Sentencing (Germany)

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In German criminal law serves sentencing a guilty reasonable punishment. The court weighs up the circumstances that speak for and against the perpetrator against each other in order to fill in the scope of punishment and to set a certain punishment, the sentence. The assessment of sentences is regulated by law in Section 46 of the Criminal Code. Since the legislature has refrained from defining the meaning and purpose of the sentence, conclusions can be drawn from the context of Section 47 of the Criminal Code that the sentencing rules also serve to defend the legal system .

Principles of sentencing

Basically, the sentencing first requires the determination that a criminal offense was culpably committed. If it remains in the case of a merely unlawful act because there are reasons to exclude guilt or excuse , a measure of reform and protection can be recognized. In Germany, Austria and Switzerland, a measure can also be imposed in addition to the penalty (so-called two-way criminal law ). The measure should be carried out before the punishment (so-called vicarious system ).

The penalty is generally determined according to the severity of the guilt. In German criminal law, the principles of sentencing are laid down in Section 46 of the Criminal Code ; they are differentiated in particular for juvenile criminal law . The starting points for sentencing are:

  • The punishment must be within the scope of the legally established, so-called procedural act .
  • The debt is the benchmark within the criminal framework.
  • In doing so, it is important to consider the impact of the punishment on the offender's future lifestyle (prognosis).
  • The punishment must be proportionate, taking into account the circumstances that speak for and against the offender (sentencing theories, in particular the theory of leeway):
    • Motives of the perpetrator (goals and motives)
    • the conviction and the will of the perpetrator to commit the offense
    • the duty retardance (especially in negligence offenses )
    • the manner of the commission and the consequences of the act
    • the previous life of the perpetrator (here criminal record )
    • the Nachtatverhalten, efforts to damage reparation and the search for a settlement with the victim ( victim-compensation )
    • the offender's sensitivity to punishment (principle of subjective proportionality): dependent e.g. B. on age, personal and economic circumstances, occupation, etc.
  • When weighing up, however, no characteristics of the offense may be included in the assessment of the sentence (since these already establish the scope of the penalty).

In juvenile criminal proceedings, the main focus is on avoiding sanctions . Since young people and in some cases adolescents are still in their personal maturation and development, according to the concept of upbringing in juvenile criminal law, attempts should be made to avoid deviance in the future with educational measures rather than punishment . In the meantime, however, this is - in part populist - questioned in criminal policy in cases in which the principle failed. In the case of juvenile multiple or intensive offenders , the reverse - punishment before or instead of education is required.

Normative sentencing

In principle, punishment has to be justified. Punishment as a reaction to a violation of the law is the last legal remedy (so-called ultima ratio ). Absolute and relative theories of punishment ("punitive purposes") are used to justify them:

The absolute theories of punishment justify punishment as retribution . In isolation, however, the traditional, absolute criminal theories offer only inadequate limitations for the claim to punishment, in particular no proportionality. Only with the development of the Talion ("mirror penalty") was the penalty limited to the injustice inflicted. In retrospect, the absolute theories of punishment are directed towards the act and the perpetrator. Modern absolute criminal theories establish the purpose of punishment in the proportionate retribution of guilt by punishment. Followers of the older absolute criminal theories were Immanuel Kant and Georg Wilhelm Friedrich Hegel .

The relative criminal theories look for the purpose in relation to the perpetrator (special prevention) and to the general public (general prevention). In their negative forms, the perpetrator or the general public should be deterred from committing criminal offenses by holding punishments. The general public should also be protected from the criminal. In its positive expression of the relative criminal theories, the perpetrator should be rehabilitated in order to be able to lead a delinquency-free life in the future. The general public should be admonished and encouraged in their legal compliance (sometimes also represented as a mixed theory or relative theory of retribution). At the same time, however, society should also receive satisfaction for the injustice committed in order to avoid lynching (so-called channeling of punitive needs) and to enable victim trauma to be dealt with.

