Concept and Meaning of Ideal Concurrence
Ideal concurrence is a central concept in German criminal law and describes the simultaneous commission of several statutory criminal offenses through a single punishable act. It represents a subcase of actus simultaneus pursuant to Section 52 of the German Criminal Code (StGB). The term ‘ideal concurrence’ is not legally defined; however, it is frequently used in case law, literature, and in practical legal application.
Unlike real concurrence pursuant to Section 53 StGB, in which various independent acts satisfy multiple criminal offenses side by side, ideal concurrence involves only a single act that violates several criminal provisions.
Legal Foundations
Section 52 StGB – Actus Simultaneus
The relevant legal basis for ideal concurrence is Section 52 (1) StGB:
“If the same act violates several penal laws or the same penal law several times, only a single penalty shall be imposed.”
Section 52 StGB therefore provides that in cases of ideal concurrence, only a combined sentence will be imposed. The concurrence relationship primarily affects sentencing and the legal assessment of the crime.
Distinction from Other Forms of Concurrence
Difference from Real Concurrence (§ 53 StGB)
Ideal concurrence is to be distinguished from real concurrence, in which several independent acts violate several criminal laws. Whereas ideal concurrence involves a single act (course of conduct) fulfilling several offenses, real concurrence involves several separate acts.
Relationship to Multiple Offenses and Identical Acts
- Multiple Offenses: Several legally independent acts, each resulting in its own criminal offense (§ 53 StGB).
- Identical Act (Ideal Concurrence): One act – multiple criminal offenses (§ 52 StGB).
Requirements for Ideal Concurrence
The following requirements must be met for ideal concurrence to exist:
- Unified Act
– There must be a legally or naturally unified act. A unified act is assumed if several statutory elements coincide in time and place.
- Multiple Violated Provisions
– The individual act must violate several criminal provisions or the same law multiple times.
- Absence of Consumption or Statutory Concurrence
– Statutory concurrence and consumption take precedence over ideal concurrence. This means that if, for example, a special provision (e.g. aggravated theft) subsumes a basic offense (e.g. simple theft), ideal concurrence does not exist.
Typical Scenarios of Ideal Concurrence
In practice, ideal concurrence is relevant in various types of offenses. Classic example cases include:
- Violation of multiple statutory offenses by a single act: A perpetrator commits both bodily harm (§ 223 StGB) and property damage (§ 303 StGB) at the same time through act A, for example by throwing a stone at a person, thereby injuring the person and breaking their glasses.
- Violation of a single offense against multiple objects: If a single act fulfills a criminal offense against several legal interests, such as spraying graffiti on several house walls, ideal concurrence may also apply, provided a unified act is assumed.
Legal Consequences of Ideal Concurrence
Sentencing in Cases of Actus Simultaneus
In cases of ideal concurrence, a combined sentence is formed pursuant to Section 52 (2) StGB. The punishment is determined according to the most severe of the offenses realized, which is possible according to the jointly fulfilled elements of the offense. Additionally, the court may increase the penalty range, but not beyond the statutory maximum of the most serious offense.
Entry in the Criminal Record and Judicial Conviction
In the conviction, all offenses that were realized through the single act must be listed. This is particularly relevant for the Federal Central Register, as all fulfilled criminal offenses will be recorded there.
Further Distinction: Ideal Concurrence versus Statutory Concurrence
The central aspect in the assessment of ideal concurrence is the distinction from statutory concurrence. If statutory concurrence exists, only one provision is punished, even if several offenses have been fulfilled. This applies, for example, in cases of specialty, subsidiarity, or consumption. Only if no statutory concurrence exists can ideal concurrence be assumed.
Relevance in Other Areas of Law
The principles of ideal concurrence are primarily anchored in criminal law. In other areas of law, such as administrative offenses or disciplinary law, similar principles are applied analogously. Nonetheless, the doctrinal meaning and specific criminal law consequences arise primarily from the criminal code.
Case Law and Literature
Case law has repeatedly clarified and delimited the concept of ideal concurrence. The basic assumption is that the term “act” is to be interpreted broadly and can also include several outcomes that meet the statutory requirements if they are based on the same intent.
In pertinent literature, ideal concurrence is discussed and particularly weighed in the context of the factual relationship and concurrence of offenses. In practice, it is essential to determine the relevant competing norms accurately to avoid sentences miscalculated by error.
