Concept and legal nature of the independent co-offender (Nebentäter)
The term Nebentäter in German criminal law refers to a specific form of perpetration, particularly distinguished under the doctrine of perpetration and participation. Nebentäterschaft exists when several individuals, acting independently but without conscious cooperation, jointly and objectively fulfill the elements of a criminal offense. In contrast to co-perpetrators or participants, the Nebentäter does not act in a divided fashion but independently, whereby the individual contributions can, however, lead to a legal unity.
General definition
A Nebentäter is a person who, alongside other offenders, independently commits a criminal offense in material law, but at the same time and regarding the same object of the offense, without a shared plan or conscious cooperation with the others. Each perpetrator acts in parallel, and the individual contribution is sufficient for the success of the offense or combines to achieve that success. The distinction to co-perpetration, participation (instigation, aiding and abetting), and perpetration must be made precisely.
Historical development
The concept of Nebentäterschaft was primarily developed with the introduction and elaboration of the perpetrator theory in the 19th and 20th centuries, to address case situations where there is no conscious cooperation among several involved parties, yet the crime is still committed by several independently acting individuals. Case law and legal literature have refined the figure of the Nebentäter for differentiated attribution of responsibility in constellations without coordinated cooperation.
Distinction from co-perpetration and participation
A central concern when defining the term Nebentäter is its distinction from other multi-person situations in the commission of an offense.
Co-perpetration (§ 25 para. 2 StGB)
In co-perpetration several people act on the basis of a common plan of action in a cooperative manner, with each contributing significantly and attributing the crime to themselves as their own. In contrast, Nebentäterschaft lacks a shared criminal plan and conscious cooperation; the contributions of each offender are strictly separate and based on independently made decisions.
Participation (Instigation and Aiding, §§ 26, 27 StGB)
Die Participation is characterized by the encouragement or prompting of the principal offense by another person. The participant does not carry out the offense themselves but supports or incites another to commit the offense (as instigator or accomplice). Nebentäter, on the other hand, act directly themselves without mutual encouragement.
Competition between Nebentäter
There is no co-perpetration, but rather Nebentäterschaft, for example, when two separate fires are set simultaneously in different parts of a building without any prior arrangement, the building is destroyed by both acts, and each action by itself is already dangerous.
Requirements and typical case scenarios
Requirements for Nebentäter
- Subjective independence: Each Nebentäter commits their offense based on their own individual decision.
- Lack of cooperation: There is no prior agreement or shared criminal plan.
- Objective participation: Multiple individual acts affect the same legal interest or combine to result in fulfillment of the offense.
Typical case scenarios
- Two people independently administer a fatal dose of poison to the same person; both doses result in death.
- Two drivers, racing, consecutively injure the same pedestrian severely, where each act alone is dangerous.
- Two thieves simultaneously steal valuables from the same shop from different sides through independent actions.
In these cases, the absence of a common plan of action is decisive.
Legal consequences of Nebentäterschaft
Attribution of success
Each Nebentäter is criminally liable for the entire result of the offense, as far as their own contribution could have caused or was a (co-)cause of the result. In the context of causality and objective attribution, it is examined to what extent the individual’s actions contributed to fulfilling the offense.
Competition
With regard to the law of competition, it is decisive whether the contributions to the offense mutually exclude each other or have a cumulative effect. As a rule, Nebentäterschaft results in simultaneous favoring (concurrence in the same act), but multiple offenses can also occur if the individual actions can be distinguished.
Distinction from co-perpetration in individual cases
The legal doctrine of Nebentäterschaft requires careful case-by-case analysis. In borderline cases, the distinction can be difficult, particularly when:
- there is no explicit agreement, but de facto cooperation exists,
- the actions overlap or complement each other,
- awareness of the other offense may be present.
In such cases, careful assessment must be made based on indications of intent and the external sequence of events.
Nebentäterschaft in substantive and procedural law
Significance in substantive law
In substantive law, each Nebentäter is to be punished independently, with individual contributions and intent to be evaluated. The perpetrators are not held liable as co-perpetrators but according to their own actions and subjective side of the offense.
Procedural aspects
There are no special procedural rules for Nebentäter in criminal proceedings. If the clarification of the facts cannot be done jointly — as with co-perpetrators — the parties must be questioned and assessed individually. Conviction and sentencing depend on the individual act and degree of guilt.
