Concept and Classification of the Uncompleted Attempt
Der Uncompleted Attempt is a central concept in German criminal law and refers to a specific stage of the completion of an offense within the attempt. German criminal law distinguishes between completed and uncompleted attempts. This distinction is of crucial importance for understanding criminal liability as well as for withdrawal from the attempt.
Definition of the Uncompleted Attempt
An uncompleted attempt exists if, after completing the actions he believed necessary to achieve the legal result, the perpetrator nevertheless believes he can still bring about the result by further measures. The central question is whether, from the perpetrator’s perspective, additional actions are still required to complete the offense.
The counterpart to the uncompleted attempt is the completed attempt, in which the perpetrator believes, according to his own perception, that he has already done everything necessary to fulfill the facts of the case.
Statutory Regulation
The handling of the uncompleted attempt is regulated in the Criminal Code (StGB), in particular in §§ 22 et seq. However, the law itself does not contain an explicit definition; rather, the classification is made in practice according to case law and legal literature.
Commencement of Attempt (§ 22 StGB)
According to § 22 StGB, an attempt begins when the perpetrator immediately sets about fulfilling the statutory elements of the offense in accordance with his conception of the act. The decisive factor is thus the perpetrator’s subjective perspective.
Withdrawal from the Attempt (§ 24 StGB)
The distinction between uncompleted and completed attempts is particularly important for withdrawal. According to § 24 para. 1 sentence 1 alternative 1 StGB, the perpetrator may, as long as the result has not yet occurred and he believes it has not yet been achieved, withdraw from the attempt exempting himself from punishment by voluntarily abandoning the further execution of the offense.
For the uncompleted attempt, the mere abandonment of further acts of execution is sufficient. In contrast, in the case of a completed attempt, the perpetrator is required to actively prevent the result.
Criteria for Differentiation
The distinction between uncompleted and completed attempts is made based on the so-called “withdrawal horizon”.
Subjective Standard
The essential factor is the perpetrator’s conception after completing the last act of execution:
- If he considers further actions necessary to achieve the result, it is an uncompleted attempt.
- However, if he believes he has already done everything necessary to bring about the result, it is a completed attempt.
The subjective standard is indispensable; objective criteria such as the actual proximity to success or the dangerousness of the criminal act are subordinate.
Withdrawal Horizon
Occasionally, reference is made to the so-called “withdrawal horizon,” which denotes the point in time after completion of the last act when the perpetrator reflects on whether, in his estimation, further actions are necessary. Subsequent corrections to the attempt horizon are only taken into account by the courts if they are made immediately after the offense.
Practical Significance in Criminal Law
The practical relevance of the uncompleted attempt becomes especially evident in the following areas:
Possibilities for Withdrawal (§ 24 StGB)
In the case of an uncompleted attempt, mere cessation of the act is sufficient, provided the perpetrator acts voluntarily. This has considerable practical impact on the question of whether exemption from punishment is possible—an important ease compared to a completed attempt.
Sentencing
Especially in the context of sentencing, a timely and voluntary withdrawal in the case of an uncompleted attempt can mitigate punishment or even exempt from punishment.
Problems of Distinction and Controversial Issues
Whether an attempt is uncompleted or completed can be difficult to determine in individual cases. This is particularly true where an act can be seen both as the final act and as part of a broader criminal plan (e.g., in multi-act offenses or at staged attempt phases).
Multi-act Offenses
If the perpetrator spreads the execution of the offense over several actions, the question arises as to when the uncompleted attempt turns into a completed attempt. The decisive factor is always the perpetrator’s final conception of the course of events.
Involvement of Multiple Persons
In the case of co-perpetration (§ 25 para. 2 StGB), the decisive question is whether all participants regard the attempt as uncompleted or whether some already believe everything necessary has been done. Different possibilities of withdrawal may exist in parallel here.
Significance in Legal Doctrine
The distinction between uncompleted and completed attempts is one of the cornerstones of the theory of attempt in German criminal law. It is indispensable for the systematics of the withdrawal provisions and significantly influences questions of criminal liability and sanction.
Summary
Der Uncompleted Attempt is a criminal law term for the classification of stages within the attempt phase of an offense. The distinction from the completed attempt has considerable consequences, particularly for the possibilities of withdrawal and the applicability of exculpatory provisions. The subjective plan of the perpetrator and the behavior regarding withdrawal are central. Correct classification of the stage of attempt plays a central role for both legal practice and criminal law theory.
