Sentencing in Criminal Law
Die Sentencing in criminal law refers to the procedure in which the competent court determines the specific penalty within the framework prescribed by law for a particular offense. Sentencing is a central element of the rule of law and plays a significant role in individualizing punishments and realizing the statutory purposes of punishment. The legal foundations, criteria for determination, and the practice of sentencing are subject to comprehensive legal considerations and regulations.
General Principles of Sentencing
Definition and Significance
Sentencing is the process by which the court determines the type and extent of punishment for a criminal offense that has resulted in a final conviction. The relevant starting point is usually the statutory sentencing range defined in the respective offense. The aim is to adjust the punishment to the degree of guilt and the individual circumstances of the act and the offender to ensure a just sanction.
Legal Basis
Under German law, sentencing is governed in particular by Sections 46 et seq. of the German Criminal Code (StGB). In addition, further special sentencing provisions are contained in substantive secondary laws and procedural norms, which are applicable when determining the specific sentence.
Structure of Sentencing
Two-Stage Sentencing Process
According to established case law, sentencing is carried out in two stages:
- Determination of the Sentencing Range:
First, the abstract sentencing range for the fulfilled offense is determined, taking into account any mitigating or aggravating factors.
- Individual Assessment within the Sentencing Range:
In the second step, the court selects the specific sentence within the established range based on all circumstances in favor of and against the defendant.
Shift in the Sentencing Range
The law provides for a shift in the intended sentencing range in certain cases, for example, in less serious cases or in the presence of a particularly serious case. Likewise, an attempted offense can lead to a shift in the sentencing range (Section 23(2), Section 49 StGB).
Sentencing Criteria
Principle of Guilt
The central standard for sentencing is the Principle of Guilt (Section 46(1), sentence 1 StGB). No penalty may exceed the degree of individual guilt. Guilt encompasses both the degree of wrongdoing and the culpability of the act.
Positive and Negative Sentencing Factors
The court considers both mitigating and aggravating circumstances. A distinction is made between:
- Circumstances Related to the Act:
Severity and execution of the act, motives, objectives, consequences, type and extent of participation.
- Circumstances Related to the Offender:
Previous convictions, living conditions, development since the offense, remorse, efforts to make restitution, confession, change of behavior.
Special Sentencing Provisions
Listing of specific provisions such as Section 46a StGB (offender-victim mediation and restitution) or Section 50 StGB (mitigation in cases of diminished responsibility).
Mitigating and Aggravating Factors
Mitigating Factors
A full confession, active remorse, restitution, lengthy proceedings for which the defendant is not at fault (so-called enforcement reduction), special aspects of the offender’s personal circumstances, cooperation with law enforcement authorities, or an offender-victim mediation can lead to a reduced sentence.
Aggravating Factors
Propensity for violence, criminal energy, abuse of protective or trust positions, relevant previous convictions, treachery, disregard of probation conditions, or committing the offense while on probation are considered aggravating factors.
Practical Application of Sentencing
Discretion of the Court
In sentencing, the court has considerable room for evaluation. Within the legal framework, it is obligated to carefully weigh all relevant circumstances and to provide a comprehensible justification for its decision. In doing so, both the principle of equal treatment and the prohibition on double-counting individual circumstances must be observed.
Obligation to State Reasons
The law requires a transparent and comprehensible presentation of sentencing considerations in the judgment. In particular, if there is a deviation from the legal standard or minimum sentence, the decisive reasons must be explicitly stated (see Section 267(3) StPO).
Special Aspects of Sentencing
Juvenile Criminal Law
In juvenile criminal law, sentencing takes place according to special provisions (Sections 17, 18, 21 JGG), which are guided by the principle of education. Here, the punishment appropriate to the degree of guilt takes a back seat to the educational purpose.
Ancillary Penalties and Measures
In the case of ancillary penalties (e.g., driving ban, professional ban) as well as measures of rehabilitation and security (e.g., placement in a detoxification facility), there are additional special aspects to be considered in the evaluation and justification.
Sentencing in Cases Involving Multiple Offenses
In cases involving several concurrent offenses, an aggregate sentence is formed (Sections 53, 54 StGB). This covers the procedure of subsequent aggregate sentencing and its effects on the sentence.
Remedies and Review of Sentencing
Review by Higher Courts
Review of sentencing by appellate courts is generally limited to errors of discretion or reasoning, obvious violations of sentencing rules, or impermissible double-counting. Intervention only occurs in the case of significant evaluation errors.
