Secondary penalties and ancillary consequences in German criminal law
Definition and distinction
Under secondary penalties und ancillary consequences Within German criminal law, secondary penalties and ancillary consequences refer to additional legal outcomes of a criminal offense that can be imposed alongside the principal penalty (such as imprisonment or a fine). They supplement the sanctioning of the offense through further measures that may affect the offender. Secondary penalties, like principal penalties, are regulated by the Criminal Code (StGB), while ancillary consequences are partly addressed in the StGB and partly in other laws.
The distinction between secondary penalties and ancillary consequences is made by law. Secondary penalties are further criminal sanctions imposed in addition to the principal penalty (§ 11 para. 1 no. 8 StGB). Ancillary consequences, on the other hand, are legal effects that attach to certain offenses or convictions by operation of law or are expressly ordered by the court (§ 11 para. 1 no. 8a StGB).
Secondary penalties: Legal basis and types
General overview of secondary penalties
The secondary penalty is an additional penalty, alongside the principal penalty, that may be imposed by the court. Its enforcement is subject to the same execution rules as the principal penalty.
Types of secondary penalties
German criminal law recognizes in particular two classic forms of secondary penalties:
- Reprimand with reservation of penalty (§ 59 StGB):
– In this case, a penalty is threatened but its enforcement is suspended on probation.
- Fine as a secondary penalty:
– Fines are particularly common in administrative offenses law, but are not considered secondary penalties in the strict sense of criminal law.
- Driving ban (§ 44 StGB):
– One of the most important secondary penalties is the driving ban. It can be imposed alongside a principal penalty if the offense is related to the operation of a motor vehicle.
Driving ban (§ 44 StGB)
The driving ban applies in addition to imprisonment or a fine and ranges from one to six months. During this period, the convicted person is not permitted to operate a motor vehicle. It is regarded as a warning measure and is intended as an additional deterrent and corrective.
Ancillary consequences: Significance and types
General overview of ancillary consequences
Ancillary consequences are legal effects that result as automatic or court-ordered accompanying circumstances of a criminal conviction. Ancillary consequences occur particularly where the law explicitly links a certain effect to a conviction.
Classification of ancillary consequences
Ancillary consequences can be divided into:
- Automatic ancillary consequences (“statutory ancillary consequences”)
– They arise by operation of law, without any action required by the court.
- Court-ordered ancillary consequences
– The court explicitly imposes them as an additional measure.
Key ancillary consequences at a glance
The most significant ancillary consequences of a conviction include:1. Loss of eligibility for public office, the right to vote and to be elected (§ 45 StGB):– For certain offenses or levels of penalties, the conviction leads automatically to the loss of these rights.2. Confiscation of objects (§ 73 ff. StGB):– Objects originating from an offense or used for committing it can be confiscated.3. Professional ban (§ 70 StGB):– The court may prohibit the offender from exercising a specific professional activity if the offense is related to the profession and poses a risk to the public.4. Supervision of conduct (§ 68 ff. StGB):– After serving the penalty, supervision of conduct may be ordered to prevent further offenses.5. Publication order (§ 41 StGB):– The court may order the publication of the judgment if there is a particular public interest.6. Measures for rehabilitation and security (§§ 61 ff. StGB):– This includes, for example, placement in a psychiatric hospital, revocation of a driving license, preventive detention, or professional ban.
Purpose and aim of secondary penalties and ancillary consequences
Secondary penalties and ancillary consequences serve different purposes:
- Special prevention: The measures are intended to deter the individual offender from further offenses, for example by means of a driving ban or professional ban.
- General prevention: They are meant to deter others from committing offenses by making it clear to everyone that convictions can have serious legal consequences.
- Protection of the public: Especially ancillary consequences such as supervision of conduct or professional ban serve to protect society from further harm by the offender.
- Restitution: Measures such as confiscation of criminal proceeds are intended to compensate for the injustice caused by the offense.
Remedies and enforcement
Appeal against secondary penalties and ancillary consequences
Not only against the principal penalty, but also against secondary penalties and ancillary consequences, the remedies of appeal or revision can be filed. This means that those affected may challenge the imposition or occurrence of certain ancillary consequences, for example if a professional ban is deemed disproportionate.
Enforcement
The enforcement of secondary penalties and ancillary consequences is governed by the general provisions for the execution of sentences. For some ancillary consequences (such as a driving ban), an active time period must be observed, while others (such as loss of eligibility to vote) apply for a fixed period from the time of conviction.
Legal provisions and references
The most important legal foundations for secondary penalties and ancillary consequences are found in the following provisions:
- Criminal Code (StGB): §§ 11, 44, 45, 68, 70, 73 ff.
