Offender-Oriented Criminal Law: Definition, Significance, and Distinctions
Offender-oriented criminal law is a central concept in the German criminal law system and describes a fundamental approach to sentencing and criminal theory that places the individual offender at the forefront. This approach is particularly different from the so-called act-oriented criminal law, which primarily focuses on the unlawful act itself. Understanding offender-oriented criminal law is of considerable importance for both substantive criminal law and numerous questions of criminal procedure.
Historical Development of Offender-Oriented Criminal Law
Origins and Developmental Trends
Offender-oriented criminal law has its origins in German criminal law history, particularly in the 19th and early 20th centuries. Prominent criminal law scholars such as Franz von Liszt and the representatives of the so-called criminological school contributed significantly to the development of this concept.
While classical act-oriented criminal law focuses exclusively on criminal behavior and its consequences, offender-oriented criminal law advocates the view that the individual personality, character, life circumstances, and the dangerousness of the offender to society should also be considered in determining guilt and punishment. The development of offender-oriented criminal law was thus closely linked to reform movements that called for greater consideration of social and psychological factors in criminal law.
Terminological and Systematic Classification
Definition of Offender-Oriented Criminal Law
Offender-oriented criminal law is a criminal law approach in which the determination of the severity and type of penalties is based on the personal characteristics, traits, and dangerousness of the person acting. At the core of offender-oriented criminal law is the question of what legal consequences arise from the offender’s personality, prior conduct, social prognosis, and individual motives.
Distinction from Act-Oriented Criminal Law
In contrast, act-oriented criminal law emphasizes the specific criminal offense and its illegality. Key factors for sanctioning are the elements of the offense, guilt, and unlawfulness of the act, where personal circumstances of the offender are only taken into account in the context of sentencing (see § 46 StGB).
The distinction between offender- and act-oriented criminal law has significant practical and doctrinal importance, as it reflects different philosophies on the aims and functions of punishment.
Legal Foundations and Areas of Application
Offender-Oriented Criminal Law in the Criminal Code
German criminal law combines elements of both offender- and act-oriented criminal law. Thus, a combination of act-relatedness and individualized sentencing is pursued. Central to this is § 46 of the Criminal Code (StGB), which cites both the guilt of the offender as well as the offender’s motives, aims, and personal circumstances as determining factors for sentencing.
Relevant Provisions
- § 46 StGB: Consideration of motives, aims, and other circumstances arising from the offender’s personality.
- § 56 StGB (Suspended Sentence under Probation): The social prognosis of the offender plays a decisive role.
- § 63 StGB (Placement in a Psychiatric Hospital) und § 66 StGB (Preventive Detention): Ordering custodial measures due to the dangerousness of the offender.
Offender-Oriented Criminal Law in Sentencing
In addition to statutory frameworks, the offender’s personality is regularly considered a mitigating or aggravating factor in sentencing. For example, prior convictions, developmental deficits, remorse, capacity for insight, or particular stress factors are taken into account.
Doctrinal Aspects and Criticism
Doctrinal Discourse
The inclusion of the offender’s personality in criminal assessment is controversially discussed in German legal literature. Proponents emphasize the need for individualized punishment and the preventive approach, which promotes recidivism prevention and rehabilitation. Critics, on the other hand, warn against unjustified or potentially discriminatory evaluations of personality or background and call for a stricter focus on the objective facts of the case.
Effects on Criminal Procedure Law
Elements of offender-oriented criminal law are also found in criminal proceedings, particularly in psychiatric and psychological evaluations, obtaining social prognoses, or application of measures for rehabilitation and public safety.
Offender-Oriented Criminal Law and Measures of Rehabilitation and Security
A prominent area of application for offender-oriented criminal law is the so-called Measures of rehabilitation and security. These are not primarily based on a specific criminal offense, but on the dangerousness of the offender and his future development:
- Psychiatric placement (§ 63 StGB)
- Preventive detention (§ 66 StGB)
- Supervision of conduct (§ 68 StGB)
The imposition of these measures is based on the individual prognosis of the offender and serves to protect the general public.
Offender-Oriented Criminal Law in International Comparison
In an international context, there are varying emphases on offender- and act-oriented criminal law. While German criminal law exhibits a mixed form, Anglo-American legal systems, for example, frequently focus more strongly on act-oriented criminal law, but also take the person of the offender into account when determining the sentence.
Significance in Criminology and Legal Philosophy
From a criminological perspective, offender-oriented criminal law emphasizes the interaction between individual and society. It reflects the understanding that crime is not only the outcome of a single act but also an expression of social, psychological, and biological predispositions.
In the legal-philosophical debate, offender-oriented criminal law plays a particular role in the justification of preventive and security measures and raises issues of individual justice and the state’s claim to punishment.
Conclusion
Offender-oriented criminal law represents a significant fundamental approach in German criminal law, enabling the individualization of punishment through consideration of personal characteristics and risk factors of the offender. Its implementation occurs primarily in the context of sentencing and the imposition of measures. The ongoing discussion about the relationship between offender- and act-oriented criminal law significantly shapes the legal and criminological debate in both the German and international context.
