Concept and Legal Classification of Attempted Instigation
Die attempted instigation is a term under German criminal law that describes a specific offense in the area of forms of participation in criminal offenses. It represents a constellation in which someone influences another to commit a crime, but the instigation remains unsuccessful with the intended perpetrator. This article explains the requirements, legal consequences, and distinctions of attempted instigation under German law.
Statutory Foundations
Provisions of the Criminal Code
Attempted instigation is to be seen in connection with §§ 26 and 30 of the German Criminal Code (StGB). While § 26 StGB covers the basic offense of instigation , § 30 StGB specifically regulates the criminal liability of attempted instigation:
- § 26 StGB – Instigation: “Anyone who, as an instigator, intentionally causes another to commit an intentional unlawful act is punished in the same way as the perpetrator.”
- § 30 para. 1 StGB – Attempt and Preparation: “The attempt to instigate a felony is punishable.”
It is thus clear that attempted instigation is punishable only in connection with felonies (§ 12 para. 1 StGB: minimum sentence of one year imprisonment), not with misdemeanors.
Definition and Elements of the Offense
Structure of the Attempted Instigation
Attempted instigation is present when the following requirements are met:
- Intent to Instigate: The perpetrator must have the firm intention to instigate another to commit a specific principal offense.
- Direct Initiation of the Instigation Act: The perpetrator must objectively “initiate” the act of instigation, that is, carry out an action according to their plan that, without further steps, is meant to complete the instigation. The threshold of “now it begins” must have been crossed.
- No Success of the Instigation Act: The third party intended to be instigated to the main offense is not determined to commit the act or does not commit the principal crime at all.
Relationship to Completed and Uncompleted Instigation
In contrast to completed instigation, in the case of attempted instigation, the determination is one-sided—the other party lacks either the determination to commit the act or the implementation of intent. If the person addressed is actually instigated to commit the offense and does so, then it is a case of completed instigation.
The Special Case of Unsuccessful Instigation
A special case is the so-called unsuccessful instigation: This occurs when the perpetrator has done everything according to plan to determine another to commit an offense, but that person does not resolve to commit the act. This is typically a case of attempted instigation.
Subjective Requirements (Intent)
According to § 30 para. 1 StGB, attempted instigation must be aimed at eliciting intentional, at least conditional intentional behavior by the person being instigated. Thus, the instigator must act with the intent to induce another to intentionally commit a felony.
Objective Requirements (Object and Act)
The targeted principal offense must be a felony within the meaning of § 12 para. 1 StGB, i.e., the minimum penalty must be at least one year of imprisonment. Attempted instigation of misdemeanors, by contrast, is not punishable by law.
Legal Consequences of Attempted Instigation
Criminal Liability
The attempted instigation of a felony is explicitly punishable under § 30 para. 1 StGB. It is therefore an independent attempt at committing a crime, punishable by law.
Penalty
For the attempt to instigate a felony, a mitigation of the sentencing range applies pursuant to § 23 para. 2 StGB in conjunction with § 49 para. 1 StGB. The penalty is based on the sentencing range for the intended felony but may be mitigated.
Withdrawal from Attempt
As with the general attempt under § 24 StGB, a withdrawal exempting from punishment is also possible in the case of attempted instigation. The instigator can withdraw without penalty by subsequently actively seeking to prevent the commission of the principal offense.
Distinction from Similar Offenses
Attempt of the Principal Offense
In the attempt of the principal offense, the perpetrator directly begins to carry out the act, which in itself is punishable. In attempted instigation, the attempt remains to bring about the intention of the person to be instigated.
Preparatory Act
Mere consideration or planning to determine someone to commit an offense is not sufficient to constitute attempted instigation. What is required is a direct initiation of the act of instigation.
Agreement to Commit a Felony
§ 30 para. 2 StGB regulates the agreement to commit a felony separately. It involves the mutual understanding of at least two persons to commit a felony together or to instigate each other to commit a felony.
Special Constellations
Instigation to Instigation
Attempted instigation can also refer to the case where someone tries to induce another to instigate a further offense. An individual case assessment is necessary here.
Indirect Perpetration
Attempted instigation differs from indirect perpetration (§ 25 para. 1 alt. 2 StGB), since in the latter, the perpetrator carries out the offense through another as a “tool,” whereas instigation is aimed at an independently acting third party.
Examples and Case Law
To illustrate attempted instigation, the following constellations are conceivable:
- A urges B to commit a robbery. B refuses and has no intention to commit the crime. This is a case of attempted instigation.
