Withdrawal from Attempt
Withdrawal from Attempt
Withdrawal from the attempt according to § 16 StGB means that someone who has already begun to carry out a criminal offense, under certain conditions, remains unpunished if they voluntarily do not complete the act or prevent the success. Whether it is sufficient to simply stop, or whether the perpetrator must actively do something, depends on whether the act was already completed or was still incomplete.
Withdrawal from the attempt means: Anyone who voluntarily does not complete a criminal offense or prevents the success can remain unpunished.
Principle
§ 16 StGB clarifies that the perpetrator will not be punished for the attempt if they voluntarily withdraw. Voluntary means: without external compulsion, by one’s own decision. Whether simply stopping is sufficient or active counteraction is necessary depends on the situation.
Incomplete Attempt
In the case of an incomplete attempt, the perpetrator has already begun to carry out the act, but believes that further steps would be necessary to bring about the success.
- Withdrawal here is sufficient by simply refraining from further actions.
Example:
A perpetrator lies in wait for a victim, draws a weapon, aims, but does not shoot at the last moment. → He voluntarily withdraws and remains unpunished.
Completed Attempt
In the case of a completed attempt, the perpetrator believes that they have already done everything necessary to allow the success to occur.
Withdrawal here requires active action to avert the success.
Example:
A perpetrator shoots at his victim and believes that the victim will die. Then he changes his mind, provides first aid and calls the rescue service. If the victim survives as a result, he effectively withdraws.
Voluntariness
Voluntariness is a prerequisite. The perpetrator must act on his own initiative, not because he is forced to or would have no chance to continue the act anyway.
- A withdrawal out of pity or due to persuasion by the victim is also voluntary.
- The withdrawal is not voluntary if the perpetrator merely recognizes that he can no longer continue the act undisturbed (e.g. because the police show up).
Mnemonic:
- If he still can, but no longer wants to → voluntary withdrawal.
- If he still wants to, but can no longer → failed attempt, no withdrawal.
Consequences in Practice
An effective withdrawal cancels the punishability of the attempt. However, the perpetrator remains responsible for already completed offenses.
- Example: Anyone who causes serious bodily harm by a shot and then withdraws from the killing remains punishable for bodily harm.
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.“
