BGH corrects Kaiserslautern ruling: obligation to withdraw under the microscope!

BGH corrects Kaiserslautern ruling: obligation to withdraw under the microscope!

On April 23, 2025, the Federal Court of Justice (BGH) overturned parts of a judgment by the Kaiserslautern Regional Court in a landmark ruling (ref. 4 StR 103/25). A key reason for the repeal is the insufficiently examined aspects of the defendant's withdrawal from his crimes in order to avoid punishment, as well as the inadequate sentencing, which the courts should take a close look at. This is particularly relevant since the defendant, who is mentally ill, was charged with robbery, attempted bodily harm and menacing.

In the specific case, the defendant tried to attack passers-by (cases II. 6 and II. 7), but this did not result in injuries. The criminal chamber did not examine whether there was a resignation that exempted from punishment, although resignation would have been possible according to Section 24 of the Criminal Code. This would have been particularly relevant in case II. 7, since the defendant refrained from further actions after his attack failed. This failure to make a legal assessment led to the annulment of the relevant convictions and the associated total prison sentence.

Lack of considerations for overall sentencing

In addition, the BGH found that the calculation of the overall penalties was also incorrect. The regional court did not recognize the possibility of an excessive overall criminal offense and there was a lack of sufficient explanations about the appropriate assessment of guilt in the overall context. This led to the determination that a new review by another criminal court was necessary in order to arrive at a viable prognosis of danger. The forecast must be based on the likelihood of future significant crimes.

The disciplinary order according to Section 63 of the Criminal Code was also revoked. If the defendant were to resign, his dangerousness could be put into perspective, which could influence possible punitive measures in the future. In this context, it is important to emphasize that in German law the issue of withdrawal review is not only important for the current decision, but was also dealt with in similar previous judgments such as that of January 11, 2022 (Az. 6 StR 431/21), where aspects of withdrawal that exempts from punishment also played a role.

Impact on future judgments

The current decision of the Federal Court of Justice has far-reaching effects on the legal situation regarding reasons for resignation, particularly in juvenile criminal law. This illustrates how important it is to carefully examine all relevant circumstances when making a judgment. The distinction between a completed and an unfinished attempt can have a significant impact on the conditions for withdrawal without penalty.

The matter was referred back to another criminal chamber for a new hearing. Further findings regarding the external events remain, which shows that not all aspects of the case need to be re-evaluated. This judgment could potentially also serve as a guide for future judgments in order to avoid similar procedural errors and to judge fairly.

For further details on this topic and the legal framework, it is recommended to read the reporting from anwalt.de and [dejure.org].