Concept and Significance of Concurrent Offenses (Tateinheit)
Concurrent offenses (Tateinheit) is a central concept in criminal law that describes the legal unity of several criminally relevant acts under certain circumstances. It is the antonym of multiple offenses (Tatmehrheit) and has significant effects on sentencing and the assessment of guilt. Knowledge of the distinction between Tateinheit and Tatmehrheit is essential for the correct application of criminal law.
Statutory Regulation in Germany
Section 52 German Criminal Code (StGB) – Statutory Provision
Concurrent offenses are regulated in Section 52 of the German Criminal Code (StGB):
“If the same act violates multiple criminal statutes, or the same criminal statute multiple times, only one penalty shall be imposed. The penalty is determined by the law that prescribes the most severe sentence. This may be increased pursuant to Section 53.”
This provision thus stipulates that in cases of concurrent offenses, only one (aggregate) sentence is imposed, with the offense carrying the most severe penalty determining the sentencing range.
Distinction from Multiple Offenses (Section 53 StGB)
Concurrent offenses must be distinguished from multiple offenses pursuant to Section 53 StGB. In cases of multiple offenses, the perpetrator commits several legally independent acts, each of which must be punished separately. By contrast, in cases of concurrent offenses, only one sentence is to be imposed, which may be increased if appropriate.
Characteristics of Concurrent Offenses
1. Legal unity of several violations of law
Tateinheit exists when “the same act” either violates multiple criminal statutes or the same statute multiple times. The material concept of the act is decisive here: There must be a uniform overall occurrence that fulfills several criminal provisions or realizes the same provision multiple times.
2. The “same act”
a) Natural unity of action
A natural unity of action exists when several acts, viewed naturally, appear as a single coherent occurrence, for example, several physical assaults during a fight.
b) Legal unity of action
Legal unity of action arises when several offenses are legally combined into a single act. Examples are continuing offenses (e.g., deprivation of liberty) or failure to render assistance, which occurs over a period of time.
Forms of Concurrent Offenses
1. Ideal Concurrence (Idealkonkurrenz)
If a single act violates several criminal statutes or the same statute multiple times, this is considered ideal concurrence (Section 52(1) StGB). Example: In a single course of conduct, a victim has both their wallet and mobile phone taken by force; here, theft and possibly assault are present in Tateinheit.
2. Real Concurrence (Tatmehrheit) – Distinction
Real concurrence differs from ideal concurrence in that there are several legally independent actions. In criminal law attributions, it must always be examined whether one or more crimes in the legal sense were committed.
3. Special Cases of Unity of Action
Concurrent offenses also exist in so-called continuing offenses, composite offenses, or statutory relationships of violence (e.g., in robbery: the taking and use of coercion form a Tateinheit).
Effects of Concurrent Offenses
1. Sentencing
In cases of concurrent offenses, only a single penalty is imposed, the amount of which is determined by the law with the most severe penalty. However, the other violations of the law act as aggravating factors.
2. Sentencing Range
Concurrent offenses affect the sentencing range to be determined. The offenses encompassed within concurrent offenses are considered aggravating circumstances for sentencing, but they do not count as separate penalties alongside each other.
3. Legal Consequences in Attempts, Withdrawal, Participation
In situations where an attempt exists or the perpetrator withdraws, it must always be examined how this affects all offenses committed in Tateinheit. The same applies if several perpetrators are involved (joint perpetrators, instigation, aiding and abetting).
4. Procedural Significance
Tateinheit also has procedural implications, for example with regard to the question of res judicata (ne bis in idem) and the joinder of charges, since only one judgment is rendered for offenses committed in Tateinheit.
Practical Examples of Concurrent Offenses
- Example 1: A person steals money and physically injures the victim in the process: This constitutes Tateinheit of theft and bodily harm.
- Example 2: A document is forged and then used to deceive in multiple transactions: Here, too, Tateinheit is presumed if the use is part of a single course of action.
- Example 3: During a trespassing offense, the perpetrator damages a door: Tateinheit of trespassing and criminal damage.
Special Considerations and Problems in Practice
1. Determining Concurrence
Whether Tateinheit or Tatmehrheit exists must be determined in the individual case by a precise examination of the actual sequence of events. The boundaries are often fluid and are sometimes assessed differently in case law and legal literature.
2. Continuing Offense
The concept of the “continuing offense” was essentially abolished by the 6th Criminal Law Reform Act of 1998. Remnants of this model survive in certain circumstances but have been largely replaced by the concepts of natural unity of action and Tateinheit.
3. Case Law of the BGH and BVerfG
The case law of the Federal Court of Justice and the Federal Constitutional Court regularly provides new impulses for interpreting Tateinheit, especially in complex cases such as economic crimes or in cases of multiple uses of data in IT criminal law.
International Comparison
Other legal systems have comparable regulations, but often apply different criteria for distinction and legal consequences. In Anglo-American law, concepts such as “single transaction” or “same act” are common, while the individual elements of offense concurrence frequently have their own regulatory mechanisms.
Literature and References
- German Criminal Code (StGB), especially Sections 52, 53
- Fischer, German Criminal Code, Commentary
- Schönke/Schröder, StGB, Commentary
- Federal Court of Justice, established case law on Tateinheit and Tatmehrheit
Summary
Tateinheit is a fundamental principle for assessing multiple violations of law in a single course of conduct. It leads to the imposition of only one sentence, the severity of which is determined by the gravest offense, while the remaining offenses are considered as aggravating factors. The distinction from Tatmehrheit is often challenging in practice and always depends on the specific circumstances. Detailed knowledge of the legal aspects of Tateinheit is essential for accurate criminal assessment and sentencing.
Frequently Asked Questions
When does Tateinheit exist in a legal sense and how is it differentiated from Tatmehrheit?
