Definition and Principles of Offense-Based Criminal Law
Das Offense-Based Criminal Law (also referred to as “offense-based criminal law”) describes a central structural principle of criminal law systems, particularly in German and Austrian criminal law. It stands in contrast to perpetrator-based criminal law and states that a person’s criminal responsibility is essentially oriented towards their specific act—i.e., the conduct they committed and the objective as well as subjective elements of the offense. The individual’s personality, character traits, or previous criminal record are generally irrelevant for criminal liability under this system, unless they are legally stipulated for criminal requirements or sentencing purposes.
Offense-based criminal law represents the historical development in German law of both individualized and at the same time objectivized criminal liability. In this context, offense-based criminal law decisively shapes the understanding of the principle of guilt, the principle of legality, and the function of punishment.
Historical Development and Importance
Development of Offense-Based Criminal Law
The development of offense-based criminal law in Central Europe is closely linked to the Enlightenment and ideas of criminal law reform at the end of the 18th century. The earlier perpetrator-based approach of the early modern period, which emphasized the perpetrator’s personality and class-specific traits, was gradually replaced by a system centered on the actual violation of law and the breach of norms (“the offense”). Notable proponents such as Cesare Beccaria and later Franz von Liszt called for an objectification and predictability of criminal sanctions in line with the offense principle.
Fundamental Legal Principles
- Principle of Legality (§ 1 StGB): Punishment can only be imposed for acts described by law (“nullum crimen, nulla poena sine lege”).
- Principle of Guilt (§ 46 para. 1 StGB): Punishable is one who culpably fulfills a legal definition of an offense.
- Principle of Individualization: Although the punishment is directed at the individual offender, decisive is still the offense-related conduct and the allegation of the offense.
Systematic Classification
Offense-Based vs. Perpetrator-Based Criminal Law
Offense-based criminal law fundamentally differs from perpetrator-based criminal law, which centers on the perpetrator’s personal characteristics, lifestyle, or educational considerations. In offense-based criminal law, sentencing and criminal liability are primarily based on the event and motive of the offense. Only in exceptional cases, such as juvenile criminal law or in forensic commitments, are perpetrator-specific characteristics particularly considered if relevant to the offense.
Essential Distinguishing Features:
- Offense-Based Criminal Law: Sanctioning of unlawful conduct (the offense).
- Perpetrator-Based Criminal Law: Sanctioning the dangerousness or specific personality deficits of the perpetrator.
Offense-Based Criminal Law in the Penal Code (StGB)
General Part
In the General Part of the German Penal Code (StGB), offense-based criminal law is expressed, among other things, in the regulations concerning the elements of the offense, unlawfulness, and culpability. Criminal liability presupposes that a perpetrator intentionally or negligently commits an offense and acts unlawfully and with guilt. The perpetrator’s personal constitution, prior and subsequent offenses are generally only considered during sentencing (§§ 46 et seq. StGB), not for the determination of criminal responsibility itself.
Special Part
In the Special Part of the StGB, each criminal provision is fundamentally directed at a particular element of conduct constituting an offense. For example, § 211 StGB specifies the characteristics of murder, referring exclusively to the concrete behavior in a specific life situation. Perpetrator-specific characteristics are only considered in the law to the extent that they are expressly required by the offense (e.g., “public official” in the case of official offenses).
Impact on Sentencing
Sentence Pronouncement and Sentencing
Even in the context of sentencing, the offense remains at the center of judicial discretion. As stipulated by § 46 para. 1 StGB, the determination of the sentence primarily depends on the perpetrator’s guilt. The severity of the offense is decisive, while the perpetrator’s personality, background, or conduct after the offense are only secondarily considered in individual cases.
Significance of Perpetrator Characteristics Relevant to Sentencing
The only systematic exception to the offense principle is found in special laws such as the Youth Courts Act (JGG), which focuses on the perpetrator’s personality in juvenile criminal law for educational reasons, or in forensic commitment (§§ 63 et seq. StGB) when a prognosis of dangerousness is required.
Criticism and Limits of Offense-Based Criminal Law
Dogmatic Criticism
Critics argue that offense-based criminal law in its strict form leads to a complete neglect of important social and psychological factors surrounding the offense. Modern criminological research in particular calls for a certain return to perpetrator orientation, especially to address recidivism risks.
Practical Limitations
In practice, offense-based criminal law is regularly overridden in favor of a system-specific balance with individual perpetrator characteristics. Social, psychological, and historical factors can, depending on the offense, be incorporated into the overall assessment in the form of altered sentencing ranges, suspended sentences, or ancillary sanctions.
International Context and Reception
Offense-Based Criminal Law in Other Legal Systems
Also in international comparison, offense-based criminal law is characteristic of continental European criminal law codes. Anglo-Saxon countries such as the United Kingdom or the USA utilize at least partially different models such as “indeterminate sentencing” and a stronger focus on the perpetrator, in which the personality and dangerousness of the perpetrator play a greater role in sentencing.
Summary
Offense-based criminal law is a central structural principle of criminal law, in which the concrete offense—and not (primarily) the perpetrator’s personality or living circumstances—determines both criminal liability and sentencing. It thus stands in contrast to systems with a stronger focus on the perpetrator, as in juvenile criminal law or forensic commitments. Despite criticism and reformist tendencies, offense-based criminal law remains fundamental to the understanding of modern criminal law.
