Term and Basics: Sanctions in the Legal Sense
The Term Sanctions refer in the legal context to penalties imposed by state authorities on a person due to a legally defined pattern of conduct, regulatory offense, or criminal act. The aim of sanctions is to prosecute legal violations, protect societal norms, prevent undesirable behavior, and strengthen both the general public and the legal consciousness of the population. Penalties are especially applied in criminal law, administrative offense law, and disciplinary law.
Historical Development of Penalties
The development of penalties is closely linked to the history of law. Early forms of punishment ranged from family liability to corporal punishment and the death penalty. With the Enlightenment and the development of the modern constitutional state, the ideas of resocialization and proportionality came increasingly to the fore. Today, principles of the rule of law, human rights, and the prohibition of excess determine the design of state penal powers.
Legal Classification of the Penalty
Criminal Law Context
In criminal law, a penalty refers to a sanction imposed by the state for culpable and unlawful conduct. The provisions regarding penalties are regulated in the Criminal Code (StGB), ancillary laws, and the Youth Courts Act (JGG).
Prerequisites for Imposing a Punishment
A penalty may be imposed if there is:
- an act that fulfills the statutory elements of the offense, is unlawful and culpable,
- personal criminal liability of the perpetrator,
- procedural principles such as the right to be heard and a fair trial.
Penalties in Administrative Offense Law
Administrative offense law, regulated in the Act on Administrative Offenses (OWiG), provides for the sanction of administrative fines (“warning with a fine”). The distinction between penalty and measure is central in administrative offense law; despite substantive similarities, fines are formally not penalties in the criminal law sense.
Disciplinary and Ancillary Criminal Law
Disciplinary law, for example for civil servants, also contains sanction-like penalties as a consequence of breaches of service law. Other special laws may contain their own sanction systems (e.g., tax law, traffic law, professional law).
Types and Forms of Penalties in German Law
Principal Penalties
Imprisonment
Imprisonment is the most severe form of state sanction and means the deprivation of freedom for a definite period or for life (§ 38 StGB). It can take the form of
- fixed-term imprisonment (between one month and fifteen years) or
- life imprisonment
may be imposed. The execution and prerequisites are governed by the Prison Act.
Fines
A fine in German law is a monetary payment assessed in daily rates (§ 40 StGB). The amount depends on the guilt, income, and financial circumstances of the offender.
Ancillary Penalties
Ancillary penalties such as the driving ban (§ 44 StGB) can be imposed in addition to principal penalties, especially in traffic offenses. Also, the loss of public office or a professional ban count as ancillary penalties.
Measures for Rehabilitation and Security
In addition to the aforementioned penalties, there are measures that may be ordered in the interests of public safety or for the resocialization of the offender (e.g., detention in a psychiatric facility, supervision of conduct).
Purpose and Aim of State Sanctions
Atonement and Justice
The demand for a just balance (retributive function) for wrongdoing has always shaped criminal law. The penalty serves as a social signal to restore the violated legal order.
Prevention
Penalties pursue both general and special preventive objectives:
- General Prevention: Deterrence of the general public from similar acts.
- Special Prevention: Deterrence, improvement and resocialization of the offender themselves.
Individual and Social Prevention
Another aim is to protect the general public from dangerous offenders, particularly by depriving them of their liberty in the case of serious crimes (security function).
Principles of Sentencing
Sentencing is based on the basic rules of § 46 StGB. The decisive factors are
- the guilt of the offender,
- the circumstances of the offense,
- motives and reasons,
- the previous life of the accused, as well as
- the consequences of the act.
The prohibition of excess and double punishment are central guidelines.
Limits of Punishment
Principle of Proportionality
The principle of proportionality requires that penalties be imposed only to the extent necessary and in proportion to the seriousness of the offense and the guilt.
Human Rights and the Principle of Criminal Liability
Respect for human dignity (Art. 1 GG) and the principle of culpability (nulla poena sine culpa) limit the state’s penal response.
No Punishment Without Law (nulla poena sine lege)
Art. 103 para. 2 GG and § 1 StGB ensure that no one may be punished without legal basis. Retroactive penal laws are inadmissible.
Relevance in Other Legal Areas and International Contexts
Penalties in European and International Law
In addition to national criminal law, international criminal law has become increasingly important, for example through the International Criminal Court. European law also influences the structure of criminal sanctions.
Special Forms of Penalty
Within sanctioning regimes, further forms of penalties arise, such as administrative sanctions, disciplinary measures, or sanctions in labor law.
