Definition and significance of withdrawal from an attempt
Withdrawal from an attempt is a central mechanism under German criminal law that allows offenders to avoid punishment if, after commencing a crime, they voluntarily prevent its completion. In particular, withdrawal is considered a form of act exempting from punishment, reflecting the legislator’s special trust in the offender’s autonomous decision-making. The relevant provisions are primarily found in Section 24 of the German Criminal Code (StGB).
Legal Foundations
Codification in the Criminal Code
The key provision is Section 24 StGB:
- Section 24 (1) StGB regulates withdrawal from both uncompleted and completed attempts.
- Section 24 (2) StGB extends the possibility of withdrawal to several participants (joint withdrawal).
- Section 24 (3) StGB describes the requirements for the failure of an attempt despite all reasonable efforts.
Systematic Classification
Withdrawal is classified as a personal ground for exemption from punishment. Unlike impunity due to lack of statutory elements or unlawfulness, the wrongful nature of the act remains, but the offender is not punished due to his decision. Withdrawal thus reflects the so-called “principle of opportunity” in criminal law.
Requirements for Withdrawal from an Attempt
1. Commencement of the Attempt
Withdrawal is only possible if the attempt has already begun. The offender must have started the commission of the offense, but the crime must not yet be completed. The existence of an attempt as per Section 22 StGB is therefore decisive.
2. No failed attempt
Withdrawal is excluded if the attempt has failed. An attempt is considered to have failed if, in the offender’s view, it is no longer possible to complete the crime using the means at their disposal. In such cases, a legally exempt return to legality is no longer possible.
3. Voluntariness of Withdrawal
A prerequisite is that the act of withdrawal is voluntary. Voluntariness exists if the offender abandons further execution of the act based on autonomous motives not determined by external or internal compulsion. If abandonment is solely due to external circumstances (e.g., arrival of the police) or an internal deficit (e.g., fear of discovery), the withdrawal is not considered voluntary.
4. Act of Withdrawal
a) Withdrawal from an uncompleted attempt
In the case of uncompleted attempt it suffices if the offender abandons further execution of the act (Section 24 (1) sentence 1, alternative 1 StGB). At this stage, completion of the crime is still possible in the offender’s view. The offender only needs to renounce the intention to commit the offense; no active countermeasures are required.
b) Withdrawal from a completed attempt
In the case of completed attempt the offender believes they have already done everything necessary to fulfill the offense. An exonerating withdrawal therefore requires the offender to prevent completion of the crime (Section 24 (1) sentence 1, alternative 2 StGB), i.e., through active measures prevent the result from occurring.
c) Withdrawal despite failure to avert the result
If the result nonetheless does not occur, it suffices if the offender makes a serious and voluntary effort to prevent completion of the crime (Section 24 (1) sentence 2 StGB).
Withdrawal by participants
Section 24 (2) StGB regulates withdrawal for principals and accessories, i.e., in cases involving multiple participants. The law differentiates whether an individual participant can prevent the fulfillment of the offense. The focus is on efforts to prevent completion of the crime or to induce other participants to abandon the act.
Requirements for withdrawal by participants
- The participant must, according to their understanding, prevent the completion of the crime or make a serious effort to do so.
- Alternatively, the participant may induce the other accomplices to abandon the offense.
Legal Consequences of Withdrawal
The immediate legal consequence of an effective withdrawal is the exclusion of criminal liability for the attempted offense (Section 24 (1) StGB). Criminal liability remains for any other offenses already completed (e.g., property damage during an attempted theft).
Distinction from Other Criminal Law Institutions
A distinction must be made from:
- Immunity from punishment due to active repentance (especially for certain offenses such as arson, Section 306e StGB, or money laundering, Section 261 (9) StGB), in which similar principles apply, but different offenses and special provisions govern.
- Unfit attempt (Section 23 (3) StGB): Here, withdrawal is only possible if the offender at least subjectively believes that completion is possible.
Practical Relevance and Application Cases
Withdrawal from an attempt is particularly significant in sentencing practice: it facilitates the offender’s return to legality and emphasizes individual responsibility. Especially in the context of property and economic offenses, but also bodily injury and homicide offenses, withdrawal is of practical importance.
Criticism and Reform Efforts
For decades, withdrawal from an attempt has been the subject of extensive legal scholarship discussion. Critics argue that withdrawal—particularly in completed attempts—can lead to gaps in the effectiveness of criminal law. Proponents, on the other hand, emphasize the preventive rationale and humanitarian approach of granting impunity when the wrongdoing is actually prevented or not realized.
References
- Thomas Fischer: Commentary on the Criminal Code.
- Wolfgang Joecks: Study Commentary on StGB.
- Karl Lackner/Kristian Kühl: Criminal Code, commentary.