Literature and further information
- Claus Roxin: Criminal Law – General Part
- Wolfgang Joecks: StGB Study Commentary
- BGH, decision of 21.03.2002 – 1 StR 420/01
This comprehensive encyclopedia article provides a detailed, structured, and legally sound presentation of the term ‘Nebentäter’ in German criminal law and serves the precise distinction and legal classification of multi-person relationships in offenses.
Frequently Asked Questions
Can Nebentäter be punished differently even though they acted together?
Yes, Nebentäter can be punished differently and independently of each other, even if they committed the offense together. This follows from the principle of individual culpability (§ 46 StGB) and the personal determination of penalty. Each participant is judged according to their own culpability and the specific circumstances personally relevant to them. What is decisive is the extent of each Nebentäter’s contribution to the crime, the degree of intent, and whether, for example, mitigating or aggravating circumstances (confession, prior convictions, motives, etc.) apply to them. Also, personal reasons for immunity from or exemption from punishment (e.g., self-defense) may exist for individual Nebentäter, resulting in acquittal for that perpetrator while others are still convicted.
What role does the will to exercise control over the act play in distinguishing co-perpetrators from participants?
In German criminal law, control over the act is the decisive criterion for distinguishing between co-perpetration (§ 25 para. 2 StGB) and Nebentäterschaft or participation (instigation or aiding and abetting). Nebentäter act together to fulfill the elements of an offense, but they lack the consciously coordinated division of labor (‘joint plan of action’) characteristic of co-perpetration. For Nebentäter, it is typical that each acts with independent motives and independently, without a coordinated plan, but objectively contributes to the crime. A participant, by contrast, lacks their own control over the act; they only help carry it out (aiding and abetting) or induce another to commit it (instigation).
Does a Nebentäter have to fully comprehend the crime in order to be held criminally liable?
No, a complete overview of the entire crime is not required for criminal liability as a Nebentäter. It is sufficient if each Nebentäter recognizes and intends the essential circumstances of their own contribution and the resulting concrete action. The Nebentäter must act with intent, directed to their own act and its decisive circumstances. They need not have detailed knowledge of the precise intentions or actions of the other participants, as long as their own contribution is relevant to the shared result.
How is criminal liability assessed if one of the Nebentäter forms intent only later?
If a participant enters the course of events at a later time and, from then on, provides their own contribution, they are criminally liable for their share as a Nebentäter. However, retroactive effect of their intent before the commencement of their own actions is not possible. This means that their criminal liability only begins at the point in time at which they actively join and make a relevant, objective contribution to the realization of the offense. They are generally not liable for acts committed before forming intent (except in cases of subsequent co-perpetration, which, however, is highly problematic and largely rejected in legal literature).
Which offenses are generally suitable for commission by Nebentäterschaft?
Nebentäterschaft is generally possible in all offenses that are not genuine special offenses, i.e., in acts that anyone can commit. In genuine special offenses (crimes that can only be committed by certain groups, e.g., official offenses), Nebentäterschaft is possible only if all parties meet the necessary perpetrator qualifications. In practice, Nebentäterschaft is often found in property and financial offenses (such as theft and fraud), but also offenses such as bodily injury or damage to property, provided that the statutory element ‘acting jointly’ does not specifically require co-perpetration.
Can Nebentäter also be punished for attempt?
Yes, Nebentäter can also be punished for attempt under §§ 22, 23 StGB, provided they act with intent and—regarding their contribution—by directly initiating commission of the offense. It is necessary that at least one of the Nebentäter performs an act which, according to their view, directly leads to fulfilling the offense. Withdrawal from attempt under § 24 StGB is also possible for Nebentäter, but only insofar as the individual Nebentäter voluntarily and effectively renounces their own contribution.
How does the conduct of a Nebentäter after the crime affect the determination of the penalty?
The behavior of a Nebentäter after the offense can have a mitigating or aggravating effect on sentencing. For example, restitution or confession can lead to a reduced sentence. Conversely, fleeing, obstructing investigations, or threatening witnesses can be considered as aggravating. The individual assessment of conduct after the act takes into account the personality of the perpetrator and their relation to the crime and its consequences.
Must Nebentäter be present to commit an offense jointly?
Physical presence at the scene is not a necessary requirement for Nebentäterschaft. The decisive factor is the objective contribution to fulfilling the elements of the offense, regardless of whether a Nebentäter is present at the scene. A Nebentäter can, for example, significantly contribute by preparing or creating opportunities for the crime without being physically on site. The attribution depends primarily on whether the contribution was adequately causal for the commission of the offense and was intentional.
