Where is the mistake

The errors in criminal law

Factual error, error in persona vel obiecto, abberatio ictus, error about causal development, permission error (ETBI), prohibition error, §§ 16,17 StGB

The following article is intended to provide an overview of the errors that exist in criminal law and to provide an overview of the level at which these errors are to be addressed and checked in an exam.


If you want to look at the errors, a differentiation must first be made between the errors in favor and the errors in the perpetrator's disadvantage. In the case of the latter, the perpetrator assumes that he has committed a criminal offense, although objectively considering the facts of the case, he has not acted according to the facts or objectively the prerequisites for a justification or excuse existed. These errors to the disadvantage of the perpetrator relate either to the subjective element of justification or excuse or the attempt (delimitation of unsuitable attempt - delict) and must be discussed there.

In the present case, only the errors are considered in favor of the perpetrator.

An error in favor of the perpetrator exists in cases in which the perpetrator believes, based on a wrong understanding of the facts or because of a wrong legal assessment of his behavior, that he has not committed a criminal offense. A mistake in favor of the perpetrator can also exist if the perpetrator wants to commit an injustice, but at the time of the execution of the crime has wrong ideas about the object of the crime, the modalities of the crime or the further course of events.

Once this distinction has been made, it must be considered at what level of fact the error can find meaning. A distinction must then be made between an error relating to the facts and an error relating to the legal assessment of the offense.

A. Errors about the facts

I. Intentional factual error, § 16 StGB

To the statutory offense i. S. d. Section 16 of the Criminal Code basically includes all normative and descriptive criteria as well as causality in the case of successful crimes. The perpetrator can be wrong about these individual areas when carrying out his act. If there is an error, the intent does not apply according to § 16 StGB. The following errors play a role in Section 16 of the Criminal Code:

1. Error in persona vel obiecto

In the case of an error in persona vel obiecto, i.e. an error about a person or an object of action, the perpetrator's misconception relates to the identity or other characteristics of the person or the object of the crime.

Principle: Misconception of the perpetrator = irrelevant motive error - the intent remains. (Ex: A wanted to kill B and shoots C because he thought he was B).

Exception: Whenever there is no equivalence of the objects, then: (Example: A wanted to kill B and shoots a doll that he takes to be B.)

  • Negligent criminal liability with regard to the object actually hit (if criminalized)
  • Attempted criminal liability with regard to the originally targeted crime

2. Aberratio ictus

In the case of aberratio ictus, i.e. the wrongdoing of the act, the success of the injury planned by the perpetrator occurs on a different object than the object aimed at and desired by the perpetrator. This means that the success desired by the perpetrator does not occur, but at the same time a success is realized on a second object that was not wanted by the perpetrator. It would be quite conceivable to examine the aberratio ictus in the context of causality and to regard it there as a special case from the deviation of the causal course. (Example: A wants to kill B, also shoots B, but accidentally kicks C. C dies in the shot).

If one does not agree with this opinion, however, it is disputed what effect the aberratio ictus will have.

  • One view: Completed willful killing of the hit object
  • Other view (h. M.):
  • Attempt as to the intended act and
  • Act of negligence with regard to the act actually occurred (if punishable)

3. Error about the causal process

Furthermore, at the factual level, an error about the causal process, which ultimately leads to the omission of the intent, is conceivable. However, the deviations between the presented and the actually occurred causal course are always to be regarded as insignificant if, viewed from general life experience, they are still within the scope of the foreseeable and do not justify any other assessment of the act. The error about the causal process can, however, already become relevant at the level of objective attribution if it is a completely unusual, atypical causal process that already leads to the elimination of criminal liability at the level of the offense. (Example: A wants to shoot B, but only injures him. B dies while driving to the hospital because the ambulance has an accident). Whether the deviation is significant has to be decided on a case-by-case basis!

The so-called dolus generalis is a special case of the error about the causal process. In the past, this was always accepted when the action took place in two acts and the perpetrator misjudged the course of action insofar as he wanted to bring about the desired success through the first act, but this actually only occurred through the performance of the second act, which should only serve to cover up the crime. This doctrine is rejected today, the h. However, through the error about the causal process, M. arrives at the same result.

4. Examples of rules

The perpetrator can also be wrong about the existence or non-existence of standard examples. In these cases, a corresponding application of § 16 I StGB also leads to a deliberate exclusion.

  • In the case of all errors that are dealt with in accordance with Section 16 I of the Criminal Code and excluding the intent of the committed offense, it is important that the realization of a negligence offense must still be considered, as this, according to Section 16 II of the Criminal Code, is not due to the existence of a factual error should be excluded.

