Definition and Explanation of the Term Alternative Conviction
Alternative conviction is a term from criminal procedure law describing a special form of conviction. It occurs when the court convicts a defendant for one of several possible criminal offenses without establishing which specific offense was actually committed. Alternative conviction stands in contrast to the clear determination of a particular offense. The aim of alternative conviction is to respond to situation-based uncertainties that make a precise determination of the events impossible, but nevertheless make it certain that a criminal act has been committed.
Legal Basis of Alternative Conviction
Statutory Provisions
Alternative conviction is not expressly regulated by statute in German criminal procedure law. Instead, it arises from prosecutorial practice and in particular from the application of the general principles of substantive criminal law and criminal procedure law. Of fundamental importance is the principle of ‘in dubio pro reo’ (when in doubt, for the accused), which must not be violated even in the case of alternative findings.
Distinction from Determinative Conviction
Alternative conviction is closely related to the so-called determinative (Wahlfeststellung) conviction, but differs in important respects. In the case of determinative conviction, at least two alternatives are ascertainable with certainty, although it cannot be established which was in fact committed. In contrast, alternative conviction means that the court cannot reach a final conclusion between several alternatives, but each course of action would independently constitute a punishable offense.
Requirements for an Alternative Conviction
Unresolvable Facts
An alternative conviction is only permissible if the facts cannot be established with certainty despite all reasonable efforts at clarification, but it is certain that a criminal act has been committed. Unresolvability must not be due to inadequate fact-finding by the prosecuting authorities.
Equal Punishability of the Alternatives
Another requirement is that the possible alternatives must be largely equivalent in terms of their severity under criminal law and expected punishment. Otherwise, alternative conviction could violate the prohibition of analogy and the principle of definiteness under criminal law. This is what principally distinguishes alternative conviction from genuine determinative conviction.
Lack of Determination of the Act
Alternative conviction requires that, although the court cannot determine exactly which of the alternatives was realized, it is established that at least one of these alternatives is correct and each constitutes a separate criminal offense. The alternatives must be mutually exclusive.
Limits and Impermissibility of Alternative Conviction
Alternative conviction is subject to strict limitations due to the principle ‘nulla poena sine lege certa’ (no punishment without a certain law) and the requirement of definiteness under Art. 103(2) GG. A conviction in alternative form is not permitted if it results in an inadmissible increase in punishment or if the defendant is not accused of a clearly defined act.
In particular, alternative conviction must not circumvent the requirements for individualizing the act in the judgment’s reasoning. Because criminal law demands precision in charges, alternative conviction is handled rather restrictively in practice and is generally only allowed in exceptional cases.
Case Law on Alternative Conviction
In case law, it is recognized that alternative conviction is only permissible under strict observance of the aforementioned principles. In particular, it must always be excluded that the defendant is convicted for a combination of several alternatives (prohibition of double jeopardy for the same act).
The Federal Court of Justice has repeatedly emphasized that alternative conviction is an extremely narrowly limited exception and must not result in uncertainties in the facts of the case leading to a blanket conviction by federal or state courts.
Judgments in which alternative convictions were considered permissible involve, for example, cases where the court could not determine whether a defendant had stolen stolen goods or received stolen goods, but in both cases an independent criminal liability existed.
Systematic Significance in Criminal Law
Function in Criminal Proceedings
Alternative conviction ensures the effectiveness of prosecution in rare constellations where a precise determination of the offense is objectively impossible, but a punishment must nevertheless be imposed. It is intended to prevent individuals from avoiding punishment due to not fully explainable details despite proven guilt. However, its application remains strictly limited to prevent endangering the due process principles of criminal procedure.
Relationship to the Principle of Guilt
The principle of guilt and the principle of individual acts require every criminal conviction to relate to a clearly defined factual event. Therefore, alternative conviction may only override these requirements in exceptional cases. Its admissibility must always be subjected to a precise judicial justification.
Criticism and Reform Discussions
In the literature, alternative conviction is sometimes viewed critically because it potentially violates the requirement of clarity in criminal law and could weaken the protection of individuals against state arbitrariness. Proponents, on the other hand, point to the practicality of the regulation, particularly in cases where complete clarification is not possible even with the utmost care.
There have been occasional calls for the requirements for alternative convictions to be more precisely regulated by statute to improve legal certainty and uniformity.
Summary
Alternative conviction is an exception in German criminal procedure law that allows the court, in rare cases, to convict a person alternatively between several distinct modes of commission, provided each in itself constitutes a criminal offense, and precise determination of the act remains impossible despite all efforts. However, it is subject to strict statutory, constitutional and doctrinal limits and can only be applied with strict observance of the ‘in dubio pro reo’ principle.
