How many defendants are convicted
The structure of the sentence in the exam
Rubrum; Presentation of facts; Legal appreciation; Differences in conviction and acquittal
The criminal judgment consists of the following components:
- Judgment formula
- Designation of the applied regulations
- Reasons for judgment
Headline: "In the name of the people!" (§ 268 I StPO), underneath "Judgment", underneath on the left "in the criminal case against". This is followed by the personal details of the accused (see No. 141 I 1, 110 II lit. A RiStBV). It is not mentioned in the rubrum whether the accused has a criminal record or not. That comes into the grounds of the judgment. If the accused is in custody, it must be stated since when and where he has been in custody.
If more than one person is charged, they are to be named in the order in which they were charged.
The next thing to mention is the offense (“for fraud”). In the case of several offenses, only the most serious accusation that carries the judgment is to be specified and by “u. a. "to be added. (The acquittal of the entire charge of the prosecution reads "because of the fraud").
According to § 275 III StPO, the name of the court as well as all session days, all session representatives of the public prosecutor's office, all clerks of the office, co-plaintiffs and co-plaintiffs.
The rubrum is a supplement to the judgment. Errors in the rubrum do not lead to the annulment of the judgment.
2. Judgment formula
The judgment formula (tenor) is introduced with "recognized for right". According to § 260 IV 1 StPO, the guilty verdict contains the legal designation of the act. According to § 260 IV 2 StPO, the legal heading of the offense should be used in the guilty verdict.
Forms of perpetration (sole perpetrator, accomplice, indirect perpetrator) are not specified. If there are several defendants, it is advisable to tenor them separately one after the other.
Furthermore, the category of offenses (crime or misdemeanor according to § 12 StGB), commission by omission, particularly serious (e.g. § 243 StGB) or less serious cases, inferiority (§ 248 a StGB), reasons for sentencing (e.g. § 21 StGB).
Forms of participation (incitement, aiding and abetting), attempt, qualifications, the form of guilt are given if the act can be committed intentionally or negligently (e.g. Sections 223-229, 306-306d, 315 b, 315 c, Section 316, Section 323a StGB ).
Furthermore, the competitive relationship must be included in the tenor
("In unity of action", in the case of a majority of acts: "and" or "as well"). A total penalty is to be formed only in the case of a majority of the offenses. The individual punishments are not listed in the tenor.
If a prison sentence is suspended, the tenor says: The execution of the prison sentence is suspended on probation. (If the custodial sentence is carried out without probation, there is nothing in the tenor about the probation.)
If a fine is imposed, the number and amount of the daily rates must be included in the judgment formula in accordance with Section 260 (3) sentence 3 of the Code of Criminal Procedure (but the total amount is not specified). If the requirements of section 42 sentence 1 of the Criminal Code are met, a tenor for partial payment must be made.
When creating a subsequent total penalty according to § 55 StGB, the previous, legally binding judgment must be included in the tenor (... including the penalty from the judgment of the AG ... dated ... AZ ....). It is possible that an overall sentence of the previous conviction has to be resolved.
In the case of measures for improvement and security, the withdrawal of the driving license according to §§ 69, 69 a StGB and the confiscation are particularly relevant for the exam. “The defendant's license will be withdrawn. His driver's license will be confiscated. The administrative authority may not issue a new driver's license before ... months have elapsed. "
„The accused is prohibited from driving any type of motor vehicle in traffic for a period of ... months. " (when applying § 44 StGB)
In the case of confiscated objects (Section 73 ff. StGB), these must be precisely identified.
In the case of pre-trial detention, this will be offset against a temporary prison sentence or fine in accordance with Section 51 I 1 StGB. This happens due to the law and therefore does not require a judicial order in the judgment!
According to § 465 I StPO the defendant bears the costs of the proceedings and according to § 472 I 1 StPO the necessary expenses of the secondary prosecutor.
