Criminal Liability of Attempt

Criminal Liability of Attempt

A criminally liable attempt according to § 15 StGB exists when someone, with intent, seeks to commit a criminal offense and has already directly commenced the act, but the offense is not completed (e.g., the intended outcome does not occur). Therefore, not only the completed offense but also the serious commencement of its realization is punishable. Not punishable are mere preparatory acts as long as there is no direct commencement. Absolutely impossible attempts are not punishable.

Attempt means: to commence the act with intent, but not complete it. Preparation alone is not sufficient; absolutely impossible attempts are not punishable.

Principle

The penalties for intentional acts also apply to attempt and to any participation in an attempt. The commencement of the act is reached as soon as the perpetrator carries out their decision through an act immediately preceding the execution.

Requirements for a Criminally Liable Attempt

For an attempt to be criminally liable, four conditions must be met:

• Intent: The perpetrator has the firm will to realize the offense.
• Non-completion: At least one objective element is still missing, such as the occurrence of the outcome.
• Direct Commencement: The act is in direct proximity to the realization of the offense.
• Aptitude: The perpetrator, the object of the offense, and the act are fundamentally suitable for carrying out the offense.

Distinction: Preparation vs. Attempt (Direct Commencement)

Preparation refers to the preliminary stage of an offense: planning, reconnaissance, procuring tools, driving to the crime scene. This is generally not punishable.
Direct Commencement begins where the act directly transitions into the statutory offense and is intended to lead to completion without significant intermediate steps.

Practical Guidance:

• Still Preparation: Purchasing a crowbar, observing the branch, approaching the location, putting on gloves.
• Already an Attempt: Commencing at the object – e.g., prying open the window with the crowbar, pointing the pistol at the victim and pulling the trigger, administering the drug to the victim.

Types of Attempt

• Uncompleted Attempt: The perpetrator has not yet done everything and intends to continue acting (e.g., entry into the premises fails at the first door).
• Completed Attempt: The perpetrator believes to have done everything necessary; the outcome only accidentally fails to occur (e.g., a shot fired with intent to kill, but the victim survives).
• Impossible Attempt: The act cannot succeed for factual reasons (see below regarding absolute impossibility).

Withdrawal from Attempt

A perpetrator can, under certain circumstances, avoid criminal liability if they desist from further execution of the offense or actively prevent the already occurred outcome. This is referred to as withdrawal from attempt. Whether a withdrawal is possible and which conditions apply depends on the type of attempt.

Absolute Impossibility (§ 15 Para 3 StGB)

Absolutely impossible attempt is not punishable. This is the case when completion is under no circumstances possible – neither with these means nor with this object nor with this perpetrator.

Typical Scenarios:

• Unsuitable Means (absolute): “Poison” that is objectively ineffective (e.g., sugar instead of poison).
• Unsuitable Object (absolute): “Killing” an already deceased person.
• Missing Legal Quality (absolute): The law requires a special perpetrator quality that is definitively missing (e.g., a non-official in a genuine special offense, provided this quality is indispensable).

Peter Harlander
Harlander & Partner Rechtsanwälte „Abzugrenzen ist die relative Untauglichkeit (z. B. zu geringe Dosis, schlecht zielende Waffe): Sie könnte unter anderen Umständen funktionieren. Relative Untauglichkeit bleibt strafbar, absolute nicht.“

Examples

A intends to kill B and shoots B five times in the chest. B survives due to rapid medical assistance.

• Intent: A intends to kill another person.
• Non-completion: Death does not occur.
• Direct Commencement: Firing the weapon is an act of killing closely related to the offense.
• Aptitude: The act, perpetrator, and object are suitable.
  → Criminally liable attempt of homicide.

Further Brief Examples

• Attempted Theft: Applies crowbar to window and pushes through glass → direct commencement; arrest before taking = attempt.
• Absolutely Impossible Attempt: “Poisoning” with sugar, assuming it is cyanide → not punishable.
• Relatively Impossible Attempt: too small a dose of poison that coincidentally has no effect → punishable.

Participation in Attempt

Incitement or contribution to an attempt is also covered: Anyone who incites another to attempt or contributes to an already commenced attempt falls under § 15 in conjunction with § 12 StGB.

Practical Implications

The attempt is subject to the penalty prescribed for the offense; the court may consider, within the scope of sentencing, that it remained an attempt. Frequent points of contention are the boundary between preparation and attempt, as well as the question of absolute impossibility – here, the precise reconstruction of events is decisive.

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 Harlander
Harlander & 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.“

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