Definition and Classification of Indirect Perpetrator
The concept of the indirect perpetrator plays a central role in German criminal law in determining forms of perpetration and participation. An indirect perpetrator is a person who does not commit a criminal offense themselves but commits it through another person. The legal basis for indirect perpetration can be found in Section 25(1) Alternative 2 of the German Criminal Code (StGB). The indirect perpetrator often stands at the center of criminal law consideration, especially regarding responsibility for offenses committed through third parties.
Requirements of Indirect Perpetration
Objective Requirements
Indirect perpetration requires that the indirect perpetrator commits the act through an “other”. This means that the indirect perpetrator does not personally perform the punishable conduct but instead uses a third party as an “instrument”. Between the indirect perpetrator and the instrument, there is a so-called relationship of control over the offense: The indirect perpetrator retains decisive control over the course of the crime and directs the sequence of events, while the instrument usually acts merely as a “tool”.
Key objective criteria are:
- The instrument must commit an unlawful act as defined by the offense.
- The act is carried out at the instigation of the indirect perpetrator.
- The indirect perpetrator must possess “control over the course of the offense” (theory of control over the act).
Subjective Requirements
The indirect perpetrator must act with intent, i.e., with knowledge and will regarding the course of events, particularly that the act will be performed by another as an instrument. In addition, for certain offenses, further subjective elements (especially in so-called “true special offenses”) must be considered.
Instrument and Transfer of Responsibility
Lack of or Limited Responsibility of the Instrument
A characteristic feature of indirect perpetration is that the instrument is not, or is only partially, responsible for their action due to legal or factual reasons. Typical scenarios include:
- I**rror of the instrument (for example, if the instrument commits the act under a mistake of fact, mistake as to circumstances, or mistake as to justified circumstances).
- Impunity of the instrument (e.g., in the case of a child, person with mental illness, or a person lacking capacity).
- Lack of will or knowledge on the part of the instrument (e.g., coercion, threats, deception).
- Action by order or due to necessity of obeying orders.
Criminal Liability of the Indirect Perpetrator
The indirect perpetrator is punished according to Section 25(1) Alt. 2 StGB as if they were a direct perpetrator, while the instrument may remain unpunished or may only be liable for a negligent offense, provided their mistake could have been avoided.
Distinction from Other Forms of Participation
Direct Perpetrator
In contrast to the indirect perpetrator, the direct perpetrator commits the act themselves and without using an instrument.
Inciter
Die Incitement (Section 26 StGB) differs from indirect perpetration in that the instigator induces the principal perpetrator as a fully responsible actor. In contrast, in the case of the indirect perpetrator, the instrument usually lacks control over the act due to limited responsibility.
Co-perpetration
In Co-perpetration (Section 25(2) StGB), several participants jointly direct the criminal act and each has equivalent control over the offense. The indirect perpetrator, by contrast, has sole control, while the instrument functions as a tool.
Manifestations of Indirect Perpetration
Instrument as a “blameless tool”
A classic scenario is using a third party who is lacking criminal capacity. For example, a person may induce someone with a mental illness, who is incapable of guilt under Section 20 StGB, to commit a crime.
Mistaken Belief by the Instrument
The instrument may be acting under a mistake as to permission or other error. The indirect perpetrator exploits these errors and is treated as the offender under criminal law.
Deficits in the normative domain
Abuse of official authority, action by organizational power structures, or structural power imbalances may also establish control over the act within the meaning of indirect perpetration.
Theoretical Classification and Significance in Criminal Law
Doctrine of Control over the Act
The doctrine of control over the act is the prevailing criterion for distinguishing indirect perpetration from other forms of participation. It states that the offender is the one who predominantly determines the “whether and how” of the criminal course of events. The indirect perpetrator directs the events through superior knowledge, organizational power, or by intentionally exploiting errors.
Special Cases: Organizational Control
In particular, the figure of indirect perpetration applies to offenses committed by organized groups or in hierarchically structured organizations, when the instrument, due to the organizational structure, commits the act as an “interchangeable tool.”
Indirect Perpetration in International Law
Indirect perpetration is also discussed outside German criminal law, such as in international criminal law (e.g., international criminal tribunals) and other European legal systems. The concept there serves to establish liability for acts committed indirectly through other persons. However, there is no uniform international regulation.
Case Law and Practical Significance
Courts regularly interpret the requirements for indirect perpetration restrictively in order to preserve the principle of individual responsibility. Case law sharply distinguishes between indirect perpetration, co-perpetration, and other forms of participation. The construction of indirect perpetration is particularly relevant in scenarios involving mistakes and lack of culpability.
References and Further Reading
- Criminal Code (StGB), especially Section 25(1) Alt. 2
- Fischer, Criminal Code, Commentary
- Roxin, Criminal Law General Part
- BGHSt Case Law on Indirect Perpetration
- BeckOK StGB, Commentary on Section 25
Indirect perpetration is a central component of German criminal law. Its precise distinction from other forms of participation and its practical relevance in case contexts make it an important part of current debate and legal application in criminal law.
