Treatment of all Parties Involved as Perpetrators

Treatment of all Parties Involved as Perpetrators

§ 12 StGB stipulates that not only the person who directly commits a criminal offense is a perpetrator. Persons who induce others to commit the offense or contribute to it in any way are also treated as perpetrators. The law thus ensures that “masterminds” and accomplices are also covered. It is not about who carries out the act, but who supports or enables it in what way.

A perpetrator is not only someone who commits the act themselves, but also someone who instigates or contributes to it.

Principle of § 12 StGB

The legislator deliberately opted for a broad definition of the term perpetrator. This is intended to hold accountable those who act in the background but are crucial to the execution of the act. This is to prevent the punishability from only affecting the “henchman,” while the wire-puller or supporter remains unpunished.

Forms of Perpetration

Direct Perpetrator

The direct perpetrator is the person who commits the act themselves.
Examples:

• In the case of theft, he takes away the foreign object.
• In the case of bodily harm, he himself strikes the victim.

Co-perpetrator

Direct perpetrators can also be several people together. Co-perpetration occurs when two or more people consciously and intentionally cooperate and jointly realize the act.
Example: Two people jointly rob a store, one holds the weapon, the other empties the cash register. Both are perpetrators.

Instigation as Perpetration (§12 Second Case)

An instigator is someone who provokes the decision to commit the act in another person. He must therefore induce the other person to commit the act.

• The influence can be exerted through words, gestures, or other means.
• Even the attempted instigation is punishable, i.e., if the instigator tries to persuade someone, even if the act is not carried out later.

Example:
A person persuades their acquaintance to commit a theft by promising to share the loot. Even if the acquaintance does not act, the instigation is punishable.

Accessory Perpetration (§ 12 Third Case)

Accessory perpetration is particularly broad and includes all actions that facilitate or enable a criminal offense. This includes both physical contributions and psychological contributions.

Physical contributions:

• Providing tools or weapons
• Driving the getaway car
• Watching out for the police
• Obtaining information about the object of the crime

Psychological contributions:

• Encouraging or reinforcing a perpetrator who has already made a decision to commit the act
• Persuading to carry out the act despite concerns
• “Providing backing” or conveying a sense of security

Difference between Perpetration and Accessory Perpetration

Co-perpetrator: Carries out the act jointly with the other.

Accessory perpetrator: Supports the act without carrying out the act itself.
Example: Whoever grabs something during the theft is a co-perpetrator. Whoever only provides the car for removal is an accessory perpetrator.

Peter Harlander
Harlander & Partner Rechtsanwälte „Die Grenze zwischen Beitragstäterschaft und Mittäterschaft ist oft entscheidend, weil sie über das Strafmaß und die rechtliche Bewertung der Beteiligung bestimmt“

Effectiveness and Limits of the Act Contribution

• Even an unused contribution can be punishable. Example: Someone hands over a weapon that is not used, but thereby reinforces the decision to commit the act.
• A contribution must be causal. That is, it must enable, facilitate, or secure the act.
• Minor deviations from the plan are also attributable, as long as they are within the scope of what is foreseeable.

Accessoryship

A central principle is that there is no qualitative accessoryship. This means that even if the direct perpetrator cannot be punished, for example because he is incapable of guilt, instigators or accessory perpetrators can still be punishable.

In contrast, quantitative accessoryship applies. If the main act is not started at all and remains below the attempt stage, the accessory perpetrator is also not punishable.

Sebastian Riedlmair
Harlander & Partner Attorneys „§ 12 StGB sorgt dafür, dass nicht nur derjenige, der die Tat ausführt, belangt wird, sondern auch die Personen im Hintergrund, die anstiften oder unterstützen.“

Practical Examples

A getaway driver who drives the perpetrators away after a robbery is considered an accessory perpetrator. A person who persuades another to commit a burglary is treated as an instigator, even if they are not present at the scene of the crime themselves. Someone who encourages his friend in the decision to commit bodily harm makes a psychological contribution to the act and thus also falls under accessory perpetration. A person who is actively involved in a raid and makes threats fulfills the requirements of co-perpetration.

Demarcation

§ 12 StGB exclusively concerns punishable acts, i.e., behavior that is factual, unlawful, and culpable. Actions that fulfill the elements of an offense but are not punishable due to justifications or excuses do not fall under this provision.

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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