Function and Purpose of Sentencing
The purpose of sentencing is to achieve justice, uphold the principle of guilt, and ensure that the sanction is necessary, individually tailored, and appropriate to the act. It also guarantees prevention (both general and special prevention), protection of the victim, and the rehabilitation of the offender.
References
- Zieschang, Sentencing: Principles and Key Issues, Munich 2020
- Fischer, German Criminal Code with Supplementary Laws, current edition
- Roxin/Schünemann, Criminal Procedure Law, Hamburg 2019
See also
- Criminal Law
- Principle of Guilt
- Sentencing Considerations
- Shift in the Sentencing Range
- Juvenile Court Act (JGG)
Frequently Asked Questions
Which circumstances are taken into account in sentencing?
Both aggravating and mitigating circumstances are taken into account in sentencing. Aggravating circumstances can include, for example, a high degree of criminal energy, recidivism, or particular treachery. Mitigating circumstances, on the other hand, may include a confession, remorse, restitution of the damage caused, or lack of prior convictions. The court is obliged to weigh all circumstances in favor of and against the defendant in accordance with Section 46(2) StGB. In addition to the act itself, personal circumstances and post-offense behavior are also taken into account. Furthermore, the culpability must be proportionate to the penalty imposed (principle of proportionality, see Section 46(1) StGB).
What role does the offender’s confession play in sentencing?
A comprehensive and credible confession by the offender can have a considerable mitigating effect. It signals a particular acceptance of responsibility and facilitates the court’s clarification of the offense. The Federal Court of Justice (BGH) regularly recognizes the confession as a mitigating factor, provided there are no conflicting circumstances, such as a confession motivated solely by procedural considerations or dishonest behavior. This is especially important in complex commercial criminal proceedings, where a confession can save significant resources. The actual mitigating effect always depends on the overall circumstances of the individual case.
To what extent can a so-called less serious case influence the sentence?
The Criminal Code expressly provides for less serious cases for certain offenses, which allows courts to deviate from the statutory sentencing range and impose a more lenient sentence. A less serious case exists particularly when the act or the personality of the offender differs significantly from the normal case, such as in cases of lower criminal energy, special social hardship, or participation of the victim. The mitigation of the sentencing range is expressly regulated in numerous provisions (for example, Section 177(9) StGB for sexual offenses or in Section 243 StGB for particularly serious cases of theft). However, application always remains an individual decision and the court must carefully justify its decision with reference to the specific circumstances of the case.
What significance do previous convictions have in sentencing?
Previous convictions can influence both the severity of the sentence and the decision on whether to suspend the sentence on probation. They are typically considered aggravating circumstances, especially when they are related to the new offense (e.g., relevant recidivism). However, it must always be examined whether the previous convictions actually indicate a risk of repetition or whether the earlier convictions are long past and the new offense is an exception. The court must consider all previous convictions, but may also take mitigating factors (e.g., long periods without further offenses) into account in its overall assessment.
How are the consequences of the act and restitution taken into account in sentencing?
According to Section 46(2) StGB, the consequences of the act are an essential part of sentencing considerations. Severe and particularly significant consequences, such as serious injury to persons or considerable financial loss, can be taken into account as aggravating factors. Conversely, subsequent restitution or a settlement with the victim is regarded as mitigating, especially if it is done voluntarily and without expectation of legal benefits. In offenses involving property damage, compensatory restitution can sometimes result in a significant reduction of the sentence, as it demonstrates remorse and a sense of responsibility on the part of the offender.
Can post-offense behavior influence the sentence?
The offender’s behavior after the act (post-offense behavior) is a key criterion in sentencing. This includes, for example, voluntary surrender, efforts to limit the damage, apology, or cooperation with law enforcement authorities. Waiving the right to a defense or helping to clarify the case can also be considered mitigating. Conversely, hiding, tampering with evidence, or threatening witnesses can be regarded as aggravating. The assessment always depends on the individual case and is at the discretion of the court.
What significance does the offender’s age have in sentencing?
The age of the offender has a special influence on sentencing. For juvenile (14-17 years) and young adult offenders (18-20 years), the rules of juvenile criminal law generally apply, which are more focused on education. But even for adults, a comparatively young or advanced age can be assessed as mitigating or aggravating, for example in cases of particular immaturity or frailty due to age. Age is also relevant when considering resocialization prospects and the impact of the penalty on the offender’s personality. The court must comprehensively assess the individual circumstances and level of maturity of the offender in this regard.
