Concept and Fundamentals of Joint Perpetration
Joint perpetration is a central concept in criminal law and describes a form of participation in an offense where several persons commit an act in shared responsibility. Its normative basis is regularly regulated in Section 25(2) of the German Criminal Code (StGB). According to this principle, every joint perpetrator is fully liable for the offense as if they had committed it alone. The distinction from sole perpetration, incitement, and aiding is of considerable importance for the classification under criminal law.
Historical Development
The concept of joint perpetration developed over the course of legal history in order to adequately capture the collective contribution of multiple persons to a criminal act. Early legal systems often only recognized the distinction between perpetrator and accomplice, while the institute of joint perpetration only acquired its modern contours with the emergence of the doctrines of liberty and responsibility.
Legal Preconditions for Joint Perpetration
Common Criminal Plan
A central prerequisite for joint perpetration is the existence of a shared criminal plan. The parties involved must have intentionally joined forces to bring about the criminal result. There must be a “conscious and deliberate cooperation” (so-called “joint commission of the offense”). Mere concurrent action at the same crime scene, without mutual agreement, is not sufficient to constitute joint perpetration.
Distinction from Parallel Perpetration and Successive Joint Perpetration
Parallel perpetration exists when multiple persons independently but simultaneously fulfill the offense elements without joint planning. Successive joint perpetration occurs when a previously uninvolved third party joins the ongoing criminal act and adopts the criminal plan, which may result in partial attribution of the offense already committed.
Division of Labor and Commission of the Offense
In joint perpetration, a division of labor in the commission of the offense is regularly established. It is sufficient that each joint perpetrator contributes some essential part relevant to the achievement of the result. It is not required that each perpetrator personally fulfills every element of the offense. Rather, collaborative conduct in the awareness and intent to act as a “co-perpetrator” (so-called “doctrine of control over the act”) is sufficient.
Forms of Contribution to the Offense
Contributions to the offense can take various forms, such as logistical preparation, scouting the crime scene, procuring crime tools, or taking on specific tasks during execution. What matters is whether the contribution appears objectively significant for the success of the overall plan.
Subjective Elements: Intent and Attribution
The parties must act with intent regarding all essential circumstances of the offense. The scope of knowledge and will in the intent pertains not only to one’s own actions, but also to the contributions of other joint perpetrators. Each person must will the overall act as their own and share in the common criminal plan.
Attribution of Others’ Actions
According to Section 25(2) StGB, each joint perpetrator is attributed the entire offense, regardless of which individual contribution was made. What matters is the “co-causation” and the “shared responsibility” for the course of events.
Distinguishing Joint Perpetration from Other Forms of Participation
Perpetration and Participation
Joint perpetration must be distinguished from sole or direct perpetration, in which a person fulfills all elements of the offense themselves. In contrast, participants act through incitement or aiding, without having their own claim to control over the act.
Functional and Normative Criteria for Attribution
To determine whether there is joint perpetration or mere participation, functional criteria (e.g., planning, control, organization) as well as normative criteria (degree of involvement and influence on the overall event) are considered. The doctrine of control over the act is the decisive dogmatic distinction.
Distinction from Indirect Perpetration
Joint perpetration must be distinguished from indirect perpetration. In indirect perpetration, a person acts through another, whom they control as a “tool,” due to superior knowledge or will. This results in a perpetrator–behind-the-scenes operator or tool situation rather than equivalent cooperation.
Legal Consequences of Joint Perpetration
Criminal Liability and Allocation of Penalty
Each joint perpetrator is treated as having personally committed the entire act. There is no limitation of criminal liability to the individual’s own contribution.
Different Degrees of Guilt
Nevertheless, in sentencing, the extent and intensity of each joint perpetrator’s involvement in planning, preparation, and execution may be taken into account.
Withdrawal from Attempt in Joint Perpetration
In the case of a planned but incomplete offense, withdrawal from the attempt is possible under certain conditions. According to Section 24(2) StGB, it is sufficient if one joint perpetrator prevents further execution or averts its success. The decisive factor is whether the withdrawal was voluntary and effectively led to the frustration of the offense.
Special Questions and Problem Areas
Joint Perpetration in Offenses by Omission
Joint perpetration is generally possible in offenses by omission. Here, all joint perpetrators must have a legal duty to act and, through their collective omission, be attributable for the outcome.
Joint Perpetration in Negligence Offenses
Joint perpetration is generally possible in negligent offenses, provided there is collective negligent conduct and the actions or omissions are objectively and subjectively attributable.
Joint Perpetration Abroad and International Criminal Law
In situations involving countries with varying requirements for joint perpetration, the relevant national law must be applied. Under international criminal law, such as international criminal law (e.g., the law of nations), the principle of joint criminal enterprise is also applied and can lead to attribution of extensive crimes.
