Sentencing Guidelines and Practices in Germany

Dr Bernd Bösert
Head of Division
Division for the Criminal Code (General Part)
German Federal Ministry of Justice, Berlin

Statutory Penalty Ranges

1. In general

Less serious criminal offences (misdemeanours) are punishable by a fine

or a fixed term of imprisonment with a maximum threshold.
For example an ordinary theft will be punished by a fine or by
imprisonment not exceeding five years.

Serious criminal offences (felonies) are punishable by a minimum prison

sentence of one year and - unless otherwise provided by law - a maximum
prison sentence of 15 years.
For example, robbery without aggravating or mitigating circumstances.
The most serious offences are punishable by imprisonment for life.
For example, murder or genocide.

2. For specific offences

Germany has a judiciary system without sentencing guidelines or sentencing

commissions. Therefore there is - in general - significant room for judicial
sentencing discretion.

However, for every single type of offence a concrete statutory sentencing

range is provided. In addition, these ranges differentiate between the specific
circumstances under which the offense has been committed. This applies in
particular for serious offences like sexual abuse of adults or minors, trafficking
in drugs, robbery, bribery or arson. In these categories of offences a number
of specific aggravating and mitigating circumstances with specific statutory
sentencing ranges is provided.

For example the chapter of the Criminal Code on offences against sexual self-
determination consists of the following sections, including a lot of subsections:

Section 174 Abuse of position of trust

Section 174a Sexual abuse of prisoners, patients and institutionalised
persons
Section 174b Abuse of official position
Section 174c Abuse of a relationship of counselling, treatment or care
Section 176 Child abuse
Section 176a Aggravated child abuse
Section 176b Child abuse causing death
Section 177 Sexual assault by use of force or threats; rape
 Section 178 Sexual assault by use of force or threat of force and rape
causing death
Section 179 Abuse of persons who are incapable of resistance
Section 180 Causing minors to engage in sexual activity
Section 180a Exploitation of prostitutes
Section 181a Controlling prostitution
Section 182 Abuse of juveniles
Section 183 Exhibitionism
Section 183a Causing a public disturbance
Section 184 Distribution of pornography
Section 184a Distribution of pornography depicting violence or sodomy
Section 184b Distribution, acquisition and possession of child pornography
Section 184c Distribution, acquisition and possession of juvenile
pornography
Section 184d Distribution of pornographic performances by broadcasting,
media services or telecommunications services
Section 184e Unlawful prostitution
Section 184f Prostitution likely to corrupt juveniles

3 Child abuse

The sections on child abuse (child means a person under the age of fourteen
years) provide the following statutory sentencing ranges (simplified
presentation):
 Minor cases of “ordinary” child abuse (e.g. the offender engages in sexual
activity in the presence of a child): imprisonment from three months to five
years.
 “Ordinary” child abuse (e.g. the offender engages in sexual activity with a
child without any kind of penetration): imprisonment from six month to ten
years.
 Repeated “ordinary” child abuse within five years or other serious cases of
“ordinary” child abuse: imprisonment from one year to fifteen years.
 Aggravated child abuse (e.g. penetration of the body or the offence is
committed jointly by more than one person or the child is placed in danger
of serious injury or substantial impairment of his physical or emotional
development): imprisonment from two to fifteen years.
 Aggravated child abuse, by which the child is seriously physically abused
or placed in danger of death: imprisonment from five to fifteen years (this
statutory range probably would apply for the case mentioned in the
invitation to this Symposium).
 Child abuse by which the offender causes the death of the child by
reckless disregard: imprisonment from ten to fifteen years or imprisonment
for life.

4 Sexual abuse (of adults):

 Sexual assault by use of force or threats: imprisonment from one to fifteen

years; rape: imprisonment from two to fifteen years; sexual assault by
carrying a weapon or by placing the victim in danger of serious injury:
imprisonment from three to fifteen years; sexual assault by using a
 weapon or seriously injuring the victim or placing the victim in danger of
death: imprisonment from five to fifteen years; Sexual assault causing the
death of the victim by reckless disregard: imprisonment from ten to fifteen
years or imprisonment for life.

5 Homicide
 Murder: life imprisonment, (intentional) manslaughter: imprisonment form
five to fifteen years, in especially severe cases life imprisonment.

6 Bribery:

 Taking or giving bribes as an or to an official: fine or imprisonment of not

more than three years;
 taking or giving bribes as a or to a judge: fine or imprisonment of not more
than five years;

 taking (or giving) bribes meant as an incentive to violating one’s official

duties as an official: imprisonment from six months (three months) to five
years;

 taking bribes meant as an incentive to violating one’s judicial duties as a

judge: imprisonment from one to ten years;

 giving bribes to a judge as an incentive to the recipient’s violating his

judicial duties: imprisonment form three/six month to five years.

 Aggravated cases (the offence relates to a major benefit, the offender

continuously accepts benefits or the offender acts on a commercial basis
or as a member of a gang): imprisonment from one to fifteen years, in
cases of a judge taking bribes two to fifteen years.

7 Drugs Trafficking:

Level 1 Fine or imprisonment of not more than five years

“Ordinary” trafficking in narcotics in insignificant quantity.

Level 2 One year to fifteen years imprisonment

Serious cases of “ordinary” trafficking (e.g. acting on a commercial basis);

Trafficking narcotics in not insignificant quantity;
Supplying narcotics to a minor: imprisonment.

Level 3 Two to fifteen years imprisonment

Trafficking as a member of a gang;

Importing narcotics in not insignificant quantity imprisonment;
Trafficking in such a quantity on a commercial basis imprisonment;
Negligently causing the death of a consumer.
Level 4 Five to fifteen years imprisonment

Trafficking in not insignificant quantity of narcotics as a member of a gang;

Trafficking in not insignificant quantity of narcotics by carrying a weapon;
Trafficking in not insignificant quantity of narcotics Designating a minor to
engage in trafficking in narcotics.