Concept and General Definition of Lack of Criminal Responsibility
In German law, lack of criminal responsibility refers to the state in which a person lacks the ability to recognize the wrongfulness of an act or to act according to such recognition. It is particularly significant in criminal law but is also important in other branches such as civil law and public law. Lack of criminal responsibility excludes a person’s culpable liability for their actions and can have far-reaching legal consequences.
Lack of Criminal Responsibility in Criminal Law
Statutory Foundations
The central legal basis for lack of criminal responsibility is found in Section 20 of the German Criminal Code (StGB):Section 20 StGB – Incapacity by Reason of Mental Disorder: “Whoever, at the time of committing the act, due to a pathological mental disorder, a profound disturbance of consciousness, mental deficiency, or another severe mental abnormality, is incapable of recognizing the wrongfulness of the act or of acting according to such recognition, acts without guilt.”
Requirements for Lack of Criminal Responsibility
Two essential requirements must be met:
- Existence of a defect in the area of mental function:
– Pathological mental disorder (e.g. psychoses, schizophrenia)
– Profound disturbance of consciousness (e.g. delirium, severe intoxication)
– Mental deficiency (intellectual disability)
– Severe other mental abnormality (e.g. severe personality or impulse control disorders)
- Incapacity for insight or control:
– Either the capacity for insight (understanding the wrongfulness of the act) is lacking,
– or the capacity for control (acting according to such insight) is abolished.
If these requirements are met at the time of the act, the person is not responsible, and criminal liability is thus excluded.
Partial Incapacity
Between complete lack of criminal responsibility (Section 20 StGB) and full criminal capacity, there is a graduated system, in particular diminished criminal capacity pursuant to Section 21 StGB. Here, the ability to appreciate or control one’s actions is only significantly, but not completely, impaired. This affects the sentencing and sanctioning.
Legal Consequences of Lack of Criminal Responsibility
If lack of criminal responsibility is established, criminal culpability and thus criminal punishment are excluded. However, security measures (§§ 63, 64 StGB), such as placement in a psychiatric hospital or addiction treatment facility, may be ordered if there is a danger to others.
Special Case: Complete Intoxication (Section 323a StGB)
Anyone who, through self-induced consumption of intoxicating substances, puts themselves into a state of criminal incapacity and commits an unlawful act in this state, may be punished for complete intoxication. This ensures criminal liability despite incapacity at the time of the offense.
Lack of Criminal Responsibility in Civil Law
Legal Capacity and Capacity for Tortious Acts
Lack of criminal responsibility is of particular importance in civil law regarding legal capacity (§§ 104 ff. BGB) and capacity for tortious acts (§§ 827, 828 BGB).
Incapacity to Contract
According to Section 104 No. 2 BGB, a person is incapable of contracting if they are “in a condition, due to a pathological disturbance of mental activity, which precludes the free exercise of will, unless the condition is, by its nature, only temporary.”
Legal transactions by an incapacitated person are void (§ 105 BGB). Permanent incapacity, according to civil law standards, usually leads to the appointment of a legal guardian.
Incapacity for Tortious Acts
Under Section 827 BGB, civil incapacity for tortious acts exists for persons who, at the time of the harmful act, are unconscious or are in a condition of pathological disturbance of mental activity, thereby being unable to recognize the wrongfulness of their action or to act according to such recognition. This usually excludes civil liability for caused damages.
Exceptions to Liability
An exception exists under Section 829 BGB if the person causing the damage suffers no disadvantage according to their assets and the injured party receives no compensation; then liability for damages may still arise.
Lack of Criminal Responsibility in Public Law
In public law, the concept is particularly applied in disciplinary law, civil service law, and administrative law. Lack of criminal responsibility can exclude accountability for official breaches of duty or regulatory offenses. Issues of legal capacity and the ability to act independently can also play a role in attributing administrative acts.
Medical and Psychological Assessment
In practice, the determination of lack of criminal responsibility is regularly the task of medical or psychological experts. Especially in criminal proceedings, an expert opinion is obtained to assess the mental state and the capacity for insight or control at the time of the offense.
Significance of the Proceedings
The decision as to whether lack of criminal responsibility is present rests with the court, which examines the expert opinions and evaluates them at its own discretion.
Distinction from Related Terms
Incapacity
Incapacity is the generic term for the legal inability to act culpably. Lack of criminal responsibility is the classical manifestation of complete incapacity.
Diminished Criminal Capacity
In contrast to complete lack of criminal responsibility (incapacity), diminished criminal capacity only reduces the degree of individual responsibility.