Co-defendants are jointly and severally liable for the expenses due to the same act in accordance with § 466 I 1 StPO.
3. Designation of the regulations applied
According to § 260 V 1 StPO, the applied regulations are listed according to paragraph, paragraph, number, letter and with the designation of the law. For each accused a list is to be made with the basic offense, qualifications, standard examples, special forms of realization of the offense, form of inspection and the competitive relationship.
The exact information regarding the legal consequence is particularly important. These are the aggravating and mitigating provisions, the suspension provision according to § 56 StGB or § 14 f. WStG, § 68 I StGB, provisions on side effects and measures for reform and security.
It is not necessary to include Sections 38, 39 StGB in the case of imprisonment or Sections 40, 43 StGB in the case of fines.
4. Reasons for the judgment
The judgment grounds are the hardest part. The criminal judgment speaks of reasons (see § 275 StPO) or reasons for the judgment (see §§ 2 "67, 268 I 2 StPO), it is not divided into facts and reasons for decision as in a civil judgment. In civil proceedings, what is not presented is deemed not to exist, the parties submit the applications according to § 137 I ZPO and have control over them.
In criminal proceedings, the judge determines the truth ex officio, he is not bound by any motions. The trial is based on the act in the prosecution.
The criminal judgment must be justified in such a way that everything essential is included and insignificant is not included - as little as possible, as much as necessary. This can only work in the exam by precisely working out the essential problems. A good exam is characterized by the fact that it can differentiate between the important and the unimportant. A good style is characterized by clarity and conciseness. Long nested sentences are to be avoided.
Rubrum and tenor should only be written down after the reasons have been formulated.
What the reasons should contain is in Section 267 of the Code of Criminal Procedure.
They are structured as follows:
(1) Personal circumstances
(3) Evidence assessment
(4) Legal assessment
Type of presentation:
The reasons should be neatly and clearly structured, with paragraphs and numbers. Headings are superfluous.
(1) The defendant's personal circumstances
There is no fixed rule as to where the personal circumstances are in the reasons. To make reading easier, it makes sense to put them at the beginning. The personal circumstances are important for the review of the sentencing at the revision. They are an early part of the sentencing according to § 46 II StGB.
It should be mentioned when and where the accused was born, in what circumstances he grew up, his school and professional education, his occupation and the family and economic circumstances. The criminal record must be included in the résumé.(It is not necessary to list all previous convictions. Relevant or relevant previous convictions for the assessment are sufficient.) The date and place of the offense, the offense, the penalty imposed and the judgment with the date must be specified here. It must also be stated whether there is still outstanding probation (erased previous convictions may not be used in accordance with Sections 51 I in connection with 45 ff. BZRG).
In the exam, the personal circumstances can be found in the minutes of the main hearing.
According to § 267 I 1 StPO, the reasons for the judgment must state the facts considered to be proven, in which the legal features of the offense are found. The offense is to be described in the past tense as if the author of the judgment were an eyewitness to the offense of the accused.
The indictment is to be used as a working basis in the exam. However, this must then be changed in the places where the own factual determination deviates from the indictment. The time and place information must be precise.
All constituent elements of the offense, external and internal, must be determined. The findings must bear the guilty verdict. If only one element of the offense was not established, the accused should not have been convicted. If this is violated, the judgment is not revision-proof
a. Presentation of the facts of the matter
The findings with the wording of the law alone are not sufficient (§ 267 I 1 StPO, the facts considered to be proven should be specified, in which the characteristics of the criminal offense found were). It must therefore be made more concrete and go beyond the expressions in the law.
Not only the facts of the special part of the StGB, but also the general part of the StGB must be taken into account (attempt, complicity, incitement, aiding and abetting, § 21 StGB ...).
Evidence, however, is only to be dealt with in the assessment of the evidence.
b. Presentation of the facts of the matter
The subjective facts are also shown. (Intent, negligence, awareness of illegality, intent, error, elements of the criminal offense of paragraph 2 in the case of murder according to § 211 StGB ...)