- A sends B a letter with a specific request to commit murder. B does not become aware of the letter or is not influenced by it—again, this is a case of attempted instigation.
Case law differentiates carefully in each instance between the stage of attempt, direct initiation, and issues concerning withdrawal from the attempt.
Significance of Attempted Instigation in Criminal Law
The criminal liability for attempted instigation serves the preventive protection against serious crimes. It ensures that even determined attempts to induce the commission of an offense can be punished, even if it remains at the stage of attempt.
Literature References
For further reading, specialist literature on the general doctrines of criminal law and research relating to §§ 26, 30 StGB is recommended.
Summary: Under German law, attempted instigation is an independent criminal offense that punishes the unsuccessful attempt of a person to induce another to commit a felony. It is only punishable in cases of felonies and under certain conditions. The distinction from other forms of participation and the legal consequences are regulated in a nuanced way. The provision serves to effectively prevent serious crimes already at the attempt stage.
Frequently Asked Questions
Can attempted instigation already be punishable even if the person being instigated does not commit a punishable act?
Yes, even if the person being instigated does not commit a principal offense or does not even form the intention to do so, the instigator can be criminally liable for attempted instigation according to § 30 para. 1 sentence 1 var. 1 StGB. For criminal liability for attempt, it is required that the instigator influences the potential perpetrator with the aim of committing a specific crime and thereby reaches the stage of “direct initiation” of instigation. It is necessary that the instigator, from their perspective, has done everything necessary to induce the other to commit the offense, even if the latter ultimately does not proceed to commit the crime. It suffices if the instigator subjectively believes their influence could lead to success. The purpose of criminal liability, among other things, is to protect against the dangers of influential attempts, even if they are unsuccessful in the individual case.
What penalties are provided for attempted instigation?
The penalty for attempted instigation is derived from § 30 para. 1 StGB and is generally oriented toward the penalty threatened for the attempted principal offense, but is usually mitigated. The court may mitigate the penalty under § 49 para. 1 StGB if the instigation is unsuccessful. The exact determination of the sentence depends on which crime was to be instigated; with felonies such as murder, even the attempt to instigate is punishable, whereas for misdemeanors this is generally not the case. The personal circumstances of the perpetrator also play a role in sentencing.
Are there specific situations in which attempted instigation is not punishable?
In principle, criminal liability for attempted instigation is limited to felonies (see § 30 para. 1 StGB). For misdemeanors, attempted instigation is generally not punishable unless the law expressly provides otherwise. For example, attempted instigation to theft (a misdemeanor) is not punishable, whereas attempted instigation to murder (a felony) can be prosecuted. Furthermore, an attempted instigation is not punishable if the “direct initiation” of instigation has not been reached, such as in cases of mere preparations without a genuine attempt.
How is attempted instigation distinguished from a non-punishable preparation or insignificant conversation?
The decisive factor for distinction is the stage of commission. Punishable attempted instigation presupposes that the instigator has already done everything they deem necessary for the commission of the offense and thus has directly initiated the instigation. Mere preparatory acts, such as non-binding statements, general inquiries, or unspecific conversations, are not sufficient. Only when the instigator acts concretely and specifically on another so that from their point of view only the latter’s decision to commit the crime is still outstanding does the attempt stage of the offense begin.
Can attempted instigation be realized repeatedly if repeated requests are made for the same offense?
Yes, in principle, attempted instigation can be punishable multiple times if the instigator tries, in separate and distinguishable acts, to induce the same person to commit the crime. Each new, independently carried out instigation act can be regarded as a separate attempt, provided that the individual acts are not to be considered a single unit of action. Whether a single or several separate punishable attempts are present depends on the specific circumstances and on the intensity as well as the temporal and substantive distance between the individual instigation acts.
What possibilities are there for sentence reduction or withdrawal in the case of attempted instigation?
In certain circumstances, the attempted instigator has the possibility of withdrawal according to § 31 StGB. Accordingly, a withdrawal exempting from punishment remains possible if the instigator voluntarily and earnestly prevents the further execution of the principal offense or makes efforts to prevent the commission of the crime. The exact requirements for withdrawal differ according to the role in the criminal process (principal, participant) and the circumstances of the specific attempt phase. Furthermore, § 49 StGB gives the court the option of discretionary sentence reduction. The individual extent of the contribution to the attempt and the subjective attitude toward the crime are also important.
