Sentencing Guidelines and Practices in Germany by d9n1aQO


									                     Sentencing Guidelines and Practices in Germany

                                        Dr Bernd Bösert
                                        Head of Division
                         Division for the Criminal Code (General Part)
                          German Federal Ministry of Justice, Berlin

1.   Case assessment within the statutory penalty range

     The criteria for case assessment by the judge after he or she has established the
     specific statuary penalty range which is applicable are provided by Section 46 of the
     Criminal Code.

     Section 46 states that the basis for the assessment is the guilt of the offender. The
     effects which the sentence can be expected to have on the offender’s future life in
     society shall be also taken into account.
     When determining the guilt the court shall weigh the circumstances in favour of and
     against the offender. Consideration shall in particular be given to the following

2    Case factors

     They are:

        the motives and aims of the offender,
        the moral disposition disclosed by the act and the degree of force of will involved
         in its commission,
        the extent of violation of duty,
        the manner of execution and the culpably caused effects of the act,
        the offender’s prior history,
        his personal and financial circumstances,
        his behaviour after the offence, particularly his efforts to make restitution for the
         harm caused as well as his efforts to reach reconciliation with the victim.

     In practice the main factors to determine the guilt and therefore the sentence itself
     are the following:
        the circumstances of the offence, in particular the manner of its execution,
        the damage caused,
        the offender’s prior convictions,
        the offender’s behaviour after the offence (in particular in court and towards his

3    Aggravating factors

     One can assume that the main aggravating circumstances are:
        particularly brutal execution of the offence,
       particularly severe consequences for the victim
       prior convictions of the offender
       However one has to keep in mind that circumstances which are already statutory
        elements of the offence must not be considered (e.g. in case of bodily injury a
        particularly serious injury may not be considered as aggravating circumstance if
        a such a injury is already an element of the concrete offence).

4   Mitigating circumstances

    Specific mitigating circumstances generally provided by law

    The German Criminal Law provides some specific mitigating circumstances which
    are generally applicable to all kind of offences and which result in a specific reduction
    of the statutory penalty range (minimum and maximum).

    Mental disorders and alcohol

    In practice the most relevant mitigating circumstance (in particular when it comes to
    serious offences against life and limb) is a reduced criminal responsibility of the
    offender at the time the act is committed; in such a case the punishment may be
    mitigated by the court (Section 21 of the Criminal Code). A reduced criminal
    responsibility may be caused in particular by a mental disorder which can include
    cases of alcohol intoxication. However, alcohol intoxication does not automatically
    constitute a mitigating circumstance. In fact this is the exception. Due to current
    rulings of the Federal Criminal Court of Germany, any alcohol intoxication for which
    the offender can be blamed - as a rule - does not result in the mitigation of the
    sentence. Only if the offender cannot be blamed for his intoxication because for
    example he is addicted to alcohol, then the mitigating circumstance of reducing
    criminal responsibility may be granted.

    If such a mitigating circumstance is approved, the statutory range of the offence is
    reduced according to Section 49 of the Criminal Code which provides in detail the
    amount of reduction.
    This means in particular:
    • Imprisonment for life shall be substituted by imprisonment of not less than three
    • In cases of imprisonment for a fixed term, no more than three quarters of the
        statutory maximum term may be imposed. In case of a fine the same shall apply
        to the maximum number of daily units.
    • Any increased minimum statutory term of imprisonment shall be reduced as
        - a minimum term of ten or five years, to two years;
        - a minimum term of three or two years, to six months;
        - a minimum term of one year, to three months;
        - in all other cases to the statutory minimum.

    For aggravated sexual abuse of a child, the reduction would mean the following: The
    statutory range of imprisonment from five to fifteen years would be reduced to
    imprisonment from two years to eleven years and three months.]
Mitigating circumstances may be
      the plea of guilty by the offender,
      his efforts to make restitution for the harm caused by him or to reach
    reconciliation with the victim.

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