Alternative Conviction
The alternative conviction is a legal term from German criminal law and describes a situation in which, during criminal proceedings, it is established that the defendant has committed a punishable act, but it is not possible to assign this act with the required certainty to one of several possible scenarios. The alternative conviction is the subject of extensive legal discussion as it touches upon the principles of the requirement for certainty in criminal law as well as the demands on judicial conviction.
Definition and Nature of Alternative Conviction
An alternative conviction is present when the court states in the judgment that it is ‘established with certainty that the defendant committed either Act A or Act B (or one of several specific acts),’ without being able to definitively determine which of the considered alternatives actually occurred. An alternative conviction may play a role in both conduct-based and result-based offences.
Historical Background
The concept of alternative conviction dates back to the case law of the Reichsgericht and was primarily developed in cases where several equivalent alternatives could be considered legally relevant acts that cannot be clearly distinguished from one another based on the evidence. The development of the law is characterized by the tension between the principle of ‘in dubio pro reo’ (when in doubt, for the accused) and the need to sanction blameworthy conduct, provided it can be attributed to the accused with sufficient certainty.
Requirements for Alternative Conviction
Equivalence of the Alternatives
A key requirement for an alternative conviction is that only equivalent statutory alternatives are involved. This means all considered variants must have the same sentencing range and comparable legal consequences. For example, if Offence A and Offence B carry the same penalties and there is no difference in their legal substance, an alternative conviction can theoretically be considered.
Established Proof of the Offence
Furthermore, it must be unquestionably established that the defendant committed at least one of the possible offences. The finding that merely someone committed an offence and that it could possibly have been the defendant is not sufficient according to criminal procedure principles.
Exclusion of Other Alternatives
Other possible courses of action or third-party involvement must be excluded with greater probability, leaving only those alternatives open that permit an alternative conviction.
No Violation of Criminal Procedure Principles
Above all, an alternative conviction must not lead to a reversal of the presumption of innocence or violate the requirement for certainty under § 267 StPO (German Code of Criminal Procedure) or the principle of culpability.
Distinction from Similar Scenarios
Eventual Intent and Multiple Offences
Alternative conviction must be strictly distinguished from situations where an offender fulfills multiple criminal offences at the same time (so-called ideal concurrence) or has eventual intent regarding different offences. In the case of alternative conviction, it cannot be established which of several alternatives actually occurred.
Assumption of Alternative Causation
The assumption of alternative causal courses or forms of participation must also be separated from alternative conviction. In such cases, individual attribution must always be clear and unambiguous; otherwise, a decision must, if necessary, be in favor of the defendant.
Legal Admissibility and Limits
The Principle of ‘In Dubio Pro Reo’
According to the prevailing opinion, alternative conviction is currently only permissible within exceptionally narrow limits. The principle of ‘in dubio pro reo’ requires that, in cases where facts or alternatives cannot be clearly established, the judgment must always favor the defendant. The case law of the Federal Court of Justice emphasizes that, in particular, the requirements for the formation of judicial conviction and certainty about the underlying alternative are especially high.
Requirement of Certainty
It is also essential that the criminal judgment and its operative part are specific, so that it is clear to both the defendant and the legal order for which precise conduct he is being held accountable. This is regularly problematic in the case of a merely alternative conviction.
Exceptional Cases and Practical Importance
With the exception of a few rare cases, such as equivalent variants of bodily harm, alternative conviction is largely inadmissible in German legal practice and, if applied, often leads to the judgment being overturned on appeal.
Typical Scenarios
Coincidence of Two Equivalent Offences
One example is a case where it is established that a person killed another either by poisoning or by drowning, but it cannot be determined with sufficient certainty which means was actually used. If both means of killing qualify as murder under § 211 StGB and there is no difference in penalties, in an exceptional case, an alternative conviction could be considered.
Distinction in Cases of Robbery or Theft
The situation becomes more complex with different types of offences, such as when it is unclear whether a robbery or an armed theft has taken place. Due to the differences in sentencing ranges and offence definitions, alternative conviction is generally not permissible in such cases.
Literature and Legal Sources
- Criminal Code (StGB)
- Code of Criminal Procedure (StPO)
- BGHSt 30, 105
- Roxin, Law of Criminal Procedure
- Fischer, Criminal Code: Commentary
Summary
For reasons of legal certainty and criminal procedure, alternative conviction is, according to today’s prevailing opinion, only permissible in narrowly defined exceptional cases. Case law and legal practice emphasize strict adherence to the requirement of certainty and the principle of ‘in dubio pro reo’. Thus, a conviction may only take place if it is unquestionably established that the defendant committed a criminal act, and when the undetermined alternative has no influence on the sentencing or the wrongdoing of the act. The usual rule is: If there is doubt about the specific variant of the act, judgment must be in favor of the defendant.
