Term and definition of incitement
Die Incitement refers, in German criminal law, to a form of participation in a criminal offense in which a person (the so-called instigator) intentionally induces another to commit an intentional unlawful act. Incitement is regulated in Section 26 of the German Criminal Code (StGB) and constitutes an independent criminal liability alongside perpetration and aiding and abetting.
Incitement therefore involves targeted influence over another person, causing that person to decide to commit a crime. A key feature is triggering the decision to commit the crime (intent) in the so-called principal perpetrator, while the act itself is ultimately carried out by that person.
Legal regulation of incitement
Statutory basis
The legal basis for incitement is provided by Section 26 StGB:
“Anyone who intentionally induces another to commit an intentionally committed unlawful act shall be punished as an instigator in the same way as a perpetrator.”
This provision consistently classifies incitement as participation in an intentionally committed unlawful principal offense and provides for the same penalty as for the direct perpetrator.
Distinction from other forms of participation
Incitement must be distinguished from other forms of participation, in particular from co-perpetration (Section 25 II StGB) and aiding and abetting (Section 27 StGB):
- Co-perpetration: Joint commission of the act with direct participation.
- Aiding and abetting: Assisting the act without directly influencing the principal perpetrator’s decision.
- Incitement: Inducing another person to decide to commit the act, without directly participating in the commission of the offense.
Requirements of incitement
Incitement is only criminally relevant under certain conditions:
Principal offense
There must be an intentional, unlawful principal offense committed by another person (the principal perpetrator). The principal perpetrator must act independently and have formed their own decision to commit the act. Negligent offenses generally cannot be incited.
Inducement to the offense
“Inducement” is the causal bringing about of the principal perpetrator’s decision to commit the offense. This can occur by prompting, persuading, exploiting an existing intent by encouraging, or through other communicative actions. What matters is that the instigator’s prompting established the concrete intent to commit the crime, or at least significantly influenced an already existing intent to carry out the offense.
Double intent of the instigator
The instigator must act intentionally with regard to their own participation and the crime to be committed by the principal perpetrator. This means they must not only want to promote the offense, but must also have foreseen and intended for it to be committed by the other person.
Distinction: Attempted and unsuccessful incitement
An attempted incitement is independently punishable for felonies under Section 30 I StGB if the instigator attempts to incite the crime but the principal perpetrator does not carry out the act or does so only as an attempt.
Penalty and legal consequences
Range of penalties
The instigator is punished according to Section 26 StGB “as a perpetrator,” meaning that, in principle, the same punishment applies as for the direct perpetrator of the main offense. However, the court can, according to general sentencing rules, impose a harsher or more lenient sentence based on individual circumstances.
Special provisions in various categories of offenses
Within specific categories of offenses, modifications of the range of penalties may occur, particularly if mitigating circumstances apply in the context of incitement. In juvenile criminal law or the area of state security offenses, special provisions apply.
Withdrawal of the instigator
Exemption from punishment by withdrawal is possible for the instigator under certain conditions (Section 24 II StGB in conjunction with Section 31 StGB). It is required that the instigator voluntarily removes the principal perpetrator’s intent or actively contributes to preventing the offense. The requirements and legal consequences are complex and depend on the individual case.
Forms of incitement
Direct and indirect incitement
- Direct incitement: The instigator has direct contact with the principal perpetrator and prompts them to commit the crime.
- Indirect incitement (chain incitement): The instigator influences a person who in turn incites another to carry out the offense. Criminal liability may also extend to this indirect influence, provided the requirement of inducement is fulfilled.
Distinction from psychological aiding and abetting
If the offense is not promoted by causing a first-time decision to commit the crime but merely by intensifying an existing intention, case law may classify it as psychological aiding and abetting, punishable under other provisions. The precise distinction must be made in each individual case.
Incitement in international and European law
Criminal law in many other countries outside Germany also recognizes incitement as a form of participation. However, the regulations may differ considerably in terms of definition, scope of application, and sentencing.
In European and international criminal law, a distinction is often made between incitement and aiding and abetting, whereby instigators are also equated with principal perpetrators in many jurisdictions. The specific requirements and individual provisions are determined by the respective national law or special international criminal law codes.
Practical examples and special constellations
Sample scenarios
- A person convinces another to commit theft, which would not have been committed without the solicitation – a classic case of incitement under Section 26 StGB.
- Recruiting or persuading an accomplice to commit fraud.
Special case: incitement to attempt
If the principal perpetrator only attempts but does not complete the incited offense, the instigator’s liability is determined by the rules on attempted incitement (Section 30 StGB).
