Concept and Significance of Alternative Offenses
Als Alternative Offenses is a term from German criminal law describing instances in which a particular conduct may fall under several criminal provisions—in other words, there are multiple criminal offenses that may fit a single factual situation. The distinctive feature is that, depending on the legal assessment, only one of the qualifying offenses will apply. Alternative offenses are characterized by overlapping statutory elements, but they do not relate to each other as real concurrence, ideal concurrence, cumulative offenses, or statutory competition in terms of ideal concurrence or specialty. The term ‘alternative offense’ is not explicitly defined in the statute itself, yet it is a common term in substantive criminal law.
Systematic Classification
Distinction from Similar Legal Institutions
Alternative offenses must be distinguished from related terms such as concurrence (ideal concurrence, real concurrence), statutory competition (subsidiarity, specialty, absorption), and alternative act . While ideal concurrence involves the fulfillment of several statutory elements through a single act, potentially resulting in separate prosecution, the concept of an alternative offense limits itself to the exclusive application of one normative offense alternative.
Examples of Alternative Offenses
Typical practical cases of alternative offenses arise, for example, with the statutory elements of theft (§ 242 StGB) und embezzlement (§ 246 StGB): If a movable object belonging to another is taken away, it constitutes theft—but if the item is merely appropriated for oneself or a third party without being taken away, it is embezzlement. In certain situations, both offenses may appear applicable to the same facts; the actual legal classification depends on the correctly evaluated conduct.
Another example is robbery (§ 249 StGB) und coercion (§ 240 StGB), when removal occurs by means of force; here it must be examined whether the more specific offense of robbery is fulfilled or only coercion is present.
Legal Consequences of the Alternative Offense
Statutory Equivalence
The equivalence of the respective offenses under consideration is a typical feature of alternative offenses. If several alternatives are possible, prosecution is generally only under the applicable provision. Unlike ideal concurrence under § 52 StGB or real concurrence under § 53 StGB, a single act is attributed to just one of these offenses, as no genuine concurrence arises.
Impact on Prosecution and Judgment
In both investigation and main trial, the correct legal classification is essential for alternative offenses. If the court reaches different conclusions during the main trial, it may convict based on the alternative offense that applies. Conviction for multiple alternative offenses based on the same facts is excluded, in order to uphold the prohibition of double jeopardy (ne bis in idem).
Treatment in the Criminal Judgment
In the criminal judgment, the final legal classification is reflected in the heading or operative part of the verdict. Particular care must be given to accurately subsuming the conduct under one of the competing statutory elements. A conviction “for theft or embezzlement” is impermissible; a specific alternative offense must always be named.
Special Features and Issues with Alternative Offenses
Ambiguously Phrased Indictment and Conviction
If an alternative offense is considered during the investigation and it is unclear, for example, whether theft or embezzlement has occurred, this is referred to as a ambiguous indictment. In this case, the court must, at the latest in the judgment, decide clearly and unequivocally which offense is actually being adjudicated.
Relevance for Sentencing
If the judge must assess facts as an alternative offense, the choice among applicable provisions directly influences the threatened penalty, since different statutory ranges may apply. The choice thus affects both the type and extent of punishment.
Relationship to Other Legal Institutions
The alternative offense occupies a separate position between true concurrence and statutory competition. It should not be confused with situational concurrence, such as arises with continued offenses. Another special feature is the so-called “principle of alternative perpetrators,” where an act might be subsumed under different forms of perpetration.
Alternative Offenses in Practice
Practical Significance in Criminal Proceedings
In criminal investigations, it is often necessary to initially treat a set of facts as an alternative offense, as evidence and facts are often ambiguous. During the main trial, it usually becomes clear which criminal offense actually applies.
Relevance for Criminal Defense
The correct classification of a set of facts as an alternative offense and the choice of applicable criminal provision can have significant effects on the proceedings and the sentence. In addition to protection against double prosecution, clarifying the specific criminal allegation is of particular importance.
Further Reading and References
- [Schönke/Schröder, Strafgesetzbuch, Kommentar, § 52 Rn. 1-7]
- [Fischer, Strafgesetzbuch, Kommentar, allgemeiner Teil zum Konkurrenzverhältnis]
- [Roxin, Strafrecht Allgemeiner Teil, Band 1]
Summary
The alternative offense is a central concept in German criminal law for resolving which of several overlapping criminal provisions should be applied to a certain situation. It provides that, where multiple relevant but equivalent offenses exist, only one can be applied. Thus, the alternative offense serves both clarity and protection from multiple punishment for the same conduct. Correct differentiation from other types of criminal law concurrence and precise subsumption in individual cases are essential requirements in criminal law practice.