Summary
Ideal concurrence is a fundamental concept in criminal law regarding the realization of criminal offenses. It is present when a single act fulfills several statutory offenses. The legal basis is Section 52 StGB. The legal classification of ideal concurrence is decisive for the conviction, sentencing, and entry in the Federal Central Register. Careful distinction from real concurrence and statutory concurrence, as well as understanding the respective legal consequences, is crucial for the proper application of the principle of criminal concurrence.
Frequently Asked Questions
When does ideal concurrence exist in the legal sense?
From a legal perspective, ideal concurrence—also referred to as actus simultaneus—arises whenever the same act by the perpetrator simultaneously violates several penal laws or several different statutory provisions within a single law. The decisive factor is the so-called “principle of the act,” which focuses on whether it constitutes a single natural act. If in a single course of conduct, several criminal norms as a whole or in certain alternatives are violated, ideal concurrence must be considered. Examples include simultaneously insulting and threatening a person in a single statement or causing a traffic accident under the influence of alcohol, resulting in both endangerment of road safety and bodily harm. Legally, ideal concurrence is governed by Section 52 StGB.
How is sentencing determined in cases of ideal concurrence?
In the case of ideal concurrence, sentencing is clearly regulated by law: pursuant to Section 52 (2) StGB, a combined sentence is imposed, with the court guided by the most serious criminal provision realized. This means that, if several offenses are fulfilled through one act, a sentence is determined for each, but the highest individual penalty is decisive and may be increased appropriately by the court considering the further offenses committed. However, this increase may not, in principle, exceed the statutory maximum for the most serious provision. This is intended to prevent excessive repression while comprehensively acknowledging the criminal wrong.
Are there exceptions to the principle of ideal concurrence?
Yes, individual special statutes or specific provisions in the StGB expressly provide for a different concurrence mechanism. For example, qualification offenses (such as grievous bodily harm under Section 226 StGB) often subsume the basic offenses (simple bodily harm under Section 223 StGB) through the principles of specialty or consumption. There are also certain offenses of a catch-all character, in which other offenses are no longer punished independently, such as Section 205 StGB (violation of personal privacy and confidentiality by image capture) in relation to trespassing. Therefore, it is always important to check whether ideal concurrence actually applies or another concurrence relationship is present.
Can an act also constitute ideal concurrence negligently?
In principle, it is legally possible for a negligent act to give rise to ideal concurrence among various negligent offenses, provided the act violates several different norms at the same time. For example, a driver who negligently causes an accident and thereby injures a person and damages someone else’s property simultaneously may be guilty of negligent bodily harm (§ 229 StGB) and negligent property damage (§ 303 StGB). Whether the act is committed intentionally or negligently is irrelevant; what matters is that a single act fulfills several criminal provisions simultaneously.
How is ideal concurrence distinguished legally from real concurrence?
The distinction between ideal concurrence and real concurrence depends on the number of natural acts and how they are realized. In ideal concurrence, a single act fulfills multiple statutory offenses at the same time; in cases of real concurrence (multiple offenses, § 53 StGB), several independent acts occur, each violating different offenses separately. The key criterion for distinction is whether, according to general public perception, a unified sequence of events (“natural unity of action”) is assumed. If there are several activities that can be separated from each other, this regularly indicates real concurrence.
What role does the principle of statutory concurrence play in ideal concurrence?
Statutory concurrence is an exception to ideal concurrence and applies whenever several relevant criminal provisions cover the same act, but one provision overrides the other as a more specific or conclusive regulation (e.g. specialty, subsidiarity, or consumption). In such cases, even if several elements have been fulfilled, only the more specific or conclusive provision is punished. Therefore, ideal concurrence only applies if there is no statutory concurrence between the relevant offenses.
Can administrative offenses also be sanctioned multiple times through ideal concurrence?
The principle of ideal concurrence also applies in administrative offense law, but with certain peculiarities. According to Section 19 of the Act on Administrative Offenses (OWiG), in cases of ideal concurrence involving administrative offenses—i.e., when a single act fulfills several administrative offense provisions—the legal maxima are added, and the court can impose an appropriate fine within this range. However, the prohibition on excessive punishment must also be observed, so that punishment is not disproportionate to the gravity of the act and the degree of the breach of duty.
