuniversität Hagen , 2006) (PDF).

See also

Web links

Wiktionary: thwarting punishment  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Examples from case law ( thwarting persecution ):
    removal of traces of crime; Escape assistance through vehicle leasing; Leaving a hiding place to prevent wanted people; untruthful information to the police not to know anything; Elimination of investigation files; unjustified refusal to testify.
  2. ↑ Examples from the jurisprudence ( thwarting enforcement ):
    Providing a sham employment relationship for an outdoor worker; deliberately deceptive request for reprieve; deliberately deceptive request for readmission .
  3. ↑ a b Dreher / Tröndle : Criminal Code and ancillary laws , § 258, CH Beck, Munich 1995, Rn. 1.
  4. ↑ BGH, decision of June 24, 2016, Az. 4 StR 205/16, HRRS 2016 No. 842 Rn. 12: “It is not necessary that the prosecution or the ordering of a measure is made completely and definitely impossible; it is sufficient that the previous offender is withdrawn from the punishment or the order of a measure at least for a considerable time ”.
  5. ↑ a b Dreher / Tröndle : Criminal Code and ancillary laws , § 258, CH Beck, Munich 1995, Rn. 2.
  6. ↑ Schönke / Schröder / Hecker: Penal Code, Commentary . 30th edition 2019, § 258a, Rn. 17, ISBN 978-3-406-70383-6 .
  7. ↑ BVerfG , decision of January 15, 2020, Az. 2 BvR 1763/16, full text , Rn. 60 mwN