Successive Co-Perpetration or Aiding and Abetting

Successive Joint Perpetration or Aiding and Abetting – Definition and Legal Classification

Definition and Distinction

Successive joint perpetration and successive aiding and abetting are criminal law concepts referring to involvement in a criminal offense during its commission. Successive joint perpetration describes the subsequent entry of a person as a co-perpetrator during the ongoing commission of the crime, while successive aiding and abetting refers to later assistance in the principal offense during its execution. Both concepts differ particularly regarding the required involvement and the subjective intent.

Successive Joint Perpetration

Concept and Requirements

Successive joint perpetration exists when a person joins an ongoing criminal act already started by other perpetrators and exercises control over the act or makes a substantial contribution to it. Unlike a mere accomplice, the person joining is treated as an original co-perpetrator, provided the following requirements are met:

• Ongoing Principal Offense: It must be a process that is still ongoing and where significant elements of the offense have yet to occur.
• Control over the Act or Equivalent Participation: The joining perpetrator must provide their own substantial, functional contribution to the offense that helps determine the overall course of events.
• Consensus with Previous Perpetrators: As a rule, at least tacit agreement between the acting perpetrators is required.

Distinction from Aiding and Abetting

Successive joint perpetration must be distinguished from aiding and abetting. The crucial factor is whether the contribution crosses the threshold to control over the act or is limited to supportive action. While a co-perpetrator directs the event (co-)actively, the accomplice merely assists in the commission of the principal offense.

Examples of Application

A classic example of successive joint perpetration is the involvement of a person in ongoing property crimes, such as when a third party enters an ongoing burglary and provides a decisive contribution (like granting access).

Successive Aiding and Abetting

Concept and Legal Classification

Successive aiding and abetting refers to assisting an already initiated and ongoing offense by an outsider, who provides the accomplice’s contribution after the offense has begun but before it has been completed. A key requirement is that the principal offense is not completed at the time of the assistance.

Requirements

• The commission of the offense is not yet complete: The assistance must occur during the ongoing act, at the latest before its completion.
• Contribution as Accomplice: Any action that causally and objectively facilitates the principal offense is sufficient.

Distinction from Joint Perpetration

In assessing whether an act qualifies as successive aiding and abetting or as successive joint perpetration, the decisive factor is whether control over the act or an equivalent degree of co-management exists (joint perpetration), or whether it is merely assistance (aiding and abetting).

Example of Successive Aiding and Abetting

If a person joins during an ongoing theft and acts merely as a lookout, this can be considered successive aiding and abetting, provided their contribution is only a form of support within the overall event.

Legal Framework under Criminal Law

Relevance in Criminal Proceedings

Both joint perpetration and aiding and abetting are legally anchored in Sections 25 to 27 of the German Criminal Code (StGB). A crucial criterion here is the time of joining and the nature of the contribution provided:

• Joint Perpetration (§ 25 II StGB): Anyone who makes their own significant contribution to the offense is punished as a perpetrator.
• Aiding and Abetting (§ 27 StGB): The accomplice is held criminally liable for their contribution, with a reduction in penalties provided.

Particularities of Successive Involvement

With successive involvement, liability for the person joining applies from the point of their entry onward. Retroactive perpetrator or accomplice liability for fully completed criminal acts is excluded. Therefore, successive joint perpetration can only apply as long as the offense is ongoing.

Case Law and Literature

The criminal law assessment of successive joint perpetration and aiding and abetting is regularly the subject of court decisions and academic debate. The highest court rulings (including the Federal Court of Justice) consistently emphasize case-by-case assessments and a clear distinction between control over the act (joint perpetration) and mere assistance (aiding and abetting).

Key Decisions

• BGHSt 40, 218 (“Accomplice Excess”): The courts emphasize the necessity of a substantial contribution to find joint perpetration and draw a sharp distinction from mere aiding and abetting.
• BGH, Decision of 21.02.1995, Case No. 1 StR 705/94: Clarification of the requirements for successive joint perpetration, especially in continuing offenses such as robbery or theft.

Summary of Key Differences

Importance and Practical Relevance

Successive joint perpetration and aiding and abetting are of significant importance for criminal liability, as they regulate subsequent liability for ongoing criminal acts. Precise distinction is particularly influential in gang offenses, property crimes, and robbery, as it affects sentencing and the establishment of criminal offenses.

Further Reading

• §§ 25-27 StGB
• BGHSt 40, 218; BGH Judgment of 21.02.1995 – 1 StR 705/94
• Wessels/Beulke/Satzger: Criminal Law General Part

These concepts are of particular importance in the context of complex series of criminal acts for criminal prosecution and case law. Precise classification is essential for a fair assessment of involvement.