II. Erroneous assumption of a justifying factual situation (authorization error)

If the perpetrator is mistaken about the actual requirements of a justification recognized by the legal system, imagines as wrong circumstances when committing the act, which would be justified if they actually existed, one speaks of a permission error. While committing the offense, the perpetrator lacks the awareness of doing injustice. (Ex: A shoots B because he wrongly assumed that B would stab him. In fact, B only had a sausage in his hand). However, it is now controversial at which level of the facts the awareness of injustice is to be classified. Various views are represented on this, which are presented below:

1. intent theory

The intention theories see the awareness of wrongdoing as part of the intention. If the perpetrator acts accordingly at the time of the act without being aware of the wrongdoing, his intent according to § 16 I 1 StGB does not apply.

Criticism: The wording of § 17 StGB makes it clear that the awareness of injustice is part of the guilt. This view is no longer seriously held today.

2. Doctrine of the negative elements

According to the doctrine of the negative elements of the offense, grounds for justification are negative components of the offense that must be included in the intent. In the case of an error in the legal status of the offender, the perpetrator believes he is justified, so that his intent according to § 16 I 1 StGB would not apply.

Criticism: The illegality is a separate category of offense and is therefore not part of the factual status, so that this theory must also be rejected. This theory, too, is no longer seriously supported today.

3. Guilt theories

a) Strict theory of guilt

According to the strict theory of guilt, the awareness of wrongdoing is an independent element of guilt. A distinction is not made between a prohibition error and an error in the status of a permit, but rather both are dealt with in accordance with Section 17 of the Criminal Code, so that the avoidability must also be checked in the event of an error in the status of the permission.

Criticism: In the case of an error regarding the status of a permit, it is not an error on the evaluation level, but rather an error on the actual level. It is therefore not appropriate to treat the error of the permit and the error in the prohibition equally, because the requirements for Section 17 of the Criminal Code are much stricter.

b) Restricted guilt theories

The restricted guilt theory is limited compared to the strict guilt theory insofar as the error about the actual prerequisites of the justification reason is removed from the scope and the legal consequences are based on § 16 StGB. According to this view, the intent does not apply. The different assessment of an error in the legal status and a prohibition error results from the fact that the perpetrator wants to behave in a legally compliant manner in the event of an error in the legal status and therefore no accusation, as required by Section 17 of the Criminal Code, can be made of his negligence or lack of attention. The restricted guilt theories can in turn be divided into three subgroups.

aa) Doctrine of the negative characteristics of guilt

According to the doctrine of the negative characteristics of guilt, reasons of justification are to be regarded as components of an overall injustice. The lack of a reason for justification must therefore already be discussed at the level of the offense and, through the direct application of Section 16 of the Criminal Code, leads to the rejection of the offense.

Criticism: This theory again assumes a two-tier structure of the crime and is therefore not compatible in principle with the prevailing doctrine of the three-stage structure of the crime.

bb) Restricted guilt theory i .e. S.

According to the restricted guilt theory i. e. S. is excluded from the application of § 17 StGB. Instead, § 16 I 1 StGB is applied analogously to these cases. The formation of the analogy can relate to the absence of intent, wrongdoing, or the lack of wrongdoing and can thereby be accepted.

Criticism: Exactly as with the doctrine of the negative criteria, the problem here is that the wrongful intent and not the first guilty will be excluded. This mainly creates gaps in criminal liability for participants.

cc) Restricted guilt theory referring to legal consequences

Ultimately, the restricted guilt theory referring to legal consequences is also represented. This differs from the previous theories of guilt in that it assumes the existence of an intentional and unlawful act and merely applies the legal consequences of Section 16 I 1 of the Criminal Code by analogy, thereby eliminating the charge of intentional guilt.

Criticism: Even if an accusation of intentional guilt is spoken exclusively in connection with the permission error and this view seems a bit constructed, the solution is understandable, does not contradict the general teachings and prevents gaps in criminal liability in the context of punishing participants. For this reason, this view can be represented very well in the result.

In principle, each of the theories presented here would have to be problematized on the level at which the awareness of injustice is classified. However, since this would result in a very confusing presentation of the dispute, it is recommended that the h. M. To follow the legal consequences restricted theory of guilt and to examine all views on the guilt level.

On this basis, the structure for a permit status error would then look like this:

I. Facts

II. Illegality

  • Check reasons for justification. If then

III. fault

1. Prerequisites for the erroneous permission

a.) Belief of the perpetrator in the existence of a reason for justification

b.) Hypothetical justification

  • Hypothetical examination of the ground of justification: If the situation existing in the mind of the perpetrator were actually given, would it be justified by a ground of justification?
  1. Legal consequences of the erroneous permission

a.) Presentation of the individual theories

b.) Statement and result

  • if necessary, examination of a negligence offense.

III. Erroneous acceptance of the factual requirements of a reason for apology

If the perpetrator erroneously assumes that the factual prerequisites for a recognized reason for excuse are present, neither direct nor analogous punishment under Section 16 I StGB and also not under Section 17 StGB is possible. In this case, the perpetrator has knowledge of all the circumstances that make his behavior unlawful. He neither lacks the awareness of wrongdoing, because he knows that he is acting unlawfully, nor does he make a wrong assessment in such a way that his actions are not unlawful at all. In these constructions, the perpetrator merely assumes a situation, in the presence of which a charge of guilt would actually be excluded.

