Relapse in Law – Definition, Significance, and Legal Consequences
Der Relapse is a significant term in the context of criminal law that describes the repeated commission of a criminal offense after a previous conviction. Its legal implications extend to various areas of law, particularly in criminal law, criminal procedure law, and the law of execution of sentences. The assessment and handling of a relapse reflect preventive, specific-preventive, and general-preventive considerations within criminal justice.
Definition and General Significance
Relapse describes the situation in which a person, after a sentence has been imposed and often already served, commits another criminal offense. The legal consequences of a relapse are varied and depend on the nature and timing of the previous and new offense. Often, relapse must be distinguished from mere recidivism or continuing offenses, such as in cases of multiple offenses.
Legal Basis of Relapse
Relapse in German Criminal Law
In German criminal law, § 38 of the Criminal Code (StGB) indirectly regulates the principle of relapse within the context of sentencing ranges. Although relapse itself is not a separate criminal offense, it is attributed an aggravating effect on sentencing.
Aggravating Consideration
According to § 46 para. 2 StGB, the offender’s “prior convictions” are among the main factors in sentencing. Repeat delinquency is seen as an indication of a lack of rehabilitation, making future criminal behavior appear more likely. The court may therefore consider relapse as an aggravating circumstance in sentencing.
Requirements for the Existence of a Relapse
- Final conviction for a criminal offense
- Commission of a new criminal offense after this conviction
- Absence of pardon, clemency, or limitation regarding the previous conviction
Distinction from Other Terms
Relapse is to be distinguished from recidivism, which merely describes repeated criminal behavior without a definitive prior conviction. Also, the concept of multiple offenses (Tatmehrheit), where several independent offenses are committed at different times and have not yet been adjudicated, does not constitute a relapse.
Relapse and Probation Law
A relapse during active probation can have significant legal consequences. In accordance with § 56f StGB, the court may revoke probation if the relapse offense contravenes the purpose of a suspended sentence or raises serious doubts about a positive probation prognosis. The new offense is assessed as part of the overall circumstances.
Relapse and Preventive Measures
Measures of Correction and Prevention
Relapse can, under § 66 StGB (imprisonment and preventive detention), lead to the imposition of preventive detention. This applies especially if an offender, after serving a sentence, again commits serious crimes which justify the assumption that he or she continues to pose significant dangers to the public.
Requirements for Ordering Preventive Detention
- Existence of previous serious offenses
- Relapse offense that again involves significant criminal offenses
- Negative social prognosis
Relapse in Juvenile Criminal Law
The Juvenile Courts Act (JGG) addresses relapse with specific educational considerations. A distinction is made here between single and repeated delinquency. In the case of relapse, instead of milder educational measures, more severe sanctions up to and including juvenile detention may be imposed, see §§ 17, 18 JGG.
Relapse from the Perspective of Criminal Record and Expungement Periods
Effects on the Certificate of Conduct and Deletion of Entries
The occurrence and determination of a relapse lead to the extension of the expungement period for certain entries in the Federal Central Criminal Register in accordance with § 46 para. 1 BZRG. New offenses committed during existing expungement periods result in the suspension of the expungement period for all offenses until all sentences have been completed and the last expungement period has expired. This affects, for example, the issuance of certificates of conduct and professional reliability checks.
Relapse and Probation Assistance
Probation assistance and relapse are closely connected: in addition to its supervisory function, probation assistance is responsible for monitoring to prevent relapse and to help stabilize the probationer socially. A relapse during the probation period is reported to the responsible supervisory authority; this can result in revocation of probation and subsequent conviction.
Relapse from a European Law Perspective
Relapse is also relevant from the perspective of European law, for instance, in cross-border enforcement of sentences (Framework Decision 2008/675/JHA), whereby final convictions from one Member State should be considered when prosecuting crimes in another Member State. This promotes uniform consideration of prior convictions in relation to relapse offenses.
Relapse Offenses and Prosecution
Procedural Significance
In the context of criminal procedure, relapse affects investigative measures, reasons for detention (§ 112 para. 3 StPO: serious crime and presumption of relapse), decisions regarding pre-trial detention, and the degree of sentencing.
