Definition and significance of mitigating circumstances
Mitigating circumstances refer in criminal law to circumstances or factors that can lead to a reduction of the penalty during sentencing. They are considered both in general criminal law and in juvenile criminal law, and allow the court to respond appropriately to the specifics of the offense or the offender on a case-by-case basis. Mitigating circumstances stand in contrast to aggravating circumstances, which can lead to an increase in the penalty.
Legal basis of mitigating circumstances
General and special mitigating circumstances
The German Criminal Code (StGB) distinguishes between general and special mitigating circumstances:
- General mitigating circumstances are governed by §§ 49 and 46 StGB.
- Special mitigating circumstances derive from specific statutory offenses within the StGB or from ancillary laws.
§ 46 StGB: Sentencing
According to § 46 para. 1 StGB, during sentencing, circumstances that speak for and against the offender are to be considered. Mitigating circumstances include motives, aims and attitude of the offender, degree of breach of duty, and conduct after the crime, particularly a confession or steps towards compensation.
§ 49 StGB: Reduction of punishment
§ 49 StGB determines the specific extent of a possible reduction, for example by lowering the range of punishment. Thus, in the case of a lesser severity, the penalty framework can be substantially reduced.
Examples of special mitigating circumstances
Various provisions contain specific grounds for mitigation, such as:
- § 213 StGB: Mitigation in homicide offenses due to special motives such as serious insult.
- § 46b StGB: Offenders who contribute significantly to elucidating a crime can be considered favorably in sentencing.
The significance of mitigating circumstances in practice
Significance for sentencing
Mitigating circumstances play a central role in the context of individual sentencing. Courts are required to carefully examine all exculpatory circumstances and include them in their assessment. The goal is a sentence that appropriately reflects the offender’s guilt and the wrongfulness of the act.
Distinction from grounds excluding culpability and justification
Mitigating grounds must not be confused with reasons excluding culpability or grounds of justification:
- Grounds of justification (e.g. self-defense) lead to exemption from punishment.
- Grounds excluding culpability (e.g. lack of criminal responsibility) exclude the offender’s culpability.
- Mitigating circumstances on the other hand, require a completed and culpable offense, but affect the extent of the punishment.
Types and categories of mitigating circumstances
Personal mitigating circumstances
These relate to the person of the offender and include, for example:
- Confession or remorse
- Efforts to make reparation
- Young or advanced age
- Mitigating life circumstances, e.g., no prior convictions
Circumstantial mitigating factors relating to the offense
Specific characteristics of the crime can also have a mitigating effect:
- Minor consequences of the offense
- Exceeding limits due to an excusable emotional state
- Acting under provocation or due to significant stress
Statutory mitigating circumstances
The StGB and ancillary statutes provide specific situations where the penalty must be reduced, for example in cases of
- Attempt rather than completion of an offense (§ 23, § 49 StGB)
- Acting as a key witness (§ 46b StGB)
Judicial discretion and duty to give reasons
If mitigating circumstances are present, the court generally has discretion as to the extent of their effect. The choice and weighting of the circumstances must be transparently explained in the written decision (§ 267 StPO).
Mitigating circumstances in juvenile criminal law
Special sentencing rules apply in juvenile criminal law (§§ 17 ff. JGG). Here, educational measures are emphasized, which typically means even greater focus on mitigating factors. Confessions and the capacity for insight are also given due consideration.
Mitigating circumstances in international law
Comparable regulations are also found in international criminal law, such as in Swiss criminal law (§ 63 StGB), in Austria (§ 34 StGB), and by the European Court of Human Rights (ECHR), which emphasizes the principle of individualized sentencing taking mitigating circumstances into account.
Case law on mitigating circumstances
Supreme court case law, in particular by the Federal Court of Justice (BGH), has in numerous decisions highlighted the significance and weight of individual mitigating circumstances. These include, for example:
- Independent confession
- Exceptionally favorable prognosis for social behavior
- Extensive efforts at reparation
Even when several mitigating circumstances coincide, the court retains discretion but must provide a transparent explanation.