Section 35 II of the Criminal Code has regulated this case by law for the excusing state of emergency. If the perpetrator could not avoid the error in the specific situation, the guilt does not apply. However, if it can be avoided, the perpetrator is still liable to prosecution, but his sentence is reduced in accordance with Section 49 I of the Criminal Code.

In the case of supra-statutory excuses, § 35 II StGB is to be applied analogously.

B. Incorrect legal assessment of the correctly identified facts

I. Prohibition error, § 17 StGB

A (direct) error of prohibition is always given when the perpetrator assumes that there is no prohibition norm against which he can violate, i.e. he is not committing an injustice with his act. In the case of such an error, there is simply no awareness of wrongdoing. However, the perpetrator only acts without guilt in accordance with Section 17 sentence 1 of the Criminal Code if he was unable to avoid the error.

A mistake in the prohibition can be avoided if the offender should have given the offender reason, taking into account his skills and knowledge, to think about its possible illegality or to inquire in a reasonable manner, and he would have come to the injustice in this way. The BGH (3 StR 521/12 - judgment of April 4, 2013 (LG Berlin)) is very strict here. He explains:

“The inevitability of a mistake in the prohibition presupposes that the perpetrator has used all his intellectual powers of knowledge and has eliminated any doubts that arise through reflection or, if necessary, by obtaining reliable and competent legal advice. Both the person providing the information and the information from the perpetrator's point of view must be reliable; the information itself must also have an unlawful negative content. In this sense, information is only reliable if it has been provided objectively, carefully, responsibly and, in particular, after a dutiful examination of the factual and legal situation. This is the case with the person providing information if they guarantee that information will be provided in accordance with these requirements. In addition, the perpetrator must not prematurely trust the correctness of a position that is favorable to him and must not close his eyes to opposing views and decisions. The specific circumstances in each case, in particular his circumstances and personality, are decisive; therefore, for example, his level of education, his experience and his professional position must be taken into account.

Reliance on the advice of a lawyer that has been obtained is therefore not always capable of justifying an unavoidable mistake on the part of the perpetrator. If he turns to a lawyer who is well versed in the relevant field of law, he has often done what was initially required. However, it is also necessary that the perpetrator may rely on the correctness of the information given the circumstances that are recognizable to him. This is not the case if the impermissibility of doing is easily recognizable for him with even moderate tension of mind and conscience or if he can have no more than one hope that the criminal law known to him does not yet intervene here. Therefore, the perpetrator may not rely on the opinion of a lawyer simply because it is favorable to his project. Appreciation of courtesy ordered for security rather than clarification is ruled out as a basis for unavoidable errors in prohibition. Information that is clearly superficial and inadequate or that, according to the request of the inquirer, is only intended to fulfill a “fig leaf function”, cannot exonerate the perpetrator either. Particularly in the case of complex issues and recognizably difficult legal questions, a detailed, written report is regularly required in order to justify an unavoidable error in the prohibition "

In core criminal law in particular, avoidability in relation to the specific legal interest must be assumed in principle. If this is the case, the perpetrator will be punished for the completed crime. With regard to the range of penalties, according to § 17 sentence 2 i. In accordance with Section 49 I of the Criminal Code, however, the sentence will be mitigated.

II. Permission error

A permission error is always given if the perpetrator erroneously exceeds the limits of a recognized justification or imagines a justification that does not exist.(Example: A really thinks he could slap anyone who looks at him crookedly) In such cases, the avoidability of the perpetrator's error must be checked again by means of a realistic interpretation of the facts. If there is an inevitability, the guilt according to § 17 sentence 1 StGB does not apply, otherwise he is to be punished in full and his punishment under certain circumstances according to § 17 sentence 2 i. V. mit § 49 I StGB.

III. Double error

Ultimately, it is also conceivable that several errors exist at the same time. A distinction must be made, on the one hand, between errors in which the perpetrator lacks awareness of wrongdoing and, on the other hand, those in which the perpetrator believes he is realizing wrong.

A double error due to a lack of awareness of wrongdoing is always given when an error regarding the status of a permit coincides with an error in terms of permission or prohibition. However, since the legal system does not allow the legal limits to be exceeded even if the prerequisites for a recognized justification actually exist, nothing else can apply if the prerequisites for a recognized justification are presumed to exist. Because of the flawed normative assessment in the foreground, a double error in the result is to be treated as a prohibition error. (Example: A shoots his son B, who is picking an apple from his garden, because he mistakenly believes him to be the murderer M and also thinks he should be allowed to shoot the "thief" immediately.)

In the second group of double errors, the perpetrator is subject to a significant error according to Section 16 of the Criminal Code or Section 17 of the Criminal Code, which, however, may lead to a compensation for the former due to a further, opposing error. When assessing criminal liability, strict requirements must be placed on the avoidance test.