Commencement of the commission of the offense
The commencement of the commission of the offense is a central conceptual pair in German criminal law, marking the transition from the non-punishable preparatory stage under criminal law to the punishable attempt stage. It describes the moment in which an offender steps out of the preparatory phase and engages in typical acts of execution that are directly aimed at the realization of a criminal offense. The precise delineation and definition of this concept are essential for the punishability of attempted offenses pursuant to §§ 22 et seq. of the Criminal Code (StGB).
Significance in Criminal Law
Basic principle of the punishable attempt
In German criminal law, a distinction is made between non-punishable preparation and the punishable attempt of a criminal act. According to § 22 StGB, the punishable attempt begins “as soon as the perpetrator, according to his conception of the act, commences directly with the execution of the offense.” Thus, the commencement of the commission of the offense is a necessary requirement for reaching the attempt stage.
Dogmatic classification
The commencement of the commission of the offense serves as the interface between preparation and attempt. From a legal policy perspective, this boundary serves to protect against premature criminal liability (prohibition of overreaching), but at the same time guarantees timely state intervention before an actual violation of legal interests occurs.
Requirements for “commencement”
Subjective component: perpetrator’s conception
A prerequisite for commencement is the subjective conception of the perpetrator. What matters is how the offender envisions the events at the moment of starting the act (the scope of his or her conception), regardless of whether this is targeted, erroneous, or misguided.
Objective component: outward conduct
Objectively, commencement requires an immediate action towards the realization of the offense. The act must be so close to fulfilling the offense that, according to general life experience, its risk is objectively present; the perpetrator thereby crosses the threshold to “now it really begins.”
Theories on commencement
Various theories have been developed to determine when a direct commencement exists, which are discussed in literature and case law.
Formal-objective theory
According to the formal-objective theory, commencement exists when the perpetrator has already started fulfilling the offense, e.g., firing a shot in a homicide case. This theory is often criticized for its rigidity and lack of flexibility.
Material-objective theory
This theory is based on concrete endangerment of the legal interest by the offender’s conduct. Commencement exists when the protected legal interest is immediately endangered. This view is often considered too restrictive, as it limits the criminal liability for attempts excessively.
Subjective-objective theory (prevailing opinion)
According to the prevailing opinion, it is assessed with consideration of both objective and subjective aspects whether commencement exists. What matters is whether the offender, according to his conception, has crossed the threshold to “now it really begins” and has objectively carried out an act that directly leads to the realization of the offense.
Relevant case law
The delineation of commencement is determined on a case-by-case basis by considering the circumstances of the specific course of events. The highest courts focus on whether the act is so closely linked to the act defined by the offense that, without significant interim steps, completion of the offense can be expected.
Illustrative decisions
- BGHSt 6, 46: Even grabbing the victim in a planned sexual offense constitutes a direct commencement.
- BGHSt 27, 319: In an attempted extortion, the harmful demand already constitutes the commencement of the commission of the offense.
Purpose and function of commencement
The delineation criterion of commencement serves several purposes:
- Legal certainty: It is intended to create clear standards for prosecutors and courts as to when conduct becomes relevant under criminal law.
- Protection against premature punishment: The endangerment of freedom rights by premature criminalization is avoided.
- Effective victim protection: The state can intervene early against dangers to protected legal interests.
Typical case groups
Commencement of attempt in different types of offenses
The requirement of commencement is concretized differently depending on the type of offense:
For result offenses
Commencement exists when the perpetrator directly performs an act that, according to his conception, is intended to bring about the statutory result, e.g., firing a shot in a planned killing.
For omission offenses
Here, the attempt stage is reached at the point in time when the perpetrator, according to his conception, should have acted but fails to do so.
For offenses involving multiple acts
For offenses involving several acts of execution (e.g. robbery as an event combining coercion and taking), the overall plan and the typical combination of conduct required for the offense must be considered.
Distinction: preparatory act and attempt
For criminal liability, preparatory acts and conduct that constitutes an attempt must be precisely distinguished. Purely preparatory activities (e.g. purchasing weapons, reconnaissance) generally remain non-punishable, unless the law explicitly provides for punishability of preparation (e.g. § 30 para. 2 StGB).
Commencement and withdrawal from the attempt
Commencement opens the attempt stage and thereby also allows for a withdrawal exempting from punishment pursuant to § 24 StGB. Only after commencement has occurred can the perpetrator be exempt from punishment by voluntarily abandoning further execution of the offense.
International references
Other criminal law systems also recognize comparable thresholds for the commencement of attempts, although the concrete requirements vary in detail. Austria and Switzerland, for instance, have similarly structured distinctions (e.g. § 15 StGB in Austria).