Penalty and Resocialization
Modern criminal law systems aim, in addition to punishment, for the reintegration of offenders into society. Numerous laws and programs provide for therapeutic and social accompanying measures, such as probation conditions or victim protection measures.
Summary: Penalties are state-imposed sanctions in response to legal violations with the aim of ensuring lawful behavior, protecting society, and atoning for individual wrongdoing. The design and application of penalties are subject to strict legal, procedural, and constitutional requirements. Through prevention, justice, and resocialization, penalties serve a central function in the rule of law to maintain social peace and legal order.
Frequently Asked Questions
What are possible criminal consequences following a conviction?
In the context of criminal law, a conviction can have various consequences. The most common criminal sanctions are imprisonment, fines, ancillary penalties, or measures of rehabilitation and security. Imprisonment can be suspended on probation (§ 56 StGB) or enforced without probation, depending on the severity of guilt and the personal circumstances of the offender. A fine is calculated in daily rates, the number and amount of which depend on the convicted person’s income (§§ 40 ff. StGB). In addition to these primary penalties, ancillary penalties such as a driving ban (§ 44 StGB) or revocation of the driving license (§ 69 StGB) may be imposed. In addition, measures such as placement in a detoxification facility (§ 64 StGB) or a psychiatric hospital (§ 63 StGB) are possible. Registration in the Federal Central Register and any effects on the certificate of conduct are also legal consequences.
What is understood by a fine in law, and how is it calculated?
A fine is a payment obligation imposed by the court, expressed in daily rates (§ 40 StGB). The court first determines the number of daily rates based on the seriousness of the offense and the personal culpability. One daily rate usually equals 1/30 of the convicted person’s net income and, by law, normally ranges between 5 and 360, in exceptional cases up to 720 daily rates. The amount of each daily rate is determined solely by the offender’s net income to ensure equal severity for all those affected. If the convicted person does not comply with the payment request, the fine can be enforced through so-called substitute imprisonment, whereby each daily rate corresponds to one day of imprisonment.
Are there circumstances that can mitigate or aggravate the penalty?
Yes, criminal law provides for numerous so-called sentencing factors. Mitigating circumstances include a confession, remorse, restitution for the damage, or the minor significance of the offense (§ 46 StGB). Aggravating circumstances may include prior convictions, acting out of base motives, or particularly high criminal energy. The offender’s life situation at the time of the crime and any provocation by the victim are also taken into account. Judicial discretion exists when determining the severity of the sentence, as well as in deciding whether the sentence may be suspended. The court must consider all relevant circumstances in its overall assessment.
Under what circumstances can a prison sentence be suspended on probation?
A prison sentence suspended on probation is subject to various conditions under German criminal law (§ 56 StGB). In principle, probation is possible if the imposed sentence does not exceed two years. The court must also be convinced that no further offenses are to be expected from the convicted person in the future. The assessment includes, among other things, post-offense conduct, personal and social circumstances, and any efforts at restitution. If probation is completed successfully, the sentence is considered settled; otherwise, revocation and subsequent enforcement of the prison sentence may occur.
How are ancillary penalties or measures of rehabilitation and security imposed?
Ancillary penalties such as a driving ban or revocation of the driving license are imposed in addition to the principal penalty when the offense is related to the operation of motor vehicles. Measures of rehabilitation and security, such as placement in a detoxification facility (§ 64 StGB) or a psychiatric hospital (§ 63 StGB), are ordered if this is necessary for public protection or offender improvement. Such orders always require specific indications and a particular prognosis of dangerousness. These decisions are based on psychiatric or medical expert opinions and are subject to strict legal requirements.
What role does a penal order (Strafbefehl) play in German criminal proceedings?
The penal order is a special form of criminal prosecution for minor and medium offenses under the so-called accelerated procedure (§§ 407 ff. StPO). Without a main hearing, the local court, upon application by the public prosecutor’s office, can directly impose a specific penalty, usually a fine or a short suspended prison sentence. The accused may object to the penal order within two weeks of service, leading to a regular main hearing. If the penal order is accepted, it is treated like a final judgment, but has the advantage of a simplified and faster process without a public hearing.
Do penalties always affect the certificate of conduct?
Not every penalty is entered in the certificate of conduct. According to the Federal Central Register Act (§ 32 BZRG), in particular, prison sentences of more than three months and certain fines are entered. Fines up to 90 daily rates for a first offense are usually not recorded. However, in the event of repeat offenses or convictions to higher penalties, an entry is made, which can have far-reaching effects on professional life, especially in the public sector or in security-sensitive areas. Certain offenses also appear in the extended certificate of conduct required, for example, for activities involving children.
