When can a suspended sentence be granted under criminal law?
In the field of law enforcement, the term more frequently appears "Suspended sentence" to. Most people may know it from US series or newspaper articles. But what exactly does "on probation" actually mean??
The suspended sentence belongs to the criminal law. In the punishment of criminal offenses, according to Criminal Code (StGB) in principle two different sanctions wait for a convicted offender:
However, if a custodial sentence is imposed, this does not always automatically equate to imprisonment as well. From time to time a custodial sentence also suspended will be. Learn in the following, from when a suspended prison sentence is possible – and which conditions must be fulfilled for this.
You can find further advice on the subject of "suspended sentence" here:
What is a suspended sentence? Definition according to StGB
The meaning of the suspended sentence can only be explained in connection with the sentencing of a custodial sentence, because: Only custodial sentences can be suspended by courts. In contrast, an offender who has been given a fine receives, Not on probation be sentenced.
According to the StGB, probation is linked to the custodial sentence.
As already indicated, a custodial sentence is thereby not automatically also to serve as a prison sentence. And this is where probation comes into play: If an offender is sentenced to only one minor term of imprisonment sentenced, there is basically the possibility that he serve this on probation can be. But what does it mean to be sentenced to probation instead of imprisonment only?
Basically, it means that an offender to whom the court grants the serving of a suspended sentence, does not have to serve the sentence in a correctional institution. Instead, he receives a certain period of time in which he literally "prove" must – and thus prove that he will not reoffend and has learned the right lessons from the crime committed.
If he is not guilty of any other misdemeanor or felony during the period of probation and complies with the conditions of probation, he may be released without serving a term of imprisonment at the end of that period.
Conversely, this means: If a convicted offender is served within the set period of probation again delinquent or does not fulfill his duties, the competent court can impose the Suspension of sentence revoked. The convicted person must then "prove" the period of probation set in the serve a term of imprisonment in the penal system – full amount of the sentence!
Maximum suspended sentence in Germany – probation& Duration of sentence
Of great importance for clarifying the question: "What is probation??" is above all also a important distinction between suspended sentences and sentences that are suspended.
When is a suspended sentence granted?
Thus, an offender who, for example, has been convicted of a committed or attempted assault may have a imprisonment for one year received, by probation order of the court for example three years probation receive. If the offender violates any conditions during these three years or re-offends, the Serving the custodial sentence be placed in a detention facility.
It is also important to note that the time spent on probation to date not counted towards prison sentence becomes. This means that if a convicted offender is guilty of something again at the end of the probationary period set for him and the court revokes the suspension of sentence, he must serve the total term of imprisonment imposed on him serve in a penal institution.
Not every prison sentence can, however, be suspended.
When do you get probation?
The criminal law gives numerous conditions The conditions that must be fulfilled in order for a suspended sentence to be determined by a court in the first place are as follows. First and foremost here is the The amount of the penalty determined in each individual case. In addition, however, the Assessment of the offence and the offender itself decisive.
The relevant provisions can be found in § 56 StGB.
How high may the custodial sentence be?
The offender cannot hope for parole for every custodial sentence imposed. While low penalties of three or six months often be converted into a suspended sentence, this with higher punishments not the rule.
In the case of convictions for certain criminal offenses, this means that the Probationary status ruled out from the outset, for example:
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: three years minimum sentence (only in a less severe case would a suspended sentence still be possible) (Section 212 StGB): five years minimum sentence (§ 211 StGB): life imprisonment
The maximum probationary period in Germany is five years.
In these cases, only the suspension of a remaining sentence possible for parole. More about this later.
The evaluation criteria for sentences of up to one year, moreover, are quite strictly, Even more extensive in the case of longer sentences of up to two years’ imprisonment.
However, which criteria are taken into account in the judicial assessment?
Evaluation criteria – course of events, social prognosis and personality
Not only the amount of the sentence is decisive in the judicial decision whether the offender is granted probation. Especially also Consideration of the offender himself and the act committed can influence the court’s decision for and against the suspended sentence.
§ 56 StGB even explicitly specifies which aspects are to be taken into account for the individual case assessment. In principle, a positive decision can be made regarding parole,
"if it is to be expected that the convicted person will already let the sentence serve as a warning and will not commit any more crimes in the future even without the influence of the penal system. In particular, the personality of the convicted person, his or her previous life, the circumstances of his or her offense, his or her behavior after the offense, his or her living conditions, and the effects that can be expected from the suspension must be taken into account." (§ 56 paragraph 1 StGB)
Of importance is thus above all Social prognosis:
Personality
This rather abstract term basically encompasses everything that characterizes and defines the offender himself – from his Education level up to his Overall performance and the level of the Integration into society.
criminal record
Suspension of sentence on probation is subject to numerous conditions.
