Special aggravating circumstances in sentencing
Special Aggravating Circumstances in Sentencing
§ 33 StGB lists special aggravating circumstances that can increase the sentence. These circumstances show that the act has a higher degree of guilt, recklessness, or social danger. The list is not exhaustive; other equivalent circumstances may also be considered. The crucial point is that the penalty reflects the individual responsibility of the perpetrator.
Special aggravating circumstances increase the sentence if they negatively highlight the injustice of the act or the personality of the perpetrator. § 33 StGB serves to fairly grade within the statutory penalty framework and ensures that more serious forms of an offense are punished more severely.
Principle
The special aggravating circumstances supplement the general principles of sentencing according to § 32 StGB. They describe circumstances that increase the injustice of the act and thus justify a stricter penalty. The judge must expressly name these factors in his reasoning and comprehensibly explain their significance for the extent of the penalty. The guilt of the perpetrator always remains decisive.
Sebastian RiedlmairHarlander & Partner Attorneys „Erschwerungsgründe sind kein starres Schema – sie zeigen, wie sehr eine Tat die Grenzen gesellschaftlicher Verantwortung überschreitet.“
Legal Significance
The enumeration of § 33 StGB is demonstrative. This means that it shows typical cases without excluding others. Comparable circumstances not expressly mentioned may also be assessed as aggravating if they increase the injustice in a similar way. The aggravating circumstances can relate to the injustice of the attitude (reprehensible motives), the injustice of the action (manner of the act), or the injustice of the result (severity of the consequences).
Examples of Aggravating Circumstances
- multiple or repeated commission of the act
- previous convictions for similar offenses or relapse due to harmful inclination
- incitement or leading participation in a joint act
- commission of the act out of racist, xenophobic, or extremist motives
- cruel or particularly agonizing commission of the act
- exploitation of the victim’s defenselessness or helplessness
- act committed by abusing authority or trust
- commission during imprisonment or despite ongoing probation
These circumstances show an increased degree of criminal energy or moral reprehensibility. They elevate the act above the average of comparable offenses.
Practical Considerations
The court examines on a case-by-case basis which aggravating factors are present and how they are to be weighted in relation to any mitigating circumstances. Aggravating circumstances must not be used twice if they are already part of the offense. A comprehensible justification is mandatory; mere general references are not sufficient.
In practice, recidivism, acts of violence against the defenseless, and ideologically motivated actions play a major role. These circumstances show an increased endangerment of the general public and significantly influence the sentence.
Relationship to Mitigating Circumstances
§ 33 StGB is closely related to § 34 StGB, which in turn regulates the special mitigating circumstances. The court must therefore carefully weigh the aggravating and mitigating circumstances against each other and clearly disclose this weighing in its statement of reasons for the judgment. In this way, it should be ensured that the imposed penalty corresponds to the individual guilt of the perpetrator in an appropriate manner and at the same time unfolds both special preventive and general preventive effects.
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.“
