Concept and Significance of Awareness of Wrongfulness
Awareness of wrongfulness is a central element in many areas of German criminal law and administrative offenses law. It describes the knowledge or awareness of an acting person that their behavior contravenes applicable law. This subjective element is particularly relevant when considering culpability and in the context of certain legal consequences.
Legal Doctrinal Classification
Awareness of wrongfulness is generally regarded as a specific manifestation of the general principle of culpability. According to this principle, no one should be punished for conduct that they could not recognize as wrongful. It therefore constitutes an important part of personal blameworthiness in criminal law.
In contrast to intent, which encompasses the knowledge and will regarding all objective elements of a criminal offense, the awareness of wrongfulness relates exclusively to the legal assessment of one’s own actions. While ‘intent’ requires knowledge of fulfilling the statutory elements, awareness of wrongfulness requires the recognition that the conduct is unlawful.
Function in Criminal Law
Significance in the Context of Culpability
Awareness of wrongfulness affects the level of culpability. According to prevailing opinion in criminal law, the awareness of wrongdoing is part of the culpability form known as ‘intentional guilt’. If the perpetrator lacks this awareness of wrongdoing, and it cannot be attributed to them, there is a so-called unavoidable prohibition error, which negates culpability—and thus criminal liability—(§ 17 sentence 1 StGB).
Distinction: Error of Prohibition
German criminal law distinguishes between a mistake of fact (§ 16 StGB) and a mistake of law (error of prohibition, § 17 StGB):
- Mistake of Fact: Concerns not knowing an objective element of the offense.
- Error of Prohibition: Concerns the absence of awareness of wrongdoing, i.e., ignorance regarding the illegality of one’s own conduct.
Avoidable and Unavoidable Error of Prohibition
- Avoidable Error of Prohibition (§ 17 sentence 2 StGB): If the error was avoidable, the penalty may be mitigated.
- Unavoidable Error of Prohibition (§ 17 sentence 1 StGB): If the error was unavoidable, criminal liability is excluded.
Whether the error was avoidable is assessed based on the abilities and knowledge of an average person in the offender’s specific situation. Decisive is whether the acting person can be expected to verify the legal assessment of their conduct.
Illustrative Application
A classic application is the prohibition of certain actions whose unlawfulness cannot easily be recognized by laypersons. For example, someone who imports a foreign antique without special knowledge and is unaware that a permit is required may be subject to an error of prohibition.
Awareness of Wrongfulness in Administrative Offenses Law
In administrative offenses law, awareness of wrongfulness is also significant as part of the accusation of guilt. If the accused lacks awareness of acting unlawfully, and this was also unavoidable, the accusation of guilt is excluded according to § 11 OWiG. The provision addresses the problem of awareness of wrongfulness analogously to criminal law.
Consequences of Lacking Awareness of Wrongfulness
If awareness of wrongfulness is lacking, the legal consequence may vary:
- Unavoidable Error of Prohibition: No culpability, thus not punishable.
- Avoidable Error of Prohibition: Culpability exists, but the penalty can be mitigated.
This applies both in adult criminal law as well as to adolescent and juvenile offenders under juvenile criminal law.
Case Law and Practical Application
Case law assumes, as a rule, that everyone should know that their behavior is prohibited (‘ignorance of the law is no excuse’). Only exceptional cases justify assuming a lack of awareness of wrongfulness, for example in extremely unclear legal situations or misleading official advice.
In each individual case, the court examines whether the lack of awareness of wrongfulness is personally attributable to the actor and which duties of inquiry and verification existed.
Literature and References
For further study, the following standard works are recommended:
- Fischer, Criminal Code and Commentary
- Roxin/Greco, Criminal Law General Part
- LK-StGB, § 17
- Göhler, OWiG Commentary
Summary
Awareness of wrongfulness is an important concept for assessing individual culpability in both criminal law and administrative offenses law. It protects the principle of guilt by exempting from punishment those who, despite all reasonable efforts, could not have been aware of committing a wrongful act. The precise assessment always takes place on a case-by-case basis and is essential for understanding the structure of culpability within the German legal system.
