Definition and significance of Real Concurrence
Real Concurrence is a central concept in criminal law and refers to the coexistence of several independent criminal offenses that are committed through separate and independent acts by the perpetrator. In contrast to ideal concurrence, where a single act violates several criminal laws, real concurrence involves multiple realizations of different offenses, each of which constitutes its own distinct criminal wrongdoing.
The regulations on real concurrence are essential for sentencing and determine how the court is to proceed when a perpetrator has committed several punishable acts.
Legal Doctrine of Real Concurrence
Distinction from Ideal Concurrence
The distinction between real concurrence (§ 53 StGB) and ideal concurrence (§ 52 StGB) plays a significant role in general criminal law. While in ideal concurrence, one act fulfills several criminal offenses simultaneously, real concurrence involves several independent acts, each fulfilling a different criminal offense.Example of Real Concurrence: A commits a theft in the morning and an assault in the afternoon.Example of Ideal Concurrence: A hits B with a stick. In doing so, he commits both assault and property damage, because the stick breaks.
Provisions in the Criminal Code
According to § 53 paragraph 1 StGB, in cases of real concurrence each individual act is to be judged separately and an aggregate sentence is to be formed. This follows the so-called Absorption Principle, according to which the highest individual sentence is set as the base sentence and the additional individual sentences are added up to a certain extent. This differs significantly from the merger principle of ideal concurrence.
Wording of § 53 StGB:
“If the same person, through several independent acts, violates several criminal laws or the same law multiple times, the penalty is formed from all the individual sentences.”
Forms and Distinctive Features of Real Concurrence
Plurality of Acts and Statutory Concurrence
Plurality of Acts
Plurality of acts occurs when a perpetrator commits multiple offenses at different times or in different locations. A classic example is repeated theft on different days.
Statutory Concurrence
Statutory concurrence, on the other hand, describes the relationship between several criminal provisions in a specific individual case; in cases of real concurrence, statutory concurrence usually does not apply, since different acts each fulfill a different offense.
The Role of Unity and Plurality of Acts
For real concurrence, it is decisive that there are in fact several independent acts. Here, the natural unity of action is decisive, which is interrupted when a new sequence of events begins. Comprehensive judicial clarification has contributed to the distinction between several independent acts and a single act.
Real Concurrence in Sentencing and Legal Consequences
Formation of the Aggregate Sentence
According to the Absorption Principle in cases of real concurrence, the most severe penalty is set as the so-called base sentence. The additional individual sentences are added to this base sentence in a ratio determined by § 54 StGB (sentence range extension), resulting in a uniform aggregate sentence.
Increase of the Sentencing Range
The aggregate sentence may not exceed double the base sentence (§ 54 para. 2 StGB).
Mitigation or Aggravation of Sentence
The formation of an aggregate sentence in cases of real concurrence can have both mitigating and aggravating effects. This depends on the comparison between the maximum penalty in the case of multiple legal interests on the one hand and the total duration of the individual offenses on the other.
Distinction from Similar Forms of Concurrence
Continued Offense
The continued offense used to play a significant role in distinguishing real concurrence but has largely been superseded by a change in case law. Nowadays, real concurrence is regularly assumed unless there is a natural unity of action.
Statutory Concurrence
In cases of statutory specialty, subsidiarity, or subsequent acts that are also punishable, real concurrence does not apply by exception; instead, only the relevant offense is to be applied.
Real Concurrence in the International Context
The regulations concerning real concurrence are not limited to German criminal law. Other legal systems also contain provisions that provide for multiple punishments for multiple completed acts, although the principles of sentencing and the terminology may vary.
Summary
The term Real Concurrence describes the formal coexistence of several independent criminal offenses by a single perpetrator, which have been committed through various separate acts. Real concurrence leads to the imposition of individual sentences, which are then combined into an aggregate sentence based on the absorption principle. Precisely distinguishing it from other forms of concurrence, particularly ideal concurrence and continued offense, is of considerable importance for the correct application of the law. In criminal proceedings, the assumption of real concurrence significantly affects the scope and extent of the legal consequences for the defendant.
