Property fine
The property fine was a legal consequence regulated in German criminal law (Section 43a of the Criminal Code ) since 1992 .
Regulatory content
If a criminal offense explicitly provided for a property fine as a sanction, the court could determine, in addition to a life sentence or a temporary imprisonment of more than two years, the payment of a sum of money, the amount of which was limited by the value of the perpetrator's property. The value of the property could be estimated. The court determined an (additional) custodial sentence which, in the event of uncollectibility, replaced the property penalty (substitute custodial sentence ). The maximum substitute custodial sentence was two years, the minimum one month.
In terms of criminal policy, the property penalty was motivated by the fact that the evidence required for forfeiture that the property came from the crime - for example, the cash came from drug deals or the holiday home in Switzerland had been acquired with a bribe - often could not be provided in court. The legislature therefore wanted to be able to confiscate the perpetrator's assets - no matter where they came from - based on suspicion alone.
Nullity of § 43a StGB
The Federal Constitutional Court declared the property penalty to be incompatible with Article 103, Paragraph 2 of the Basic Law (see: nulla poena sine lege ) and null and void because the legislature had not succeeded in providing the constitutional minimum of statutory provisions for the selection and assessment of this penalty. In the case of a new type of punishment, it is constitutionally necessary to equip the judge with particularly precise, reliable and controllable sentencing rules for the secure application of such a new and “fundamental rights” instrument, which the legislature failed to do.
The decision was not unanimous, the judges Jentsch , Di Fabio and Mellinghoff represented a different opinion , since the property fine in any case in the interpretation by the Federal Court of Justice does not violate the GG. The BGH considered the property fine to be constitutional. The decision of the BVerfG was also received critically in the literature.
See also
Individual evidence
- ↑ BVerfG, judgment of March 20, 2002 , Az. 2 BvR 794/95, full text.
- ↑ BGH, 02/08/1995 - 5 StR 663/94 | OpinioIuris. May 9, 2013, accessed March 12, 2018 .
- ↑ MüKoStGB / Radtke , 1st edition 2003, StGB 43a Rn. 43: “The BVerfG goes beyond the actual goal of the legal certainty of threats of punishment. It creates the risk of not being able to adequately take into account the particular circumstances of the offense and the perpetrator due to too high a degree of legal certainty on the side of the legal consequences of the crime. "