Frequently Asked Questions
What requirements must be met for the assumption of an indirect perpetrator under Section 25(1) Alt. 2 StGB?
For the assumption of an indirect perpetrator under Section 25(1) Alt. 2 StGB, it is decisive that a conduct constituting an offense and contrary to law is committed by another person as an “instrument,” with the indirect perpetrator directing and controlling the event through superior knowledge or will (“control over the act”). The requirements are: First, the indirect perpetrator must put forward an “instrument-person” as the direct perpetrator, who does not commit the act fully responsibly for legal or factual reasons—such as because of exclusion of guilt or criminal liability due to a mistake as to justified circumstances, a prohibition error, lack of culpability, or absence of intent (for example, due to deception or coercion). Second, the indirect perpetrator must keep the main act in their own hands and make the key decisions, which involves superior control over the act. Third, there must be a causal link between the conduct of the indirect perpetrator and the commission of the act by the instrument. This scenario must be examined in detail, as the attribution of the act is transferred from the instrument to the indirect perpetrator.
What is the significance of “control over the act” in the context of the indirect perpetrator?
Control over the act is a central criterion for distinguishing indirect perpetration. It describes the actual direction of the criminal event by the behind-the-scenes actor. The indirect perpetrator must have the main responsibility and control over the commission of the offense. This is particularly the case when the immediate actor acts only as an “extended arm” of the behind-the-scenes person and performs their actions under external instruction. The intensity of control distinguishes indirect perpetration from incitement or aiding and abetting and is especially relevant regarding less responsible, weak-willed, or mistaken instruments. The degree of control must always be determined based on the specific circumstances of the individual case.
What forms of indirect perpetration are distinguished in practice?
In practice, various forms of indirect perpetration can be observed. These include, in particular: indirect perpetration by virtue of superior knowledge (for example, when the instrument is acting under a mistake), indirect perpetration by virtue of superior will (for example, when using persons lacking capacity), indirect perpetration by exploiting the absence of intent or lack of awareness of wrongdoing, as well as so-called organizational control, as is discussed in cases of “control through organization,” such as in structured power apparatuses or large organizations. In all cases, the basic prerequisite is that the indirect perpetrator exercises decisive control and the instrument has a deficiency that eliminates or reduces their own responsibility for the conduct constituting the offense.
How does indirect perpetration relate to co-perpetration and participation (incitement, aiding)?
The distinction between indirect perpetration and participation is critical for legal assessment. While the indirect perpetrator commits the offense independently through the actions of another and is thus punished as the perpetrator, the participant is only sanctioned for their act of participation. In co-perpetration under Section 25(2) StGB, several people act jointly as perpetrators, with no one having authority over the others, but each having equal control over the act. By contrast, indirect perpetration is characterized by a hierarchical role distribution, where one (the indirect perpetrator) is above the instrument. The distinction is based on the criteria of control over the act and the personal responsibility of the perpetrator.
What mistakes by the instrument can lead to the assumption of an indirect perpetrator?
Typical types of mistakes on the part of the instrument that permit attribution to the indirect perpetrator include, in particular, mistakes as to justified circumstances, mistakes of prohibition, and mistakes of fact, provided these are based on an informational advantage or deliberate manipulation by the behind-the-scenes actor. If such a mistake results in the instrument acting without intent or culpability, they are not, or only partially, responsible for the offense, so that liability shifts to the indirect perpetrator, who has intentionally caused or exploited the mistake. It is essential that the indirect perpetrator must have the commission of the offense attributed to them through the influence over the instrument acting under a misapprehension.
What examples are considered classic scenarios of indirect perpetration?
Classic case groups of indirect perpetration include: exploiting children, persons with mental illness, or those lacking capacity in committing offenses; instrumentalizing a manipulated third party (e.g., inducing someone to commit theft by misrepresenting supposed ownership rights); and scenarios in which the instrument acts under coercion (so-called compulsion cases). The use of ignorant or unsuspecting persons who have no sense of wrongdoing also belongs here. In these cases, the indirect perpetrator typically exploits deficiencies in the criminal responsibility, culpability, or liability of the instrument.
What is the significance of indirect perpetration within the framework of organizational structures or “command structures”?
In connection with organized power and command structures, such as those found in criminal organizations, corporations, or state systems of injustice, the concept of “indirect perpetration through organizational control” is discussed. In such cases, the principal orchestrates the criminal event through control over an organization or over numerous agents who, within a vertical command chain, act on orders but often do not themselves have control over the act. Case law and legal literature require, in these situations, that the indirect perpetrator can freely exchange the instrument and direct the act through organizational structures—a special form of indirect perpetration that differs considerably from the classic scenario.
