Definition and significance of participation in a criminal offence
Die Participation in a criminal offence is a central concept in German criminal law and refers to involvement in an unlawful act intentionally committed by another person, without being a perpetrator oneself. Traditionally, participation is divided into the forms of incitement (§ 26 of the German Criminal Code (StGB)) and aiding and abetting (§ 27 StGB). In contrast to the perpetrator, the participant contributes to the commission of the main offence without themselves committing or controlling the act.
Distinction from perpetration
German criminal law differentiates between perpetration and participation. The perpetrator is the person who ‘holds the offence in their hands’, i.e., commits the crime personally (sole perpetrator, co-perpetrator, indirect perpetration), whereas a participant assists or induces someone else to commit the crime. The degree of involvement in the offence and the existence of control over the act are decisive for this distinction.
Statutory regulation
The essential legal basis is provided by the Criminal Code. The relevant provisions are:
- § 26 StGB (Incitement): Anyone who induces another to commit an intentional and unlawful act is punished like a perpetrator.
- § 27 StGB (Aiding and abetting): Anyone who provides assistance to another person in the commission of an intentional and unlawful act is punished as an accessory.
Forms of participation
Incitement (§ 26 StGB)
Requirements for incitement
Incitement requires the determination of another person to commit an intentional and unlawful act. Determination means eliciting or strengthening the principal perpetrator’s intent. It is sufficient to induce a decision to commit the offence, regardless of binding agreements or a joint plan.
Legal consequences
Incitement is punishable by the penalty provided for the main offence. Thus, the instigator is treated as a perpetrator. However, in particularly exceptional cases, penalty mitigation or other special legal situations may apply.
Aiding and abetting (§ 27 StGB)
Requirements for aiding and abetting
Aiding and abetting requires that someone assists another in intentionally committing an unlawful act. Assistance can occur in the preparatory stage (psychological assistance such as advice, encouragement, providing means) or during the commission of the offence (physical help such as providing tools, acting as a lookout).
Legal consequences
The sentence for the accessory is mitigated pursuant to § 27 para. 2 StGB. Exceptions may apply depending on the specific offence and individual culpability.
Requirements for participation
Intent and principal offence
Participation is only possible in an intentional and unlawful act. Negligent principal offences exclude punishable participation, as do offences without individual accusations of unlawfulness or culpability.
In addition, the participant must have at least conditional intent regarding the main offence, meaning they must be aware of the planned or committed offence and have the will to promote the act.
Causality and objective attribution
For punishable participation, the participant’s contribution must be at least a contributing cause of the offence. The principle of objective attribution and the causal link between the act of participation and the principal offence are especially important here.
Peculiarities and problems of distinction
Inability to participate
Participation is generally excluded if the principal perpetrator does not act in accordance with the legal requirements for an offence, unlawfully, and culpably. Examples include perpetrators who are in a state of incapacity (§ 20 StGB) or in cases where there is a lack of intent.
Attempted participation
Attempted incitement is also punishable under certain circumstances (§ 30 StGB), particularly if the proposed principal perpetrator does not go along with the instigator.
Withdrawal from the attempt
Participants have the right to withdraw in cases of attempt. The requirements and legal effects follow § 24 StGB, although certain special provisions may apply.
Participation in special offences
Certain offences (e.g. offences that can only be committed personally, such as perjury or giving false testimony) require specific personal characteristics on the part of the perpetrator, which means that participation in these acts is only possible under limited conditions.
Penalties and legal consequences
Sentencing
For instigators, the penalty range of the principal perpetrator applies; accessories receive a mitigation of sentence. The specific severity of the penalty depends on the seriousness of the main offence, the extent of participation, the motives, and other individual circumstances.
Ancillary legal consequences
In addition to (custodial) sentences, further legal consequences such as forfeiture, confiscation, or occupational bans may be imposed, provided these are prescribed for the main offence.
Participation in court decisions
The interpretation of participation regulations is regularly the subject of case law. The distinction between co-perpetration and participation, the determination of a sufficient (decisive) contribution, and the lawfulness of the principal offence are of particular importance. Influential decisions of the Federal Court of Justice continually specify the requirements for control over the act, intent to participate, and causality.
International and comparative aspects
The German system of participation differs in its doctrinal nuances from various other legal systems, for example, the Anglo-American legal area, which does not know a strict separation between perpetration and participation. Within Europe and under international law (e.g. international criminal law), similarly differentiated categories nevertheless continue to play an essential role, particularly when attributing responsibility for acts and in distinguishing degrees of liability.
