Concept and classification: prior act, exempt from punishment (punished together)
Die prior act exempt from punishment (punished together) is a concept from German criminal law and describes an independent legal construct. It refers to an act committed before a punishable offense, which in itself fulfills the elements of a criminal offense, but whose punishability is set aside by law or case law because it is ‘punished together’ with a later (at least partially identical) main offense. The aim of this provision is to avoid excessive punishment by sanctioning several offenses committed for the same set of facts (the so-called prohibition of double jeopardy, Art. 103 (3) Basic Law).
The prior act exempt from punishment is of particular importance in connection with so-called joint punishment considerations where several criminal acts are involved, and is highly significant in both the general and special part of the German Criminal Code (StGB). It is to be distinguished from the so-called post-offense punished together, as well as from cases of consumption and statutory concurrence.
Principle and purpose of punishing the prior act together
Significance in criminal law
The principle of the prior act exempt from punishment (punished together) is based on the premise that certain partial acts, which are a necessary component or prerequisite for a more serious criminal offense, should not be threatened with separate penalties, provided that the full extent of the wrongdoing is already covered by the main offense. The prior act is thus superseded in criminal law by the subsequent act. This serves to prevent so-called double prosecution of the same element of wrongdoing.
Legal basis
The legal doctrine of the prior act punished together is not expressly regulated by law, but has been developed through constant case law and doctrine. The decisive factor is that the wrongdoing of the prior act is fully or at least predominantly absorbed into the wrongdoing of the subsequent main offense.
Requirements and areas of application
Requirements for the prior act punished together
The assumption of a prior act exempt from punishment (punished together) requires:
- Identity of the wrongdoing: The wrongdoing of the prior act coincides entirely or predominantly with the wrongdoing of the main offense.
- Close factual, temporal, or substantive connection: There is an intrinsic link between the prior act and the main offense, often in the sense of a natural unity of action.
- No statutory threat of punishment for the prior act as an independent offense if it coincides with the main offense: The punishability is absorbed by the main offense.
Practice-relevant examples
A typical example is the forgery of a document as preparation for its use. If the forged document is later used in legal transactions, only the use of the forged document is regularly punished—the production (forgery) itself is considered as a prior act punished together in this context (§ 267 StGB).
A similar situation occurs in theft, which is often preceded by unlawful entry, which is then consumed as part of the offense and thus remains exempt from punishment as a prior act punished together, as long as there is continuity in action and wrongdoing with the theft.
Distinction from similar legal constructs
Post-offense punished together
In contrast to the prior act punished together, post-offense punished together refers to an act committed after the main offense, which is also absorbed into the wrongdoing of the main offense (such as escape after a crime in robbery with increased danger).
Statutory concurrence and consumption
In the case of statutory concurrence the question is whether several criminal norms apply consecutively or whether one provision ‘supersedes’ the other (speciality, subsidiarity, consumption). The prior act punished together is a subcategory of consumption, where the wrongdoing of a prior act is absorbed into the wrongdoing of a more comprehensive criminal offense.
Case law and examples from practice
Sample decisions
The decisions of the highest courts (e.g., BGHSt 15, 330) rely on the principle that, for example, unauthorized leaving of the scene of an accident in the context of intentional bodily injury committed with a motor vehicle is not to be punished separately if it is closely related to the main offense.
Offense-specific application
- Document-related offenses: The forgery and subsequent use of the forged document are usually regarded as a natural unity of action.
- Offenses against property: Concealing an item after the completion of theft can be considered a post-offense punished together if it solely serves to secure possession.
Legal consequences and impact on sentencing
Influence on sentencing
By considering the preliminary act as a prior act punished together, the court may include the entire wrongdoing—including the punished preliminary acts—in sentencing, but must not impose a separate sentence for them.
Impact on procedural bars to prosecution
Once a prior act punished together is taken into account, this precludes further prosecution for the same set of facts under Art. 103 (3) Basic Law (ne bis in idem).
Special cases and exceptions
Multiple completed offenses
If the prior act and main act are each completed, independent offenses with different wrongdoing and different victims, joint punishment is generally not permitted and separate prosecution is required.
Continued commission of offenses
In the case of continued or multi-act offenses, the specific circumstances of the individual case determine whether a partial act is merely a prior act punished together or constitutes an independent offense.