Source reference: This article is based on standard literature and current case law, in particular the decisions of the Federal Court of Justice (e.g. BGHSt 7, 103), as well as relevant textbooks on criminal procedure law and commentaries on the Code of Criminal Procedure.
Frequently Asked Questions
What is the procedural significance of an alternative conviction?
Alternative conviction has considerable procedural importance in criminal proceedings, as it enables the court to convict a person of a criminal offense even if it cannot be definitively established which of several potential courses of action actually occurred. It is required that all possible alternatives carry the same degree of illegality under criminal law and result in similar legal consequences. Through the alternative conviction, the court expresses that the defendant has committed at least one of the acts in question unlawfully and culpably, even if it cannot unequivocally determine which one—while not all possible acts need to have been committed together. For sentencing, it is important that even in an alternative conviction, the court takes into account the aggravating or mitigating nature of each alternative. Procedurally, an alternative conviction is particularly considered if, despite exhausting all reasonable evidence, an unequivocal determination of the actual course of events is not possible, but the defendant’s guilt is clear in at least one variant.
When is an alternative conviction permissible and what legal requirements must be met?
An alternative conviction is only permissible if, after exhausting all reasonably available evidence, it can be established with certainty that at least one of several alternative acts that meet the same criminal definition and have the same degree of wrongfulness actually took place. According to case law, the possible alternatives must not result in the fulfillment of differently qualified criminal offenses; otherwise, the principle of definiteness (Art. 103(2) GG) would be violated. For each possible alternative, the statute of limitations must also be observed, and there must be no substantive legal obstacles, such as grounds for lifting or mitigating punishment. The indictment must be formulated in the alternative and clearly specify the respective variants of action. In the case of a so-called genuine alternative indictment, the court may not convict beyond the alternatives (prohibition of exceeding the indictment under § 264 StPO).
What is the significance of the requirement of definiteness in the context of alternative conviction?
The constitutionally enshrined requirement of definiteness in Art. 103(2) GG demands that the criminal judgment makes it unequivocally clear which specific offense the defendant has committed. An alternative conviction is only compatible with the requirement of definiteness if the court can reliably exclude that the facts are being judged in a manner that contradicts the principle of definiteness. In essence, this means that the legal and factual alternatives must be judged as equivalent, there must be no divergence in the sentencing framework, and both alternatives must carry the same consequences for the establishment and termination of criminal liability. Otherwise, the defendant would not be sufficiently clearly and precisely threatened with legal consequences.
What is the relationship between alternative conviction and the doctrine of statutory concurrence?
Alternative conviction must be distinguished from the so-called doctrine of concurrence, especially when assessing unity and multiplicity of offenses. In the case of alternative conviction, it is not established whether one or the other act (or variant) was carried out, which is why there is no legal assessment of several acts side by side, but rather the court arrives at a single judgment of guilt within an alternative sequence of events. In contrast, in cases of unity or multiplicity of acts, it is established that both (or several) acts were in fact committed independently, and these are assessed side by side.
What are the court’s documentation and reasoning obligations in an alternative conviction?
The court is obliged in its judgment to document precisely for what reasons and in what way alternative conviction occurs. This particularly concerns setting out why, based on the evidence, at least one of the alternatives was established as certain, but the specific variant could not be determined. At the same time, the court must explain fully and comprehensibly in its judgment that all alternatives are to be treated as equivalent and legally identical. For sentencing, it should also be recorded on what basis the penalty was determined, specifically if the more serious alternative was used and whether this worked to the defendant’s disadvantage. An inadequate justification can lead to the reversal of the judgment in appellate proceedings.
What is the significance of alternative conviction in appellate proceedings?
In appellate proceedings, it is examined with particular care whether the substantive and procedural requirements for alternative conviction have been met. The appellate court pays special attention to whether the lower court has allocated the alternatives with the degree of certainty required by law, whether there has been an inadmissible mixture of alternatives with different degrees of culpability, and whether the judgment meets the requirements for definiteness. If the appellate court finds that one of the alternatives is not time-barred or substantively unfounded, the judgment may be reversed or restricted. Faulty alternative convictions are a frequent reason for complaints in appellate proceedings, often due to formal errors in executing the judgment.
What are the effects of an alternative conviction on security measures and claims for damages?
In the event of an alternative conviction, the court must also carefully examine whether and to what extent any legal consequences such as measures for improvement and security (e.g., placement under §§ 63, 64 StGB or confiscation under §§ 73 ff. StGB) and civil claims (e.g., adhesion proceedings) can be ordered. For such legal consequences, it is regularly required to have sufficiently certain proof of a specific act, so an alternative conviction may, in individual cases, mean that certain legal consequences cannot be imposed. In particular, claims for damages that would have to be based on a concretely proven act may not be enforceable due to the lack of establishment of a specific variant.
