Sentencing for intoxication (sec. 323a StGB) – A legal-dogmatic and empirical study

• Applicant: Professor Dr. Bernd-Dieter Meier
• Subject Area: Criminology
• Term: since 2020
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 453461596

The project is to deal with the problems of sentencing in cases of intoxication (sec. 323a of the German Criminal Code, StGB) from a legal-dogmatic and empirical point of view. The focus will be on empirical research in order to gain insights from the practice of the courts and to promote the development of practical solutions. However, the assessment of punishment can only be understood and evaluated with regard to the strongly legal-dogmatic background of sec. 323a StGB. The highest court jurisprudence assumes, albeit not uniformly, that sec. 323a StGB sanctions culpable intoxication and that the "unlawful act" committed in intoxication is merely an objective condition of punishability. As a consequence of this view, it is difficult for judicature to take into account circumstances of the „unlawful act“ in the assessment of punishment without simultaneously violating the principle of fault. For this reason, the character of the offence, aspects of the range of sentences, the sentencing in the narrower sense and the sanctions as well as the history of the law, reform efforts and the need for sanctions in criminal policy will be presented first. Within the framework of the empirical study, the sentencing in cases of intoxication is to be evaluated as comprehensively as possible. For this purpose, criminal files from 2018 will be evaluated nationwide with regard to the actual facts of sentencing as well as the facts used in the grounds for sentencing by the judge. A special focus will be placed on the precise determination of the circumstances of intoxication and the „unlawful act“ as well as the type and amount of the sanction. This should show the direct or indirect influence of the „unlawful act“ on the sentencing. According to the highest court rulings, de facto circumstances of the „unlawful act“, such as the type and severity of the offence and its consequences, can be used as an indication of the danger of the intoxication, whereas perpetrator-related circumstances, such as the motive or the attitude of the perpetrator, cannot. A further focus will be on the detailed depiction of the decision on a shift in the range of sentences pursuant to secs. 21, 49, para. 1 StGB as a result of diminished responsibility and the underlying circumstances. Within the framework of sec. 323a StGB, judicature is confronted with the problem of evaluating culpable intoxication on the one hand as a punishable offence, but at the same time as a reason for mitigating punishment via secs. 21, 49 para. 1 StGB. Here, it is necessary to show how the criminal courts deal with the possibility of mitigating sentences, in particular in which constellations mitigation is denied.

• DFG Programme: Research Grants