Concept and significance of objective attribution
Objective attribution is a central criterion in criminal law doctrine used to determine whether a particular result can legally be attributed to someone’s conduct. It is therefore crucial in deciding whether the person can be held responsible for the outcome. Objective attribution bridges the gap between scientific causation and legal responsibility for a result.
Its aim is to balance the often broad concept of causality (“conditio sine qua non”) with the requirements of legal liability. Without the criterion of objective attribution, causal relationships could lead to boundless liability.
Systematic classification within criminal law
Objective attribution is a constitutive element at the level of the objective elements of the offense. It serves as an independent step in examining the criminal act and is of particular significance for result-based offenses, especially for crimes of result such as bodily injury (§ 223 StGB) or homicide offenses (§ 212 StGB).
Relationship to causality
Causality, while a prerequisite for objective attribution, is not sufficient on its own to establish legal responsibility. Only through the additional assessment of objective attribution is it determined whether the specific result can be legally assigned to the perpetrator as the product of their actions.
Relevance for the act and elements of the offense
Objective attribution is generally discussed after causality has been assessed as part of determining the objective elements of the offense. It serves to exclude cases where a scientific causal connection between action and result exists, but the result cannot be attributed to the perpetrator under social-normative standards.
Requirements and case groups of objective attribution
The objective attribution of a result to a specific action essentially requires that
- the perpetrator has created a legally disapproved risk or increased an existing risk, and
- it is precisely this risk that materialized in the specific legally defined outcome.
This abstract assessment standard is made concrete by various groups of cases developed in case law and legal literature.
Permitted risk and lack of risk increase
Objective attribution is excluded if a behavior only constitutes a socially accepted or permitted risk. If a person acts within the boundaries of legally allowed conduct (e.g., participating in road traffic while observing all regulations), attribution is ruled out due to the absence of a legally relevant risk.
Self-induced endangerment and third-party independent responsibility
Another barrier to attribution exists when the result comes about due to a self-induced endangerment or independent act of endangerment by a third party. In these cases, the other party’s action is seen as the independent cause of the result, for example in the case of a consciously chosen risk such as suicide.
Non-realization of the created risk
Objective attribution is also excluded if, in the result, it is not the created or increased risk that has materialized, but the result is instead attributable to other causes (so-called atypical causation, “protective purpose of the norm”).
Independent acts of third parties (‘interruption of the causal chain’)
If, after an initial act of endangerment by the perpetrator, a new danger situation arises due to the self-responsible and unforeseeable behavior of a third party, the original causation by the perpetrator can be displaced.
Risk reduction
An act that reduces an existing risk, rather than increasing it, cannot as a rule lead to liability for a result if it is precisely the reduced risk that has materialized.
Objective attribution in detail
Creation of a legally disapproved risk
Objective attribution requires that the actor has created a risk that, according to social and normative assessment, is disapproved of by the law. This is the case, for example, with unlawful dangerous acts such as negligent conduct, breaches of duty of care, or deliberate endangerment.
Risk increase
An increase of an already existing risk is also sufficient, provided that the intensified risk is legally disapproved of and causally leads to the result.
Realization of the risk in the specific result (“protective purpose context”)
Objective attribution also requires that precisely the risk created or increased by the perpetrator is realized in the result specified by law. This must be particularly examined in light of the protective purpose of the infringed norm.
Atypical course of causation
If the legally defined outcome occurs through an entirely atypical sequence of events not captured by the protective purpose of the law, the risk is not attributable.
Independent self-harm and intervening acts
If an independent self-harming act is added, the initial actor is no longer considered responsible for the result.
In the case of third-party intervention, it depends on whether the original actor’s risk has materialized or whether the third party’s action is to be assessed as independent and thereby breaks the chain of attribution.
Objective attribution in special circumstances
Offenses by omission
With respect to so-called truly omission-based offenses, objective attribution is also required. The assessment here is regularly whether the omission created or increased a legally relevant risk and whether this risk materialized in the outcome.
Negligence offenses
Objective attribution is of paramount importance in cases of negligence. Liability is generally only imposed if the harm was foreseeable (objective foreseeability) and the breach of duty of care directly led to the harmful result.
