Fundamentals of Punishment / Sentencing are primarily based on the severity of the offense, its significance for the violated legal order, and the degree of personal guilt of the offender.
With the different sentencing frameworks established for individual offenses and the provisions for specific case scenarios (e.g., attempt, participation, diminished responsibility, cooperation in investigations, lesser or especially serious cases), the legislature has defined and initially weighted injustice and guilt. Therefore, it is not at the discretion of the judge to decide which circumstances are relevant for sentencing in a particular case and which are not.
After determining the sentencing framework, the appropriate punishment in terms of nature and degree of guilt must be identified:
No significant over- or underestimation:
A prison sentence of two years is no longer proportionate to the degree of personal guilt if the offender has trafficked 2.7 kg of cocaine hydrochloride (540 times the “not insignificant amount”) and possessed 600 g of cocaine hydrochloride (120 times the “not insignificant amount”). Conversely, a prison sentence of 12 years may be excessive if the offender merely ensured that 35 kg of cocaine was brought ashore from a ship.
Sentences must not be imposed schematically.
This is particularly true in drug law, where the risk of focusing on certain external factors, such as the quantity of the drug, is particularly high. The sentence must therefore be determined individually for each offender based on the measure of their guilt.
General Prevention
Considering general preventive aspects in sentencing is permissible (though it plays a rather subordinate role in the case law of the Federal Court of Justice). However, general preventive considerations should only be taken into account in sentencing if they go beyond the general deterrence already considered by the legislature in establishing the sentencing framework.
Specific Prevention
Specific prevention may also be considered, meaning the deterrence of the individual from committing further offenses.
Sentences below the minimum penalty?
A sentence below the statutory minimum penalty is not permissible under any circumstances. This would constitute an unlawful bending of the law.
However, imprisonment and fines may be combined in such a way that they together achieve the appropriate level of punishment.
A sentence below the required level of guilt may be justified in cases of entrapment, excessive trial duration, significant self-inflicted harm, or severe illness (e.g., HIV infection) with a short life expectancy.
Orientation through the sentencing framework
The sentencing framework provides a legislative pre-assessment of the severity of the offense, which is also binding for the judge. The minimum and maximum penalties are not only limits but also reference points for sentencing. A typical or average case may serve as a basis (benchmark assessment). The typical case is based on the most commonly occurring cases and is generally positioned below the theoretical middle of the sentencing framework due to its broad range, which also covers the most severe cases.
No double consideration
Aggravating or mitigating circumstances that are already part of the legal offense criteria cannot be considered again in sentencing. For example, the absence of mitigating factors should not be used as an aggravating factor, and vice versa.
If the court states that the offender did not act out of economic necessity or is not drug-dependent, this is merely a factual determination. Whether these factors can be considered in sentencing depends on their relevance to the assessment of the crime.
Sentencing considerations
- Personal drug use: Acquiring or importing drugs for personal use is generally judged more leniently than acts aimed at commercial distribution.
- Degree of involvement in the crime: If the offender’s role is minor, such as a courier, their contribution may be judged less severely.
- Type and danger of the drug: More dangerous substances like heroin or cocaine may warrant harsher penalties, whereas cannabis may lead to a milder sentence.
- Quantity of the drug: The quantity involved is a crucial factor in determining criminal energy and the extent of drug trafficking.
- Purity and potency: The actual drug content is essential in assessing the risk and legal consequences.
- State involvement in drug transactions: When the authorities closely monitor and intervene in drug-related crimes, this can influence sentencing.
- Entrapment: Illegitimate provocation by law enforcement can serve as a mitigating factor.
- Foreign nationality: Courts must ensure that nationality does not lead to discrimination in sentencing.
- Economic hardship: Severe financial distress may justify a reduced sentence, especially for drug mules.
- Recidivism: Repeat offenses may be considered, but addiction-related behavior should not necessarily be deemed as increased criminal intent.
- Criminal record: Previous convictions can be considered depending on the offender’s ability to learn from prior penalties.
- Lifestyle and profession: Professional status should only be considered if it is directly related to the offense.
- Pretrial detention: Time spent in detention before sentencing may be credited against the final sentence.
- Sensitivity to punishment: The impact of the sentence on the offender’s life must be considered.
- Multiple offenses: Violating multiple laws at once can justify a harsher sentence.
- Conduct during trial: A confession can be mitigating, while persistent denial should not necessarily be considered an aggravating factor.
- Delays in proceedings: Excessive delays in reaching a verdict can serve as a reason for reducing the sentence.
Our law firm is committed to utilizing all legal possibilities in criminal proceedings with dedicated, serious, and knowledgeable expertise, developing effective defense strategies that specifically target weaknesses in the judicial system.
No other area of law offers as much discretion as criminal law, given the broad range of legal consequences, from case dismissal (with or without fines), written penalty orders, trial dismissal, acquittal, warnings, sentence reductions, or imprisonment ranging from a few months to several years – with or without parole.
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Since trust is the most critical factor in selecting legal representation – similar to choosing a doctor – you are welcome to contact us in advance to gain a personal impression of our experience and competence.
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