Frequently Asked Questions
What role does awareness of wrongfulness play in criminal liability?
Awareness of wrongfulness constitutes, in German criminal law, a personal element of culpability. It is not an essential component of the objective or subjective elements of the offense, but is part of what is called personal blameworthiness within the context of guilt. If an offender lacks the awareness that their conduct is unlawful, an error of prohibition under § 17 StGB may exist under certain circumstances. This does not exclude criminal liability if the error was avoidable. However, if the error was unavoidable and the offender acted without legal blame, guilt may be excluded. Awareness of wrongfulness is therefore decisive, as it helps determine whether a punishable act was genuinely blameworthy and thus committed with guilt.
How does awareness of wrongfulness differ from intent?
Intent concerns all elements of the objective circumstances of the offense, i.e., knowledge and will to fulfill those elements. Awareness of wrongfulness, on the other hand, concerns the insight that one’s own behavior is prohibited by law. Thus, an offender may act with intent without being aware that their conduct is also unlawful, for example in so-called indirect errors of prohibition. In such cases, there may be intent with regard to fulfilling the offense, but the belief in wrongdoing is absent. This can mean that, despite intentional conduct, the offender is not culpable regarding the offense, provided that the error about the illegality was unavoidable.
When does a lack of awareness of wrongfulness exist under criminal law?
A lack of awareness of wrongfulness exists when the offender assumes that their action is permitted by law or at least not prohibited. This may be the case if a person is in factual error regarding the legal situation, for instance by misinterpreting an existing justification norm or being convinced of its existence. It is sufficient that the offender genuinely believes in the lawfulness of their act. The law distinguishes whether this error was avoidable—that is, whether it could have been avoided through due diligence—or not. An unavoidable error is ultimately treated as a ground for excuse.
How does the court determine whether a lack of awareness of wrongfulness existed?
In determining guilt, the courts examine whether the offender was, individually, aware of the wrongfulness of their conduct. This is done by analyzing the offender’s mental state at the time of the act; in particular, the circumstances of the specific case, the person’s background, possible legal information, and access to advice are taken into consideration. Decisive is also whether an average person could have avoided the error or could have informed themselves about the legal situation. This also includes aspects such as reliance on official information or widespread legal opinions.
What is the significance of awareness of wrongfulness in relation to an error of prohibition (§ 17 StGB)?
Awareness of wrongfulness is the central criterion in the case of an error of prohibition under § 17 StGB. A person who acts without the awareness of committing wrong is in an error of prohibition. However, the error of prohibition only excuses the offender if it was unavoidable—that is, if even with all reasonable efforts and diligence, the offender could not have recognized the illegality of their conduct. An avoidable error leads only to mitigation of the penalty (§ 17 sentence 2 StGB). Thus, awareness of wrongfulness is decisive in determining how an error of prohibition is treated under criminal law.
Can the absence of awareness of wrongfulness also be relevant in civil law?
In civil law, awareness of wrongfulness plays a noticeably lesser role than in criminal law. However, it can be significant in individual situations, such as in tort law when assessing intent or bad faith (§ 826 BGB) or in connection with contesting contracts due to fraudulent misrepresentation. Here, intentional disregard for legal requirements is generally not a prerequisite for the creation of claims, but may be relevant for assessing subjective elements of the violation.
Who bears the burden of proof regarding awareness of wrongfulness?
In principle, the legality principle applies in criminal proceedings, and the public prosecutor must investigate all circumstances both for and against the defendant’s culpability. Regarding awareness of wrongfulness, the accused has a secondary duty to provide information; if the accused specifically points to facts that might support a lack of legal awareness, the court must examine these circumstances carefully and assess them, where applicable, to the disadvantage or advantage of the accused. Providing evidence concerning subjective beliefs is regularly difficult, which is why in cases of doubt, the assumption most favorable to the accused should be adopted (in dubio pro reo).