Summary
Die prior act exempt from punishment (punished together) is an essential concept for structuring the criminal liability of multiple-act criminal scenarios in German criminal law. It serves to avoid double punishment and enables appropriate sentencing. The precise distinction from other legal constructs, such as post-offense punished together, statutory concurrence, and consumption, is often complex and is significantly influenced by case law and individual decisions. Understanding the principles of the prior act punished together is central for understanding sentencing and concurrence in criminal law.
Frequently asked questions
How does the prior act exempt from punishment (punished together) differ from the post-offense punished together?
The prior act exempt from punishment (punished together) and the post-offense punished together are both situations in which an act remains exempt from punishment because it is already punished as part of another main offense (consumption). The distinction is made according to the temporal relationship to the main offense: the prior act precedes the main offense either as a matter of elements or factually (‘preparatory act’), while the post-offense follows the main offense (‘subsequent act’). A classic example of a prior act punished together is the theft of a weapon that is then used in a robbery: the theft of the weapon would be a prior act exempt from punishment, as it is absorbed as a preparatory act in the robbery. By contrast, erasing traces after a theft is a post-offense act, which under certain circumstances (e.g., perverting the course of justice) can be prosecuted as an independent offense and is less often absorbed in the main offense. This distinction is relevant for the question of whether and how an act is taken into account in criminal law or prosecuted independently.
What requirements must be fulfilled for an act to be considered a prior act exempt from punishment (punished together)?
For a punishable prior act to be considered exempt from punishment (punished together), there must be a close connection with the main offense and its commission must promote or prepare the main offense. Furthermore, the prior act must lose its criminal significance within the main offense, i.e., it is fully covered by the assessment of the main offense (exclusion of concurrence by consumption). A typical requirement is that both acts are directed against the same legal interest or constitute a unified set of circumstances. Another criterion is that the punishability of the prior act, from the perspective of wrongdoing, is fully compensated by the subsequent main offense—for example, breaking into a building that only takes place to subsequently commit a theft. The prior act is then regarded as an inseparable partial act and is disregarded in the criminal proceedings.
To what extent does the subjective element (intent) play a role in the prior act exempt from punishment?
For the assessment of the prior act exempt from punishment (punished together), the subjective element, particularly intent, is also of great importance. At the time of committing the prior act, the offender must already have had the intent or at least the plan to commit the main offense later on. If this connection is lacking, the prior act—e.g., an independent theft unrelated to the subsequent offense—should be treated as an independent offense. The case law regularly requires a unified decision of intent, meaning that the prior act occurs as a preparatory part of the subsequent main offense and not merely as an accidental preceding act. The subjective mastery over both actions enables the consumption and thus the exemption from punishment of the prior act.
How does the prior act exempt from punishment (punished together) affect the sentencing of the main offense?
Although the prior act exempt from punishment is not prosecuted as an independent offense, its wrongdoing can be considered in the sentencing of the main offense. In cases of especially intensive or dangerous preparatory acts, such as particularly advanced break-in techniques for a planned theft, the crime may be assessed as especially well-planned or dangerous and thus be considered aggravating for sentencing purposes. Nevertheless, the prior act is formally disregarded, but materially considered as an indicator of criminal energy or professionalism. Courts weigh in the sentencing decision to what extent the preliminary actions indicate an increased degree of guilt or dangerousness on the part of the offender.
What is the significance of the prior act exempt from punishment (punished together) for the commencement of attempt?
The distinction between the prior act exempt from punishment (punished together) and the commencement of attempt is significant from a criminal procedural perspective, as higher thresholds for intervention usually apply to attempted offenses in investigations. Preparatory actions that precede a subsequent main offense are generally considered prior acts exempt from punishment, provided there is not yet an objective manifestation of the intent to commit the main offense. Once the offender crosses the threshold to an attempt (immediate steps toward commission), there is no longer a mere prior act exempt from punishment, but the liability for attempt begins. The distinction is made, depending on the type of offense, by assessing the individual case for risk or proximity to completion.
Are there exceptions in which a prior act is not exempt from punishment and is prosecuted separately?
Yes, exceptions exist: In particular, if the prior act has its own wrongdoing independent from the main offense or is directed against a different legal interest, separate prosecution is necessary. This also applies if the prior act was committed by a different or additional perpetrator (e.g., co-perpetrator or participant constellation) who is not or is differently involved in the main offense; in such cases, separate prosecution is carried out. Furthermore, the law may expressly prescribe a qualification or special criminal liability for certain preparatory acts, as is the case, for example, with armed residential burglary (§ 244a StGB) or for the preparation of a serious act of violence endangering the state (§ 89a StGB). In such constellations, the prior act is not consumed by the main offense and is punished separately.
