Connection of immediacy
The criterion of the direct connection with regard to offenses qualified as success was justified by the Federal Court of Justice (BGH) in the so-called Rötzel case . It had to be decided whether the behavior of the accused named “Rötzel” complied with the offense of bodily harm resulting in death (regulated in Section 227 of the Criminal Code ).
facts
In 1970 the BGH had to decide on the following facts: The perpetrator named Rötzel attacked the housekeeper Resi, who worked in the parental household, and inflicted serious injuries ( broken nose and upper arm wound). Fearing further bodily harm , the victim wanted to flee to a balcony . She fell down and was killed trying to escape.
Problem
By accepting a successful qualification , the range of punishment for the offender is drastically increased. Section 227 of the Criminal Code (bodily harm resulting in death) provides for a maximum sentence of 15 years. If you take the action apart and put bodily harm and negligent homicide side by side, you get a maximum sentence of only 5 years for unity . This is why some voices in the literature speak of a “penalty explosion” in this regard. A restriction criterion must therefore be developed.
Decision of the Federal Court of Justice
In this decision, the court for the first time calls for a direct connection between the intentional basic offense (bodily harm as a basic offense ) and the serious consequence (death) in the constellation of the successful qualification “bodily harm resulting in death”. This is to achieve the necessary restriction with regard to the range of punishments. The court denied that the offender was criminally liable under Section 226 of the old version of the German Criminal Code. This was justified with a lack of direct connection, because the death of the victim occurred through his own behavior. Consequently, the "peculiar danger of the basic offense ( § 223 StGB) which the legislature had in mind [when penalizing ] was not reflected ".
Development of case law
In 1992 the BGH ruled again on a situation in which the victim of physical harm with fatal consequences jumped out of the window to avoid the tormentors. The BGH emphasized here that the victim was no longer in their right mind due to the massive violence, and assessed the death as a direct consequence of the bodily harm. The court focuses on the panic reaction of the victim and denies any parallel to the Rötzel case that is still imposing.
In the judgment of October 9, 2002 on the “Gubener Hetzjagd” , in which an asylum seeker was killed while fleeing the perpetrators, the BGH again waived the criterion of the victim's insanity. Overall, the BGH no longer seems to apply the criterion of immediacy developed in the Rötzel case between the basic offense and serious consequences. Instead, the realization of a basic crime-specific (“crime-typical”) risk of death in success is called for. The victim's reaction was "an obvious and understandable reaction to the massive attack by the accused".
literature
- Thomas Rönnau : Basic Knowledge - Criminal Law: A successful offense. In: JuS 2020, pp. 108–112.
- Georg Steinberg : The qualification for success in legal reports. In: JuS 2017, pp. 1061-1067.
Web links
- www.juraexamen.info: The Rötzel case
Individual evidence
- ↑ BGH, judgment of September 30, 1970 , Az. 3 StR 119/70, full text = NJW 1971, 152.
- ↑ Christian Laue: Is a successful attempt at bodily harm resulting in death possible? - BGH, NJW 2003, 150 , JuS 2003, pp. 743-747 (744), beck-online with reference to “Sowada, Jura 1994, 644”.
- ↑ BGH, judgment of March 17, 1992 , Az. 5 StR 34/92, full text.
- ^ BGH, judgment of October 9, 2002 , Az. 5 StR 42/02, full text.
- ↑ BGH, judgment of October 9, 2002 , Az. 5 StR 42/02, p. 20.
