Concept and significance of perpetrator control
The term perpetrator control is a central concept in German criminal law and is key in distinguishing various forms of participation in a criminal offense. It refers to a position where a person can direct or stop the course of an offense according to their will, in other words, where the action is “in their hands.” Perpetrator control forms the core criterion for differentiating between perpetrators and participants (§§ 25 ff. of the German Criminal Code, StGB).
Historical development of the doctrine of perpetrator control
Origin and development
The concept of perpetrator control was shaped within the classical perpetration and participation doctrine by Reinhard Frank and, particularly, by Hans Welzel in the 20th century. The doctrine developed as a reaction against the purely normative concept of the perpetrator and focuses on actual control over the course of the crime. As a result, criminal law was freed from formal criteria and directed toward material responsibility.
Systematic classification in criminal law
Distinction: Principals and participants
Under German criminal law, forms of participation in a criminal offense are fundamentally divided into perpetration and participation. Perpetrator control is the decisive feature of perpetration. Participants, by contrast, play a supporting role and cannot independently control or direct the course of events.
Forms of perpetration are divided according to § 25 StGB:
- Sole perpetration (§ 25 para. 1 alt. 1 StGB): The perpetrator personally commits the offense.
- Co-perpetration (§ 25 para. 2 StGB): Several individuals act together, each exerting perpetrator control by making a significant contribution to the offense.
- Indirect perpetration (§ 25 para. 1 alt. 2 StGB): The perpetrator instigates another, who acts as an “instrument” (without their own perpetrator control).
Forms of participation (instigation and aiding) are governed by §§ 26 and 27 StGB and are characterized precisely by the absence of perpetrator control on the part of the participant.
Perpetrator control in detail
Characteristics of perpetrator control
Perpetrator control is characterized by “holding the course of the crime in one’s hands” and can be described by objective and subjective elements:
- Objective perpetrator control: Factual power to causally control the course of the offense, i.e., to be able to determine the initiation, sequence, and completion of the act constituting the offense.
- Subjective component: The will to execute the crime as the “master of events” (animus auctoris), as opposed to the mere supportive intention of a participant (animus socii).
Criteria for distinction
The distinction between perpetration and participation based on the criterion of perpetrator control is made according to several assessment factors. Key criteria include:
- Significant contribution to the offense: Only those who make a substantial contribution to the success of the offense can be a perpetrator in control.
- Planning and execution of the crime: Involvement in the execution, planning, and organization of the act is indicative of perpetrator control.
- Risk allocation: Those who bear significant risks and assume responsibility for the crime regularly possess perpetrator control.
- Controllability of the crime: Control over relevant phases of the offense is considered a major indicator.
Perpetrator control in various forms of perpetration
Sole perpetration
The sole perpetrator completes the offense personally and, as a result, has unrestricted control over the course of events.
Co-perpetration
Here, control over the offense lies jointly with several individuals. Under § 25 para. 2 StGB, co-perpetration exists when the participants work together based on a joint plan and each exerts control over the course of events through an independent and significant contribution. Attribution of contributions is mutual, under the “principle of functional perpetrator control.”
Indirect perpetration
In the case of indirect perpetration, the perpetrator acts “behind the perpetrator.” The front person (the direct actor) commits the act directly but is not themselves in control, for example, due to lack of intent or capacity or because of a mistake. The person directing the events (“the backman”) exerts decisive control and is thus the perpetrator in the sense of indirect perpetration.
Problems of distinction and special issues
Distinguishing co-perpetration and aiding
The practical difficulty in perpetrator control often lies in distinguishing between forms of joint participation, such as in gang offenses or conspiracies. Even seemingly subordinate acts of assistance can, in context, qualify as significant contributions. A differentiated analysis of the overall plan and the nature of each contribution is essential.
Suicide and perpetrator control
The question of perpetrator control is, for example, relevant in the criminal assessment of aiding suicide. Anyone who decisively controls the act (e.g., administering an injection) is considered a perpetrator, whereas merely supportive actions without directing power are regarded as participation.
Negligence and perpetrator control
The formula of perpetrator control generally only applies to crimes committed intentionally. In the case of negligent offenses (§ 15 StGB), the criterion of perpetrator control is not applicable; in these cases, attribution is based on other principles of liability.
Case law and literature
Perpetrator control is the subject of extensive debate in criminal law literature and is regularly used by judicial authorities to resolve issues of distinction. The Federal Court of Justice (BGH) has recognized perpetrator control as a decisive criterion and has refined it in numerous landmark decisions.
