Sentencing in Germany
PENALTIES AND SENTENCING
1. Sentencing Process.
* Who determines the sentence? Sentences are
handed down either by the single professional
judge or the judicial panel. There must be at
least a two-thirds majority vote to determine the
* Is there a special sentencing hearing?
Information not available.
* Which persons have input into the sentencing
process? During the main hearing, information is
collected by the presiding judge about the
defendant’s personal life, problems, and financial
means. If deemed necessary by the court, a
psychological or psychiatric evaluation may be
conducted to aid the court in the determination of
guilt or innocence as well as the sentence and
placement of the accused. As an aid to the court,
the Gerichtshilfe, also found in the Juvenile
Court as the Jugendgerichtshilfe, will conduct an
examination of the individual’s personality, home
environment, and school or work performance to
make recommendations to the court on the
appropriate adjudication and disposition. Criminal
responsibility can be mitigated as a
result of the mental state of the offender. This
may include acts committed under the influence of
alcohol or drugs. These factors are spelled out in
the Criminal Code (StGB, s 21).
The court imposing the sentence must ensure
that the sentence has been executed. This may be
done in the offender’s home town by the
Amtsgericht or the court may appoint a probation
officer to supervise the individual sentenced.
2. Types of penalties.
* Range of penalties. The criminal law mainly
provides fines and incarceration. Fines are
day fines based upon the offender’s income
and calculated on a day rate of between 2
and 10,000 German marks (StGB, s 40).
Incarceration can range from 6 months to 15 years
(StGB, s 38, 39). 24 A life prison sentence is
imposed for murder and may be imposed for other
crimes such as manslaughter or treason. Certain
crimes (murder, manslaughter, rape and robbery)
carry a mandatory sentence of incarceration.
Property crimes (battery, theft) carry a sentence
of incarceration or fine. Fines and probation are
often levied in non-serious property and non-
violent personal offenses. While fines and
incarceration are viewed by the court as
punishments, the court can also hand down other
orders (forfeiture to the state of proceeds of
crime; loss of the privilege to drive
(StGB, s 44)), which are considered supplementary
The introduction of legal reform has provided
other types of penalties such as the suspended
sentence; Weisungen (instructions); Auflagen
(orders); declaration of guilt without imposition
of sentence; community service and probation. 25,
26, 27, 28, 29, 30
In addition to the concept of penalties, the
penal code also contains measures for the
prevention of crime and the rehabilitation of
offenders (StPO, s 61 to 72). Among these are
commitment to a psychiatric hospital, commitment
to a drug or alcohol clinic, supervision of
conduct, suspension of the driver’s license, or
prohibition to practice a profession. Preventive
detention of habitual offenders exists in the
adult criminal justice system. This measure, also
designed for the prevention of crime and the
rehabilitation of an offender, allows a judge to
further detain in an institution an individual who
has already served his/her penal sentence.
* Death penalty. The death penalty was outlawed
in Germany on May 23, 1949 by Article 102 of the
Grundgesetz (Constitution) of the Federal Republic
Note: this work was completed in 1993
- Criminal Justice
- Legal System
- German Criminal Justice System
- Eser, Albin, “A Century of Penal Legislation in Germany” in Old Ways and New Needs in
Criminal Legislation, Eser, Albin and Thormundsson (Eds.), Max-Planck-Institut: Freiburg, 1989, pp. 26.
- “Federal Republic of Germany, The”, International Criminal Police Review, ICPO-INTERPOL, July-August 1987, Number 407, pp. 9-12.
- Heinz, Volker G., “Germany” in EC Legal Systems: An Introductory Guide, by Sheridan, Maurice and Cameron, James (eds.), Butterworth and Co., Ltd.: London, 1992, pp. Germany iii – Germany 60.
- International Criminal Police Review, “The Federal Republic of Germany”, Number 407, July-August 1987, Saint-Cloud, France; 9-12.