Frequently Asked Questions
What are the legal consequences of real concurrence for sentencing?
In cases of real concurrence (plurality of acts under § 53 StGB), the individual offenses are considered separately, with each one being reviewed and legally assessed on its own. This means that an individual penalty is first set for each offense committed. In sentencing, an aggregate sentence is then formed: the court forms, pursuant to § 54 StGB, an aggregate sentence in which the highest individual sentence is increased (“aggravation principle”) to account for the total number of offenses committed. The individual sentences are not simply added together; instead, a comprehensive assessment is made of all acts and of the perpetrator’s personality. The upper limits of the aggregate sentence are determined by the respective statutory provisions: the total sentence of incarceration may not exceed the maximum legal punishment for the most serious offense by more than the margin allowed by law (e.g., double).
How is real concurrence procedurally handled in criminal proceedings?
In criminal proceedings, the court examines whether real concurrence applies by determining whether multiple punishable acts exist that are committed by several independent acts of the perpetrator. Each individual accusation is dealt with separately in the indictment and in the reasoning of the judgment. The taking of evidence, assessment thereof, and determination of the facts are all carried out for each separate act. However, when pronouncing the judgment, the court issues a single aggregate sentence for all alleged offenses. In appeals, real concurrence can be alleged as a legal error, for example, if the court has incorrectly assumed unity of action rather than real concurrence.
Can different types of penalties be imposed in cases of real concurrence?
Yes, in cases of real concurrence, different types of penalties (e.g., fines, imprisonment, or ancillary penalties) may be imposed for different offenses if provided for by law for the individual acts. However, in forming the aggregate sentence, § 54 para. 2 StGB stipulates that, in principle, the court should form either an aggregate prison sentence or an aggregate fine when there are several sentences. If both have been imposed, only one may be included in the aggregate sentence; the other remains independent, and the merger principle applies to the other penalties.
How does real concurrence differ from ideal concurrence with regard to prosecution and judgment?
While in real concurrence the individual acts are committed separately and each fulfills its own criminal offense, ideal concurrence (§ 52 StGB) concerns one act that simultaneously fulfills several criminal offenses. With respect to prosecution and judgment, this means: in real concurrence, several individual sentences are imposed and then combined into one aggregate sentence, whereas in ideal concurrence, only a single sentence is imposed for the concurrently fulfilled offenses—namely, the highest prescribed sentence, possibly increased within the legal sentencing range. The legal assessment and reasons for judgment therefore draw a strict distinction between these two types of concurrence.
Is a subsequent aggregate sentence possible in cases of real concurrence?
Yes, under § 55 StGB a subsequent aggregate sentence is possible if someone is later convicted of further offenses that are, in terms of plurality (i.e., in real concurrence), related to offenses already adjudicated. In such cases, the court can form a new aggregate sentence from the new individual penalty and the penalty already imposed with final effect. The prerequisite is always that the offenses have not already been tried together and are related in terms of real concurrence. The previous final convictions remain in principle unaffected; only the sentence is adjusted.
Can administrative offenses also fall under the principle of real concurrence?
The principle of real concurrence is originally a matter of criminal law and does not apply to administrative offenses. However, comparable rules are found in § 19 OWiG, whereby for several independent administrative offenses, a fine is imposed for each and then a total amount may be pronounced. The system of forming an aggregate sentence is more generalized in this context and not subject to the strict rules of the StGB. The principles, however, are applied in a similar manner.
What is the significance of real concurrence regarding limitation periods?
With regard to real concurrence, it is important to note that a separate limitation period runs for each independently committed act. This means that in cases of multiple individual acts under § 53 StGB, each act is viewed separately; for the statute of limitations, it depends on when each specific act was committed. The limitation of a single act does not affect the prosecutability of the remaining acts. This especially affects the scope of the indictment and the criminal proceedings in cases of multiple independent offenses.
