Concept and definition of the imaginary offense
The imaginary offense is a term in criminal law that describes a specific constellation in which a person mistakenly believes that they are committing a crime, when in fact the behavior they fear is not punishable at all. What characterizes the imaginary offense is thus criminal liability that only exists in the perpetrator’s imagination—a so-called mistake of prohibition without a prohibition norm. The imaginary offense is distinct from the infeasible attempt as well as other error constellations and plays an important role in the context of the subjective elements of an offense.
Systematic classification and distinction
The imaginary offense is closely related to various forms of mistake in criminal law. A clear differentiation is necessary to understand its specific legal consequences and its treatment in the dogmatics of criminal law.
Distinction from the infeasible attempt
In contrast to the imaginary offense, the infeasible attempt presupposes an objectively existing offense, which, however, cannot succeed due to circumstances unknown to the perpetrator (for example, shooting at a supposedly living person who is in fact already dead). With the imaginary offense, the legal definition of the crime is already absent; the behavior is not punishable, even if all the perpetrator’s assumptions were correct.
Distinction from the putative offense
The term ‘putative offense’ (Latin: ‘putare’ = to think, to believe) is often used synonymously with the imaginary offense in German criminal law. However, there is sometimes a conceptual differentiation: while the imaginary offense involves the erroneous assumption of criminal conduct when the actual behavior is not punishable, the putative offense generally refers to the mistake of thinking one is committing a criminal offense at all.
Distinction from mistake of fact and mistake of prohibition
The imaginary offense must also be distinguished from the mistake of fact (error about factual circumstances required for a criminal offense) as well as from the mistake of prohibition (misjudgment regarding the existence or scope of a prohibition norm). An imaginary offense exists when there is a fundamental mistake about the existence of a legal prohibition.
Requirements and manifestations of the imaginary offense
Typical for the imaginary offense is a constellation where:
- the conduct of the perpetrator does not fall under a criminal statute,
- however, the perpetrator believes they are committing a crime,
- thus the subjective element (intent) is fully developed, while the objective element of the offense is entirely absent.
An example is the ‘putative theft’: someone who, believing they are taking someone else’s property, takes possession of an ownerless item is subjectively acting with intent to steal, but objectively the requirement of ‘foreignness’ is lacking and thus there is no criminal liability.
Legal consequences of an imaginary offense
Since the imaginary offense lacks any wrongfulness on the objective level, no punishment is possible. Criminal liability always depends on the existence of a statutory offense (prohibition of analogy pursuant to Article 103 para. 2 of the Basic Law). If this is lacking, the behavior remains non-punishable, even if the act was committed, in the perpetrator’s view, in a criminally relevant manner.
Imaginary offense in connection with the punishability of preparatory acts
It is questionable whether, in cases of imaginary offenses, preparatory acts could be punishable, for instance under catch-all offenses (e.g. § 241 Criminal Code – threat). Here too, the principle applies that criminal liability depends on the existence of a corresponding legal norm. If someone prepares a “crime” that does not actually correspond to any criminal statute, this still constitutes an imaginary offense, and no sanction can be imposed.
Imaginary offense in the Special Part of criminal law
Within the Special Part of criminal law, the imaginary offense can occur in various groups of offenses. It is most frequently discussed in the context of offenses against property and assets, but also in relation to sexual or narcotics offenses if, for example, the perpetrator’s imagined circumstances do not match the actual legal requirements of the offense.
Examples from case law
The courts have addressed the imaginary offense in various constellations, especially in cases such as:
- appropriation of ownerless property in the belief of committing theft,
- alleged forgery of documents with ‘blank’ papers,
- supposed narcotics offenses involving legal or harmless substances.
Imaginary offense and criminal proceedings
In procedural criminal law, the imaginary offense has no direct relevance, because a conviction can never be made from the outset. However, an investigation may be initiated if the authorities initially assume a crime, only to later establish that there is objectively no punishable conduct.
Literature and further references
The imaginary offense is a regularly discussed topic in textbooks on the General Part of criminal law as well as in systematic commentaries. It appears particularly as a sub-topic in discussions of intent, decision to commit an offense, attempt, and error in criminal law.