Frequently Asked Questions
When is an attempt present under offender-oriented criminal law?
An attempt under offender-oriented criminal law is present when the offender, according to his conception of the act, directly begins to realize the elements of the offense, even though the result required by the statutory definition has not yet occurred. The decisive provision here is § 22 StGB. Direct commencement is deemed to exist when the offender initiates actions that—in his view—are intended to directly fulfill the elements of the offense. Even at the attempt stage, the offender’s conduct may be punishable, provided the offense is ‘capable of attempt,’ which is generally the case for offenses carrying a minimum sentence of more than one year. In addition, subjective requirements such as intent—the aim to fulfill all elements of the offense—must be present. The attempt is punished less severely than a completed offense (§ 23 II StGB), and under § 24 StGB, the offender has the opportunity, under certain conditions, to avoid punishment by withdrawing from the attempt.
How do principal offenders and joint offenders differ under offender-oriented criminal law?
Offender-oriented criminal law clearly distinguishes between joint and sole offenders. Joint principal offenders exist under § 25 II StGB when several participants collectively contribute to fulfilling the offense—what matters is conscious and intentional cooperation based on a shared criminal plan (so-called joint commission). Each joint offender is punished as a principal, regardless of whether he fulfills all elements of the offense personally or merely contributes through acts such as planning or supervision, as long as these are constitutive and facilitating. In contrast, a sole offender commits the offense alone and must personally fulfill all legal elements. The attribution of contributions and assessment of individual responsibility also follows the differentiated principles of offender-oriented criminal law.
What is the significance of intent in offender-oriented criminal law?
Intent is a central element in offender-oriented criminal law; without it, the offender is generally not criminally liable unless strict liability is provided. Intent is distinguished in three forms: purpose (dolus directus first degree), direct intent (dolus directus second degree), and conditional intent (dolus eventualis). It is required that the offender is aware of all elements of the offense and acts with knowledge and will. If intent is lacking, for example because the offender is subject to an unavoidable mistake of law (§ 17 StGB), liability for intentional wrongdoing is precluded. The type of intent can also be significant in sentencing, since purposeful conduct indicates greater culpability than conduct motivated by conditional intent.
When does withdrawal from attempt exempt from punishment?
Withdrawal that exempts from punishment is possible under § 24 StGB if the offender, after beginning the commission, voluntarily abandons further execution or prevents the completion of the offense. The decisive factor for exemption is voluntariness, i.e., the conduct must occur without external compulsion and from autonomous motives, such as moral reconsideration or remorse. Withdrawal is also possible after a failed attempt, if the offender still finally abandons further execution and contributes to preventing the result. Withdrawal does not exempt from punishment when the result would not have occurred anyway, regardless of the offender’s conduct, or when abandonment is based on fear of detection.
To what extent does the principle of guilt play a role in offender-oriented criminal law?
The principle of guilt is a fundamental tenet of offender-oriented criminal law and stipulates that punishment may only occur if the offender can be personally blamed—i.e., is guilty. Guilt requires both the capacity of the offender to be held culpable (e.g., absence of certain exclusion grounds such as insanity per § 20 StGB) and individual blameworthiness of the conduct. Errors, mistake of law (§ 17 StGB), or medically diagnosed disorders that rule out or diminish awareness of wrongdoing or capacity for control, interrupt or mitigate guilt and lead to exemption from punishment or mitigation under § 21 StGB. The principle also serves to limit the punitive claims of the state and is closely associated with the constitutional principle of proportionality.
What role do mistakes about the elements of an offense and about unlawfulness play in offender-oriented criminal law?
Mistakes as to the elements of an offense (§ 16 StGB) exist when, at the time of the act, the offender is unaware of a circumstance that constitutes a statutory element of the offense. Such a mistake negates intent, and the act is not punishable unless negligent conduct is relevant. In contrast, mistake about unlawfulness (§ 17 StGB) concerns ignorance that an act is prohibited or is wrongful. If the mistake is unavoidable, guilt is precluded and punishment excluded; if avoidable, punishment can be mitigated. Both types of mistake are closely linked to the principles of exclusion of guilt and unlawfulness and serve to protect individuals acting under knowledge gaps or misjudgments.
What is meant by perpetration and participation, and how are they distinguished?
Offender-oriented criminal law draws a clear distinction between perpetration and participation, with the perpetrator being the person who directly fulfills the legal elements of the offense, while the participant (instigator, aider) contributes to the commission of another’s offense (§§ 26, 27 StGB). The distinction is determined by the significance of the involvement (‘doctrine of control over the act’): The person who has control over the act is the perpetrator; one who merely promotes or causes someone else’s conduct is a participant. Perpetrators are generally subject to more severe sanctions than participants, with specific penalties and limitations for incitement and assistance. This differentiation is central to issues of sentencing, attribution of specific contributions, and the punishability of attempts.