Summary
The commencement of the commission of the offense is a key requirement for punishability of attempts in German criminal law. It marks the transition from the non-punishable preparatory stage to the punishable attempt, as the offender, in accordance with his conception and based on objectively recognizable acts, engages in conduct directly aimed at committing the offense. The precise determination of when the attempt begins is central to the correct application of criminal law and is subject to careful case-by-case consideration, taking into account case law and recognized theories.
Frequently asked questions
When does the direct commencement of the commission of the offense begin in German criminal law?
The direct commencement of the commission of the offense marks the transition from the non-punishable preparatory stage to punishable attempt liability (§ 22 StGB). The legal assessment of commencement is based on a case-by-case evaluation and depends on how far the perpetrator, from the viewpoint of an objective observer, has already progressed toward the realization of the statutory offense. Key is whether the perpetrator has subjectively crossed the threshold to “now it really begins” and objectively has acted in such a way that his conduct threatens to fulfill the offense without further intermediate steps. This is particularly relevant in offenses involving several acts, where some actions may still be attributed to preparation. In principle, direct commencement begins when the perpetrator starts realizing the offense and a direct risk to the protected legal interest already exists. The requirements vary depending on the type of offense: for result offenses, the perpetrator’s conduct must be in direct spatial or temporal connection with the commission of the offense; for so-called proximity or remoteness offenses, attention is paid to the structure of the offense and the specific attack situation.
What significance does criminal intent have for commencement of the commission of the offense?
Criminal intent is a prior requirement for direct commencement but is not sufficient by itself for attempt liability. Only when objectively recognizable acts of implementation are added to the firm intention, bringing the action into direct proximity to committing the offense, does a punishable attempt exist. This means: mere intent to commit a crime or being in the planning stage does not yet mark the beginning of criminal liability. The execution must move from intent to a stage in which the victim or any other observer perceives the endangerment of the legal interest as imminently threatening. In legal analysis, jurists therefore strictly separate the internal completion of the offense (criminal intent) from the externally visible threshold (direct commencement).
What specific problems can arise at the beginning of the attempt in multi-act events?
Precisely in the case of offenses with several stages of conduct—such as theft, robbery, or fraud—the distinction between preparation and the beginning of the attempt is particularly challenging. Questions arise, for example, whether entering a target location (such as a house in a burglary) or only the actual tampering with the protected object (such as picking a lock) is to be regarded as direct commencement. The prevailing opinion holds that the conduct must relate directly to the realization of the offense and the act of execution must immediately create the statutory risk. If, for example, in a theft a window is broken open to steal afterwards, breaking open the window already qualifies as direct commencement if no further significant preparatory acts are required.
How are commencement of attempt and the possibility of withdrawal related?
The moment of direct commencement has a direct impact on the possibility of withdrawal according to § 24 StGB, since only in the attempt stage—not the preparatory stage—can a withdrawal exempt from punishment take place. If the perpetrator has crossed the threshold to the attempt, he nevertheless still has the opportunity under § 24 StGB to withdraw exempt from punishment as long as the criminal success has not yet occurred and he, if necessary, contributes to preventing the success. The precise determination of the beginning of the attempt is therefore of practical relevance for the defense as well as for the rule-of-law delineation between non-punishability and punishability.
Are there any special features for direct commencement in omission offenses?
Direct commencement is also relevant in omission offenses, but the distinction is more complex here, since even the absence of a rescuing act under certain conditions can be considered the beginning of the attempt. According to the prevailing view, direct commencement in omission offenses begins at the moment when the perpetrator objectively and subjectively recognizes a legal obligation to act and fails to intervene despite imminent harm. It is therefore not sufficient for a danger situation merely to exist; rather, the failure to act must be in close temporal and material connection with the threatened result.
Are there offenses in which direct commencement is assumed particularly early or late?
This is particularly observed in so-called remote-target or “molesting” offenses such as robbery or assault. In offenses where the victim is put in concrete danger early on, direct commencement is often already assumed with the creation of the risk (such as during an attack on a person or when overcoming protective measures). In contrast, direct commencement in offenses with complex preparation and several stages of conduct (such as fraud offenses with multiple intermediate steps) may occur relatively late, namely during the actual acts of deception or exercise of control. The distinction is always made case-by-case based on the structure of the offense and the social meaning of the conduct.
How is direct commencement assessed in the case of co-perpetrators, participants, and attempt dynamics?
When multiple persons are involved, the principle of joint perpetratorship applies (§ 25 para. 2 StGB), which states that co-perpetrators are already at the attempt stage when they contribute functional elements toward the commission of the offense in the context of the joint plan. For instigators and accomplices, separate standards apply for the attempt stage, whereby the key question is always whether the plan of the offense has entered the actual attempt. Liability for aiding an attempt is already given if the principal offender has commenced the attempt and the accomplice assists beforehand or during the conduct. The dynamics of the attempt with several participants are determined by the individual form of participation and the progress of the commission of the offense.
