Definition of terms and foundation of the asperation principle
Das Asperation principle is a principle in criminal procedure law that regulates how, in the presence of multiple offenses or legal violations committed by a person, the legal consequences—especially the sentences—are to be determined. This principle is particularly relevant in the context of so-called real concurrence (multiple acts). The objective of the asperation principle is to appropriately increase the sentence in proportion to the offender’s guilt, without simply adding together all individual penalties.
Historical development of the asperation principle
The asperation principle developed over the course of legal history as a counterweight to the accumulation principle, which would simply total up the punishments for multiple offenses. From a historical perspective, the asperation principle was intended to prevent sentences from being inappropriately high in cases of multiple offenses or ideal concurrence, thus safeguarding human dignity and the principle of culpability.
Areas of application for the asperation principle
Criminal law significance
The asperation principle is central to criminal law, specifically in the formation of aggregate criminal sanctions (§ 54 of the German Criminal Code). It is applied when multiple penalties for separate, independent offenses need to be imposed on one person.
Multiple acts (real concurrence)
Multiple acts refers to the commission of several legally independent acts, each of which would warrant an individual sentence. Instead of adding up the individual sentences, the asperation principle provides for an increase in the highest individual sentence, such that the other penalties are taken into account, but not fully added on. The total penalty framework, which requires justification, is derived from the most severe individual sentence, which is increased by an “asperated”, that is, moderate, increment.
Difference from ideal concurrence (unity of act)
In cases of unity of act, where multiple criminal laws are violated simultaneously by a single act, the asperation principle in its pure form is less relevant. Here, judgment is often made based on the sentencing framework of the most serious law (absorption principle), although consideration is given to the further violated criminal provisions.
Application in administrative offenses
In administrative law, such as in regulatory offenses, the asperation principle may be applied, for example, when imposing sanctions for multiple administrative violations by a single individual. Adding up all the fines is not permitted; instead, an increment is made with consideration of the entirety of the circumstances.
Legal structure in Germany
Statutory foundations
Section 54 German Criminal Code (StGB)
German lawmakers explictly set out the asperation principle in Section 54 (1) StGB:
“If an aggregate sentence is formed against a convicted person due to several offenses, a total sentence commensurate with the guilt shall be determined by increasing the most severe penalty.”
The wording makes clear the shift from mere addition and emphasizes sentencing in proportion to culpability.
Relation to the accumulation principle
In addition to the asperation principle, there is the accumulation principle (addition of all individual penalties) and the absorption principle (only the highest penalty), but in German criminal law practice, both are only applied subsidiarily or as a supplement compared to the asperation principle.
Systematic classification
The asperation principle is to be understood as a concretization of the culpability principle and the principle of proportionality. It prevents excessive punishment in the case of repeated infringements by a natural person.
Practical significance and application
Formation of aggregate sentences
In criminal practice, application of the asperation principle means the court takes the highest individual sentence as the basis and then sets an appropriate increment. The amount and extent depend on factors such as the number and weight of the additional offenses, the circumstances, the degree of wrongdoing, and the guilt involved.
Guidelines for determining the increment
Although the law does not prescribe a rigid calculation, there are established principles recognized by case law and legal literature:
- Upper limit: The total sentence may not exceed the legal maximum for any individual offense (for example, the absolute maximum for imprisonment must be observed).
- Justice in individual cases: Each case must be evaluated considering the total guilt and all circumstances.
- Prevention of excessive punishment: The sanction remains commensurate with the offender’s guilt and within the limits appropriate to the individual.
Legal protection and review
If, from the perspective of the convicted person, the asperation principle is applied unlawfully (such as an excessive increment to an individual sentence), a legal remedy may be pursued. Review of the aggregate sentence by higher courts ensures compliance with the principles of the asperation system.
International perspectives on the asperation principle
The asperation principle, in a similar form, can also be found in other legal systems. Many continental European countries such as Austria and Switzerland, as well as most jurisdictions with codified criminal law systems, consider in aggregate sentencing the objective of preventing excessive punishment and make use of the asperation system either explicitly or implicitly.
Distinction from other principles
Accumulation principle
The accumulation principle provides for the addition of individual sentences without limitation. In contrast, the asperation principle determines the total penalty in a more differentiated way through the formation of a sentence-increasing increment.
Absorption principle
The absorption principle confines itself to applying only the highest individual penalty and ignores the remaining offenses entirely, which can be perceived as too lenient. Thus, the asperation principle provides a middle ground between accumulation and absorption.
Criticism and reform discussions
Despite its wide acceptance, the asperation principle remains a subject of legal scholarly debate. For example, its fluctuating maximum limit for total sentences and the lack of mathematical precision regarding increments are criticized. Nevertheless, the regulation proves to be a practical and case-appropriate solution in judicial practice.
