Definition and Legal Classification of the Agreement to Commit a Crime
Die Agreement to Commit a Crime is a term from German criminal law and describes a special form of involvement in a crime. It occurs when at least two persons agree to jointly commit a specific crime which has not yet been initiated. In Germany, the agreement to commit a crime is only punishable in certain cases and under strict conditions. It must be distinguished from attempt, preparation, and mere planning or discussion.
Legal Basis
Section 30 Criminal Code (StGB)
The central provision regarding the punishability of the agreement to commit a crime can be found in Section 30 StGB. It provides that agreement to commit certain serious offenses – so-called crimes – is punishable. According to Section 30(2) StGB, anyone who agrees with another to commit or jointly commit a crime is liable to punishment.
Definition of “Crime”
According to Section 12(1) StGB, a crime refers to any unlawful act that is punishable by a minimum sentence of at least one year of imprisonment. Conversely, misdemeanors are less serious offenses with a lower minimum sentence.
Elements of the Offense: Agreement to Commit a Crime
Agreement between at least two persons
A requirement is an agreement between at least two participants. An implicit agreement is sufficient; it does not have to be expressly discussed that the crime will be committed. Both parties must firmly commit to carrying out a specific act.
Reference to a Specific Crime
The subject of the agreement must be a specifically defined crime. General agreements to commit a “crime” are insufficient; a particular, planned act is required.
Timing of the Agreement
The agreement must be made before execution of the act has begun. If execution has already started, it is not a case of agreement but potentially an attempt or another form of participation.
Criminal Liability
Distinction from Non-Punishable Preparation and Attempt
Agreement to commit a crime is legally stricter than mere preparation but follows the attempt. While participation in preparation is basically not punishable, agreement – in the form of a solidified understanding – is considered a punishable act for crimes.
Requirements and Penalty
Liability under German law for agreement is restricted to serious offenses. By law, punishability is provided in particular for crimes, i.e., the most serious forms of crime, such as robbery, murder, manslaughter, or serious human trafficking.
The penalty under Section 30(2) StGB corresponds to that for attempt; however, the court may mitigate the sentence (Section 49(1) StGB) or, under certain circumstances, refrain from punishment altogether.
No Liability in Case of Voluntary Withdrawal
Anyone who, after the agreement, voluntarily and earnestly prevents execution of the act (Section 31 StGB), remains unpunished. Withdrawal can occur, for example, if one participant persuades the other to abandon the act or informs authorities in time.
Special Cases and Distinctions
Agreement to Commit a Misdemeanor
The agreement, with the exception of a few expressly regulated cases, is not punishable. Agreement over a less serious act generally remains unpunished unless another specific provision imposes liability.
Relationship to Conspiracy and Other Forms of Participation
Under German criminal law, agreement is to be strictly distinguished from “conspiracy”. Conspiracy is a term mainly from Anglo-American criminal law; in Germany, there is no independent provision for conspiracy outside of specialized areas (e.g. narcotics law).
Other forms of participation, such as incitement or aiding and abetting, require a completed or at least initiated act. Agreement, on the other hand, refers to a preliminary stage of the offense.
Agreement to Commit Multiple Crimes
If an agreement is reached involving multiple individual crimes, each must be examined separately. If there is an agreement to commit both murder and robbery, liability must be assessed individually for each act included in the agreement.
Practical Relevance and Typical Areas of Application
Liability for agreement is particularly relevant in organized crime structures, such as terrorist organizations, serious narcotics crime, planned capital offenses, and offenses against public safety. In court practice, this statutory offense serves in particular for prosecution even before commencement of the offense, provided there are sufficiently concrete indications of a planned act.
Note: Application in Narcotics Law and Other Special Legislation
In the Narcotics Act (Section 30a BtMG) and other specific provisions, there are divergent or additional rules regarding liability for agreement. Here, preparation and agreement for certain acts – such as unauthorized drug trafficking – are themselves punishable, even if they are considered misdemeanors.