References and Further Reading
- Criminal Code (StGB)
- Juvenile Courts Act (JGG)
- Federal Central Criminal Register Act (BZRG)
- Code of Criminal Procedure (StPO)
- European Framework Decisions on Mutual Recognition of Criminal Judgments
With this comprehensive treatise, all legal aspects, definitions, requirements, and legal consequences of the term relapse are addressed. The concept remains a central element in individual sentencing, in probation law, in the execution of sentences, and in preventive measures law.
Frequently Asked Questions
What legal consequences does a relapse have in criminal law?
A relapse can have significant effects on sentencing and the enforcement of sentences in criminal law. In Germany, relapse is given special consideration under the concept of “recidivism” or “repeat offender” (§ 48 StGB, § 66 StGB). For repeat offenders, tougher punishment is possible, as the law assumes increased dangerousness and wrongful intent. Relapse is particularly relevant in decisions regarding probation, the imposition of preventive detention, or when ordering measures of correction and prevention. The judiciary carefully examines in cases of relapse whether the offender has learned from previous penalties. Moreover, a relapse may serve as evidence of a negative social prognosis, impacting further criminal proceedings.
How does a relapse affect the suspension of a custodial sentence on probation?
A relapse generally has a negative impact on the decision of whether a custodial sentence should be suspended on probation (§ 56 para. 1 StGB). Courts must be satisfied that the convicted person will remain crime-free in the future (positive prognosis). A relapse—especially during an ongoing probation period—strongly argues against such a prognosis. In such cases, probation can either be revoked (§ 56f StGB) or planned probation may be ruled out from the outset. With repeated relapses, the likelihood that future probation will be granted decreases, as courts assume a lack of willingness to improve.
To what extent can a relapse lead to the imposition of preventive detention?
The imposition of preventive detention pursuant to § 66 StGB requires, among other things, relevant relapse in certain serious criminal offenses. In such cases, the court considers whether the offender has repeatedly committed similar serious offenses, making it highly likely that further significant crimes will be committed. Relapse is thus a central criterion in assessing the dangerousness of the offender. The essential point is that relapse justifies the assumption that the general public must be protected from further significant offenses, which can lead to the preventive measure of preventive detention.
What is the significance of a relapse for the deletion of entries in the Federal Central Criminal Register?
A relapse can considerably extend the periods for the deletion of previous convictions in the Federal Central Criminal Register (§§ 45 et seq. BZRG). The deletion period for an entry based on conviction restarts from the day of the first relapse, so earlier entries may be retained for longer or even permanently. As a result, prior convictions may remain visible to certain authorities (such as courts or the police) for a longer time or even permanently, and may be considered in new criminal proceedings.
How does a relapse affect the law on preventive measures?
In the law on preventive measures, which provides for therapeutically oriented interventions such as placement in a rehabilitation facility or psychiatric clinic, relapse affects the assessment of the prospects of therapeutic success. Relapses during or after a measure may result in the extension or intensification of placement (§§ 67d, 67e StGB). Additionally, the court may determine that the measure is ineffective and may thus switch to regular enforcement of sentences. In cases of multiple relapses, further measures are generally considered less likely to be successful.
Can relapses in cases of petty offenses also be considered aggravating?
Even in the case of so-called petty offenses (e.g., shoplifting), a relapse can be considered aggravating. The decisive factor here is also the repeated disregard for criminal law and the associated negative prognosis. Especially for frequent minor offenses, repeated relapse may indicate that educational measures are insufficient and that a more noticeable sanction is necessary, which often results in short custodial sentences.
What are the consequences of a relapse in juvenile criminal law?
In juvenile criminal law, the didactic aim remains central in the case of relapses. However, repeated delinquency means that measures such as warnings, community service, or educational assistance may increasingly fade into the background. Courts increasingly resort to juvenile detention in accordance with § 17 JGG, as relapse is interpreted as a sign of lack of maturity and ineffective previous measures. While the educational principle remains central, with multiple relapses even in juvenile criminal law, the risk of imprisonment rises.