Tateinheit, in a legal sense, always exists when one act violates several criminal statutes at the same time or the same statute multiple times through a single criminal act (Section 52 StGB). The key distinction is made with Tatmehrheit (Section 53 StGB), which is present when there are multiple legally independent actions, each fulfilling different criminal offenses. In the case of Tateinheit (also referred to as real concurrence), a single act is usually considered which, from a criminal law perspective, realizes several offenses simultaneously. The distinction is made in particular according to the so-called natural unity of action: Such unity exists when the actions are closely linked in terms of time and place and subjectively appear as a single course of life. In contrast, Tatmehrheit involves examining several independent sequences of actions, for each of which a separate legal assessment takes place; accordingly, sentencing ranges may be applied cumulatively. As for sentencing, Tateinheit leads to the consolidated sentencing of the realized offenses into one overall sentence according to the so-called “total sentence formation” principle, with the gravest individual penalty being decisive and the others counted as aggravating factors.
What is the significance of Tateinheit for sentencing?
The legal significance of Tateinheit for sentencing is considerable, since it leads to the formation of a single sentence. Under Section 52(2) StGB, only the penalty for the gravest of the applicable statutes is generally imposed in cases of Tateinheit, with the other violations of law being considered as aggravating circumstances in sentencing. The legislator’s aim is to make a comprehensive assessment of the acts committed, without overburdening the offender through a simple aggregation of individual sentences, as would be the case with Tatmehrheit. As a result, the single sentence may be increased within the sentencing range of the gravest offense, but only to the extent considered appropriate. Additional increases by adding up penalties do not occur with Tateinheit.
How is the act defined for purposes of Tateinheit?
For Tateinheit to be present, it is decisive what is considered an “act” in the sense of criminal law. The legal assessment may differ from everyday usage. In criminal law, the so-called “natural unity of action” is often referenced: This refers to a factual situation that represents a continuous course of events and is also governed by the offender’s intent. A single action may thus have various legally relevant consequences if it fulfills several criminal offenses, provided it forms a natural unity. However, if the intent is interrupted or a new decision is made, a new criminal action begins, which may lead to the presumption of Tatmehrheit.
What typical constellations of Tateinheit exist in practice?
There are numerous typical scenarios of Tateinheit in practice. Particularly common are cases in which a single act injures several legal interests. Example: In a fight, an offender injures the victim (bodily harm under Section 223 StGB) and also damages their glasses (property damage under Section 303 StGB) – both offenses occur as part of a connected action. So-called “offenses to be punished concurrently,” such as robbery (Sections 249 ff. StGB), where the threat of violence accompanies a theft, are regularly committed in Tateinheit. Another example is document forgery (Section 267 StGB) and its use in legal transactions: If the forged document is used as part of the same course of events, this can form Tateinheit. There are also special cases in the case law, such as “act and result offenses,” where, for example, a single action simultaneously fulfills offenses with different results.
What role does the subjective element (intent or negligence) play in Tateinheit?
The subjective element is of particular significance in determining Tateinheit. It must be examined whether all offenses committed in Tateinheit were covered by the perpetrator’s intent (or also by negligence). For natural unity of action and thus Tateinheit, it is sufficient that there is a uniform intent for the entire sequence of events. If the intents vary or different courses of action are involved, distinction must be made in view of Tatmehrheit. For example, Tateinheit is excluded if, after completing a first offense, the offender commits a new offense with a new intent. However, if various offenses—such as intentional bodily harm and negligent property damage—occur in the course of a single coherent event, case law recognizes that Tateinheit can exist between intentional and negligent offenses as long as the course of events remains unified.
Can Tateinheit also exist in cases of omission offenses?
Tateinheit can occur not only in active commission offenses but also with omission offenses. What is decisive is whether a single breach of duty fulfills several offense elements. A classic example is the breach of supervision duty (Section 171 StGB), which may also result in bodily harm or even homicide by omission (Sections 223, 222 StGB). If the omitted actions form a single, unified event resulting in multiple violations of legal interests, Tateinheit is present. It must always be examined whether the omission is based on the same circumstances and the same guarantor position, and whether the violations of legal interests can be directly traced back to this.
How do continuing acts or ongoing offenses affect Tateinheit?
With continuing acts or ongoing (duration) offenses, it must be differentiated whether Tateinheit or Tatmehrheit exists. A continuing act is present if several similar single acts are carried out with a uniform overall intent. According to recent case law of the BGH, the continuing act is interpreted very restrictively, so that today, the natural unity of action is usually applied. In ongoing offenses—for example, in a continual deprivation of liberty (Section 239 StGB)—there is generally a single violation of rights covering the entire period. If several legal interests are injured during this period (such as bodily harm during deprivation of liberty), these can, provided they arise from the same event, be subsumed under Tateinheit. If, however, different courses of action and separate decisions are required at different times, then Tatmehrheit applies.
What is the impact of Tateinheit on the legal finality of previous judgments (key word: “coincidence of already adjudicated and new offenses”)?
The coincidence of already finally adjudicated and new offenses in the context of Tateinheit can lead to complications. In principle, new unified prosecution is excluded if a final judgment already exists regarding an offense committed in Tateinheit (so-called blocking effect of legal finality, Section 264 StPO). For subsequently discovered offenses committed in Tateinheit, the penalty imposed in the first judgment generally remains; additional penalties are only possible within the scope of subsequent total sentence formation under Section 55 StGB—and this only for Tatmehrheit. However, with Tateinheit, separate subsequent sentencing is no longer possible in order to avoid double penalties and uphold the principle of legal finality. As a result, offenses committed in Tateinheit but discovered later may remain unpunished if they were already adjudicated.
