Term and significance of sentencing
Sentencing is an essential component of German criminal law and refers to the legal process in which the court determines the specific nature and extent of the punishment, taking into account all circumstances in favor of and against the offender. While the verdict decides the question of guilt, sentencing concerns the “how” of the sanction. Sentencing is situated between the search for just penalties, the need for retribution and prevention, and the principle of proportionality.
Statutory foundations of sentencing
General regulations in the Criminal Code (StGB)
The general principles of sentencing are governed by §§ 46 ff. of the Criminal Code (StGB). According to § 46 para. 1 StGB, the offender’s guilt forms the basis for determining the punishment. Other relevant provisions include § 46a StGB (active repentance, offender-victim mediation) and § 49 StGB (mitigation of penalty).
Special sentencing rules
In addition to general provisions, there are numerous special sentencing rules that are found within individual criminal offenses or in ancillary laws. For example, offenses with mandatory sentences (such as minimum or maximum penalties) contain special provisions regarding the determination of sentencing ranges and their limitations.
Principles of sentencing
The principle of guilt
The core of sentencing is the principle of guilt: no punishment may be imposed without culpability (“nulla poena sine culpa”). The specific personal, offense-related, and situational circumstances are assessed for their relevance to the degree of guilt.
The principle of proportionality
The punishment must be appropriate and proportionate to the severity of the offense and the degree of guilt. The requirement of proportionality is also derived from the Basic Law, in particular Art. 1 para. 1 and Art. 2 para. 1 GG.
Sentencing considerations
Sentencing ranges and adjustments
Statutory sentencing range
Each criminal offense stipulates the statutory sentencing range (e.g., imprisonment from six months to ten years). Within this range, the court determines the sentence based on the circumstances of the individual case.
Mitigating and aggravating circumstances
The court examines whether specific circumstances may lead to an adjustment of the sentencing range (e.g., particularly serious or less serious cases, statutory examples, attempt and withdrawal). §§ 49 to 50 StGB expressly regulate the possibilities for mitigating penalty.
Sentencing criteria according to § 46 StGB
Guilt-specific aspects
- Offender’s motives and aims
- Disposition and motivation
- Extent and nature of the breach of duty
Offense-related criteria
- Type of execution of the offense
- Background (prior offenses, previous convictions)
- Severity of the consequences
Offender-related aspects
- Previous convictions, living conditions, social integration
- Conduct after the offense (remorse, restitution, compensation for the victim)
- Confession and cooperation with the investigative authorities
Mitigating and aggravating circumstances
Typical mitigating circumstances include:
- Confession and voluntary disclosure
- Restitution of the damage
- Remorseful behavior and active repentance
- Minor guilt
Aggravating factors include, among others:
- Malice or particular cruelty
- Abuse of a position of trust
- Persistent planning or repeated commission of offenses
Sentencing procedure
Process in criminal proceedings
Sentencing is carried out during the determination of the verdict after clarification of the question of guilt. The court expressly records the relevant sentencing considerations in the reasons for the judgment. If these explanations are missing, this may result in the judgment being overturned by an appellate court.
Obligation to comply with statutory provisions
The court is bound by statutory minimum and maximum limits. Within the scope of its discretion, a comprehensible and verifiable justification must be provided.
Legal remedies and review
Sentencing is reviewed by appellate courts (e.g., appeal to the Federal Court of Justice) to determine whether legal errors occurred (in particular, errors of discretion, exceeding the sentencing range or incorrect consideration of sentencing facts). The trial court has a margin of judgment in this regard, which is only corrected in cases of manifest misjudgment.
Special constellations
Attempt, withdrawal, and less serious cases
In cases of attempt (§ 23 StGB) or withdrawal (§ 24 StGB), the sentencing range is regularly adjusted in favor of the offender. Less serious cases, which are explicitly mentioned in the law, result in reduced sentencing ranges (for example, § 213 StGB for manslaughter).
Offender-victim mediation and active repentance
Offender-victim mediation (§ 46a StGB) as well as active repentance and restitution play a significant role as mitigating factors, as they indicate a positive change in behavior and insight on the part of the offender.
Juvenile criminal law
In juvenile criminal law (§§ 17 ff. JGG), different principles apply, as the educational aspect and the development of the young person take precedence. Sentencing here is primarily based on educational measures (e.g., disciplinary measures, juvenile detention, educational instructions).
International perspectives and comparison
Sentencing is recognized as an essential element of substantive and procedural criminal law in international comparison as well. However, differences exist with regard to the extent of judicial discretion, consideration of victim interests, or alternative forms of sanctions (e.g., restorative justice).
