Sentencing decision Fixing the punishment by Judge An analyze of main determinants in Germany

Transcription

1 Sentencing decision Fixing the punishment by Judge An analyze of main determinants in Germany Dr Mehmet Arslan Institute of Criminal Law and Criminology. University of Tehran & Faculty of Law and Political Sciences. University of Kharazmi 12th April 2017

2 Content of presentation I. Statutory framework of punishment and sentencing II. Sentencing in material law III. Sentencing in procedural law IV. Non-normative and non-doctrinal factors of sentencing V. Conclusions

3 I. Statutory framework of punishment and sentencing Principle of Legality: Art. 103 II GG (2) An act may be punished only if it was defined by a law as a criminal offence before the act was committed. Section 1 StGB (No punishment without law) An act may only be punished if criminal liability had been established by law before the act was committed. Two-track system: penalties and measures of rehabilitation and security Measures of rehabilitation and security: mental hospital orders, custodial addiction treatment orders, preventive detention, supervision orders, disqualification from driving or from exercising a profession. Main penalties: fine and prison sentence. Special Part: each offense description with a sentencing scale General Part: conditions of sentences, their imposition and enforcement

4 Fine: from 5 up to 360 days, in accordance with the degree of offenders guilt Prison sentence: from 1 month up to 15 years and lifeimprisonment

5 Statutory range/scale (Strafrahmen) Examples: Section 223 par 1 (Causing bodily harm): Whosoever physically assaults or damages the health of another person, shall be liable to imprisonment not exceeding five years or a fine. Section 242 par 1 (Theft): Whosoever takes chattels belonging to another away from another with the intention of unlawfully appropriating them for himself or a third person shall be liable to imprisonment not exceeding five years or a fine. 1 Month 5 years Critics: broad discretion for judge. Mandatory minimum sentence. Section 249 par 1 (Robbery): Whosoever, by force against a person or threats of imminent danger to life or limb, takes chattels belonging to another from another with the intent of appropriating the property for himself or a third person, shall be liable to imprisonment of not less than one year. 1 year 15 years Other examples of mandatory minimum sentence: of one-year imprisonment (treason, perjury, counterfeiting of money) or 5 (manslaughter) and in some cases 10 of years imprisonment (preparation of a war of aggression, high treason against the Federation other examples).

6 Statutory range/scale ( Strafrahmen ) Limited discretion of judge in case of mandatory minimum sentence and in case of indicated examples (Regelbeispiele) or aggravated forms Section 226 (Causing grievous bodily harm) (1) 1 If the injury results in the victim.(losing of pars of body or causing severe results) the penalty shall be imprisonment from one to then years. Section 250 (Aggravated robbery) (1) The penalty shall be imprisonment not less than three years if. Still consedriable discreation: espaccially in so-called less serious cases Section 250 (Aggravated robbery) (3) In less serious cases under subsections (1) and (2) above the penalty shall be imprisonment from one to ten years.

7 Other statutory boundaries and preferences Preference of fine over imprisonment (less or medium serious offences) and avoidance of short-term imprisonment Principle of sentencing in section 46 StGB Suspension of prison sentences up to two years. Sentencing of recidivist: cumulative sentence with reduction, serious recidivism of a certain dangerousness by preventive detention Sentencing bargaining in section 257c StPO

8 II. Sentencing in material law 1. Section 46 and its reach Section 46 Principles of sentencing (1) The guilt of the offender is the basis for sentencing. The effects which the sentence can be expected to have on the offender s future life in society shall be taken into account. (2) When sentencing the court shall weigh the circumstances in favour of and against the offender. Consideration shall in particular be given to the motives and aims of the offender; the attitude reflected in the offence and the degree of force of will involved in its commission; the degree of the violation of the offender s duties; the modus operandi and the consequences caused by the offence to the extent that the offender is to blame for them; the offender s prior history, his personal and financial circumstances; his conduct after the offence, particularly his efforts to make restitution for the harm caused as well as the offender s efforts at reconciliation with the victim.