Frequently Asked Questions
What legal requirements must be met for an alternative conviction?
For an alternative conviction in criminal procedure, several specific requirements must be met. First, the precise course of events leading to criminal liability cannot be established with certainty after presentation of evidence. There must therefore be an actual scenario involving alternatives, with no doubt that at least one of the alternative scenarios occurred and each fulfills the elements of a criminal offence. It is crucial that, for both (or more) alternatives, the evidence is complete and consistent, so that there are no doubts regarding the defendant’s overall criminal liability, but only regarding the specific modality of the act. The alternatives must be mutually exclusive, so neither scenario can apply simultaneously. In addition, an alternative conviction is only possible if all alternatives carry the same legal consequences and neither the sentencing nor the verdict is inappropriately influenced.
How does the alternative conviction differ from the alternative finding of guilt in the judgment?
With alternative conviction, the court cannot decide between several mutually exclusive alternatives, but it is certain that at least one of them was committed by the defendant. So-called alternative findings of guilt typically involve normatively equivalent offences of wrongdoing. Here, the court may draw different legal conclusions from the same facts and provide alternative legal assessments (for example: the accused could be convicted of fraud or breach of trust). In contrast, alternative conviction involves genuine uncertainty about the actual sequence of events—not about the question of guilt itself, but only about its precise form. The alternative finding in the judgment is therefore an exceptional case, which must be clearly distinguished from the—exceptionally permissible—normative ambiguity in criminal procedure.
For which types of offences is alternative conviction particularly relevant?
Alternative conviction typically arises in cases of so-called ‘alternative causal courses’, such as bodily harm or homicide offences in which it remains ambiguous as to which specific conduct actually resulted in the outcome. A frequently cited example is the uncertainty within a group as to who actually caused a fatal injury, if it is certain that one participant committed the act, but it can no longer be proven beyond doubt which one. Alternative conviction may also be considered in property offences, for example when it cannot be clearly distinguished between theft and embezzlement. Overall, however, its application is rare, as the principle of ‘in dubio pro reo’ (when in doubt, for the accused) only allows for alternative conviction in very narrow, clearly defined exceptions.
Does alternative conviction contradict the principle of ‘in dubio pro reo’?
Alternative conviction does not breach the principle of ‘in dubio pro reo’, provided it is beyond doubt that the defendant committed a criminal offence, yet it remains unclear which of several mutually exclusive sets of facts (with comparable legal consequences) the offender fulfilled. It is sufficient for the court, even after thorough clarification of the facts, to be fully convinced of the general guilt of the offender, though not of the details of the commission of the act. Nevertheless, according to established case law, alternative conviction is only permissible if there is no other option and it applies to scenarios that both carry the same sentencing range and degree of wrongdoing. As soon as the court has doubts about the defendant’s general involvement, an acquittal must be granted according to the principle ‘in dubio pro reo’ (when in doubt, for the accused).
What is the significance of alternative conviction for sentencing?
For sentencing, it must be ensured in the case of alternative conviction that differentiated sentences are only imposed if all established alternatives have identical sentencing ranges and evaluation criteria. Furthermore, no individual aggravating or mitigating circumstances from any unproven alternative may be held against the defendant. The court must clarify in its reasoning that sentencing is based exclusively on secured, proven facts and scenarios. As a rule, alternative conviction only affects the sentence when the respective offences are entirely equivalent, so that no differentiation is necessary and no specific aggravating or mitigating factors of individual alternatives are considered.
How should the alternative conviction be formulated in the judgment?
An alternative conviction must be expressly identified as an alternative decision in the language of the judgment. This means the court must clearly outline in the grounds for the judgment which statutory alternatives are being considered and for what actual reasons a conclusive conviction that only one alternative took place is not possible. For example, the decision may be worded as follows: ‘The defendant injured the victim either by variant A or variant B, but it cannot be established with the required certainty which of these actions caused the result; both, however, lead to the same criminal outcome.’ The legal consequence in the judgment must then apply equally to both alternatives. Failure to meet these requirements would violate § 267 StPO (requirement for statement of reasoning in the judgment).
What role does alternative conviction play in appeal proceedings?
In appellate proceedings, alternative conviction is subject to strict review. The appellate court examines whether the trial court has complied with the legal requirements—particularly regarding the complete and comprehensible clarification of the facts and the reasoning in the judgment. If the alternatives were not clearly subjected to alternative conviction or if explanations regarding the respective legal consequences are missing, this may lead to the judgment being overturned. Additionally, whether both alternatives could in fact and law be deemed equivalent is also subject to appellate review. If the requirements for alternative conviction are not met, either an acquittal must be pronounced or the matter referred back for retrial and decision.
