Penalties

Imposition of penalties

Penalties must, by law, be imposed with regard to the nature and seriousness of the committed criminal offence and the perpetrator's circumstances. Where a less severe penalty is sufficient, a more severe penalty must not be imposed. When imposing penalties, the court also takes into account the legally protected interests of persons aggrieved by the criminal offence.

When determining the type and extent of the penalty, the court considers in particular:

• the nature and seriousness of the committed criminal offence,
• the personal, family, financial, and other circumstances of the perpetrator,
• their previous lifestyle and the possibility of their rehabilitation,
• the perpetrator's conduct after the offence, especially their effort to compensate for damages or remedy other harmful consequences of the offence,
• their attitude toward the criminal offence during criminal proceedings,
• whether they entered into a plea agreement, admitted guilt, or acknowledged relevant facts as undisputed,
• if designated as a cooperating defendant, the extent to which they significantly contributed to the clarification of a crime committed by members of an organised group, in connection with an organised group, or for the benefit of an organised criminal group,
• the effects and consequences expected from the penalty for the perpetrator's future life,
• mitigating and aggravating circumstances,
• the time that has passed since the commission of the criminal offence,
• any change in circumstances,
• the duration of the criminal proceedings, if they lasted an unreasonably long time,
• in the case of accomplices, the extent to which each of them contributed to the commission of the criminal offence,
• in the case of organisers, instigators, and accomplices, the significance and nature of their involvement in the commission of the criminal offence,
• in the case of preparation for a particularly serious crime and an attempted criminal offence, the extent to which the perpetrator's actions approached the completion of the criminal offence, as well as the circumstances and reasons for which the offence was not completed,
• whether the perpetrator gained or attempted to gain financial benefit from the criminal offence.

Mitigating and aggravating circumstances

When determining the type and extent of the penalty, the court considers the following mitigating and aggravating circumstances:

Mitigating circumstances

The court will particularly take into account the following mitigating circumstances if the perpetrator:

• committed the criminal offence for the first time and under circumstances beyond their control,
• committed the criminal offence in a state of strong emotional agitation, out of compassion, or due to a lack of life experience,
• committed the criminal offence under the influence of dependence or subordination,
• committed the criminal offence under threat or coercion,
• committed the criminal offence under difficult personal or family circumstances not caused by their own fault,
• committed the criminal offence at an age close to that of a juvenile,
• committed the criminal offence in an effort to avert an attack or other danger, without fully meeting the conditions for self-defence or necessity, or exceeded the limits of permissible risk or other circumstances excluding unlawfulness,
• committed the criminal offence in legal error that could have been avoided,
• caused only minor damage or other minor harmful consequences by the criminal offence,
• made efforts to eliminate the harmful consequences of the criminal offence or voluntarily compensated for the damage caused,
• voluntarily reported their criminal offence to the authorities,
• confessed to the criminal offence,
• cooperated in clarifying their criminal activity or significantly contributed to clarifying a criminal offence committed by another person,
• as a cooperating defendant, contributed significantly to clarifying criminal activities committed by members of an organised group, in connection with an organised group, or for the benefit of an organised criminal group,
• sincerely regretted committing the criminal offence, or
• led an exemplary life prior to committing the criminal offence.

Aggravating circumstances

The court will consider the following aggravating circumstances if the perpetrator:

• committed the criminal offence deliberately or after premeditation,
• committed the criminal offence out of greed, revenge, nationalistic, racial, ethnic, religious, class-based, or similar hatred, or other particularly reprehensible motives,
• committed the criminal offence in a cruel or torturous manner, deceitfully, with particular cunning, or in a similar manner,
• committed the criminal offence by exploiting someone's distress, helplessness, vulnerability, dependence, or subordination,
• breached a special duty by committing the criminal offence,
• abused their employment, position, or office to commit the criminal offence,
• committed the criminal offence against a person engaged in saving lives and health or protecting property,
• committed the criminal offence against a child, a close person, a pregnant woman, a sick person, a person with disabilities, an elderly person, or an immobile person, and thereby endangered their life or health, caused them harm, health damage, or other harm, or unjustly enriched themselves at their expense,
• induced another person, especially a child under the age of 15, a juvenile, or a person of an age close to that of a juvenile, to commit an otherwise criminal act, offence, or criminal offence,
• committed the criminal offence during a crisis situation, natural disaster, or other event seriously endangering life, public order, or property, or in an area subject to evacuation,
• caused significant damage or other major harmful consequences by the criminal offence,
• gained significant benefits from the criminal offence,
• committed the criminal offence on a larger scale, affecting multiple items or persons, or committed the offence over an extended period,
• committed multiple criminal offences,
• committed the criminal offence with another person,
• committed the criminal offence as an organiser, member of an organised group, or member of a conspiracy, or
• had been previously convicted of a criminal offence (in some cases).

Waiver of punishment

In certain cases, the court may waive the punishment of the perpetrator. In such a situation, the court declares the perpetrator's guilt, but no penalty is imposed. Consequently, the perpetrator is regarded as not having been convicted (the decision does not appear in the criminal record extract).

The court may waive the punishment in the following cases:

• In the case of a perpetrator who committed a misdemeanour, expresses remorse for its commission, and demonstrates an active effort to reform, if—given the nature and seriousness of the misdemeanour and the perpetrator's prior life—it can be reasonably expected that merely addressing the matter in court will suffice for their reform and the protection of society.
• In the case of a cooperating defendant, provided no other conditions prevent such a decision.
• If the perpetrator of the preparation or attempt of a criminal offence failed to recognise that the preparation or attempt, given the nature or type of the object of the attack or the nature or type of the means intended for committing the act, could not have led to the completion of the offence.

The court may also conditionally waive the punishment and impose supervision over the perpetrator if it deems it necessary to monitor the perpetrator's behaviour for a specified period. In such a case, the court sets a probationary period of up to one year and imposes supervision. It may also impose reasonable restrictions and obligations aimed at ensuring the perpetrator leads a lawful life; this usually includes ordering the perpetrator to compensate for damages or non-pecuniary harm caused by the criminal offence to the extent possible, or to surrender any unjust enrichment gained from the offence.

The court may also waive the punishment if the perpetrator committed the offence in a state of diminished capacity or in a condition caused by a mental disorder. In such cases, the court simultaneously imposes protective treatment (provided the perpetrator did not cause the condition by consuming an addictive substance) or preventive detention (if protective treatment would not suffice).

Types of penalties

The type and extent of the penalty can fundamentally be influenced.

The activity of the convicted person and their defence counsel is crucial.

Even when it is no longer possible in a specific case to achieve an outcome of criminal proceedings without the imposition of any penalty, it is still possible to significantly contribute to ensuring that the imposed sanction is of such a type and extent that it impacts the accused as minimally as possible.