Suspension of Sentence on Probation
Die Suspension of Sentence on Probation is a key instrument in German criminal law that provides the opportunity not to immediately enforce an imposed custodial sentence or the remainder of a sentence, but instead offers the convicted person the chance to prove themselves during a legally defined probationary period under specified conditions and instructions. The regulations for this are mainly found in Sections 56 et seq. of the German Criminal Code (StGB) and in enforcement law.
1. Definition and Significance of Suspension of Sentence on Probation
The suspension of sentence on probation constitutes the suspension of the enforcement of a custodial sentence or a sentence remainder under certain conditions regulated by law. The aim is to motivate the convicted person to live a law-abiding life and allow them to reintegrate into society without the often negative effects of immediate incarceration.
2. Statutory Foundations
The legal basis for the suspension of sentence on probation is primarily found in Sections 56 to 58g StGB:
- §§ 56, 56a-f StGB: Regulations regarding suspension in the event of conviction to custodial sentences.
- § 57 StGB: Suspension of the remaining sentence after serving part of the sentence (half-sentence, two-thirds sentence).
- § 58 StGB: Application to aggregate sentences.
- § 153a StPO: Possibility of terminating the criminal proceedings subject to conditions or instructions with a kind of “probation” during the investigation phase.
3. Requirements for Suspension of Sentence on Probation
3.1. Custodial Sentence on Probation pursuant to § 56 StGB
According to § 56 StGB, the court can usually suspend the enforcement of a custodial sentence of up to one year for probation if, taking the circumstances of the offense and the personality of the convicted person into account, it expects that the conviction itself will serve as a warning and that the person will not commit further offenses even without serving the sentence in prison. For first-time offenders and minor offenses, suspension is generally the rule rather than the exception.
3.2. Extension to sentences up to two years
If the imposed sentence is between one and two years, suspension on probation is an exception and requires special circumstances, such as a favorable social prognosis and the existence of certain mitigating factors (for example, active remorse, restitution, or personal circumstances).
3.3. Suspension of the sentence remainder pursuant to § 57 StGB
For longer custodial sentences (at least six months), the court may suspend the remainder of the sentence on probation if two-thirds (or, exceptionally, one half) of the sentence has been served, the convicted person consents, there is no significant danger, and the social prognosis is positive.
4. Probation Period, Conditions, and Instructions
4.1. Duration of the probation period (§ 56a StGB)
The probation period is set in the judgment. It lasts at least two and at most five years. The objective is to give the convicted person an appropriate time frame in which to demonstrate their willingness to abide by the law.
4.2. Conditions (§ 56b StGB)
According to § 56b StGB, conditions of a financial nature may be imposed on the probationer, such as compensation for damages, payment of a sum to charitable institutions or to the state treasury.
4.3. Instructions (§ 56c StGB)
Instructions concern the person’s way of life, e.g., residence at a specific location, no contact with certain persons, therapy orders, participation in social training courses, or surrender of a driving license.
4.4. Supervision of Conduct (§ 56d StGB)
The court may order supervision of conduct, which is regulated in § 68 et seq. StGB and provides for more restrictive control as well as mandatory meetings with probation officers.
5. Probation Officer Service
During the probation period, support and supervision by the probation officer service (§ 56d (2) StGB) generally takes place, acting in both a supportive and controlling manner towards the convicted person. The probation officer is meant to assist in law-abiding living and help fulfill conditions and instructions.
6. Revocation of Suspension of Sentence on Probation
6.1. Grounds for Revocation (§ 56f StGB)
The court can revoke probation if, during the probation period, the convicted person commits a new offense, grossly or persistently violates conditions or instructions, or if it turns out afterwards that the suspension was not originally justified.
6.2. Legal Consequences of Revocation
In the event of revocation, the initially suspended prison sentence or remainder will be enforced. In exceptional cases, however, a further suspension of the sentence on probation is possible.
6.3. Waiving Revocation
Revocation is not mandatory. The court can waive it if, for example, amending instructions or renewed educational measures appear adequate to prevent the convicted person from reoffending in the future.
7. Statistics and Practical Significance
The suspension of custodial sentences on probation is very common in criminal law practice, particularly for first-time offenders and less serious offenses. The recidivism rate during the probation period is on average lower than for those who serve their sentence in prison. This underlines the criminological and rehabilitative significance of suspension of sentence on probation.
8. Legal Remedies and Procedure
Both the order and the revocation of the suspension of sentence on probation are subject to general appellate procedures, especially immediate complaint (sofortige Beschwerde). The scope and possibilities for review are regulated in judicial proceedings.