There is only an exception if the subjective facts result directly from the objective event. In the case of doubt, however, explanations should be given in the exam.
c. Section 267 II StPO
Description of the facts of the case mentioned in Section 267 II of the Code of Criminal Procedure
(3) Evidence assessment
This raises the question of whether all of the constituent elements can be based on one or more pieces of evidence. However, not every single proof has to be written down in the judgment / in the exam. According to the BGH, the assessment of the evidence must only contain the essential aspects. Is z. If, for example, a witness testimony is not reproduced in the judgment, it cannot be concluded from this that the court did not take this into account when reaching the judgment.
The assessment of evidence is to be presented completely separately from the legal assessment.
It is customary to list all evidence as an introduction (witness - including a co-accused, co-defendant, expert, documents, inspection). Note § 261 StPO - only "from the epitome of the main hearing".
a. The evaluation of evidence begins with the admission of the accused:
“The defendant confessed to the fact. The confession is believable, because ... “- in the case of a confession, its credibility must be checked.
"The defendant admits that ... He claims, however, that ..."
"The accused did not get involved in the act, but he is convicted by the testimony of the witness."
b. The next thing is a discussion of the testimony of the witnesses:
The mere stringing together of the content of the witness statements makes little sense and costs a lot of time in the exam. The essential thing is to state what the taking of evidence has produced. Then explain why the court believes a witness or not. As a rule, there will be very clear evidence in the exam. Here "standard phrases" help with the actual appreciation: "Realistic", "conclusive", "without contradictions", "no personal interest" etc.
c. In the case of expert reports, the court is not bound by its content. These are subject to the assessment of the court; it does not adopt unexamined statements from the expert report.
In the exam it is enough to write that the court "Fully connected to the convincing statements in own formation of convictions" Has.
In the exam, prohibitions on the use of evidence often play a role at this point.
At this point in the exam, inadmissible or unfounded auxiliary evidence requests according to § 244 IV 1 StPO can often play a role. The rejection does not belong in the judgment, but in the protocol, but a statement can be made again in the judgment.
(4) Legal assessment
The legal assessment is the main focus of the exam in the final exam. The legal versions are to be presented in a special section. First, the guilty verdict is repeated. The criminal law applied must be specified.
"The accused is therefore to be sentenced for ..." .
All paragraphs are to be listed here, including attempts, participation, the form of inspection, majority of offenses, etc.
In contrast to the description of the facts, not every factual feature has to be checked. Time is very short in the exam, so you should only go into depth in the case of problematic facts. Here it is particularly important to distinguish between what is important and what is not. Without a focus, the exam will not be able to be mastered in five hours.
(5) Sentencing (the sentence is detailed in the article "Public Prosecutor's Closing Lecture")
In order to justify the legal consequences, explanations are required on the sentencing. This also includes the statements on suspension of sentences for probation, the ordering of secondary penalties, side effects and measures for reform and security. The sequence of the tests is briefly given below (the sentencing is described in detail in the article Closing Lecture Public Prosecutor).
(a) Establishing the penalty
(b) If a less severe or particularly severe case comes into consideration, this will be discussed, even if none is accepted in the result
(c) Determination of sentences in the narrower sense, Section 46 of the Criminal Code, determination of the individual sentence (s)
(d) Determination and justification of a possible total penalty (most severe penalty as a deployment penalty), possibility of a subsequent total penalty formation
(e) Possible suspension of the execution for probation according to §§ 56, 58 StPO in the case of imprisonment - in the case of life imprisonment: 57 a I 1 StGB (here it must also be tenored that the guilt is particularly serious)
(f) Determination of the daily rate for fines, possible payment in installments
(g) If necessary, measures for improvement and security in accordance with §§ 61 ff
(h) If necessary, forfeiture or confiscation according to §§ 73 ff. StGB.
