Mistake of Fact in Criminal Law
The mistake of fact is one of the central types of error in criminal law and is governed by Section 16 (1) of the German Criminal Code (StGB). It describes the perpetrator’s misconception regarding facts that constitute elements of a criminal offense as defined by law. In legal discourse and practice, the mistake of fact is especially important for assessing the criminal liability of conduct.
Definition and Fundamentals
A mistake of fact exists when the person acting, at the time of committing the offense, does not know or misjudges a circumstance that constitutes an element of the offense as defined by law. According to Section 16 (1) StGB, such an error generally excludes intent, insofar as it relates to an objective element of the offense.
Distinction from Other Forms of Error
The mistake of fact must be distinguished from other types of errors in criminal law, in particular:
- Mistake of Law (§ 17 StGB): Incorrect legal assessment of one’s own actions, not a mistake of fact.
- Mistake regarding Justifying Circumstances: Mistake about factual requirements for a justification.
- Error in persona vel obiecto: Mistake regarding the object of the offense.
- Aberratio ictus: Deviation from the intended act.
Systematics of the Mistake of Fact
A mistake of fact affects intent and thereby directly the subjective element of the offense. When there is a mistake regarding a circumstance of the offense, the perpetrator acts without intent, which in most cases leads to non-punishability with respect to intentional offenses.
Requirements for a Mistake of Fact
- Error regarding a factual circumstance: The person acting imagines the circumstances to be different from what they actually are.
- This circumstance is part of the statutory offense.
- Lack of knowledge or misconception causally influences the conduct.
Distinction from Error in Subsumption
The mistake of fact always refers to the facts. If only the legal evaluation is missing (“error in subsumption”), it is not a mistake of fact, but a mistake of law.
Consequences of a Mistake of Fact (§ 16 StGB)
According to Section 16 (1) Sentence 1 StGB, a mistake of fact excludes intent. This has the following consequences:
- Intentional offenses: Liability for an intentional offense lapses, as intent is lacking.
- Negligent commission: After a mistake of fact has been established, it is examined whether the perpetrator can be punished for negligent commission under Section 16 (1) Sentence 2 StGB, provided the law prescribes such punishment.
- Offenses of Negligence: If negligence is punishable and the error was avoidable, liability for negligent commission may exist.
Example
If a hunter in thick brush mistakes a person for a wild boar and shoots, this constitutes a mistake of fact regarding the suitability of the object of the offense (“error in persona vel obiecto”), which excludes intent.
Forms of Mistake of Fact
Unconscious Mistake of Fact
The perpetrator lacks knowledge of certain objective elements of the offense (lack of knowledge).
Conscious Mistake of Fact
The perpetrator operates under a factual misconception but does not recognize the possibility of being mistaken or relies on incorrect circumstances.
Special Forms
- Error in objecto: Incorrect idea about the object of the act.
- Error in persona: Mistaking the victim or object.
Significance for Individual Types of Offenses
Commission offenses
For commission offenses, liability for intent does not apply if a mistake of fact exists.
Omission offenses
A mistake of fact may also occur in omission offenses, e.g., when the perpetrator mistakenly assumes that the danger does not exist.
Attempt
A mistake of fact may make withdrawal from the attempt unnecessary if the perpetrator was not acting intentionally from the outset.
Error regarding Normative Elements of the Offense
The mistake of fact can concern not only factual but also normative elements of the offense, as long as the perpetrator is mistaken about the factual circumstances to which the element relates. Example: Mistake regarding the character of an item as “another’s property” in the context of theft.
Distinction: Mistake of Fact versus Mistake regarding Justifying Circumstances
In the (simple) mistake of fact, the act objectively constitutes an offense, but the perpetrator does not perceive any wrongdoing. In the mistake regarding justifying circumstances, the perpetrator is mistaken about facts that would establish a ground for justification.
Literature and Case Law
- § 16 StGB (Mistake of Fact)
- BGH, Judgment of 23.11.1954 – 1 StR 256/54 (Jägerfall)
- Wessels/Beulke/Satzger, General Part of Criminal Law
- Roxin, General Part of Criminal Law
Summary
The mistake of fact is a fundamental category of German criminal law. It protects a perpetrator who does not know about a statutory element of the offense from being convicted for intentional offenses. The prerequisite is always a mistake of fact regarding an element of the offense whose knowledge is necessary for the realization of the crime. The evaluation is strictly in accordance with Section 16 StGB and serves as an important factor for the fair legal assessment of human conduct in error.