Multiple instigators and successive participation
Several individuals may be considered as instigators if they independently influence the principal perpetrator or move them to decide to commit the act. Successive participation is also possible, where a subsequent instigator later reinforces or confirms the decision to commit the crime.
Summary
Incitement represents a significant form of participation in criminal offenses. It is comprehensively regulated under German criminal law and covers the intentional influence over another’s will to commit an unlawful act. The legal requirements, criminal consequences, and numerous special cases illustrate the complexity of this concept within the context of criminal law doctrine.
Thus, the regulation of incitement plays an essential role in the detection and prosecution of criminal behavior, even if the participant is not directly involved in the commission of the offense.
Frequently Asked Questions
What requirements must be met for legally relevant incitement?
For incitement to be relevant under criminal law, several cumulative requirements must be met under German criminal law. Firstly, there must be an intentional, unlawful principal offense for which the instigator has caused the decision to act in the principal perpetrator. Incitement is accessory, meaning it requires the existence of an intentionally committed, unlawful act by another. The instigator must act with (at least conditional) intent regarding all circumstances of the principal offense. Furthermore, they must have actively exercised psychological influence—typically by persuading, encouraging, or otherwise influencing the principal perpetrator—to induce them to commit the act (so-called causality and finality). It is essential that the principal perpetrator’s decision to act is specifically based on the instigator’s influence, and that the instigator genuinely intended for the crime to take place. Merely creating an opportunity, being aware of the plan, or approving it is insufficient.
What penalty can be imposed for incitement?
The penalty for incitement is determined according to Section 26 StGB, essentially in the same way as for the principal offense. This means the instigator is punished like a perpetrator, namely according to the penalty range applicable to the principal offense for which incitement occurred. There is no separate sentencing provision specifically for instigators. However, if mitigating circumstances exist—for example, in a less serious case or if the instigator contributes to clarifying the offense—a reduced sentence may be imposed in accordance with general rules. In addition, the liability for attempted incitement (Section 30 StGB) must be observed if incitement to commit a felony was attempted, but the principal crime was not or not fully carried out as incited.
Is attempted incitement punishable?
Yes, attempted incitement is punishable under Section 30 (1) StGB, but only if the instigator attempts to incite a felony (a felony is a criminal offense with a minimum sentence of one year or more). If the instigator fails because the person solicited does not form the intent to commit the crime, this constitutes an attempt at incitement. In such cases, criminal liability also requires the so-called ineffective attempt, where the instigator has done everything necessary on their side, but the principal perpetrator is not determined to commit the offense. The penalty in these cases is determined according to the milder range prescribed for attempts (Section 23 (2), Section 49 (1) StGB).
Can incitement also occur by omission?
According to prevailing opinion, incitement by mere omission is generally excluded, because the law requires active influence (“determining”). In exceptional cases, however, so-called “psychological causality by omission” may be assumed, for example if the perpetrator was obliged, due to a guarantor position, to prevent or stop the formation of the intent in the principal perpetrator, but wrongfully failed to do so and thereby contributed to the offense. However, liability in such cases arises not generally as incitement, but as aiding and abetting by omission or as actual perpetration.
How does incitement differ from aiding and abetting?
The central distinction between incitement and aiding and abetting lies in the nature of the contribution to the act. While the instigator causes the principal perpetrator to decide to commit the act and thus triggers the offense, the accomplice merely provides a subordinate contribution to carrying out or preparing the crime, without inducing the will to commit the act in another. Incitement is therefore causal for forming the intent, whereas aiding and abetting is based on an already existing decision to commit the offense and simply assists its execution. Under criminal law, incitement is structured similarly to perpetration (“punished like a perpetrator”), whereas aiding and abetting is punished more leniently under Section 27 StGB.
Is incitement possible in cases of negligence, or only for intentional acts?
Incitement is generally only possible for intentionally committed, unlawful acts. This follows from the wording of Section 26 StGB, which requires inducing another to commit an intentional act. Incitement to negligent offenses is thus excluded, since there is no intent—an unconscious will formation—that could be provoked by an instigator. The situation may differ in so-called mixed offenses, where the principal perpetrator acts intentionally, but the harmful result is caused negligently; here, incitement may be possible with regard to the intentional part of the offense.
Can incitement to an omission also be punishable?
Yes, incitement to offenses by omission is possible and recognized in case law. In these cases, the instigator must have induced the person failing to act to neglect a required action. This is particularly relevant in cases of genuine offenses by omission (e.g., failure to render assistance under Section 323c StGB), where the instigator specifically influences another person not to carry out a required action. However, a prerequisite remains that the principal perpetrator had a guarantor duty and that the instigator’s influence was purposefully directed.
