Thwarting a Punishment (Enforcement of Sentences)
Thwarting a punishment (enforcement of sentences) is a criminal offense under German criminal law, which deals with protecting the enforcement of the state’s penal claims. Its aim is to ensure effective execution of sentences that have become final and binding, measures of rehabilitation and security, as well as ancillary consequences of court decisions. This offense is principally regulated in Section 258 of the German Criminal Code (StGB). The following provides a comprehensive presentation of the legal framework, the statutory requirements, as well as the distinctions and determination of penalties.
Elements of Thwarting a Punishment
Objective Elements
Thwarting a punishment essentially encompasses two groups of cases:
- Thwarting enforcement:
Thwarting the enforcement of a final sentence or measure through so-called antecedent acts, in particular concealment, providing assistance in escape, or removing assets subject to forfeiture or confiscation.
- Prisoner liberation and other acts:
Freeing or assisting in the freeing of a prisoner or convicted person with the intent to prevent or significantly complicate the enforcement of their sentence or measure.
The offense is consummated as soon as the state enforcement of the sentence is objectively at least made more difficult or impossible. The mere intent to thwart suffices, regardless of whether success is ultimately achieved.
Subjective Elements
At least conditional intent regarding the thwarting of enforcement is required. The perpetrator must know and intend that the enforcement will be prevented or significantly impeded.
A particularly serious case may exist if the act is committed with self-serving or repeated motives, or if additional offenses (e.g., forgery of documents, false unsworn testimony) are also fulfilled.
Eligible Persons and Potential Perpetrators
The offense can be committed by anyone who is able, through their actions, to prevent or significantly impede the enforcement of a sentence or measure. However, particularities arise in relation to those persons who, by virtue of their office, are involved in or authorized for enforcement, e.g., correctional officers, provided they meet the criteria for official misconduct under § 258a StGB (Obstruction of Justice in Office).
Distinction from Other Offenses
Obstruction of Justice (§ 258 StGB) vs. Thwarting the Enforcement of Sentences
While general obstruction of justice (§ 258 StGB) pertains to preventing or hindering the prosecution (investigation and indictment proceedings), thwarting the enforcement of sentences requires the existence of a final judgment. Thus, it protects the interest in the execution and implementation of judicial decisions and the serving of punishments.
Abuse of Emergency Numbers and Other Accessory Offenses
Acts that concurrently constitute fulfillment of other criminal offenses (such as prisoner liberation, abuse of emergency numbers) must first be examined under those specific statutes. Liability under § 258 StGB applies only if no special provision is applicable (principle of subsidiarity).
Penalty Range and Sentencing
The basic offense of thwarting a punishment provides for imprisonment of up to five years or a monetary fine. If the act is committed for the benefit of a relative, the court may refrain from imposing a sentence (§ 258 para. 6 StGB).
A particularly serious case arises, for example, with official perpetrators according to § 258a StGB (“Obstruction of Justice in Office”). In such cases, imprisonment of six months to five years may be imposed.
Attempt and Completion
Even an attempt to thwart a punishment is punishable under § 258 para. 4 StGB. Aiding and co-perpetration are possible according to the general principles of criminal law.
Concurrence and the Principle of Subsidiarity
The principle of subsidiarity applies: If more specific statutes (such as prisoner liberation according to § 120 StGB or obstruction of justice in office under § 258a StGB) are applicable, liability for thwarting a punishment is secondary. Similarly, distinction must be made from offenses such as perjury, obstruction of justice, or favoring.
Legal Classification and Practical Significance
The regulations on thwarting a punishment secure the functionality of the rule of law in the enforcement of penalties and measures. Final court judgments are to be executed consistently in order to safeguard the state’s penal claim effectively and to achieve both general and individual preventive objectives.
The criminal liability of attempts and relatively high penalty threats underline the significance of this legal institution. At the same time, significant restrictions exist in the form of privileges for family members to protect familial bonds.
Practical Cases and Case Law Examples
Typical cases of thwarting punishment include covertly harboring a convicted person by close associates, destroying evidence to prevent asset confiscation during enforcement, or aiding an attempt to escape after pronouncement of sentence.
Courts apply strict standards regarding proof of intent and the causal impact of the conduct on the enforcement situation.
