Defense of the legal order
The defense of the legal system is a term used in German sentencing law and, in the context of the imposition of short sentences and suspension on probation, describes the need to impose or enforce the sentence in order to maintain trust in the rule of law or in the inviolability of the law .
Sentenced to a short term of imprisonment
When regulating the short term of imprisonment , the law stipulates a rule-exception relationship in Section 47 of the Criminal Code . Without legal regulation, the legal priority of the fine would follow from the principle of proportionality in the case of minor penalties . However, the court will impose a custodial sentence of less than six months if special circumstances relating to the act or the personality of the perpetrator make it essential to impose a custodial sentence to act on the perpetrator or to defend the legal order (Section 47 (1) StGB) .
The express establishment of the rule-exception relationship shows that the word "essential" means more than just "necessary" and "proportionate". "Indispensable" means that the reasons for a short imprisonment are "almost palpable in their stringency".
The trust of the population in the protection of the legal system depends essentially on the fact that the rules of the legal system are enforced, for example, against persistent recidivists , using tough means if necessary. A prison sentence of less than six months can also be required against first-time offenders. However, if the perpetrator has not yet been punished, there are increased requirements for the reasons. In such cases in particular, additional discussions are required in the judgment as to why the imposition of a custodial sentence cannot be waived.
Denial of parole
In the case of imprisonment of more than six months, but not more than one year, the court suspends the execution of the sentence if the social forecast is favorable in accordance with Section 56 (1) StGB. In the case of special mitigating reasons, which lie in the act or in the personality of the accused, for example a prison sentence that is deemed to have been served by offsetting pre-trial detention, a prison sentence of up to two years can also be suspended ( Section 56 (2) StGB).
According to Section 56 (3) of the Criminal Code, however, enforcement is not suspended if the defense of the legal system so requests.
The suspension of sentence can only be refused to defend the legal system if the waiver of the execution of the sentence with regard to serious peculiarities of the individual case would have to appear incomprehensible to the general sense of justice and this could shake the trust of the population in the inviolability of the law ( positive General prevention ).
Certain groups of offenses may not be generally excluded from the possibility of suspension. It is always necessary to weigh up the individual case, in which the act and the perpetrator must be fully assessed.
For example, suspension of punishment following a fatal traffic accident in the event of grossly illegal and inconsiderate behavior on the part of the motor vehicle driver in road traffic is out of the question. Conversely, if there are special circumstances within the meaning of Section 56 (2) StPO, such as partial serving, long proceedings and slight negligence, the suspension of punishment may not be refused.
Web links
- Wolfgang Heinz : The criminal law sanctioning system and the sanctioning practice in Germany 1882 - 2001 Status: reporting year 2001, version: 6/2003
Individual evidence
- ↑ BGHR, StGB, § 47 Paragraph 1, Circumstances 7, NStZ 1996, 429; BGH StV 1994, 370 each with further references
- ↑ BayObLG JZ 1989, 696
- ↑ OLG Hamm, Traffic Law Collection (VRS) 96, 191
- ↑ OLG Hamm, decision of December 18, 1997 in 1 Ss 1425/97
- ↑ Carsten Krumm : How to check the probation decision according to § 56 Abs. 2 StGB , beck-blog, December 14, 2013
- ^ BGH, decision of April 13, 2011 - 2 StR 665/10
- ↑ BGH, judgment of December 8, 1970 - 1 StR 353/70 = BGHSt 24, 40; Thomas Fischer : Criminal Code: StGB with ancillary laws , 58th edition. § 56 Rn. 16
- ↑ BGHSt 24, 40, 46; LK / Hubrach StGB, 12th edition, § 56 Rn. 57
- ^ Higher Regional Court of Karlsruhe, decision of March 28, 2008 - 1 Ss 127/07
- ↑ Brandenburgisches OLG, decision of December 23, 2008 - Az. 1 Ss 85/08