9 2. Sentencing in accordance with objectives of punishment? A sentencing decision: tailored to the objects of punishment? Which objective?: retribution or prevention... Section 242 par 1 (Theft): Whosoever takes chattels belonging to another away..shall be liable to imprisonment not exceeding five years or a fine. 8 Months, why? 1 Months 5 years Retribution: guilt-commensurate punishment, why always rounded amount of sentence? Prevention: of secondary importance and limited by guilt of offender.

10 3. Spielraumtheorie a theory of sentencing? The conflict between normative assessments of guilt and specific consequences of crime while determining the sentence within the statutory range. Still unclear: how does judge determine the second scope?

11 4. Sentencing categories in practice Important sentencing factors: prior record of offender, damages caused by him, his behavior in trial and other relevant circumstances of offence. Categorization: normal, average or severe cases in accordance with courts experience regarding frequency and seriousness of cases in comparison. No mathematical dividing of statutory scale: mostly from the first third of sentencing range. Individualization by section 46.

12 Main criminal sanctions against adult: , 779 Non- Suspended prison sentence 5% In total: 674, 145 persons convicted under general criminal law 75, 310 Suspended prison sentence 11% 567, 054 Fine 84% Fine Non-suspended sentence Suspended sentence

13 III. Sentencing in procedural law 1. Investigation phase Conclusions Filing a charge or imposing a sanction or obligations Dismissal Transmission Public charge ( incl. speedy court trial) Penal order Conditional Dismissal Minor nature of guilt of offender No sufficient reason for prosecution Other reasons To another prosecution office To an administrati ve body To victim (for private prosecution

14 Decisions by prosecutor offices in 2015 Total number of investigation proceedings: 4, 989, 559 OTHERS 21,5 % FILING A CHARGE 8,6 % PENAL ORDER 10,9 % DISCHARGE (NO REASON FOR PROSECUTION) 27 % DISMISSAL (CONDUTIONAL 3,5 % DISMISSAL (UNCONDUTIONAL) 28,5 % blob=publicationfile

15 2. Trial phase No distinction between guilt-finding and sentencing. Sentencing: of secondary importance. Sentencing bargaining: of no significant importance.

16 3. Review of sentencing decision by Appellate court Increasingly involvement in reviewing of sentencing decisions. Not a matter of unprovable exercising of discretion: a question of application of material law to the sentencing-related circumstances of cases. Main mistakes in sentencing decisions by first instance courts: Wrong assessments of sentencing facts (mitigating or aggravating) Inconsistency in reasoning. Deviation from usual sentencing length without giving a justifiable reason. completely unjustifiable high sentences. Effectiveness of reasoning requirement: limited.

17 46BBA677E7CF4F929FA0D5B414EFC01.live2291 IV. Non-normative and non-doctrinal factors of sentencing Others 16,4% Offences against life 0,1% Sexual offences 0,7% Drug offences 4,5% Violation of Law of Foreigners 6,4% Bodly Harm 8,4% POLICE CRIME STATISTICS 2015 TOTAL NUMBER OF CASES: 6, Theft 21,3% Aggravated Theft 17,9% Damage to property 9,1% Fraud 15,3%

18 Three-level-analyzes: macro, mid-and micro factors. Subculture of criminal courts Hörnle: the impact of preventive detention on sentencing practices, the recruitment and self-concept of judges and the impact of legal education.

19 V. Conclusions The sentencing practice in Germany is consistent, fair and moderate/not punitive No need to speak about sentencing? New phenomenon or shifting of paradigms. For instance: care race cases.

20 Thank you for your attention Dr Mehmet Arslan Senior Researcher Max-Planck-Institut für ausländisches und internationales Strafrecht Günterstalstr Freiburg i.br. Tel.: +49 (761) Fax: +49 (761)