- Urs Kindhäuser: General Part of Criminal Law.
Summary
Withdrawal from an attempt is a complex and finely balanced institution in German criminal law, playing a significant role in the mitigation of punishment and prevention. It allows offenders an exonerating effect if they timely and voluntarily abandon or prevent the crime, provided all statutory requirements are fulfilled. In practice, withdrawal helps clearly define the boundaries between criminal liability and impunity in situations involving attempted crimes and promotes a return to legality.
Frequently Asked Questions
What are the requirements for an exonerating withdrawal from an attempt?
For an exonerating withdrawal from an attempt under German criminal law, specifically according to Section 24 StGB, several requirements must be met cumulatively. The offender must have commenced the attempted crime, meaning the attempt stage has been reached, the decision to commit the offense made, and at least an act of execution begun. Withdrawal is excluded if the crime has already been completed. Furthermore, the law differentiates according to perpetrator constellation: For a lone actor, it is sufficient if the perpetrator abandons further execution and thereby voluntarily and conclusively prevents completion of the crime. In an uncompleted attempt, mere abandonment of further execution may suffice. However, in a completed attempt, active prevention of the crime’s completion is required. Lastly, the withdrawal must occur voluntarily, i.e., it must not be motivated by external compulsion or the impossibility of execution, but must be based on an independent decision stemming from internal conviction.
What is the significance of the distinction between completed and uncompleted attempts in the law of withdrawal?
The distinction between completed and uncompleted attempts is central to both the legal consequence and the requirements for exonerating withdrawal. An uncompleted attempt exists if, after the execution act is completed, the offender believes that the success required by the offense can only be achieved through further actions. At this stage, merely ceasing further execution is enough for exonerating withdrawal (Section 24 (1), first alternative, StGB). A completed attempt is given when the offender believes they have already done everything necessary for the result to occur, and the result can happen without further action by them. In this case, the law requires more: the offender must act and prevent the result (Section 24 (1), second alternative, StGB). The precise state of the attempt thus significantly affects the withdrawal requirements and the level of action required from the offender.
What does voluntariness mean in the context of withdrawal from an attempt?
Voluntariness in withdrawal law means that the offender refrains from further execution or prevents the result based on autonomously set, self-determined motives. Voluntariness is excluded if external circumstances force the offender, for example, if execution becomes objectively impossible or if the offender, due to external disruptions (e.g., threats by third parties, police presence, technical obstacles), no longer has the opportunity to continue. A so-called “failed attempt”, in which the offender can no longer complete the offense according to his own perception, is therefore insufficient for a voluntary withdrawal. Voluntariness exists if the offender withdraws out of remorse, conscience, or other personal reasons not compelled from the outside.
What role do third-party participation acts play in withdrawal from an attempt?
In cases of involvement by multiple perpetrators and participants (‘co-perpetration’ or ‘participation’), special rules apply. Section 24 (2) StGB provides that withdrawal by a participant from a joint attempt requires that they either prevent further execution by all, or, after the attempt is completed, prevent the result, or at least do everything possible and reasonable to prevent success. If the result occurs independently of the withdrawing participant’s contribution due to the actions of others, withdrawal can no longer be exonerating. The decisive factor is whether the contribution to withdrawal could actually influence the entire process and whether the participant fulfilled his individual withdrawal responsibility.
Is withdrawal from an attempt possible even in the case of unsuccessful rescue efforts?
Withdrawal can also have exonerating effect if active prevention of the result objectively fails, provided the offender has done everything subjectively possible and reasonable to prevent completion of the crime (Section 24 (1) sentence 2 StGB). This means that the key is whether, in the offender’s perspective, the actions taken were serious and sufficient to avert the result, even if, in retrospect, they proved ineffective. The offender may not fail by deliberately omitting other possible rescue actions.
What is the effect of withdrawal on offenses already completed?
Withdrawal from an attempt refers exclusively to criminal liability for the specific attempted act. Offenses or crimes that the offender has already fully committed in connection with the attempt (e.g., bodily injury, property damage) are unaffected by the withdrawal provision and are sanctioned independently of withdrawal. Exonerating withdrawal under Section 24 StGB thus only applies as long as the act is still at the attempt stage; it does not lift liability for previously committed, already completed crimes.
Is withdrawal still possible after apprehension by the police?
Withdrawal after apprehension by the police is generally excluded if the offender knows that execution of the act has been made impossible and they no longer have any independent influence on preventing success. Exonerating withdrawal is only possible as long as the offender voluntarily, of his own accord, refrains from further execution or prevents the result. If withdrawal only occurs after being compelled by force, external pressure, or police intervention, the requirement of voluntariness—and thus exonerating withdrawal under Section 24 StGB—is no longer fulfilled.