Significance in case law
Sentencing is a dynamic field of law shaped by developments in case law and legislation. In particular, decisions by the highest courts, notably the Federal Court of Justice, regularly clarify how individual sentencing criteria are to be interpreted and weighted.
Literature and further sources
- Fischer, Criminal Code, Commentary (current edition)
- BGHSt (Collection of decisions of the Federal Court of Justice in criminal matters)
- Schünemann, Study Commentary on the Criminal Code
- Nomos Commentary Criminal Code
Conclusion
Sentencing is a central instrument for individualizing punishments in criminal law. It ensures that each sentence is tailored to the guilt and personal circumstances of the offender and reflects social values as well as the requirements of the Basic Law. Its legal framework guarantees both legal certainty and flexibility to do justice to the wide variety of criminal offenses.
Frequently asked questions
What role do previous convictions play in sentencing?
Previous convictions are an essential component of circumstances relevant to sentencing. They are considered as part of the so-called offender’s personality according to § 46 para. 2 StGB. The court examines whether and to what extent the previous convictions allow inferences about the dangerousness, character suitability, or capacity for insight of the defendant. Not every previous conviction has an aggravating effect: what matters in particular is whether it is relevant, i.e., comparable to the current offense, or whether it dates back a considerable time and is considered served or expunged (§ 46 para. 2 sentence 2 StGB in conjunction with §§ 51, 55 BZRG). Additionally, consideration of previous convictions may vary according to their type, scope, and severity; successful probationary measures or positive developments since the last conviction are also taken into account.
How are confessions evaluated in sentencing?
A confession may be considered mitigating if it is based on genuine remorse, responsibility, or the aim of relieving the victim. This is particularly emphasized in the context of facilitating the ascertainment of the truth (§ 46 para. 2 StGB). A distinction must be made: a comprehensive and early confession that brings evident advantages to the proceedings for the court and the injured party (for example, by relieving witnesses or avoiding a complex main hearing) will be given greater weight in favor of the offender. A confession made for tactical reasons solely for mitigation may have less impact, especially if the offense is already well-proven.
To what extent does restitution affect sentencing?
An offender’s efforts to make restitution for the harm caused are expressly recognized as a mitigating circumstance (§ 46a StGB). The return of stolen property, compensation payments to the victim, or voluntary efforts to remedy the harm all indicate remorse and consideration for the victim. Depending on the extent and timing of restitution, this can result in significant mitigation of penalty, in rare cases even discontinuation of proceedings pursuant to §§ 153a StPO, 46a StGB. However, the seriousness and voluntariness of such efforts are examined: compulsory or externally motivated actions carry less weight.
What is the significance of post-offense behavior in sentencing?
The offender’s behavior after the offense can be considered as either mitigating or aggravating. For example, if the offender demonstrates insight and a sense of responsibility by voluntary disclosure, active assistance in clarifying the facts, or open apology, this is evaluated positively (§ 46 para. 2 StGB). Conversely, attempts to conceal, threat to witnesses, destruction of evidence, or continued criminal conduct are considered as aggravating. Every post-offense behavior is assessed on a case-by-case basis and viewed in the overall context of the offender’s personality development.
To what extent do the offender’s motives and goals affect sentencing?
The subjective motives and aims of the offender are central elements of sentencing as stated in § 46 para. 2 StGB and serve to precisely assess the individual wrongdoing and culpability of the offender. If the offender acts out of base motives such as greed, vindictiveness, or cruelty, this is considered aggravating. On the other hand, understandable or even commendable motives (e.g., action out of desperation or to protect others) may justify a mitigating assessment. The court must carefully investigate motives and aims and give an individual justification for their actual significance for the offense.
What impact do the extent and effect of the offense have on sentencing?
The extent of the offense (seriousness of the crime), its course, and its consequences are central to sentencing (§ 46 para. 2 StGB). Relevant factors include the amount of harm caused, the number of victims, the intensity of the conduct, and any particular cruelty or ruthlessness. It should also be considered whether unforeseen consequences have occurred, such as exceptional economic loss, trauma to victims, or impairment of the public good. Lesser consequences or minor damage may justify a less severe penalty.
What is the significance of a confession in connection with a so-called “deal” in criminal proceedings?
Within the context of a plea agreement under § 257c StPO (“deal”), a confession can be of particular significance for sentencing. During such an agreement, the court offers the expectation of a certain sentence in exchange for the promise of a confession. Such a confession is viewed positively in sentencing, especially as it serves to expedite proceedings and relieve victims and witnesses. However, the court checks whether the confession is actually maintained and was not merely given pro forma for the purpose of a mitigating bonus. The confession in the context of a deal therefore has particular legal requirements regarding its substance and its influence on sentencing.
