GENERAL PART

CHAPTER THREE
SANCTIONS

SECOND TITLE
SENTENCING

Section 46
Principles of sentencing

(1) The guilt of the offender is the basis for sentencing. The effects which the sentence can be expected to have on the offender’s future life in society shall be taken into account.
(2) When sentencing the court shall weigh the circumstances in favour of and against the offender. Consideration shall in particular be given to the motives and aims of the offender; the attitude reflected in the offence and the degree of force of will involved in its commission; the degree of the violation of the offender’s duties;
the modus operandi and the consequences caused by the offence to the extent that the offender is to blame for them; the offender’s prior history, his personal and financial circumstances; his conduct after the offence, particularly his efforts to make restitution
for the harm caused as well as the offender’s efforts at reconciliation with the victim.
(3) Circumstances which are already statutory elements of the offence must not be considered.

GENERAL PART

CHAPTER THREE
SANCTIONS

SECOND TITLE
SENTENCING

Section 46b
Contributing to the discovery or prevention of serious offences

(1) If the perpetrator of an offence punishable by an increased minimum sentence of imprisonment or a sentence of life imprisonment,
1. has substantially contributed to the discovery of an offence under section 100a(2) of the Code of Criminal Procedure which is related to his own offence by voluntarily disclosing his knowledge, or
2. voluntarily discloses his knowledge to an official authority in time for the completion of an offence under section 100a(2) of the Code of Criminal Procedure related to his own offence, the planning of which he is aware of, to be averted,
the court may mitigate the sentence under section 49(1); a sentence of life imprisonment shall be replaced with a term of imprisonment of no less than ten years. In order to determine whether an offence is punishable by an increased minimum sentence of imprisonment, only aggravations for especially serious cases but no mitigations shall be taken into account. If the offender participated in the offence, his contribution to its discovery under the 1st sentence No. 1 above must exceed his own contribution. Instead of a reduction in sentence the court may order a discharge if the offence is punishable by a fixed-term sentence of imprisonment only and the offender would not be sentenced to a term exceeding three years.
(2) In arriving at its decision under subsection (1) above the court shall have particular regard to:
1. the nature and scope of the disclosed facts and their relevance to the discovery or prevention of the offence, the time of disclosure, the degree of support given to the prosecuting authorities by the offender and the gravity of the offence to which his disclosure relates, as well as
2. the relationship of the circumstances mentioned in No. 1 above to the gravity of the offence committed by and the degree of guilt of the offender.
(3) A mitigation of sentence or a discharge under subsection (1) above shall be excluded if the offender discloses his knowledge only after the indictment against him has been admitted by the trial court (section 207 of the Code of Criminal Procedure).

GENERAL PART

CHAPTER THREE
SANCTIONS

SECOND TITLE
SENTENCING

Section 47
Short terms of imprisonment as the exception

(1) The court shall not impose a term of imprisonment of less than six months unless special circumstances exist, either in the offence or the person of the offender, that strictly require the imposition of imprisonment either for the purpose of reform of the offender or for reasons of general deterrence.
(2) If the law does not provide for a fine and a term of imprisonment of six months or more is not to be imposed, the court shall impose a fine unless the imposition of a sentence of imprisonment is strictly required pursuant to subsection (1) above. If the law provides for an increased minimum term of imprisonment, the minimum fine in cases covered by the 1st sentence of this subsection shall be determined by the minimum term of imprisonment; thirty daily units shall correspond to one month’s imprisonment.

Section 48
(repealed)

Section 49
Special mitigating circumstances established by law

(1) If the law requires or allows for mitigation under this provision, the following shall apply:
1. Imprisonment of not less than three years shall be substituted for imprisonment for life.
2. In cases of imprisonment for a fixed term, no more than three quarters of the statutory maximum term may be imposed. In case of a fine the same shall apply to the maximum number of daily units.
3. Any increased minimum statutory term of imprisonment shall be reduced as follows:
a minimum term of ten or five years, to two years; a minimum term of three or two years, to six months; a minimum term of one year, to three months; in all other cases to the statutory minimum.
(2) If the court may in its discretion mitigate the sentence pursuant to a law which refers to this provision, it may reduce the sentence to the statutory minimum or impose a fine instead of imprisonment.