Frequently Asked Questions
When does a mistake of fact exist, and how does it affect criminal liability?
A mistake of fact under Section 16 (1) StGB exists when the perpetrator, while committing an act, does not know of a circumstance that constitutes a statutory element of the offense. What is decisive is that the perpetrator is mistaken about an objective element of the offense, i.e., he imagines a scenario where a key element of the criminal statute is missing, and therefore acts without knowing it is present. The legal consequence of a mistake of fact, according to Section 16 (1) Sentence 1 StGB, is that intent regarding this element is excluded. This means that a conviction for an intentional offense is ruled out, but a conviction for a negligent offense is possible if negligent conduct is punishable. The mistake of fact must always relate to factual circumstances, not to normative evaluations such as the legal classification of an action.
How does a mistake of fact differ from a mistake of law?
A mistake of fact must be distinguished from a mistake of law, especially with regard to their legal consequences. While the mistake of fact relates to the actual circumstances of an offense (i.e., what really happened or what the perpetrator believes happened), the mistake of law according to Section 17 StGB concerns the perpetrator’s awareness of wrongdoing. In a mistake of law, the perpetrator knows about the factual circumstances of the offense but does not recognize that his behavior is unlawful. Consequence: The mistake of fact generally excludes intent, whereas the mistake of law can only exclude culpability if it is unavoidable. If the mistake of law is avoidable, only the degree of guilt may be reduced.
Can a negligent offense also occur if the perpetrator is subject to a mistake of fact?
Yes, if the perpetrator makes a mistake of fact, in addition to the exclusion of intent, liability for a negligent offense under Section 16 (1) Sentence 2 StGB is possible. This requires that the law provides for punishment of negligence for the specific act and that the perpetrator can be blamed for negligence in the individual case, in particular that he violated the required standard of care. Example: Someone shoots in the dark at something he believes is an animal, but in fact it is a person. Since the perpetrator did not know he was shooting at a person, intent regarding a homicide offense is lacking; however, if he acted negligently, he may be convicted of negligent manslaughter.
How is the distinction to be made with regards to the mistake regarding justifying circumstances?
The distinction is based on the object of the error: In the classic mistake of fact, the perpetrator is mistaken about circumstances that are part of the objective statutory elements of the offense (e.g., believes the stolen item belongs to him). In contrast, in the mistake regarding justifying circumstances, the perpetrator is mistaken about the factual requirements of a justification (e.g., erroneously believes he is under attack and thus acts in putative self-defense). While Section 16 (1) StGB directly excludes intent in the case of a mistake of fact, the treatment of a mistake regarding justifying circumstances follows the rules on the so-called “inverse mistake of fact” (controversial, predominantly treated analogously to Section 16).
What significance does the mistake of fact have for the subjective element of the offense?
The subjective element of a crime generally requires not only knowledge and intent, but also awareness of certain circumstances of the act. If the perpetrator is mistaken about these factual elements—e.g., acts unknowingly or fails to recognize features—the subjective element is lacking. This eliminates liability for intentional conduct. The significance of the mistake of fact therefore lies in securing the legal distinction between intentional and negligent conduct.
What role does the mistake of fact play in so-called ‘improper’ omission offenses?
In the improper omission offense (§ 13 StGB), the mistake of fact is especially relevant with regard to the perpetrator’s unawareness of an existing duty to act (guarantor obligation) or the occurrence of danger. If the perpetrator is mistaken about the existence of such elements, this also excludes intent here. However, liability for negligent omission may arise if there is a corresponding criminal provision.
How is the mistake of fact established and assessed in criminal proceedings?
In criminal proceedings, the mistake of fact is an internal fact that must be ascertained, so that the findings must be inferred from external circumstances and the perpetrator’s behavior. In this respect, statements from the perpetrator, witness testimony, situational analysis, and circumstantial evidence may be considered. The determination of a mistake of fact is the responsibility of the trial judge and is subject to the judicial evaluation of evidence under Section 261 of the German Code of Criminal Procedure (StPO). The principle applies that in cases of doubt, a decision must be made in favor of the accused (in dubio pro reo) if it cannot be certainly established that the perpetrator recognized the relevant factual circumstance.