Importance in Case Law
The courts interpret lack of criminal responsibility narrowly. Its acceptance has significant effects on the degree, type, and enforceability of sanctions or liability claims. The burden of proof lies with the court, which only finds lack of responsibility in clear cases and after careful examination of expert reports.
Summary and Practical Significance
Lack of criminal responsibility is a central legal concept that is of considerable relevance in both criminal, civil, and public law contexts. It serves to protect those who, due to their mental or psychological disorder, were unable to recognize the wrongfulness of their actions or to act accordingly, while also ensuring differentiated attribution of responsibility within the German legal system.
Further Reading
- BeckOK StGB, § 20
- Münchener Commentary on the StGB, 4th Edition
- Palandt, Commentary on the BGB
- Staudinger, BGB Commentary
Case Law
- BGH, Decision of 7 May 2014 – 4 StR 491/13
- BGH, Judgment of 9 December 2003 – VI ZR 394/02
Frequently Asked Questions
Who bears the burden of proof for lack of criminal responsibility in criminal proceedings?
In criminal law, the accused or their defense generally bears the burden of proof that lack of criminal responsibility under Section 20 StGB was present at the time of the offense. In practice, this means that evidence and indications must be provided which prove an illness or disorder that significantly impaired the perpetrator’s capacity for insight or control at the time of the act, so that criminal liability is excluded. The courts are obliged to investigate ex officio if there are sufficient indications of possible incapacity (§ 244 para. 2 StPO – duty of clarification). Usually, psychiatric or psychological expert opinions are obtained for this purpose, which examine in detail whether incapacity relevant to the act was present. Ultimately, the court decides in its free discretion on the basis of these expert opinions and all circumstances presented, whereby in case of doubt the decision should favor the accused (“in dubio pro reo”).
Can lack of criminal responsibility be claimed in any criminal offense?
Lack of criminal responsibility may in principle be legally relevant for any type of criminal offense, regardless of the seriousness of the offense, provided there are indications that the offender was suffering from a pathological mental disorder, profound disturbance of consciousness, mental impairment, or other severe psychological disorder at the time of the act. It plays a particularly important role in serious offenses, as the consequences for perpetrator and victim are more significant and therefore require particularly careful examination. The court is obliged to consider possible incapacity even in minor offenses if appropriate indications exist.
How is lack of criminal responsibility assessed in civil law?
In civil law, lack of criminal responsibility is particularly important in the context of capacity for tortious acts (§ 827 BGB). A person is not capable of committing a tort if they are unconscious or suffering from a temporary disturbance of mental activity and thus cannot be held liable for any damages caused. Children under seven years of age are also considered legally incapable according to § 828 para. 1 BGB. The assessment here is similar to that under criminal law, with expert medical opinions being obtained. Unlike in criminal law, however, civil liability is not always entirely excluded, as in individual cases – for example, due to insurance coverage or third-party compensation obligations – claims for compensation may still arise.
What role do psychiatric reports play in determining lack of criminal responsibility?
Psychiatric or psychological expert reports are of central importance for the court determination of lack of criminal responsibility. They are intended to provide the court with a sound basis for the decision of whether, at the time of the offense, relevant disturbances in mental performance or capacity for control were present in the accused. These reports take into account medical findings, case history, sequence of events, and behavior before, during, and after the act. In addition to a detailed diagnosis, they include a legal assessment of the perpetrator’s capacity to recognize the wrongfulness of the act or to act according to such insight. The courts are not bound by the expert opinion but must justify any deviation from the expert’s assessment in detail.
Is lack of criminal responsibility the same as diminished criminal capacity?
Lack of criminal responsibility and diminished criminal capacity are clearly distinguished by law. Lack of criminal responsibility within the meaning of Section 20 StGB means that the person concerned bears no responsibility for their actions at the time of the offense and therefore cannot be held criminally liable. Diminished criminal capacity under Section 21 StGB, on the other hand, occurs when the perpetrator’s ability to recognize the wrongfulness of the act or to act according to such recognition is significantly, but not completely, impaired. In this case, the perpetrator is criminally responsible, but the court can mitigate the sentence. The precise distinction is based on medical and psychological evaluation and is decisive for the legal consequence.
Can lack of criminal responsibility be set aside if the offender has brought about the condition themselves?
If a person intentionally or negligently puts themselves in a state of incapacity – for example, through drugs, medication, or substance abuse – the “actio libera in causa” principle applies under certain conditions. This means that the exemption from liability under Section 20 StGB does not apply if the offender deliberately induced the state in order to commit the act, or if the commission of the act was at least foreseeable and avoidable. In such cases, the court assesses whether the perpetrator had the capacity to act at the time and how the self-induced state should be evaluated as a cause. The scope of this regulation requires a differentiated legal assessment and thorough clarification of the facts.
