"Imprisonment on probation"
What requirements must be met?
If a criminal court decides that a person has committed a criminal offense and deems it necessary to punish this person, German criminal law provides two main penalties: a fine and imprisonment. If the court decides in favor of imprisonment, the second question is whether the imprisonment will be suspended “on probation”. But under what conditions is this even possible? We clarify!
What does it mean? "on probation"?
“The defendant is sentenced to 6 months' imprisonment. The execution of the sentence is suspended on probation. "
So it would be in the tenor of a criminal sentence.
Specifically, this means that you have been sentenced to prison, but this for the time being do not have to compete. Rather, you have to "prove" yourself for a certain duration. However, if you are guilty of a crime, ie commit a new offense or violate certain probation conditions, this leads to "probation" and the prison sentence must now be taken. In addition, you will also be punished for the new offense, so that from the original 6 months of imprisonment will quickly become several months.
When will imprisonment be suspended?
First requirement
In principle, probation requires that the imprisonment does not exceed two years. That means: should the court impose a prison sentence of two years and one month, its execution cannot be suspended on probation. For this reason, the primary defense strategy may be to achieve a prison sentence of less than two years so that parole is even possible.
Another requirement
is the so-called "favorable social forecasting". This is the case if it is to be expected that the convicted person will already serve the sentence as a warning and in the future will not commit any more crimes without the influence of the penal system. In conclusion, this means that the "favorable social prognosis" has to be judged by the court, inter alia on the basis of the following points:
Personality of the convicted person, his past life (in particular any criminal record), the circumstances of the offense (motives and motives of the convicted person), the behavior after the act (remorse / damage reparation), the living conditions (family relationships, professional situation).
Cheap social forecast sufficient?
Whether other conditions must be present in addition to the favorable social forecast, depends basically on the amount of the penalty.
In the case of a term of imprisonment of less than 6 months, it is sufficient to have the favorable social forecast. In particular, a probation in this case is mandatory.
In the case of a prison sentence of between 6 months and a year, in addition to the favorable social prognosis, it is also necessary that "The execution of the sentence is not necessary to defend the legal system". In other words: enforcement is required if, due to serious peculiarities of the case, the probation would violate the citizens 'sense of justice and the citizens' trust in the legal system could be shaken.
A prison sentence of one year to two years also requires a third condition. The execution of the sentence can be suspended only on probation if, after the overall assessment of the act and personality of the convicted person special circumstances available.
Special circumstances are mitigating grounds of particular importance, which make a parole leave not inappropriate, despite the fact that the offender is not convicted, such as the fact that the perpetrator is not convicted, a long pre-trial detention, a positive change and stabilization of living conditions, and provided information comprehensive confession, an effort to make amends.
If the defendant proves guilty, it will often be the task of the defense counsel, in the course of criminal proceedings, to reach a probable criminal penalty and then to show the court why the grounds for a parole must be answered in the affirmative.
Should you have questions about this topic? Criminal Law so please do not hesitate to contact us. Our Lawyer Alexander Greithaner specializes in the field of criminal law and will also help you.
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