Draft:Attempts in German Penal Code

An Attempt according to § 22-24 German Penal Code (StGB) refers to the commission of a crime for which the perpetrator has intent regarding its completion and which has begun, but which has not been completed. Attempted serious crimes (those with a minimal punishment of more than one year) are always punishable, while attempting a lesser crime requires a specific provision in law to be a crime. The specific justification for the prohibition of attempts, particularly attempts that pose no danger, is disputed among legal scholars. An attempt is not punished if the perpetrator abandons the attempt.

History and criminological background

Criminological background

The criminological background for the punishment of attempts is disputed, with a plethora of theories supported by scholarship. The objective theories, which argue for a punishment based on the specific danger emanating from unsuccessful attempts, are considered to be inaccurate because § 23 III StGB also punishes unsuitable attempts that objectively do not endanger any persons or goods. Alternatively, the so-called subjective theories, which are usually applied by courts, instead refer to the decision against the legal code as the cause of the punishability, which accounts for the unsuitable attempts, but not for the requirements of of an act. The majority of scholarship supports varieties of the subjective-objective Theories, which refer to acting against the law as a punishable act because it erodes trust for the legal order; a similar but distinct theory instead focuses specifically on the violation as an expression against the legal order.

History

The current version of the law exists since 1975. It was proceeded by § 43 Reichsstrafgesetzbuch, which had replaced § 31 Preußisches Strafgesetzbuch in 1871; that version of the Preußisches Strafgesetzbuch originated in 1851. Historically, the earliest version of the law is derived from Art. 178 of the Constitutio Criminalis Carolina from 1532, which contains what is considered to be one of the earliest significant definitions of what is now considered a punishable attempt.

Requirements of a punishable attempt

As an attempt definitionally isn't completed, it diverges from the general standards of the German penal code; therefore, the usual Tatbestandsmäßigkeit is not required. Instead, in addition to the preconditions - the prohibition of an attempt and the crime not being completed - there must be a decision to act and a "direct and immediate step towards the realization of the offense". The general standard regarding justification and guilt remains. According to § 24 StGB, an attempt is not punishable if the perpetrator voluntarily stops the attempt, or makes an earnest effort to prevent the success if it fails without his contribution.

Preconditions

The primary precondition for a punishable attempt is the prohibition of an attempt, which is always the case for serious crimes, as in those with a minimum punishment of at least one year. For less serious crimes, a specific clause must clearly disclose that an attempt is punishable. In addition, there is a general requirement of not completing the original crime before a criminalized attempt becomes a possibility - the question of whether this is a requirement of an attempt, or merely a case of the so-called vorgezogene Konkurrenzprüfung, where the attempt would be consumed by the completed crime. Completion is to be interpreted in the legal and not in the actual sense: for example, in cases of a lack of intent towards a completed crime, or cases of self-defense with the intent to commit an unjustified crime.

Subjective component (Plan)

The perpetrator must have intent toward all parts of the crime during the action. Despite some arguments to the contrary, dolus eventualis (knowing of the possibility and consciously accepting it) is sufficient. This replaces the requirement of having knowledge of all required components of a completed crime. Specifically, the perpetrator must have intent towards the completion of the crime, and not simply desire its failure during the attempt.

Objective Component (direct and immediate action)

According to the perpetrator's plan, they must begin with the direct and immediate commission of the crime, thereby marking the boundary between the generally legal acts of preparation and the illegal attempt. There are no general requirements for plausibility: the evaluation is made along the beliefs of the perpetrator. There are significant disputes about the practical application of those requirements, with particular disputed areas affecting non-standard cases. In particular, this affects cases where the crime is perpetuated by multiple people or the perpetrator is either incited or aided by another person. There is broad consensus that the law is intended to closely link the beginning of the attempt and the commission of the crime, intentionally excluding actions such as the acquisition of necessary tools and instruments.

Unfit attempts

Attempts that cannot actually lead to the completion of the crime are considered unfit. They do not prevent the illegality of the attempt, as it is evaluated based on the intent and actions based on the subjective perception of the perpetrator. Cases include an insufficient object (attempting to kill a corpse), an insufficient tool (shooting someone with an unloaded gun), an insufficient modality of the act (a surprise attack on someone who is already aware of the perpetrator) or an unfit subject (wrongly believing to be acting as a member of a gang that does not (or no longer) exist). In cases of attempts that no reasonable person would consider likely to succeed, a lesser or no punishment may be applied. Those have to be distinguished from Wahndelikte, which are cases where the person accurately assesses the facts, but wrongly imagines his actions to be a crime.

External links

German Criminal Code (in English)