Bibliography and further references
- Criminal Code (StGB), current version
- Fischer, Criminal Code, Commentary, current edition
- Wessels/Beulke/Satzger, Criminal Law, General Part
- Federal Court of Justice case law on participation in offences
Conclusion: Participation in a criminal offence is a central category in German criminal law and is subject to complex rules and differentiations. Anyone dealing with the liability of participants in offences must consider numerous statutory requirements, distinctions, and prerequisites for punishability. The precise application of statutory provisions and their interpretation is crucial for an accurate evaluation of involvement in criminal offences on a case-by-case basis.
Frequently asked questions
What is legally considered participation in a criminal offence?
In German criminal law, participation in a criminal offence includes both incitement (§ 26 StGB) and aiding and abetting (§ 27 StGB) of an unlawful act committed by another. Participation fundamentally requires intentional influence on a principal offence, whereby the participant is neither the perpetrator nor the direct perpetrator of the criminal act. It suffices that the participant contributes in a way that promotes or facilitates the main offence. It is important that the main offence is actually committed; without a main offence, no punishable participation exists. Participants are independently liable, and the extent and degree of punishment depend on their individual involvement and intent.
Must the participant have full knowledge of the principal offence?
A participant must be aware of the essential circumstances of the principal offence in order to be punishable. It is not sufficient to merely suggest or support a crime without being conscious of what specific act and wrongful conduct is being achieved. The so-called participant’s intent must relate both to their own assistance and to the other’s crime. However, the participant does not need full knowledge of every detail of the principal offence – an idea of the type and wrongfulness of the planned act, such as ‘a burglary in a residential house,’ is sufficient. If this knowledge is lacking, participation is not punishable.
How do incitement and aiding and abetting differ?
Incitement and aiding and abetting are different forms of participation. An instigator intentionally induces another to commit an unlawful act by prompting the decision to commit the offence. Without this influence, the principal would not have committed the act, or not in this manner. The law therefore treats incitement as equivalent to the perpetrator’s act. Aiding and abetting, on the other hand, occurs when the participant in any way supports or facilitates the act of the perpetrator, for example through tools, information, or the elimination of obstacles. Aiding and abetting is punished less severely than incitement and perpetration.
Can participation also occur by omission?
An omission can also be punishable as aiding and abetting, provided there is a legal duty to act (§ 13 StGB). This affects people who are obligated to act by law, contract or close relationships and whose failure to act supports the commission of the main offence. The omission must causally and intentionally contribute to promoting the principal offence, for example, failing to notify the police when aware of a planned burglary, if there is a guarantor position.
Is attempted participation punishable?
Liability for attempted participation exists only to a limited extent. Incitement to attempt is punishable under § 30 para. 1 StGB under certain circumstances, namely for particularly serious offences such as murder or aggravated robbery – the so-called crimes. Mere attempted aiding and abetting is generally not punishable, as the law does not explicitly criminalize it. Pure preparatory involvement without realisation of the main offence therefore remains generally exempt from punishment.
What penalties do participants in a criminal offence face?
The penalties for a participant are based on the penalty range applicable to the main perpetrator’s offence. An instigator is punished like a perpetrator (§ 26 StGB), while an accessory generally receives a milder sentence (§ 27 para. 2 StGB, sentence mitigation). The actual sentence imposed depends on the nature and extent of the contribution, the degree of individual guilt, and other sentencing criteria. In individual cases, the court may even waive the penalty entirely, especially if the involvement is very minor.
Is voluntary withdrawal from participation possible?
A voluntary withdrawal from participation is generally possible and can lead to exemption from punishment. For this, the participant must actively and voluntarily contribute to preventing the completion of the main offence, for example, by warning the victim or preventing the act together with the principal offender. Without such a contribution, withdrawal is generally not possible once the main offence has been completed. Withdrawal is particularly excluded if the participant’s contribution has already irrevocably led to the commission of the offence.
Can one be held accountable for several participations in different criminal offences at the same time?
Yes, criminal law provides for the possibility that someone may be a participant in several different criminal offences. In such cases this is called ‘concurrence of offences’ (§ 53 StGB). In this context, individual punishments are determined separately and may be combined into an aggregate sentence. For each individual participation, the perpetrator is held criminally responsible separately, and it is always examined whether the conditions for participation are met for each offence. The aggregate sentence is then adjusted to the wrongfulness and culpability of the acts.