Frequently Asked Questions

Can successive joint perpetration be established after completion of the principal offense?

Successive joint perpetration requires that an initially external third party intervenes in the commission of the offense after it has started—that is, during its execution—deliberately and with perpetrator’s intent (“animus auctoris”) and furthers or co-shapes the criminal act. By prevailing opinion in case law and legal literature, joint perpetration that only occurs after the completion of the principal offense is not possible. This is because joint perpetration is based on joint commission (“joint intent” and “collaborative execution”) and must be limited to the period of execution. Any acts performed only after the completed offense can only qualify as forms of participation, particularly as favoring or obstruction of prosecution, but not as (successive) joint perpetration.

How do successive joint perpetration and aiding and abetting differ in the course of the offense?

The essential difference between successive joint perpetration and aiding and abetting lies in the quality and timing of involvement. In aiding and abetting, one supports the offense of another, consciously and intentionally in accordance with § 27 StGB, without having their own ‘perpetrator’s intent.’ Successive joint perpetration, however, is characterized by a participant joining in after the offense has begun and actively co-shaping or promoting the act as if they were an independent perpetrator. Aiding and abetting is in principle possible at any time until the principal offense is completed. By contrast, successive joint perpetration requires that the new co-perpetrator joins in while the ‘commission of the act’ is still ongoing and actively participates, thereby sharing responsibility for the acts already committed.

What are the requirements regarding the intent of the person joining later in successive joint perpetration?

For the assumption of successive joint perpetration, the subjective element (mens rea) is central. The joining party must act explicitly with ‘perpetrator’s intent’ (“animus auctoris”), wanting to commit the offense as their own and promoting it deliberately—not just assisting as an accomplice. This is particularly measured by whether the person makes significant contributions to the offense and cooperates by mutual agreement with the original perpetrators. Mere approval or tolerance is not sufficient; instead, there must be conscious action aimed at equal joint perpetration.

From what point in time is successive joint perpetration still possible?

Successive joint perpetration is possible from the beginning of the commission of the offense—that is, after exceeding the stage of attempt—until completion of execution, meaning until the offense is finished. Entering into joint perpetration strictly requires that the act is not yet completed—participation after the fact excludes joint perpetration and instead leads to criminal participation (e.g., aiding and abetting favoring). Decisive is the clear distinction between completion and conclusion of the offense as well as the actual contribution during ongoing execution.

Is retroactive liability for already completed sections of the act conceivable?

In the context of successive joint perpetration, liability for sections of the act already committed by the other perpetrators is possible if the new co-perpetrator enters with perpetrator’s intent during the ongoing execution and from that point onwards continues the offense as a joint undertaking (also regarding what has already occurred). However, wide-ranging retroactive effect for completed parts of the offense is excluded if the entry takes place only after completion or conclusion of the act. Criminal liability as a co-perpetrator thus requires an ‘actual and substantial contribution’ to the course of events that can still have a causal impact on the result.

What is the role of joint intent in successive joint perpetration?

Even in the context of successive joint perpetration, the existence of a (at least implied) joint intent—that is, participation in the overall act in agreement with the other perpetrators—is indispensable. The new co-perpetrator must join the collective plan and contribute to the execution of the offense by active conduct. Mere lack of agreement or mere tolerance is not sufficient; rather, joining the joint intent must take place at the latest during execution and not merely after completion.

How is the distinction from the form of participation as aiding and abetting made under criminal law?

For the criminal law distinction between successive joint perpetration and aiding and abetting, the decisive factor is whether the person joining assumes an equal, substantial role in the offense and acts with corresponding control over the act. While the accomplice merely supports someone else’s intent, the co-perpetrator substantially contributes to the success of the offense, helps determine the “if” and “how” of its execution, and is integrated into the criminal course of events. The exact distinction is made according to the specifics of the case, taking into account both objective and subjective contributions and intent.

Can there be a reduction of penalty in the case of successive joint perpetration?

Whether a reduction of penalty is possible in the context of successive joint perpetration depends on general sentencing principles. Mitigating factors may be considered if the later participant made a lesser contribution or if their part was less significant for the overall event. However, it must also be taken into account that someone who joins as a co-perpetrator generally remains jointly responsible for the entire offense carried out, provided the requirements of joint perpetration are met. Special mitigating considerations may apply in a less serious case, a late or “half-hearted” joining of the act, or participation that was only brief.