Involvement of multiple persons
When several persons are involved, the decisive factor is to what extent each individual’s conduct created or increased a legally relevant risk and to what extent this contribution was reflected in the result.
Summary and significance for legal practice
Objective attribution represents an indispensable doctrinal corrective in criminal law that limits the permissible scope of criminal liability and thus prevents the overextension of responsibility. It defines the range of accountability for the individual and ensures that not every causal chain results in liability.
Through a differentiated evaluation of risk creation, risk realization, independent self-harm, and the protective purpose of norms, objective attribution is an integral part of the technique of legal subsumption in criminal law. It is of considerable importance for both legal theory and practical legal application in solving real-life cases.
Related keywords: Causality, attribution chain, protective purpose of the norm, negligence, omission offense, intervening conduct, individual responsibility, increased risk.
Frequently Asked Questions
What is the significance of objective attribution for the criminal liability of an actor?
Objective attribution is a central criterion in the legal analysis of offenses and serves to limit criminal liability. It answers the question of whether a result caused by an act can also be attributed to the actor as their legal responsibility. The mere causation of a result is not enough for criminal liability; an illegally disapproved risk must be created, and this must be realized in the outcome. Objective attribution thus excludes cases where a result is causally linked to conduct but lies outside the protective purpose of the law or stems from an atypical causal course. It is particularly used to distinguish punishable from non-punishable conduct and thus ensures the principles of the rule of law and proportionality.
When is a risk legally relevant and to be considered for the purpose of objective attribution?
A risk is legally relevant if the actor’s conduct has created or increased a danger covered by the protective purpose of the relevant criminal law provision. Objective attribution requires that the conduct was not only causally linked to the result, but also created a legally disapproved risk which materialized in the outcome. It is examined whether the outcome corresponds to the typical danger that the injured norm sought to prevent. So-called “general life risks” or socially adequate behavior are, as a rule, not considered legally relevant risks, and therefore objective attribution is excluded.
How should atypical courses of causation be dealt with in the context of objective attribution?
An atypical course of causation exists when the occurrence of the legally relevant outcome results from a chain of circumstances that could not be expected under normal conditions. Objective attribution requires that the risk created by the perpetrator is precisely what materializes in the outcome. If the causal pathway falls entirely outside what can be foreseen and is within the perpetrator’s risk domain, criminal liability no longer exists due to lack of objective attribution. The key is a value-based assessment from the perspective of an objective ex-ante prognosis.
What role does the “intervening act of third parties” play in objective attribution?
The intervention of third parties – for example by self-endangerment or by rescue measures – can interrupt objective attribution. What matters is whether the third party’s conduct is to be regarded as independent and responsible for the result, such that the original contribution by the perpetrator recedes into the background. If the third party’s intervention was not entirely autonomous, objective attribution generally remains. The case law differentiates according to how independent and outside the original perpetrator’s risk sphere the third party’s conduct was.
How does the permitted risk affect objective attribution?
A result that arises exclusively due to a socially permitted, i.e., socially adequate or legally allowed risk, is not objectively attributed to the actor. This especially includes acts performed within the scope of permitted activities or authorizations, such as self-defense, victim’s consent, or lawful professional actions (e.g., medical interventions with consent). In such cases, there is no legally disapproved risk, so objective attribution is excluded and criminal liability cannot be established.
What is meant by the protective purpose context in the framework of objective attribution?
The protective purpose context is a crucial criterion in objective attribution. It is specifically examined whether in the occurred result, the risk that the criminal law norm intended to prevent was actually realized. It is not sufficient for any risk at all to be realized; rather, the legally relevant result must fall within the scope of protection of the norm. If the risk that was realized was not one the provision sought to prevent, objective attribution, and thus criminal liability, is excluded.
What is the significance of objective attribution for omission offenses?
Objective attribution plays an important role in omission offenses as well. The focus here is on whether a legally relevant risk was created or increased by the failure to act, and whether the realization of this risk is reflected in the outcome specified by law. Objective attribution thus requires that it is precisely through the failure to act by the obligated person that the result specified by law was caused or at least facilitated, and that this outcome falls within the scope of the violated duty of care (guarantor obligation). Without such increased risk and realization of the protective purpose, objective attribution is also excluded for omission offenses.