Section 50
Multiple mitigating circumstances

A circumstance which alone or together with other circumstances justifies the assumption of a mitigated offence under the provisions of the special part and which is also a special statutory mitigating circumstance for the purposes of section 49, may only be considered once.

Section 51
Effect of time spent in custody

(1) If a convicted person had been remanded in custody or otherwise been kept in detention because of an offence which is or was the object of the proceedings, any time spent in such custody or detention shall be credited towards a fixed term of imprisonment or a fine. The court may order for such time not to be credited in whole or in part if in light of the conduct of the convicted person after the offence this would be inappropriate.
(2) If in a later proceeding another sentence is substituted for a previously imposed sentence after that sentence had become final, time served under or credited towards the earlier sentence shall be credited against the new sentence.
(3) If a convicted person has already been sentenced abroad for the same offence, the foreign sentence, to the extent it has been served, shall be credited towards the new sentence. Subsection (1) above shall apply mutatis mutandis to any other detention suffered abroad.
(4) For the purpose of crediting a fine against time in detention, or vice versa, one day of detention shall correspond to one daily unit. If a foreign sentence or time in detention is to be credited, the court shall determine the rate as it sees fit.
(5) For the purpose of crediting a period of provisional disqualification from driving (section
111a of the Code of Criminal Procedure) against a driving ban under section 44, subsection (1) above shall apply mutatis mutandis. For this purpose, the provisional deprivation of a driving licence or its seizure (section 94 of the Code of Criminal Procedure) shall be equivalent to a provisional disqualification.

THIRD TITLE
SENTENCING FOR MULTIPLE OFFENCES

Section 52
One act violating multiple laws or the same law more than once

(1) If the same act violates more than one law or the same law more than once, only one sentence shall be imposed.
(2) If more than one law has been violated the sentence shall be determined according to the law that provides for the most severe sentence. The sentence may not be more lenient than the other applicable laws permit.
(3) The court may impose an additional fine to any term of imprisonment under the provisions of section 41.
(4) If one of the applicable laws allows for the imposition of a confiscatory expropriation order the court may impose it in addition to imprisonment for life or a fixed term of more than two years. In addition, ancillary penalties and measures (section 11(1) No 8) must or may be imposed if one of the applicable laws so requires or allows.

Section 53
Multiple offences committed by multiple acts

(1) If a person has committed more than one offence, all of which are to be adjudicated at the same time, and incurred more than one sentence of imprisonment or more than one fine, an aggregate sentence shall be imposed.
(2) If a term of imprisonment concurs with a fine, an aggregate sentence shall be imposed. The court may impose a separate fine; if fines are to be imposed for more than one offence, an aggregate fine shall to that extent be imposed.
(3) If the offender, pursuant to a law according to which section 43a is applicable or under the terms of section 52(4), has as one of the individual sentences incurred imprisonment for life or a fixed term of more than two years, the court may impose a confiscatory expropriation order in addition to the aggregate sentence formed pursuant to subsections (1) or (2) above; if in such cases a confiscatory expropriation order is to be imposed for more than one offence, an aggregate expropriation order shall to that extent be imposed. Section 43a(3) shall apply mutatis mutandis.
(4) Section 52(3) and (4) 2nd sentence shall apply mutatis mutandis.

Section 54
Fixing of aggregate sentence

(1) If one of the sentences for the individual offences is imprisonment for life, an aggregate sentence of imprisonment for life shall be imposed. In all other cases the aggregate sentence shall be fixed by increasing the most severe individual sentence incurred and, in the case of different kinds of penalties, by increasing the sentence that is most severe in nature. The person of the offender and the individual offences shall be considered in their totality.
(2) The aggregate sentence shall be less than the sum of the individual sentences. It shall not, in the case of imprisonment for a fixed term, exceed fifteen years, in the case of a confiscatory expropriation order, the value of the offender’s assets, and in the case of a fine, seven hundred and twenty daily units; section 43a(1) 3rd sentence shall apply mutatis mutandis.
(3) If an aggregate sentence is to be fixed based on a term of imprisonment and a fine, one daily unit shall correspond to one day’s imprisonment for the purpose of calculating the sum of the individual sentences.

