Amendment to Penalties for Certain Violent Crimes
Amendment to Penalties for Certain Violent Crimes
The provision in Section 39a of the Criminal Code mandatorily increases the legal minimum penalty if an intentional violent act was committed under certain qualifying circumstances. Typical issues arise when perpetrators threaten with or use a weapon, exploit the particular vulnerability of the victim, apply an exceptionally high degree of violence, or commit the act jointly and by agreement. For those affected, this alters the initial situation in sentencing: previously possible lenient, suspended sentences often become unavailable with effective qualification, as the court is bound by a higher minimum penalty. Therefore, the defense and legal counsel must examine the qualifying characteristics early and specifically refute them.
Section 39a of the Criminal Code adjusts the minimum penalties for certain qualifications of violent offenses, thereby leading to mandatorily higher minimum sentences.
Principle
The provision shifts the sentencing framework: It exclusively changes the minimum penalty, not the maximum penalty. If the legal requirements are met, the court may not impose a penalty below the new minimum. The rule therefore establishes a clear, significant threshold effect. Certain modes of offense permanently alter the reality of negotiation and sentencing.
Significance
The provision signals that certain violence qualifications justify a higher need for protection for the general public and victims. In practice, this reduces the chances of suspended sentences and facilitates more pronounced sanctioning for comparable offenses. For clients, this means that a seemingly minor escalation in the execution of the act can result in a significant, legally mandatory increase in the minimum penalty.
Practical Considerations
Courts examine the motive, mode of offense, and context, and decide based on the overall picture whether one of the legally specified qualifications exists. Frequently disputed details include the actual use of a weapon versus merely an implied threat, the objective vulnerability of the victim, the question of whether the use of force was exceptionally high, and whether a premeditated joint execution of the act occurred. The defense typically succeeds if it provides material that excludes or mitigates the qualification: e.g., a missing weapon, contradictory witness statements, medical findings that question the severity of the injury, or plausible explanations regarding the motive.
Central Requirements
The provision applies only under specific, legally enumerated circumstances. Typical and practically relevant conditions include:
• Use of or threat with a weapon or a comparable instrument.
• Exploiting a particular vulnerability of the victim (e.g., minors, the sick, those requiring care).
• Exceptionally high use of force or violence exceeding the usual extent.
• Joint execution of the act in concerted action with at least one other person.
The law requires that the qualifying circumstance determines the penalty or at least supports the determination of its initial relevance; if the qualification is not present, the original minimum remains.
Relationship to other Provisions
The provision operates alongside the general rules of sentencing and aggravating or mitigating circumstances. It changes the minimum, not the maximum, and thus does not contradict normal discretionary decisions of the court in specific sentencing. A correct procedure requires that the court clearly establishes the qualification question and considers the changed minimums in the judgment. The prohibition of double counting only affects the application if the same circumstances have already been used in another form as elements of the offense or relevant for sentencing; in such cases, the court must clearly justify the weighting.
Your Benefits with Legal Assistance
A criminal proceeding is a significant burden for those affected. Serious consequences threaten right from the start – from coercive measures such as house searches or arrests, to entries in the criminal register, to custodial or monetary penalties. Errors in the initial phase, such as thoughtless statements or insufficient preservation of evidence, often cannot be corrected later. Economic risks such as claims for damages or procedural costs can also be substantial.
Specialized criminal defense ensures that your rights are protected from the outset. It provides security in dealing with the police and public prosecutor’s office, protects against self-incrimination, and creates the basis for a clear defense strategy.
Our law firm:
- examines whether and to what extent the accusation is legally sustainable,
- accompanies you through investigation proceedings and main hearing,
- ensures legally sound applications, statements, and procedural steps,
- assists in defending against or settling civil law claims,
- protects your rights and interests vis-à-vis the court, public prosecutor’s office, and victims.
Peter HarlanderHarlander & Partner Rechtsanwälte „Machen Sie keine inhaltlichen Aussagen ohne vorherige Rücksprache mit Ihrer Verteidigung. Sie haben jederzeit das Recht zu schweigen und eine Anwältin oder einen Anwalt beizuziehen. Dieses Recht gilt bereits bei der ersten polizeilichen Kontaktaufnahme. Erst nach Akteneinsicht lässt sich klären, ob und welche Einlassung sinnvoll ist.“