9. Special Cases
9.1. Juvenile Criminal Law
The Juvenile Courts Act (§ 21 JGG) provides a corresponding possibility for suspension on probation in the case of juvenile detention, with partly different requirements and specific instructions reflecting the special nature of juvenile criminal law.
9.2. Foreign Legal Systems
Comparable regulations also exist in other countries, although there are differences especially regarding the legal framework and the requirements for granting probation.
Summary and Outlook
Die Suspension of Sentence on Probation constitutes a central element of modern sanctioning practice in German criminal and correctional law. It promotes the rehabilitation of the offender, protects the general public, and simultaneously alleviates the prison system. The differentiated statutory requirements and diverse design options allow for flexible and case-specific responses to offenses and help minimize barriers to reintegration into society.
Frequently Asked Questions
Who decides on the suspension of sentence on probation?
The suspension of sentence on probation is decided by the trial court that issues the judgment. As a rule, this is either the local court (Amtsgericht) or the regional court (Landgericht) in the respective case. The decision is made at the sentencing hearing according to §§ 56, 56a StGB, provided all requirements are met. After the sentence is fully served or in the case of remaining sentences under §§ 57 et seq. StGB, the enforcement chamber (Strafvollstreckungskammer) takes over. The probation decision is a separate part of the judgment but is usually made immediately after pronouncing the sentence. For decisions of the enforcement chamber, the decision is made by order, which can be appealed.
What role does the offender’s background play in the decision to grant probation?
The offender’s background is a central criterion for the prognosis (assessment) of whether the sentence will be suspended on probation (§ 56 (1) StGB). It is assessed whether the person already has a criminal record, whether there are relevant prior convictions, their social environment, whether they have a stable living situation and prospects. Any previous grantings of probation are also evaluated, as well as the reasons for any previous offenses. The court also considers factors such as whether the offender shows remorse, makes efforts at restitution, and demonstrates signs of a positive future prognosis. Repeat offenders or those with a negative prognosis have a lower chance of being granted probation.
For which types of offenses does suspension of sentence on probation apply?
Suspension of sentence on probation is generally intended for fixed-term custodial sentences of up to two years (§ 56 (1) sentence 1 StGB). It is available for all types of offenses, provided the statutory minimum sentence is not exceeded and other exclusion grounds (such as serious repeat offenses, significant doubts about social prognosis) do not apply. It is excluded for life sentences and, as a rule, for so-called catalog offenses of special severity (e.g., murder, manslaughter). In the case of particularly serious sexual offenses, suspension of sentence is to be handled more restrictively; however, a case-by-case assessment is always required.
What conditions and instructions can be imposed as part of probation?
According to § 56b StGB, the court can impose conditions and instructions on the convicted person to, on the one hand, ensure restitution for the committed wrong and, on the other, to safeguard future law-abiding conduct. Typical conditions include restitution, payments to charitable institutions or to the victim, as well as contact or residence bans. Instructions can relate to place of residence, contact with certain persons, taking up employment, or orders for therapy. Conditions and instructions must always be tailored to the individual case and must comply with the principle of proportionality.
What legal remedies are available if suspension of sentence on probation is denied?
If suspension of sentence is denied by the court of first instance, an appeal or revision may be filed, depending on the level of jurisdiction and the scope of the challenge. For decisions by the enforcement chamber on the suspension of a sentence remainder, immediate complaint (sofortige Beschwerde) is the correct legal remedy (§ 454 (3) StPO). The complaint must be filed within one week and is reviewed by the next higher court. In the appellate proceedings, the original decision is reviewed for both substantive and legal errors, but not entirely re-made from scratch.
What happens in the event of a breach of probation conditions?
If the convicted person violates imposed conditions or instructions, the court can, after a renewed hearing, revoke probation according to § 56f StGB. The requirement is usually a significant or sustained violation, although the court can also order more lenient measures (e.g., extension of the probation period, imposition of additional conditions). Only in the event of a serious or repeated violation is probation revoked and the custodial sentence must be served. The discretion of the court must be exercised in accordance with the principle of proportionality.
How long does the probation period last, and can it be shortened or extended?
The length of the probation period is determined by the court in accordance with § 56a (1) StGB and is set between two and five years. During this time, the convicted person must fulfill the conditions of probation and commit no new offenses. Early termination of probation supervision (after at least half of the probation period has elapsed) is possible on request or ex officio under certain conditions, provided probation has been successfully completed. Conversely, probation may be extended in individual cases, but no longer than five years, if necessary to achieve the objectives of probation.