Conclusion: Significance of the asperation principle in the legal system
The asperation principle is a fundamental tenet in criminal and regulatory offenses law. It ensures punishment commensurate with the offender’s guilt in cases of multiple violations and protects against excessive accumulation of penalties. Thus, it finds a position between the extremes of accumulation and absorption, contributing to the constitutionally compliant implementation of the principle of culpability in modern German and continental criminal law.
Sources:
- German Criminal Code (StGB) § 54 Aggregate Sentence
- Fischer, Criminal Code and Supplementary Laws, Commentary, current edition
- Schönke/Schröder, Criminal Code, Commentary
- Kühl, Criminal Law General Part
Frequently Asked Questions
What practical significance does the aspiration principle have in German criminal law?
The aspiration principle plays a decisive role, especially in the doctrine of concurrence in German criminal law. It concerns the issue of how different elements of criminal offenses relate to one another when they are fulfilled by a single act. Specifically, the principle provides that a ‘special’ criminal provision takes precedence over a ‘general’ one if it covers the same set of facts (the so-called lex specialis principle). This prevents an offender from being penalized more than once for the same factual wrongdoing (principle of ‘ne bis in idem’). The aspiration principle is applied if an act fulfills both a basic offense and an aggravating circumstance; here, the aggravating element—as the more specific law—replaces the general one. In this way, the aspiration principle enhances the structure and fairness of sentencing and prevents double punishment.
Are there statutory bases for applying the aspiration principle?
The aspiration principle is not explicitly enshrined in the law, but is instead the result of judicial development and interpretation of legal provisions. Its application is based, however, on general criminal law concepts such as legal concurrence and the prohibition on double jeopardy for the same offense under Article 103 (3) of the Basic Law. Equally important are sections 52 (unity of act) and 53 (real concurrence) of the Criminal Code, which regulate in which cases multiple violations of law lead to single or multiple punishabilities. Numerous decisions by the Federal Court of Justice also acknowledge that the more specific norm supersedes the general one, so the principle plays a significant role in practice.
How does the aspiration principle differ from other types of concurrence?
The aspiration principle is a specific expression of legal concurrence and is to be distinguished from ideal concurrence (one act fulfills several sets of elements, § 52 StGB) and real concurrence (several independent acts, § 53 StGB). While in legal concurrence according to the aspiration principle the more specific law prevails over the general (lex specialis derogat legi generali), in ideal concurrence all affected criminal provisions are generally fulfilled at the same time and only the severest penalty is imposed. In contrast, in real concurrence the penalties for each act are combined into an aggregate sentence. As a result, the aspiration principle ensures that in cases of legal concurrence, only the more specific criminal provision is applied.
What relevance does the aspiration principle have for sentencing?
The application of the aspiration principle directly influences which criminal provision is used as the basis for conviction and what penalty applies. If the principle is applied, only the more specific (usually with a higher penalty) provision will apply. This prevents a given set of facts from being punished multiple times under different, but overlapping, rules. This is especially relevant in cases of aggravating circumstances, where the harsher penalty should only be imposed if the specific elements of the offense are present. The principle thus ensures nuanced sentencing tailored to the individual wrongdoing.
Can several provisions be applied alongside each other under the aspiration principle?
According to the aspiration principle, not at all, since its purpose is to exclude the concurrent application of multiple criminal provisions if a more specific provision already includes the circumstances of a more general one. The ‘subsuming’ of multiple provisions, on the other hand, is possible in cases of true or false ideal concurrence or in real concurrence, but not in legal concurrence based on the aspiration principle. If a more specific norm is applied, the general one is displaced (displacement). Only in exceptional cases, such as if different circumstances are involved or the provisions protect different legal interests, can cumulative convictions occur.
How does the aspiration principle affect ancillary or confiscation measures?
The aspiration principle primarily relates to punishment and the avoidance of double punishment for the same set of facts. Ancillary consequences and confiscation measures may also be affected, as they often relate to specific criminal provisions as well. When a provision is dogmatically ‘displaced’ by the aspiration principle, ancillary consequences or measures associated with that provision are also disregarded. However, it must be examined in each case whether the ancillary consequence can also be triggered by the applicable specific provision.
Are there exceptions to the application of the aspiration principle?
Exceptions to the aspiration principle exist in particular when the legal provisions involved protect different legal interests and thus different rights. Furthermore, the principle does not apply if two elements of an offense, despite covering the same set of facts, should coexist so as to comprehensively reflect the wrongdoing (for example, the intersection of result-based aggravations and independent offenses). Here, it must always be determined on a case-by-case basis, by means of legal interpretation, whether a displacement according to the aspiration principle is required.
What role does the aspiration principle play in criminal law exams and practice?
In criminal law examinations as well as daily practice, knowledge and correct application of the aspiration principle are essential for legally evaluating actions. When assessing matters of concurrence, it must be determined whether there is a case of legal concurrence and, if so, whether the more specific law applies. Errors in applying this principle can lead to incorrect assessments and inadmissible double punishments, which can have serious consequences for the outcome of criminal proceedings and sentencing. Therefore, mastering the aspiration principle is basic knowledge indispensable to every criminal lawyer.