Literature
- Joecks, Wolfgang (ed.): Studienkommentar StGB. 13th edition, 2022.
- Roxin, Claus: Strafrecht Allgemeiner Teil. 4th edition, 2019.
- Zieschang, Klaus: Die Lehre vom Täter- und Tatstrafrecht, Juristenzeitung 1982, 1 ff.
- Beccaria, Cesare: On Crimes and Punishments (Original title: Dei delitti e delle pene), 1764.
Frequently Asked Questions
Who is typically considered an offender under offense-based criminal law?
Under offense-based criminal law, any person is considered an offender who, through their own conduct in conformity with the legal definition, and unlawful act, fulfills all objective and subjective elements of a criminal offense. Central here is the principle of individual responsibility: Only those who commit a criminal act themselves or who, through their own contribution as a co-offender or indirect perpetrator, directly assist in realizing the criminal offense are regarded as offenders. It is not required that the offender carries out all phases of the act themselves; it is also sufficient to direct or control the course of events (“control over the act”). In addition to active commission by doing, criminal omission can also confer offender status, if the offender violates a legally mandated duty to act and thereby brings about the result prescribed by the offense. Overall, determining offender status in offense-based criminal law always depends on the individual case and requires a precise examination of the individual’s contribution to the offense in context.
How do perpetration and participation differ in offense-based criminal law?
Offense-based criminal law draws a strict distinction between perpetration and participation. Perpetration exists when the actor commits the offense themselves, or as a co-responsible participant (such as a co-offender or indirect perpetrator), plays a significant role in the central events. The question of perpetration is usually answered based on the theory of control over the act, according to which the perpetrator is the one who substantially determines the “whether” and “how” of the act. Participants, on the other hand, are instigators (§ 26 StGB) and accomplices (§ 27 StGB). An instigator is someone who induces another to intentionally commit an unlawful act, whereas an accomplice supports someone else’s act through assistance. Unlike the perpetrator, the participant does not carry out their own act but makes a subordinate contribution to the principal offender’s wrongdoing. The legal consequences differ significantly depending on the form of involvement, particularly regarding sentencing ranges, liability for attempts, and personal grounds for excluding or mitigating punishment.
What role does intent play in offense-based criminal law?
Intent is a core subjective element in nearly all offenses under offense-based criminal law. Intent means the will to realize the offense, accompanied by knowledge of all its objective circumstances. Offense-based criminal law generally distinguishes between three forms of intent: purposeful intent (dolus directus of the first degree), direct intent (dolus directus of the second degree), and conditional intent (dolus eventualis). Conduct without intent is usually not punishable, unless the law expressly establishes negligence-based liability (for example, § 222 StGB, negligent homicide). Proof of intent is always determined by the circumstances of the individual case; an error regarding the circumstances of the offense or the existence of a justification ground can eliminate intent (and thus criminal liability).
What is the significance of objective attribution in offense-based criminal law?
Objective attribution is a central criterion of criminal liability under offense-based criminal law. It is necessary to determine whether, and to what extent, a result caused by an action can be attributed to the offender. A result is objectively attributable if the offender has created a legally relevant danger that materializes in the result provided for by the offense. It is therefore not sufficient that a result was merely factually caused (causality); rather, the result must be specifically due to a breach of duty risk caused by the offender’s conduct. If there is no such increase in risk or if the result is due to completely atypical chains of causality, the result cannot objectively be attributed to the offender. Objective attribution thus serves as a reasoned limitation of criminal liability.
When is an omission punishable under offense-based criminal law?
An omission is punishable under offense-based criminal law whenever the offender, contrary to a guarantor position owed, fails to act in a way that could have prevented the result stipulated by the offense, and where performing the action is reasonable and legally possible (§ 13 StGB). Mere inaction is not sufficient: a special legal duty to prevent the result must exist, for instance by law (parents towards children), contract (caregivers towards patients), or particularly assumed community of risk. Criminal liability further requires a causal and objectively attributable link between the failure to act and the occurrence of the result. The requirements for a guarantor position are distinguished in case law between “protecting guarantors” (duty to protect specific legal interests) and “supervisory guarantors” (duty to secure against dangers arising from specified areas of responsibility).
How is criminal liability for attempts regulated in offense-based criminal law?
Under offense-based criminal law, the attempt of an offense is punishable under certain conditions. According to § 23 para. 1 StGB, attempt is in principle always punishable for felonies, and for misdemeanors only if expressly provided for by law. An attempt requires that, in accordance with the perpetrator’s conception, the perpetrator begins directly to realize the elements of the offense (§ 22 StGB). Hence, criminal liability begins when conduct can, according to the perpetrator’s understanding, lead to fulfillment of the offense without significant further steps. Attempt is divided into “unfinished” and “completed” attempts, each with different legal consequences—for example, different requirements for a withdrawal exempting from punishment (§ 24 StGB). Attempt is usually subject to a reduced sentencing range compared to completion, but in particularly severe cases may be punished equivalently.