- Road Traffic Act (StVG): Provisions on the driving ban
- Other statutes: For example, the Federal Election Law regarding the loss of electoral rights
Individual ancillary consequences are also contained in special statutory provisions, for example in the Trade Regulation Act, which governs commercial bans upon criminal conviction.
Summary
Secondary penalties and ancillary consequences supplement the principal penalty in German criminal law with additional sanctions and legal effects. While secondary penalties such as the driving ban are direct judicial orders, ancillary consequences may occur automatically by law or be imposed by the court. They fulfill important preventive, protective, and compensatory functions and are a central component of an effective sanction system in criminal law.
Further information:
- Criminal Code (StGB), current legal version
- Federal Ministry of Justice – Criminal Law Information Portal
Frequently asked questions
In which situations are secondary penalties imposed in addition to the principal penalty?
Secondary penalties are imposed in German criminal law as supplementary sanctions to the principal penalty when specific legal requirements are met. Such situations typically arise in cases involving offenses associated with particular dangers or misuse risks. Typical secondary penalties are the driving ban (§ 44 StGB) and the professional ban (§ 70 StGB). For example, a driving ban can be imposed in addition to a fine or imprisonment if the offender used a motor vehicle during the commission of the offense or if the offense relates to road traffic. A professional ban is ordered if there is a risk that the offender might commit similar offenses by continuing to practice the profession. The decision to impose a secondary penalty is at the discretion of the court, which examines in each case whether the sanction is necessary to influence the offender and protect the public.
What is the difference between a secondary penalty and an ancillary consequence?
While secondary penalties are additions to a principal penalty imposed directly by the criminal court in the judgment (for example, a driving ban, professional ban), ancillary consequences occur automatically by law as an automatic consequence of a conviction or are imposed by a judge, without themselves being penalties in the strict sense. A classic example is the loss of eligibility for public office, the right to vote, and the right to be elected (§ 45 StGB), which arises automatically as an ancillary consequence upon conviction for certain prison sentences. While secondary penalties must be pronounced explicitly, ancillary consequences are usually mandatory legal consequences of a particular principal penalty.
What legal remedies are available against the imposition of secondary penalties or ancillary consequences?
Affected persons can challenge the imposition of secondary penalties through the general legal remedies against the judgment, such as appeal or revision. The appeal may relate not only to the principal penalty but also to the secondary penalty if it is included in the ruling. In the case of ancillary consequences that occur automatically by law, their enforceability can be reviewed, if applicable, during appellate proceedings. If an ancillary consequence is specifically ordered by the court, it may also be challenged with legal remedies.
How long do secondary penalties and ancillary consequences last and are there possibilities for early termination?
The duration of secondary penalties, such as driving bans, is usually explicitly set out in the judgment (for example, one to six months according to § 44 StGB), while professional bans last for a period specified by the court (between 1 and 5 years, or for life for repeat offenders). Some ancillary consequences remain in effect as long as the legal characteristic of the conviction (such as a minimum period of imprisonment) persists, or until restoration is requested and granted. There is the possibility to apply for early termination if the legal requirements are met, such as removal from the Federal Central Register or by court decision restoring certain rights.
What is the significance of secondary penalties and ancillary consequences for the Federal Central Register?
Secondary penalties and ancillary consequences, if imposed or pronounced in the criminal judgment, are entered into the Federal Central Register. This entry is significant for future criminal proceedings, administrative matters, and certain professional activities. For example, a recorded driving ban may be relevant in applications for a driving license, or a professional ban may be relevant for a job application in the affected profession. After the expiration of certain periods, these entries may be deleted if the statutory requirements are met.
What role does the court play in ordering secondary penalties and ancillary consequences?
The court examines the legal requirements for secondary penalties and ancillary consequences as part of its judicial decision-making authority and makes the relevant order in the judgment. The court must weigh the individual culpability, the risk of recidivism, and the need to protect the public. For ancillary consequences that arise automatically by law, the court checks whether the objective conditions are met and regularly points out their occurrence in the judgment. In certain cases, the court may refrain from imposing secondary penalties or ancillary consequences if these would be disproportionate due to the principal penalty or other reasons.
How do secondary penalties and ancillary consequences affect the further life of the convicted person?
Secondary penalties and ancillary consequences often have significant practical effects on the convicted person’s life. A driving ban can lead to professional restrictions, while a professional ban can result in a complete prohibition from working in a learned or practiced profession. The loss of civil rights such as the right to vote or hold public office may also restrict participation in society. The duration of these consequences and the possibility of regaining rights depend on the relevant legal regulations and the course of the criminal proceedings. In many cases, these sanctions have a long-lasting impact even after the principal penalty has been served and can significantly affect social and professional circumstances.