These purposes of the penalty are to be taken into account when determining the penalty. If the purposes of punishment (especially in the case of retaliation versus rehabilitation) go wrong, one speaks of the antinomy of the purposes of punishment.

The unification theory is mainly represented by the jurisprudence , which tries to bring the different purposes of punishment into a balanced relationship. As a result, the “general general prevention” weighs the heaviest: threatened and imposed punishments are intended to deter people from committing crimes.

Practical sentencing

The sentence is determined on the basis of the purposes of the sentence and weighing the circumstances of the act, the perpetrator and his guilt. The essential incriminating and exonerating circumstances must be stated as such in the judgment. This also typically includes aggravating relevant previous convictions and mitigating confessions showing remorse. However, it is unclear how the subsequent "conversion" into the specific offense will be. As a rule, the court only explains the amount of the penalty with words such as “this penalty is necessary, but also sufficient ”.

The mostly quite wide legal penalties form the basis. The law often opens up special penalties to be considered by the court for particularly severe and less severe cases. The partially optional lowering of the penalty framework for the other general grounds for mitigation must also be examined. They also include a perpetrator-victim balance to be initiated if there is a prospect of success . A formal understanding in criminal proceedings is usually accompanied by a confession that mitigates the penalty .

The margin of discretion that criminal law allows and must allow the criminal court in determining the sentence is considerable. Because the subject matter is the procedural act, as it was presented as the epitome of the oral main hearing to convince this court. The appellate courts can only review the concrete assessment of the penalty for legal errors and mostly only indirectly. Successful complaints are then primarily deficiencies in the written reasons for the judgment, which consist in the fact that the criminal court did not discuss obvious incriminating or exonerating circumstances or did not adequately discuss the amount of the penalty.

Statutory penalties

In principle, attention must be paid to the type of punishment in the procedural act to be convicted.


The fine is a punishment that already occurs in Germanic and Roman criminal law. In the modern criminal justice system, the fine serves as a punishment for minor offenses in order to avoid imprisonment. This reveals both advantages and disadvantages: The fine avoids short prison sentences that are hardly useful in terms of punitive purposes (neither for rehabilitation nor for retaliation). At the same time, however, the fine means that the ultimate personality of the punishment is endangered: Instead of the convicted person, a third party can also pay the fine for him / her (earlier view was the assumption that punishment was thwarted ). This would jeopardize the character of a sanction . However, the numerous small claims proceedings can often be concluded more quickly and more easily with a fine. The fine is calculated in daily rates. A daily rate should correspond to one day's imprisonment. A maximum of 720 daily rates can be sentenced with total penalties, otherwise a maximum of 360 daily rates. The minimum is five daily rates. The amount of the daily rate is supposed to burden the convicted person in such a way that, based on his net income, he is pressed to the level of social assistance for the number of daily rates. The amount moves between € 1 and € 30,000. Although these limitations are necessary because of the requirement of certainty from the rule of law and Article 103, Paragraph 2 of the Basic Law , they are partially lacking in relation to reality: for wealthy offenders the daily rate of € 30,000 can still be a trifle. On the other hand, it is questionable whether the principle of equality is not violated if an act with a sum of money of € 100,000 (10 daily rates of € 10,000) or € 10 (10 daily rates of € 1) is judged. This dilemma is not cushioned by the statutory penalty rules.

If the guilt is lower, however, the judging court still has the option of refraining from the penalty (it remains with a formal guilty verdict, very seldom) or issuing a warning with reservation of punishment (so-called fine on probation ).

It should be noted, however, that the fine has positive effects on legal probation (i.e. future delinquency-free probation) of the convicted person. Relapse is less likely with fines than with prison sentences . This can also be explained by the fact that in many cases these are acts of negligence and also perpetrators with a positive legal prognosis . However, fines may not be combined with measures of reform and security.

If the fine cannot be collected , it is replaced by a substitute imprisonment . This means that as many days of imprisonment as there are still outstanding daily rates.


