Concept and definition of awareness of wrongdoing
Awareness of wrongdoing is a central element of German criminal law and describes a person’s ability and awareness to recognize the wrongfulness of their actions. It therefore constitutes knowledge of the illegality of an act and is one of the subjective prerequisites for personal guilt. The term is closely linked to fundamental principles of criminal law, in particular the principle of culpability.
Distinction from similar terms
Awareness of wrongdoing is not to be equated with intent or with awareness of fulfilling the elements of an offense. While intent involves knowledge and will regarding the act, awareness of wrongdoing focuses on whether the actor realizes that they are violating applicable law.
Legal-theoretical significance in criminal law
Awareness of wrongdoing as a component of guilt
In German criminal law, awareness of wrongdoing is treated as a component of guilt. According to the three-stage structure of an offense (elements of the offense, unlawfulness, guilt), guilt is the third requirement for the criminal liability of an offender. Exclusion of guilt occurs when the offender lacks and could not have awareness of wrongdoing (§ 17 sentence 1 StGB, error of prohibition).
Norm categories: Error of prohibition and error regarding justification
Awareness of wrongdoing is directly connected to the so-called error of prohibition and the error regarding justification.
Error of prohibition (§ 17 StGB)
An error of prohibition exists when a person, despite committing an unlawful act, does not recognize that their conduct violates a legal norm. If the error was unavoidable, this excludes guilt. If, however, the error was avoidable, the court may mitigate the punishment. The assessment of unavoidability is case-specific and always requires careful consideration.
Error regarding justification
In the case of an error regarding justification, the offender is mistaken about the prerequisites for a justification (e.g., self-defense or necessity). In this case, the actor does not lack awareness of wrongdoing concerning the unlawfulness as such, but rather regarding the existence of a justification.
Subjective element of unlawfulness
Awareness of wrongdoing forms the subjective element of unlawfulness. This means that, as a rule, behavior that is objectively illegal is considered culpable if the offender was aware of the existing prohibition. What matters is whether the offender was in a position to recognize the wrongfulness of the conduct from their perspective.
Practical significance in criminal proceedings
Sequence of examination and burden of explanation
Awareness of wrongdoing is examined as part of the assessment of guilt in criminal proceedings, especially when there are indications of a possible error of prohibition or error regarding justification. Presentation and, where applicable, proof of the lack of awareness of wrongdoing are subject to the court’s assessment of facts and evidence.
Standard of avoidability
To assess whether an error of prohibition was avoidable, an objective standard is applied: it is considered whether the offender, in light of their personal abilities and considering the circumstances of the individual case, could have recognized the wrongfulness of the act. In case of doubt, the court must examine whether the offender should have sought information or legal advice.
Significance for sentencing
A lack of or diminished awareness of wrongdoing can lead to a complete elimination or a substantial reduction of punishment. This corresponds to the principle of culpability, according to which only those who could have been aware of their prohibited conduct should be punished.
Special cases and practical examples
Awareness of wrongdoing in children and adolescents
Within the scope of criminal responsibility (beginning at 14 years of age according to § 19 StGB), it is examined whether awareness of wrongdoing is present. Particularly in juvenile criminal law, special importance is attached to the personal development and maturity of the accused.
Awareness of wrongdoing in corporate criminal law
For offenses committed within a company, awareness of wrongdoing can also concern the knowledge of responsible persons such as managers or supervisors. It must be considered to what extent organizational deficiencies, unclear responsibilities, or willful blindness play a role.
Errors and cultural particularities
In certain situations, culturally influenced value systems can play a role in affecting awareness of wrongdoing. However, German criminal law generally assumes a unified legal consciousness, and culturally motivated errors are only considered within a narrowly defined framework.
Case law and legal literature
Case law emphasizes that awareness of wrongdoing is generally to be expected from anyone who is criminally responsible. For exceptions—particularly in the case of unavoidable errors of prohibition—a careful and detailed case-by-case assessment is required. The Federal Court of Justice has made key decisions in connection with § 17 StGB and set a high threshold for the absence of awareness of wrongdoing, in order to prevent the abusive invocation of ignorance of the law.
Relevant literature can be found in standard works on the General Part of criminal law as well as in established commentaries on the Penal Code.