Literature and sources
- Criminal Code (StGB) with commentaries
- Case law of the Federal Court of Justice (BGH)
- Standard works and textbooks on sentencing and criminal policy
Summary
Mitigating circumstances are essential elements of sentencing, enabling the court to assess individual circumstances and deliver just decisions. Distinction from other criminal law concepts and their differentiated statutory design ensure a flexible and guilt-appropriate application of criminal law.
Frequently asked questions
When do mitigating circumstances come into play in criminal proceedings?
Mitigating circumstances become relevant in criminal proceedings, particularly during sentencing, i.e., after the guilt of the defendant has been established. The court examines under §§ 49, 46a StGB and the general sentencing provisions (§ 46 StGB) whether and to what extent certain circumstances exist that should be considered in favor of the defendant. These can be explicitly regulated by law or unwritten. The presence of mitigating circumstances leads to the range of punishment applicable to the offense being lowered or even fallen below. The assessment and weight of the particular grounds are within the court’s discretion, although the decision must be explained in a comprehensible manner.
What statutory mitigating circumstances does the Criminal Code (StGB) provide?
The Criminal Code expressly regulates mitigating factors in various provisions. Particularly relevant are the rules in §§ 21, 23 para. 2, 27 para. 2, 46a, and 49 StGB. For example, diminished responsibility (§ 21 StGB) means that the offender acts culpably, but the punishment may be reduced. Mitigation is also provided where an offender voluntarily withdraws from attempting an offense (§ 24 StGB), plays only a subordinate role as an accomplice (§ 27 para. 2 StGB) or, through active repentance, prevents completion of the offense (§ 46a StGB). The possibility to generally reduce the sentencing range is found in § 49 StGB, which must be referenced.
Can unwritten (non-codified) mitigating circumstances also be considered?
Yes, in addition to the explicitly codified mitigating circumstances, German criminal law also allows for unwritten so-called “general” mitigating factors to be considered in sentencing (§ 46 StGB). These include all individual and situational factors that may reduce the offender’s culpability. Examples are a confession, remorse, compensation for damage, provocative behavior of the victim, or unusually lengthy proceedings (so-called unconstitutional delay). The relevance and weight of these grounds are at the court’s discretion.
How do mitigating circumstances affect the applicable penalty range?
If mitigating circumstances are present, the court can shift the statutory penalty range downward. The specific scope of this reduction depends on which provision applies (e.g., § 49 para. 1 or 2 StGB). The mitigation can result in a lower minimum penalty or allow for a more lenient type of punishment, such as a fine instead of imprisonment. If several mitigating circumstances are present simultaneously, mitigation can have a further effect; however, the court is obliged to clarify to what extent mitigation has been granted.
Must mitigating circumstances be examined ex officio or upon application?
In principle, mitigating circumstances must be examined ex officio by the court. This means the court is obliged to include all mitigating circumstances that become apparent during the proceedings in its sentencing decision, even if the defendant or their defense does not expressly invoke them. However, in practice, it can be advantageous for the defense attorney to actively point out exculpatory circumstances so that they are not overlooked.
Do mitigating circumstances influence a decision on probation?
Yes, the presence of mitigating circumstances can have a positive effect on a decision to suspend a sentence on probation (§ 56 StGB). Not only the determination of the penalty itself is influenced by mitigating circumstances, but also regularly the assessment of the offender’s future social prognosis. For example, a defendant who is remorseful and confesses, and is actively seeking reparation, has a better chance of being given probation than someone lacking such grounds.
What role does the offender’s remorse play as a mitigating circumstance?
The offender’s remorse is a classic, generally recognized, unwritten mitigating circumstance. It can be demonstrated in various ways, for example by a voluntary confession, active compensation for damages, or a personal apology to the victim. The weight of this fact depends on the specific conduct of the offender and its credibility. Remorse is given particular consideration during sentencing when shown during the preliminary investigation or when it appears sincere rather than merely tactical.