Frequently Asked Questions
What legal consequences does an uncompleted attempt have compared to a completed attempt?
Pursuant to § 24 para. 1 sentence 1 StGB, the uncompleted attempt is of considerable significance for criminal liability and mitigation of punishment: In the case of an uncompleted attempt, under German criminal law, the perpetrator is exempt from punishment if he voluntarily abandons further execution of the offense, i.e., does not continue to realize the offense, even though actual completion would have still been technically possible. Unlike the completed attempt, where withdrawal requires the prevention of the result, for an uncompleted attempt, mere abandonment of further execution suffices. Accordingly, whether the attempt is uncompleted or completed has a major impact on the prerequisites and ease of penalty-exempt withdrawal. The legal consequence is that with an effective withdrawal in the case of an uncompleted attempt, there is no longer any criminal liability for the attempt.
When does the case law consider an attempt to be uncompleted?
An uncompleted attempt is deemed to exist if, according to the perpetrator’s conception of the act, he has not yet done everything to achieve the legal result and the result has not yet occurred. Case law examines solely the perpetrator’s subjective perspective at the time of discontinuation: The decisive factor is whether the perpetrator believes that, through the actions already taken, the result will occur without further actions (completed attempt), or whether he assumes that further actions are required (uncompleted attempt). The distinction must always be made on a case-by-case basis and can present particularly difficult issues in omission offenses or multi-act sequences.
What importance does the voluntary cessation of further criminal acts have in the case of an uncompleted attempt?
Voluntarily ceasing further acts of execution is the central prerequisite for a penalty-exempt withdrawal in an uncompleted attempt. The perpetrator acts voluntarily if he abandons his act based on autonomous and self-determined motives, not because of compelling external circumstances (e.g., arrest, technical failure). The abandonment must concern the acts of execution themselves, not merely the failure to undertake further preparatory actions. This clarifies that the perpetrator is taking a significant step back toward compliance with the law; this retreat is considered an expression of a positive offender personality and justifies exemption from punishment.
How is it determined whether withdrawal is still possible at the stage of an uncompleted attempt?
Whether withdrawal is still possible at the stage of an uncompleted attempt depends on when the perpetrator believes, according to his plan, that he has done everything necessary to complete the offense. As long as the perpetrator himself still believes that further acts of execution are required, the attempt remains uncompleted, and penalty-exempt withdrawal is possible by ceasing further execution. However, once the perpetrator surpasses this point and considers the act completed, the boundary with the completed attempt is reached, which imposes higher requirements for withdrawal. Determining this point in time often requires a differentiated analysis of the internal plan as well as external circumstances.
What role does the perpetrator’s conception play in classifying an attempt as uncompleted?
The perpetrator’s conception is of central importance for the classification as an uncompleted attempt. The decisive factor is always the perpetrator’s subjective perspective at the moment of the act, especially when ceasing the act. An attempt is uncompleted if, in the perpetrator’s view, the result cannot be expected to occur without further action, but rather further acts are necessary. This subjective element differs from the objective course of action and can be difficult for outsiders (i.e., third parties) to comprehend in the individual case, which is why this assessment must be undertaken with particular sensitivity.
What practical difficulties of distinction exist with the uncompleted attempt?
In practice, the distinction between uncompleted and completed attempt is particularly problematic. Especially in complex sequences of actions, multi-stage or cooperative offenses, it can be difficult to determine whether, from the perpetrator’s perspective, everything necessary to achieve the result has already been done. Evaluation is also problematic in cases of omitted criminal acts stopped midway or prematurely abandoned multi-phase acts. Case law therefore regularly requires careful reconstruction of the perpetrator’s conception on the basis of objective and subjective criteria to avoid errors in assessment.
What importance does the uncompleted attempt have for criminal defense practice?
For criminal defense, the uncompleted attempt offers the opportunity to justify and enforce a penalty-exempt withdrawal, as far less stringent requirements are placed on withdrawal than in the case of a completed attempt. Thorough analysis of the defendant’s conception and the sequence of events is therefore of central importance for the defense, in order to substantiate the most favorable withdrawal point possible and to achieve exemption from punishment according to § 24 StGB. This often requires detailed statements from the client, supporting expert reports, or comprehensive reconstructions of the sequence of actions.