Section 55
Subsequent fixing of aggregate sentence

(1) Sections 53 and 54 shall also apply to a convicted person who has had a sentence imposed upon him by a final judgment which has neither been enforced, barred by the statute of limitations nor remitted, when that person is convicted of another offence which he committed before the previous conviction. That previous conviction shall be the judgment in those proceedings in which the factual findings underlying the new conviction could last have been examined.
(2) Confiscatory expropriation orders, ancillary penalties and measures (section 11(1) No 8) imposed in the previous sentence shall be upheld to the extent they have not been rendered moot by the new judgment. This applies also when the amount of the expropriation order imposed in the previous sentence exceeds the value of the offender’s assets at the time of the new sentence.

SPECIAL PART

CHAPTER SIX
RESISTANCE AGAINST STATE AUTHORITY

Section 111
Public incitement to crime

(2) If the incitement is unsuccessful the penalty shall be imprisonment not exceeding five years or a fine. The penalty must not be more severe than if the incitement had been successful (subsection (1) above); section 49(1) No 2 shall apply.

SPECIAL PART

CHAPTER SIX
RESISTANCE AGAINST STATE AUTHORITY

Section 120
Facilitating escape of prisoners

(2) If the offender is under a duty as a public official or a person entrusted with special public service functions to prevent the escape of the prisoner the penalty shall be imprisonment not exceeding five years or a fine.

SPECIAL PART

CHAPTER SEVEN
OFFENCES AGAINST PUBLIC ORDER

Section 126
Breach of the public peace by threatening to commit offences

(2) Whosoever intentionally and knowingly and in a manner capable of disturbing the public peace pretends that the commission of one of the unlawful acts named in subsection (1) above is imminent, shall incur the same penalty.

SPECIAL PART

CHAPTER SEVEN
OFFENCES AGAINST PUBLIC ORDER

Section 129a
Forming terrorist organisations

(1)Whosoever forms an organisation whose aims or activities are directed at the commission of
(...)
3. (repealed)
or whosoever participates in such a group as a member shall be liable to imprisonment from one to ten years.

SPECIAL PART

CHAPTER SEVEN
OFFENCES AGAINST PUBLIC ORDER

Section 130
Incitement to hatred

(1) Whosoever, in a manner capable of disturbing the public peace
(...)
2. assaults the human dignity of others by insulting, maliciously maligning an aforementioined group, segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population, or defaming segments of the population,
shall be liable to imprisonment from three months to five years.

SPECIAL PART

CHAPTER SEVEN
OFFENCES AGAINST PUBLIC ORDER

Section 130
Incitement to hatred

(2) Whosoever
1. with respect to written materials (section 11(3)) which incite hatred against an aforementioned group, segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population which call for violent or arbitrary measures against them, or which assault their human dignity by insulting, maliciously maligning or defaming them,
(a) disseminates such written materials;
(b) publicly displays, posts, presents, or otherwise makes them accessible;
(c) offers, supplies or makes them accessible to a person under eighteen years; or
(d) produces, obtains, supplies, stocks, offers, announces, commends, undertakes to import or export them, in order to use them or copies obtained from them within the meaning of Nos (a) to (c) or facilitate such use by another; or
2. disseminates a presentation of the content indicated in No 1 above by radio, media services, or telecommunication services
shall be liable to imprisonment not exceeding three years or a fine.

SPECIAL PART

CHAPTER SEVEN
OFFENCES AGAINST PUBLIC ORDER

Section 138
Omission to bring planned offences to the attention of the authorities

Whosoever has credible information about the planning or the commission of the following offences:
(...)
8. offences creating a danger to the public under sections 306 to 306c, section 307 (1)to (3), section 308 (1) to (4), section 309 (1) to (5), section 310, section 313, section 314, section 315 (3), section 315b (3), section 316a or section 316c
at a time when the commission or result can still be averted, and fails to report it in time to the public authorities or the person threatened, shall be liable to imprisonment not exceeding five years or a fine.

Section 452
Right to grant pardon

The right to grant pardon is vested in the Federation in cases decided at first instance in which the Federation exercises jurisdiction. In all other cases, it is vested in the Länder.