Literature and Further Legal Norms
- German Criminal Code (StGB), especially §§ 258, 258a, 120
- Commentaries on the German Criminal Code
- German Federal Court of Justice (BGH) case law concerning obstruction of justice offenses
Summary
Thwarting a punishment (enforcement of sentences) is a central institution of German criminal law that protects the execution of judicial penal claims from unlawful interference. The offense encompasses a wide range of acts and criminalizes both the act itself and the attempt. Besides safeguarding the effectiveness of the administration of criminal justice, the norm also serves to maintain public confidence in the legal order. In practice, its application and interpretation remain a frequently discussed subject due to the variety of possible actions and borderline issues.
Frequently Asked Questions
What actions are covered by thwarting the enforcement of a sentence?
All actions aimed at preventing, hindering, or significantly delaying the execution or success of a criminal sanction fall under thwarting the enforcement of a sentence. This includes, among other things, actively hiding or removing assets intended for the enforcement of a monetary penalty, deliberately concealing income or assets, manipulating enforcement measures, escaping from custody, or actively assisting a third party in such actions. Providing false or misleading information to enforcement authorities, or causing third parties to commit such acts, is also included if these impair the legally protected interest in enforcement.
Is an attempt to obstruct enforcement also punishable?
Yes, under German criminal law, the attempt to thwart the enforcement of a sentence is also punishable according to § 258 StGB in conjunction with § 258a StGB. This means that merely initiating such an act, even if it is ultimately not successfully completed, results in criminal sanctions. The perpetrator does not have to actually achieve the success, i.e., the actual thwarting of enforcement; it is sufficient to begin the act and cross the threshold of “now-it-begins.”
What penalties are incurred for thwarting enforcement of a sentence?
For thwarting the enforcement of a sentence, Section 258 paragraph 1 of the German Criminal Code provides for imprisonment of up to five years or a fine. If the perpetrator acts in favor of another, the penalty is the same. However, if an official commits the act and abuses their official authority or influence in the process, harsher penalties under § 258a StGB apply, providing for imprisonment from six months to five years. Attempts, as previously mentioned, are also punishable, with the statutory range depending on whether the offense was completed or only attempted.
Who can be a perpetrator of thwarting the enforcement of a sentence?
Any natural person can be a perpetrator of thwarting enforcement of a sentence, regardless of whether they are themselves affected by the penalty (own or third-party thwarting). The law makes no distinction based on the identity of the perpetrator. However, officials can also be perpetrators; for them, as previously mentioned, § 258a StGB contains a special provision with increased penalties to protect the integrity of criminal enforcement. Participation through aiding and abetting or incitement is also explicitly punishable.
Are there exceptions or justifications that exclude criminal liability?
Yes, there are certain legal exceptions or justifications. Classic grounds for justification and excuse such as self-defense, necessity, or excusable necessity are considered in the context of thwarting enforcement. A particularly significant case is the so-called family member privilege under § 258 paragraph 6 StGB: if someone acts for the benefit of a close relative, criminal liability for thwarting is excluded, unless the person is a public official. Other possible exclusionary reasons arise from general principles of criminal law, such as mistake of fact or mistake of law.
What is the difference between thwarting enforcement and obstruction of justice during investigations?
Thwarting enforcement refers to acts that occur after a criminal proceeding has become final and aims at preventing or hindering the enforcement itself (e.g., commencing imprisonment, collection of fines). Obstruction of justice during investigations (§ 258 StGB), on the other hand, occurs earlier and covers actions intended to prevent or hinder the prosecution of an already committed crime, i.e., before or during court proceedings – such as destruction of evidence or establishing an alibi. Both offenses are independent and differ in the legal interest protected and the point in time the act is committed.
What role do public officials play in thwarting the enforcement of a sentence?
Public officials, such as correctional officers, police officers, or judges, have a special guarantor position in enforcement proceedings. If a public official abuses their official powers or significant influence to prevent, hinder, or delay the enforcement of a sentence, they make themselves criminally liable under § 258a StGB. The penalties here are considerably more severe than for private individuals, since the breach of public interest and associated public trust is more serious. The law also does not provide for extenuating circumstances such as the family member privilege for officials.
Which forms of involvement by third parties are also covered by § 258 StGB?
The law encompasses not only the perpetrator’s actions, but also the assistance and incitement of third parties under the general provisions of §§ 26, 27 StGB. This means that anyone who provides logistical support to a principal offender, assists in their escape, or persuades them to take corresponding measures, can likewise be held criminally liable. It must always be distinguished whether the accomplice makes an independent contribution or whether there is an independent attempt or even (joint) perpetration, which may result in a correspondingly adjusted sentence. Indirect perpetration is also possible under certain conditions, for example when someone uses another as an instrument to achieve the offense.
