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 factors: 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 victim). 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 years. • 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 follows: - 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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