This is where the reasons for the cost decision and, if applicable, the decision on compensation for criminal prosecution measures are made. The decision on costs is justified by the regulation on which it is based. According to § 464a I S. 1 StPO, the costs of the proceedings are the fees and expenses of the state treasury.
"The cost decision is based on":
- Sections 464 I, 465 StPO in the event of a full conviction
- Sections 464 I, II, 465, 467 I StPO in the case of a partial acquittal
- Sections 465 I, 466 StPO when convicting several defendants
- Sections 465 I, 472 I StPO in the case of a conviction with an accessory prosecution
Important at the end: the judge's signature (s). According to § 275 II sentence 1 StPO, the judgment must be signed by the judges who participated in the decision. The composition of the court results from the protocol.
The signature of the lay judges is not required according to § 275 II sentence 3 StPO (but according to the BGH they may also sign).
In the case of acquittal judgments, it will usually be useful to begin with the content of the indictment (or the opening decision). Findings on personal circumstances are only to be made in exceptional cases if these are necessary for the review of the acquittal by the appellate court for legal errors. This is followed by an indication of the elements of the offense which the court considers to be proven and those which it does not consider to be proven. If necessary, this is followed by the legal discussion.
The acquittal can be for factual or legal reasons. However, it cannot be left open whether the acquittal is made for factual or legal reasons. The reasons for the judgment must indicate whether the accused has not been convicted or whether and for what reasons the act assumed to be proven is not considered to be punishable, § 267 V sentence 1 StPO.
If the court is convinced of the innocence of the accused, this is a question of evaluating the evidence.
1. Acquittal on factual grounds
It must be shown whether the objective fact or the subjective fact cannot be proven or whether there is a debt incapacity. If there is no evidence of the subjective fact, the objective fact should be presented first.
2. Acquittal for legal reasons
Here the established facts do not constitute a criminal offense. Here, too, it is advisable to briefly describe the act if acquitted for subjective reasons.
The defendant is acquitted.
The cost of the proceedings and the defendant's necessary expenses are to be borne by the state treasury.
The decision on costs results from § 467 I StPO.
4. Measures of security and reform
In the event of an acquittal on account of incapacity, measures of reform and protection come into consideration (e.g. § 63 StGB placement in a psychiatric hospital, § 64 StGB placement in a rehab facility, § 69 StGB withdrawal of the driver's license). If such measures are imposed, they must be justified.
There may also be an obligation to pay compensation for criminal prosecution measures suffered (after pre-trial detention or temporarily withdrawn driving license) under the StrEG.
Tip on exam tactics: A complete acquittal does not actually occur in exam exams. If anything, there is a partial acquittal or there are two defendants, only one of whom is acquitted.
According to § 260 III StPO, the termination of the proceedings is to be pronounced in the judgment if there is a procedural obstacle. A suspension can take place if a criminal complaint is missing, if there is no court jurisdiction (e.g. the matter would have belonged to the juvenile court as a juvenile matter) or if there are procedural obstacles such as excessive duration of the proceedings or the death of the accused.
The decision on costs results from § 467 I StPO.
IV. Partial acquittal / partial termination
In the exam, the variant of partial acquittal or partial suspension must be expected. First of all, there are always statements about the conviction and then about the acquittal. The cost decision follows together.
The accused can only be partially acquitted if not all of the offenses of the indictment are fulfilled, the majority of which are in accordance with § 53 StGB.
One and the same act can only be judged uniformly. This is the case if, in the case of identical facts, only a different legal qualification is made.
Is not convicted for all offenses in the case of unity according to § 52 StGB. this is justified, but it will Not partially acquitted.
Tenor of partial acquittal:
The accused is convicted of ...
Otherwise he is acquitted.
The defendant bears the costs of the proceedings, insofar as he is convicted, insofar as he is acquitted, the costs of the proceedings and the necessary expenses of the accused shall be borne by the state treasury.
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