The prison sentence is the deprivation of liberty that is carried out in prisons . While there used to be a differentiation between fortress detention , penitentiary , prison , confinement and detention , since 1969 there has only been a custodial sentence. The German system differentiates between temporary imprisonment, which can last at least a month and a maximum of fifteen years. A sentence of several hundred years in prison, which is not uncommon in the USA, cannot take place in Germany. Life imprisonment is not an early prison sentence. In this case, the duration of detention is not limited in time from the outset; an actually lifelong enforcement (i.e. until death) is the exception. After 15 years, it is for the first time possible for convicts to apply for early release on probation. (If the court has previously recognized the particular gravity of the guilt , this period is extended.) The Federal Constitutional Court has cautiously rejected previous constitutional concerns about the life imprisonment .

The imprisonment cannot and should not be imposed for less than one month. This is to avoid the de-socializing and deprivatising effects of the deprivation of liberty on the perpetrator. The custodial sentence can be suspended on probation if it does not exceed one year (in exceptional cases : two years) . The probation period is a minimum of two and a maximum of five years. The legal probation of convicts who have received probation conditions is definitely cheaper (if not particularly noticeable) than in the case of imprisonment. Despite the need to appoint a probation officer or a managerial officer, the costs for the state are lower than for incarceration. When the probationary period expires, the sentence is waived.

After serving two-thirds of the sentence (or half in the case of special circumstances in accordance with Section 57 StGB), the remainder of the sentence can be suspended on probation.

Calculation of the penalty based on the penalty limit for competitions

Since the judgment is not related to the material act (the list of all individual criminal offenses), but to the procedural act, the amount of the penalty is determined according to the existing competitions . There are numerous special cases and individual problems that could be discussed. The comments on ideal and real competition refer to both fines and imprisonment.

Unit of action

If there is unity of offense (ideal competition) between the convicted offenses, the penalty is to be assessed in accordance with Section 52 of the Criminal Code: the range of punishment is taken from the most serious offense and increased according to the further offenses committed, whereby the punishment may not be less severe than the other applicable laws allow ( absorption principle or combination principle). In this context, the judge decides the amount of the penalty.

Majority of offenses

In the case of a majority of offenses (real competition) according to Sections 53 , 54 of the Criminal Code, a total penalty is formed. This is usually less favorable for the offender than the sentencing for unity. In principle, the amount of the penalty is limited to fifteen years even in the case of early prison sentences and, if one of the sentences should be life imprisonment, to this same sentence. For all acts that are in real competition, an individual penalty is formed. The total penalty must not reach the sum of the individual penalties. The highest penalty is used as the operational penalty , this is then increased by the further forfeited penalties ( asperation principle ).

Subsequent total penalties

A total penalty can also be created retrospectively . This is a special case of real competition. This occurs if convictions have been issued in the meantime. The regulations for the subsequently formed total penalty are based on Section 55 of the Criminal Code.


Individual evidence

  1. a b Dreher , Tröndle , Criminal Code and ancillary laws, § 46, CH Beck, Munich 1995, no. 3.
  2. Michael Köhler: Criminal law: general part . Springer, 1997, ISBN 3-540-61939-9 , p. 603. This principle is motivated by the goal of creating subjectively the same punitive suffering for the same guilt. At the same time, however, it harbors the danger of “class justice” in that a judgment practice is promoted in which z. B. with reference to culturally or economically justified "sensitivity to punishment" members of the middle class are systematically punished differently than members of the lower class, see Bernd-Dieter Meier: criminal law sanctions . Springer, 2009, ISBN 978-3-540-89063-8 , p. 214.
  3. Federal Constitutional Court, judgment of June 21, 1977, file number 1 BvL 14/76 = BVerfGE 45, 187 (253-259).
  4. ^ Axel Montenbruck : Weighing and revaluation. To determine the penalty for one offense and for several offenses . Duncker & Humblot, 1989, ISBN 3-428-06709-6 .