The Federal Court of Justice (BGH) ruled in its decision of 4 July 2024 (ref. 5 StR 280/24) further specified the requirements for criminal liability for incitement to robbery. In this case, the conviction of two defendants who incited a third person to commit a robbery was confirmed by the Federal Court of Justice. The decision particularly sheds light on the legal criteria for assuming incitement within the meaning of the § 26 German Criminal Code as well as the requirements for the intentionality of the act.
Facts
In 2020, the defendants were looking for a burglar who would break into their parents’ house and – if necessary – steal cash and jewelry by force. In March 2020, they met with the separately convicted S., a previously convicted burglar, and another unknown person, and explained the plan to them, including the potential use of violence against the residents of the house. S. carried out the break-in, but took less loot than expected.
He later attempted to complete the “job,” but ultimately failed. The defendants were subsequently convicted of incitement to commit burglary and attempted incitement to commit robbery.
Legal assessment
- Definition and conditions of incitement (§ 26 German Criminal Code):
The BGH confirmed that the defendants motivated S. to commit the crime. Incitement requires intentional influence on the will of another person so that he or she commits the main crime. It is sufficient if the influence is a contributing factor to the instigator’s decision to commit the crime. In this case, the defendants motivated S. to get the “hidden money” and also agreed to the possible use of violence, which proves that they incited the attempted robbery later. - Intent of incitement:
The Federal Court of Justice found that the defendants also acted intentionally with regard to the planned robbery. They were aware that S. and his accomplice might use violence to steal the money. By saying that they “didn’t mind” if the residents of the house “fell down the stairs”, they signaled their approval of the use of violence and reduced any inhibitions S. might have had. - Certainty of the main offence:
The requirements for the specificity of the main offence were met because the victims and objects of the crime were identified individually and the necessary information on the commission of the crime was provided. This is sufficient to assume a sufficiently specific main offence, even if the exact time of the crime and the specific modalities of the use of violence were left to the instigator. - No significant deviation from the plan:
The Federal Court of Justice ruled that S.’s later decision to complete the crime by committing a robbery did not represent a significant deviation from the original plan. Rather, it was a concretization of what the defendants originally intended and accepted. Since the wrongfulness of the planned crime was covered by the defendants’ intent, there was no excess that would render the incitement unlawful.
Conclusion
The BGH’s decision underlines that incitement to robbery can also occur if the instigator carries out the act in deviation from an originally planned crime, as long as this deviation remains within the framework envisaged by the instigator. The decision clarifies the requirements for the intentionality and specificity of the main act, which underlines the importance of a clear demarcation of the participants in criminal law.
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