Summary
Die Agreement to Commit a Crime under German criminal law constitutes an independent basis for criminal liability, which punishes the collective agreement to commit a crime. It forms an important interface between non-punishable preparation and punishable attempt. The provision primarily serves preventive protection against serious crimes and is mainly applied to crimes, not misdemeanors. Special provisions exist in ancillary laws such as the Narcotics Act. Actual prosecution depends on a narrow scope of application and is subject to strictly defined legal requirements.
Frequently Asked Questions
What requirements must be met for an agreement to commit a crime to exist?
For an agreement to commit a crime under German criminal law (Section 30 StGB), at least two persons must agree to jointly commit a specific act. A mere declaration of intent or vague arrangement is not enough; a serious and binding agreement on carrying out a specific offense is required. The agreement must relate to a main act that fulfills the legal requirements, is unlawful, and carried out with culpability, usually covering crimes but not misdemeanors. The law does not require further planning or preparatory acts; the serious agreement itself makes the act punishable. Everyone involved must have the intent to commit the offense – mere knowledge or approval without participation is not sufficient.
Is the agreement to commit a crime already punishable even if the act is not carried out?
Yes, under Section 30 StGB, agreement to commit an act is already punishable when there is a binding understanding to commit a crime, regardless of whether further steps towards preparation or execution are taken and even if the planned act is ultimately not carried out. The legislature regards the agreement as an independent endangerment offense, as cooperation between multiple persons to commit a crime in itself poses a significant danger to the public. However, if the intended act is only a misdemeanor, liability does not apply, because Section 30 StGB is exclusively applicable to crimes.
Does agreement to commit a crime differ from mere preparatory acts?
Agreement to commit a crime differs from mere preparatory acts in that it is already fulfilled when multiple people agree to commit a specific crime, thus establishing independent criminal liability. Preparatory acts are those that serve the later execution of an act, such as acquiring tools, without a binding agreement with other participants. Liability for preparatory acts under German law arises only in specifically defined, particularly dangerous exceptions (Section 30(2) and Section 83 StGB), whereas agreement to commit a crime adopts a more general approach as soon as a crime is planned collectively.
What role does intent play in the agreement to commit a crime?
Intent is a central element in the agreement to commit a crime: all persons involved in the agreement must act with intent, i.e., with knowledge of and will to commit the offense. Thus, there must be mutual intent among all participants to commit the specified crime at a certain time and under certain circumstances. If there are doubts as to the seriousness of the intent, e.g. if one participant is only pretending to take part or is in fact not ready to act, there is no punishable agreement.
Can an agreement to commit a crime be revoked and, if so, what are the legal consequences?
A criminal plan once made can generally be revoked. If one of the participants decides not to proceed with the planned offense and notifies the others in good time, their own liability under Section 30 StGB ceases. However, withdrawal must be clear and take place before the act’s execution begins; later withdrawals are only relevant under narrow circumstances as a withdrawal from an attempt (Section 24 StGB). The revocation must be clear and unequivocal and cannot consist merely of a unilateral intention; it must be communicated to the other participants.
How is attempted agreement to commit a crime treated?
Legally, an attempt to reach an agreement to commit a crime is not possible. The agreement itself is a special form of attempt liability, i.e., with the agreement to commit a crime, the offense is already complete. Attempts to reach an agreement that fail are not punishable for lack of express statutory provision. Only with the successful understanding among all participants does liability for agreement to commit a crime arise.
What penalties are imposed for agreement to commit a crime?
The agreement to commit a crime is generally punished less severely than the completed offense. Under Section 30(1) StGB, planning a crime is punishable by imprisonment of up to five years or a fine, unless the law provides otherwise for the planned main offense. In each case, the penalty depends on the severity of the planned offense and each person’s degree of participation. Mitigation of sentence may apply if the perpetrator voluntarily withdraws from the agreement and helps to prevent the planned act.