International references
Similar approaches to perpetrator control exist in the criminal law of other countries, especially in Austrian and Swiss law. In Anglo-American law, the principle of “control over the act” is used, serving similar purposes, although the systematics of forms of participation differ.
References
- Hans Welzel: German Criminal Law.
- Reinhard Frank: System of Criminal Law Science.
- Rengier, General Part of Criminal Law.
- Fischer, Criminal Code Commentary.
Summary
Die perpetrator control is a fundamental criterion for distinguishing perpetration from participation in German criminal law. It refers to the actual ability to control or direct the course of the crime according to one’s own will. Due to its relevance for the legal attribution of crimes, perpetrator control has significant doctrinal and practical importance. The differentiation into sole, co-, and indirect perpetration is fundamentally based on this category, while questions of distinction in individual cases always require careful analysis of the contribution to the offense and risk distribution.
Frequently asked questions
What is the significance of perpetrator control in distinguishing perpetration and participation?
Perpetrator control is a central criterion for differentiating between perpetration and participation in German criminal law. It serves as an objective distinguishing feature to determine whether a person is to be classified as a perpetrator or merely as a participant (instigator or accessory) in a punishable act. What is decisive is whether the party involved was able to significantly influence the “whether” and “how” of the crime, that is, whether the implementation of the offense was in their hands. The person in control can direct the course of events according to their will and decisively determine the fate of completion. In contrast, the participant lacks this degree of influence; they support or instigate the main perpetrator without controlling the execution.
How is perpetrator control assessed in cases of co-perpetration?
In the context of co-perpetration under § 25 para. 2 StGB, perpetrator control is a key attribution criterion. Each co-perpetrator must make a significant contribution to the overall event and, based on a shared plan, have or at least share control over the course of events. Control is functionally distributed among co-perpetrators, meaning joint action with divided tasks is sufficient as long as each person shapes and influences the overall event with their contribution. It is not required that every act is under their direct control; rather, cooperation makes them all “masters of the event.”
What role does perpetrator control play in indirect perpetration?
In the context of indirect perpetration under § 25 para. 1 alt. 2 StGB, perpetrator control has a special significance. Here, control does not lie with the person directly executing the act, but with the person behind the scenes, who, as the instigator, possesses control over the course of the offense. The indirect perpetrator directs the event from the background and uses another person—often someone with some form of deficit—as an instrument. Characteristically, the person behind the scenes can direct the act according to his or her intentions because of the knowledge or will deficit of the immediate actor, thus controlling the course of events without acting directly.
How does perpetrator control differ from mere participation?
Perpetrator control is distinct from participation primarily through the ability to influence and direct the act constituting the offense. The participant—whether as instigator (§ 26 StGB) or accessory (§ 27 StGB)—initiates or supports the main offense but does not control or guide it. In contrast, the perpetrator is the one who executes or determines the offense through their control, while the participant acts dependently or subordinately. This is decisive in a criminal law context since only the perpetrator is held liable for the main offense and the participant only according to their role.
What typical scenarios of perpetrator control are distinguished in practice?
Case law and literature distinguish various forms of perpetrator control: execution control as the personally acting perpetrator; will control in indirect perpetration, where the perpetrator uses another as an instrument; and functional perpetrator control in jointly committed offenses, where participants act in a divided but cooperative and equal manner to shape the crime. Additionally, organizational control is recognized, particularly in group structures such as gangs or companies, where a dominant position within the organization can confer perpetrator status.
How does the criterion of perpetrator control relate to other theories of distinction?
The doctrine of perpetrator control stands in contrast to so-called subjective theories of distinction, which focus primarily on the intent, motivation, or direction of will of the parties involved. While subjective approaches (e.g., the animus theory) emphasize the perpetrator’s mindset or intent, the perpetrator control doctrine is characterized by its objective standard, centering on actual influence. In practice, a combination of both perspectives is pursued, although perpetrator control is regularly applied as the main criterion in distinguishing perpetration from participation.
What is the significance of perpetrator control in cases of omission offenses?
Even in genuine offenses by omission (§ 13 StGB), perpetrator control is relevant, albeit in a modified form: Here, the exercise of control does not lie in active conduct, but rather in the ability to control the occurrence constituting the offense by omission, due to a duty of care (guarantor position). A perpetrator in such cases is one who is legally obliged to ensure that the result constituting the offense does not occur and who had the factual ability to prevent it. Thus, perpetrator control in omission offenses mainly manifests as the culpable power not to prevent the outcome.