Section 453
Subsequent decision on suspension of sentence on probation or warning with sentence reserved

(1) Subsequent decisions on suspending the remainder of a sentence on probation or issuing a warning with sentence reserved (sections 56a to 56g, 58, 59a and 59b of the Criminal Code) are given by the court, with no oral hearing, in an order. The public prosecution office and the defendant are to be heard. Section 246a (2) and section 454 (2) sentence 4 apply accordingly. If the court has to decide on revoking the suspension of sentence owing to non-compliance with conditions or directions, it is, as a rule, to give the convicted person the opportunity to be heard orally. Where a probation officer has been appointed, the court informs that officer if a decision on the revocation of suspension of sentence or of remission of sentence is being considered; the court is, as a rule, to give the probation officer information obtained from other criminal proceedings if this appears appropriate given the objective of probationary supervision.

(2) A complaint is admissible against decisions pursuant to subsection (1). The complaint may be based only on the ground that an order made is unlawful or that the probation period has been subsequently extended. Revocation of suspension, remission of sentence, revocation of remission, imposing a sentence reserved and an order that a warning is sufficient (sections 56f, 56g and 59b of the Criminal Code) may be contested by immediate complaint.


Section 454
Suspension of remainder of sentence of imprisonment on probation

(1) The decision on suspending enforcement of the remainder of a sentence of imprisonment on probation (sections 57 to 58 of the Criminal Code) and the decision that prior to expiry of a certain time limit an application by the convicted person to this effect is inadmissible is given by the court without an oral hearing in an order. The public prosecution office, the convicted person and the penal institution are to be heard. The convicted person is to be heard orally. The oral hearing of the convicted person may be
dispensed with if

1. the public prosecution office and the penal institution support suspension of a determinate sentence of imprisonment and the court proposes suspension,
2. the convicted person has applied for suspension and, at the time of the application, has served
a) less than half or less than two months of a determinate sentence of imprisonment,
b) less than 13 years of a sentence of imprisonment for life and the court refuses the application because it has been submitted prematurely or
3. the convicted person’s application is inadmissible (section 57 (7), section 57a (4) of the Criminal Code).

The court at the same time decides whether crediting pursuant to section 43 (10) no. 3 of the Prison Act is to be ruled out.

(2) The court obtains the opinion of an expert concerning the convicted person if it is considering suspending enforcement of the remainder of

1. a sentence of imprisonment for life or
2. a determinate sentence of imprisonment of more than two years for an offence of the type referred to in section 66 (3)
sentence 1 of the Criminal Code and it cannot be ruled out that reasons of public safety may preclude the convicted person’s early release.

The opinion must, in particular, express a view as to whether the risk that the convicted person still poses the danger which is apparent from the offence committed no longer exists. The expert is to be heard orally. The public prosecution office, the convicted person, his or her defence counsel and the penal institution are to be given the opportunity to participate in the hearing. The court may dispense with the oral hearing of the expert if the convicted person, his or her defence counsel and the public prosecution office waive such a hearing.

(3) An immediate complaint is admissible against the decisions under subsection (1). A complaint lodged by the public prosecution office against the decision ordering suspension of the remainder of the sentence has suspensive effect.

(4) In all other respects, section 246a (2), section 268a (3), section 268d, section 453, section 453a (1) and (3), and sections 453b and 453c apply accordingly. Instruction on suspension of the remainder of the sentence is given orally; the duty to give such instruction may also be delegated to the penal institution. The instruction is, as a rule, to be given immediately prior to release.

Section 458
Court decisions on enforcement of sentence

(1) Where doubts arise concerning the interpretation of a criminal judgment or the calculation of the sentence imposed or where objections are raised against the admissibility of enforcing the sentence, a court decision is to be obtained.

(2) It is for the court to also decide, in the cases under section 454b (1) to (3) and under sections 455 and 456 and section 456c (2), on objections raised against the enforcing authority’s decision or on objections raised against the enforcing authority’s order that a sentence or a measure of reform and prevention is subsequently to be enforced against a person who has been extradited, deported, removed or refused entry.

(3) The course of enforcement is not suspended as a result; the court may, however, order postponement or suspension of enforcement. In the cases under section 456c (2), the court may make a provisional order.