Summary
Awareness of wrongdoing forms an indispensable building block in the system of criminal responsibility. It captures the offender’s ability to recognize the wrongfulness of their actions and plays a central role in determining guilt. The requirements for awareness of wrongdoing and the consequences of its absence or diminution are primarily regulated in § 17 StGB and are continually specified by case law and literature. Careful analysis of awareness of wrongdoing is essential for the proper application of criminal statutes, especially at the interface of intent, error, and culpability.
Frequently Asked Questions
What role does awareness of wrongdoing play in German criminal law?
In German criminal law, awareness of wrongdoing is a central component of guilt. It refers to the awareness or realization by the offender that their behavior violates the legal order. The presence of awareness of wrongdoing is particularly examined in the context of intent and guilt. If the offender lacks awareness of wrongdoing for understandable reasons (e.g., due to an unavoidable error of prohibition under § 17 StGB), this may lead to the offender being without guilt and thus not punishable. The decisive factor is that the offender would have been able to recognize the wrongfulness of their actions. An avoidable error does not exempt from punishment, whereas an unavoidable error of prohibition may result in impunity.
How is awareness of wrongdoing assessed in juveniles and young adults?
For juveniles and young adults, the court reviews awareness of wrongdoing with special care, as their ability to recognize wrongdoing may be limited due to age and development. The Youth Courts Act (JGG) stipulates that the stage of development must be considered when assigning guilt. It is examined whether the juvenile or young adult, in light of their maturity, could recognize the wrongfulness of their behavior. Factors such as age, social environment, upbringing, and possible intellectual or psychological limitations play a role. In practice, an expert is often involved to assess whether sufficient awareness of wrongdoing actually existed.
What is the effect of lacking awareness of wrongdoing on criminal liability?
If awareness of wrongdoing is lacking and an unavoidable error of prohibition under § 17 StGB exists, the offender’s guilt and therefore criminal liability are nullified. The offender must prove that, despite reasonable efforts, they could not have known their behavior was prohibited. Mere ignorance or indifference is not enough. If, however, the error was avoidable, this can only lead to mitigation of the sentence. Courts examine each individual case very thoroughly to determine whether the error was truly unavoidable and whether it was reasonable to expect the offender to seek information about the legal situation.
In which cases can punishment still follow despite a lack of awareness of wrongdoing?
Punishment despite a lack of awareness of wrongdoing can occur if the offender is at fault for a so-called avoidable error of prohibition. This means that even though the offender did not know their actions were prohibited, this ignorance is blameworthy because they could and should have informed themselves about the legal situation. In such cases, the law does not provide for complete exemption from punishment, but only a mitigation of sentence. Thus, § 17 sentence 2 StGB provides for a discretionary mitigation of penalty in the event of an avoidable error.
Who bears the burden of proof for the absence of awareness of wrongdoing?
In criminal proceedings, it is generally presumed at first that the offender could recognize the wrongfulness of their act. However, it is in the accused’s interest to assert the absence of awareness of wrongdoing. Therefore, the offender must present and, if necessary, prove circumstances that make the error or the absence of awareness of wrongdoing plausible. The court then examines whether these claims are credible and plausible. If the accused fails to convince the court of their lack of awareness of wrongdoing, the usual rules of criminal liability continue to apply.
Can awareness of wrongdoing arise later and have criminal consequences?
Awareness of wrongdoing always refers to the time of the offense. Subsequent realization of the wrongfulness of the act has no bearing on the question of guilt. If the offender only becomes aware after the act that their conduct was wrongful, this is irrelevant for determining criminal liability. However, if the offender shows remorse and recognizes their wrongdoing after the offense, this may be considered as a mitigating factor during sentencing.
Are there special requirements for awareness of wrongdoing in commercial and tax criminal law?
In commercial and tax criminal law, the same requirements generally apply to awareness of wrongdoing as in other areas of criminal law. However, the standards for recognizing wrongdoing are often set higher, since managers, entrepreneurs, and taxpayers are expected to have greater expertise and a higher degree of diligence. Especially in tax criminal law, it is often presumed in the event of violations that awareness of wrongdoing exists, unless the offender can convincingly demonstrate that, despite reasonable examination, they could not have known the law or the prevailing case law. A mere error in legal evaluation is not sufficient to negate awareness of wrongdoing.