Summary: In criminal law, the imaginary offense describes the case where a person has the intent to commit a crime but actually engages in conduct that is not punishable. It is characterized by the complete absence of the objective elements of the offense despite a pronounced subjective determination to commit the offense. The imaginary offense must be distinguished from the infeasible attempt, from mistake of fact, and from mistake of prohibition, and is always non-punishable. It highlights the principles of legality and the prohibition of analogy in criminal law and the requirement that punishability is tied to statutorily defined offense elements.
Frequently asked questions
What legal requirements must be met for the assumption of an imaginary offense?
An imaginary offense requires that the perpetrator, due to a misconception (error), assumes the existence of a prohibition or obligation that in reality does not exist or does not apply as imagined, and thus believes that their behavior violates a criminal law. Legally decisive is that there is objectively no wrongdoing, because the offense assumed by the perpetrator does not exist as a legal offense or the situation itself is not punishable. The misjudgment of the perpetrator concerns only the existence of criminal liability; accordingly, they believe they are committing a crime, even though their conduct does not actually meet the legal criteria of an offense. Another key requirement is that there is no punishable act either in a factual or legal sense (i.e., there is no match between the act and the statutory requirements). There is therefore no intentional deception about actually existing rules of criminal liability; rather, it is an unjustified error about criminal liability.
Can an imaginary offense be prosecuted under criminal law?
An imaginary offense is, as a rule, not punishable, as the conduct cannot be subsumed under a criminal statute on an objective level. Under German criminal law, the prohibition of analogy and the principle of certainty apply, meaning only acts or omissions explicitly defined by statute may be punished. As the imaginary offense lacks realization of the objective elements of an offense, there is no statutory basis for punishment. Thus, an imaginary offense cannot result in a conviction. This holds even if the perpetrator, acting under a mistaken belief, believes they are committing a wrongful act—what matters is always the objective non-punishability of their conduct.
What impact does an imaginary offense have on the attempt to commit an offense?
In the context of an attempt to commit a crime, the imaginary offense warrants special consideration, as, according to § 22 of the Criminal Code, an attempt requires the perpetrator to make a direct move towards the completion of the offense according to his imagination. However, with the imaginary offense, the objective elements of the offense are absent, and according to the prevailing opinion in criminal law, there is no ‘infeasible attempt’ with regard to a non-offense. If conduct objectively does not fall under the statutory definition of an offense, prosecution for an attempt is also ruled out, because there is a lack of a ‘crime’ as defined by the Criminal Code. Acting intentionally in violation of a supposed law thus does not constitute criminal liability for attempt.
What significance does the imaginary offense have in examining a mistake of prohibition?
The imaginary offense is strictly distinguished from the mistake of prohibition under § 17 of the Criminal Code. A mistake of prohibition exists when the perpetrator does not recognize the wrongfulness of their conduct, even though the behavior is objectively covered by the elements of an offense. The imaginary offense reverses this: the perpetrator erroneously believes that conduct is forbidden which is objectively permissible. For punishability in cases of the imaginary offense, reviewing a mistake of prohibition is irrelevant, because the element of the offense is already absent on the objective level and the protection of legal interests is not at stake. A sanction based on a mistake of prohibition is excluded in the case of an imaginary offense, as there is no wrong for the legal system to punish.
When can an imaginary offense turn into another offense?
An imaginary offense can become criminally relevant if the conduct actually carried out, irrespective of the misconception, fulfills the elements of another criminal offense. If the erroneous assumption of criminality leads the perpetrator to commit, in fact, a different crime, then they are to be punished under the relevant offense. Example: Someone believes that setting off fireworks is prohibited on a certain day and therefore tries to deceive the police (for example, by presenting false documents). The act of deception can then be prosecuted as forgery, even if the original mistake (supposed fireworks ban) would have constituted an imaginary offense.
What role does the imaginary offense play in the context of grounds for justification or excuse?
An imaginary offense can play a role in connection with grounds for justification or excuse, particularly if the perpetrator, due to their misjudgment, erroneously believes they are acting in self-defense, in an emergency situation, or complying with a legal obligation. However, if objectively there is no justifying situation and no objective necessity for the act, such assumptions regularly lead only to non-punishability because the acts do not meet the statutory elements of an offense, and do not affect the assessment of justification or excuse. The basic principle of the imaginary offense remaining non-punishable continues to apply in these constellations—a different assessment rarely occurs in these situations.