a) Criminal justice perspective: On the basis of an extract from the criminal record, the court can find out whether other crimes have been committed by the convicted person before. This enables a more realistic assessment of the likelihood of reoffending. The prognosis may be worse for an offender who has already attracted attention several times than for a first-time offender.
b) Personal Perspective: Here, private life circumstances can also be taken into account which shaped the perpetrator positively or negatively in his past: Did the perpetrator grow up sheltered or in a burdened parental home (violence, drugs, etc.)?.)? Were there even home stays? Were there any particular incidents in the offender’s life that may have particularly influenced him in any way?
circumstances of the offense
Not only the underlying Offense itself, but also Nature and motivation of the commission of the crime can be decisive in the decision regarding probation. Did the perpetrator act from base motives? Did he use a weapon? If the perpetrator acted with Intent or (gross) negligence? A heavily intoxicated driver who caused an accident could be treated differently from a motor vehicle driver who was guilty of negligent bodily injury in traffic by distracting his screaming child in the backseat.
Behavior after the crime
This does not only include possible Remorse of the offender. After an accident has been caused, it can also be considered, for example, whether the perpetrator came to the aid of the accident victim or, on the other hand, was additionally guilty of failure to render assistance. Also to what extent the offender initiated the settlement of damages incurred (offender-victim settlement, damages, compensation for pain and suffering, etc.).), can be used for evaluation.
Living conditions
The Social environment and position in society can find here attention. Does the offender have a stable circle of people around him who also influence him positively, or does he move z. B. in a criminal milieu? Does the convicted person go regulated professional employment After or is he permanently unemployed? Possible health aspects can also be included in the process. If psychological or health restrictions are to be recognized?
It becomes apparent that extensive conditions must be fulfilled in order to be able to realize the suspension of sentence to probation at all. Especially however with first time offender and juvenile persons court will then more often impose a suspended sentence.
How often one can get probation?
The thicker the criminal record, the less likely the suspended sentence.
From the extensive consideration of the evaluation criteria just described, it can be seen that, in principle, the repeated delinquency of an offender can stand in the way of a renewed suspended sentence. Nevertheless, it may well be that courts Even after the second or third minor custodial sentence determine a suspended sentence.
It is not possible to quantify how often this is possible in total. Here always the respective individual case to consider and the corresponding underlying criminal offenses. Are there different offenses? How old is the offender? What is the range of prison sentences imposed – under or over a year? Does the offender show signs of improvement? Are there special circumstances?
How often the offender has already attracted attention, the courts can from the extract from the Federal Central Register.
A suspended sentence is on the record?
In a certificate of good conduct all previous criminal records of a person listed. But what is actually with a suspended sentence? If a custodial sentence is to be regarded as a previous conviction despite a suspended sentence?
Yes. Basically, the certificate of good conduct lists all convictions that have criminal relevance. The lower limit above which a person is deemed to have a criminal record is one fine of 90 daily rates. Consequently, sentences below this level are not recorded in the certificate of good conduct.
A custodial sentence imposed, on the other hand, regularly appears in the personal record. If the suspended sentence has been granted, this is also including the set probation period mention in the certificate of good conduct (§ 7 Federal Central Register Act – BZRG).
Is it permissible to travel abroad with a suspended sentence?
Are you actually allowed to travel abroad while on parole?
In principle, even with a suspended sentence, a stay abroad can be accomplished. It should be noted, however, that Possibly problems with entry may arise if the destination country of your choice refuses to allow you to cross the border due to the previous conviction.
Also to be noted, if applicable parole conditions imposed by the court. Must report regularly to the court or immediately notify change of residence? If in doubt, contact the competent court.
offenders serving the remainder of a suspended prison sentence may be turn to their probation officer, to clarify under which conditions the foreign travel is possible.
Special case: Suspension of sentence in the case of residual sentences
A sentence can be suspended not only in the case of minor punishments. As a matter of principle, criminal law also provides that an offender serving time in prison may be given the early release is to be made possible. Basically here are Distinctions are to be made with regard to temporary and lifelong imprisonment:
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Temporary custodial sentences:
If an offender has Imprisonment for two-thirds – but at least two months – served in a correctional facility, can be suspended under consideration of his Social prognosis and under the condition of his consent the remainder of the sentence can be suspended (§ 57 paragraph 1 StGB). The right of probation review is thus available to any prisoner who has already served two-thirds of his or her sentence. However, the court may also impose a negative decision if there are reasons against early release (Section 57 (6) StGB).
Sometimes, the suspension of the remaining sentence to probation is also already after serving half of the sentence possible. However, this is usually only the case when the applicant is a First offender acts in a way that imprisonment for a maximum of two years served a sentence (§ 57 paragraph 2 StGB).
Even a remaining prison sentence can be served on probation.
Also a part of a life sentence can be served on probation. Before an offender who has been sentenced accordingly can apply to this effect, certain Basic requirements be fulfilled (§ 57a paragraph 1 StGB):