References:
- Criminal Code (StGB) in the most current version
- BGHSt 2, 218
- BGH NJW 2001, 2227
Frequently Asked Questions
What criminal consequences threaten for electoral fraud under German law?
Electoral fraud is considered a particularly serious alternative offense in Germany and is governed by § 107a of the Criminal Code (StGB). The law distinguishes between various acts, such as unauthorized casting of votes, manipulation of election results, or intentional alteration of ballot papers. Whoever distorts an election or vote is subject to imprisonment for up to five years or a fine. In especially serious cases, for instance in cases of systematic or professional and organized commission, the penalty can be even more severe. Attempted offenses can also be punishable. Those responsible risk not only criminal sanctions but also bans on active or passive voting rights as well as professional legal consequences if they hold public office.
How is vote-buying prosecuted and distinguished under the law?
Vote-buying is regulated in § 108b StGB and covers both the active attempt to induce a voter to vote a certain way by offering advantages and the passive acceptance of such advantages. Typical situations include promises of money, goods, or services to influence eligible voters. The offense is complete when the offer or acceptance of an advantage occurs, regardless of whether the desired voting behavior actually results. The penalty can be imprisonment for up to five years or a fine. Vote-buying is to be distinguished from lawful election campaigning, in which no direct material advantages are promised to individual voters.
To what extent is interfering with elections a punishable offense?
Interference with an election or vote is covered by § 107 StGB. This includes preventing or influencing the free exercise of voting rights by means of violence or threats of significant harm. Examples include physically blocking polling stations, intimidating voters, or threatening election officials. Attempts to commit such acts are also punishable. The penalty includes imprisonment for up to five years or fines. In practice, in addition to criminal law protections, police measures are often used to ensure an undisturbed election process.
How are violations of electoral secrecy prosecuted?
Electoral secrecy is protected under § 107c StGB. Anyone who discloses or attempts to spy out another person’s voting or decision-making, contrary to statutory provisions, is punishable. This applies to members of election boards as well as other third parties who obtain access to personal voting information. Unauthorized disclosure can be punished by imprisonment of up to two years or a fine. The law assigns special protection to the secret act of voting in order to prevent manipulation and pressure. The provisions apply even in cases of negligent or careless disclosures.
What special regulations apply for challenging an election in the event of suspected electoral offenses?
If suspicion of an electoral offense arises, there is generally the opportunity to challenge the election within certain time limits. The specific details are governed by the relevant election laws of the federal government, states, or municipalities, such as § 49 BWahlG (Federal Elections Act). In principle, any eligible voter may file a challenge if there are reasons such as voting irregularities, proven cases of electoral fraud, or election rigging. The competent electoral review body, such as the Bundestag or the state election officer, decides on the admissibility and merits. If a challenge is accepted, the election may be wholly or partly repeated; in addition, parallel procedures may exist for the prosecution of the individual acts.
How are cases of election fraud in connection with postal voting assessed under the law?
Postal voting is subject to the same criminal law protection as in-person voting, but is often seen as particularly susceptible to manipulation due to the physical and procedural distance of voters. The StGB (§ 107a) and the relevant election regulations provide detailed rules for issuing, handling, and counting postal ballots. Offenses such as unauthorized completion, removal, or manipulation of postal voting documents are considered electoral fraud and are prosecuted accordingly. Similarly, procedural violations in the context of postal voting may result in the repetition of the election in a voting district or fulfillment of the statutory elements of election interference.
What criminal law peculiarities exist for representatives and members of election committees?
Members of election boards and other election committees have a particular duty to comply with statutory electoral requirements. If they breach their duties intentionally or negligently, for instance by miscounting votes or suppressing ballots, they regularly fulfill the statutory elements of electoral fraud or official misconduct (§§ 339 ff. StGB). Beyond that, they may be subject to disciplinary measures under civil service law. The penalty provisions provide—depending on the severity of the offense—for fines or imprisonment, and in serious cases permanent disqualification from public office.