References
- German Criminal Code (StGB), § 25
- Fischer, Criminal Code, Commentary
- Roxin, Perpetration and Control over the Act
- Wessels/Beulke, General Section of Criminal Law
Conclusion
Joint perpetration represents a significant instrument for the attribution of criminal responsibility, allowing for the appropriate assessment of offenses jointly committed by multiple persons. With its complex doctrinal underpinnings and differentiated requirements, it serves as a central point of reference for the criminal law treatment of offenses involving division of roles. Due to its broad interpretation and practical significance, joint perpetration remains a central concept in the German criminal law system.
Frequently Asked Questions
When does joint perpetration exist in the legal sense?
Joint perpetration exists in the legal sense when multiple persons consciously and intentionally cooperate within the framework of a common plan to fulfill the elements of a criminal offense. A prerequisite is that each participant makes a significant contribution to the overall course of events and that the others also contribute to the success of the act. Decisive is a collective consensus of will aimed at executing the offense (“control over the act”), meaning each joint perpetrator can shape and direct the criminal event according to their will. Legally, joint perpetration is regulated in Section 25(2) StGB and ensures that all joint perpetrators are treated and punished as principals, even if they do not personally carry out every act of the offense.
How is joint perpetration distinguished in criminal law from forms of participation such as incitement or aiding?
The distinction between joint perpetration and other forms of participation such as incitement (Section 26 StGB) and aiding (Section 27 StGB) is made based on control over the act and the significance of each contribution. While joint perpetrators contribute decisively to the course of events through their own conduct relevant to the act and possess controlling influence, inciters are limited to merely provoking the principal’s criminal intent without participating in the commission. In aiding, assisting the principal act is paramount, but accomplices do not exercise control and their contributions are typically of subordinate importance for the course of events. The precise classification depends on the circumstances of the individual case and requires a comprehensive evaluation of all contributions.
What are the legal implications of assuming joint perpetration for sentencing?
The assumption of joint perpetration means that all joint perpetrators are held responsible for the entire act, regardless of the specific share attributable to each. This means that each joint perpetrator is objectively and subjectively liable for the entire offense, as if he or she had committed it alone (“attribution through and through”). For sentencing, however, the court considers the individual contributions, motives, and the degree of involvement of each joint perpetrator. Mitigating or aggravating factors, such as particular brutality or taking on a key role, are also considered. As a result, sentences for joint perpetrators may vary, even though all are considered perpetrators in the legal sense.
Is withdrawal from attempt possible in joint perpetration, and how is this assessed legally?
Withdrawal from attempt is generally possible in joint perpetration and is assessed according to the general rules of Section 24 StGB. In cases involving several joint perpetrators, an individual participant may withdraw from the attempt by independently and voluntarily giving up their contribution and, if possible, preventing the completion of the act. Legally complex is the question of whether the withdrawal is sufficient if other joint perpetrators continue with the plan. Here, it depends on whether the withdrawing person has done everything necessary and reasonable to prevent the completion of the act. If successful, the joint perpetrator may receive mitigating or even exculpatory consideration for their withdrawal; otherwise, they remain fully liable.
How does attribution of other perpetrators’ actions occur in the context of joint perpetration?
In the context of joint perpetration, the contributions of all participants are attributed to one another. This means that each joint perpetrator is held jointly responsible for the elements of the offense committed by the others, provided these occur within the framework of the common plan and with mutual agreement. This so-called “attribution of joint perpetrator actions” extends only to those contributions that are covered by the shared intent and control over the act. Unexpected, independent actions of a joint perpetrator that fall outside the coordinated plan (excesses) are not attributed to joint perpetration and result in individual liability of the acting perpetrator only.
Can joint perpetration exist even with differing contributions and roles?
Yes, joint perpetration can exist even when the individual participants make different contributions or assume different roles in the course of the offense. What matters is not the equality or identity of the contributions, but whether they are essential for the success of the offense and are made within the framework of the common plan. It is sufficient if all participants have control over the act or at least collaborate in concert during the occurrence. Classic examples include “division of labor” in crimes through planning, execution, and safeguarding the offense.
What is the significance of the common decision to act in joint perpetration?
The common decision to act is the central element of joint perpetration and forms the basis for the mutual attribution of contributions. It requires at least implied agreement among all participants to jointly help realize the offense. The decision to act may arise spontaneously, by express agreement, or through tacit understanding during the commission of the act. Without such a common decision, the subjective basis required for joint perpetration is lacking, so mere simultaneous presence or incidental assistance does not suffice for joint perpetration. In practice, proof of the common decision is established based on the external circumstances and the overall conduct of the participants.
