In the decision of the Federal Court of Justice (BGH) with the reference number 6 StR 260/24 The issue was the formation of an aggregate sentence when an offence was committed between two convictions that could result in an aggregate sentence. This decision illustrates the complicated legal situation regarding the formation of an aggregate sentence and emphasises the importance of the so-called “watershed effect” of a previous conviction.
Facts
The defendant was sentenced by the Nuremberg-Fürth Regional Court to a total prison sentence of four years and six months for two cases of bodily harm. The Regional Court included a prison sentence already imposed by the Nuremberg District Court. The defendant lodged an appeal, which was directed in particular against the formation of the total sentence.
Legal assessment
The Federal Court of Justice overturned the Regional Court’s ruling regarding the total sentence because it had not been sufficiently examined whether a “total sentence situation” within the meaning of Section 55 paragraph 1 sentence 1 StGB According to this norm, sentences imposed for crimes committed before a previous conviction and which are capable of being sentenced cumulatively may not be included again in a cumulative sentence. This would undermine the watershed effect of the first conviction, since the crimes could already have been taken into account in the previous conviction.
Key aspects of the decision
- Breaking effect and overall punishment formation: The Federal Court of Justice clarified that the watershed effect of a first conviction only ceases to apply if the underlying sentence has already been fully enforced before the second conviction becomes final. In the present case, the sentence of the Hersbruck District Court only became final on November 18, 2021, while the newly convicted offenses were committed on December 3, 2021 and January 9, 2022.
- Errors in the calculation of the total penalty: The regional court had not sufficiently taken into account that the previous conviction by the Hersbruck District Court had a watershed effect that prevented a new overall sentence from being formed with the later conviction by the Nuremberg District Court. Since the offenses that led to the conviction by the Nuremberg District Court were committed before the conviction by the Hersbruck District Court became final, this sentence should have been included in the overall sentence.
- Prohibition of aggravation: The BGH pointed out that a new total sentence to be formed must not exceed the sum of the total sentence lifted and the prison sentence not included in order to comply with the prohibition of aggravation under Section 358 para. 2 StPO to preserve.
Conclusion
The BGH’s decision shows how important it is to correctly observe the caesura effect when forming total sentences. Courts must carefully examine whether previous convictions and the associated sentences can be included in a total sentence. This case law ensures that a sentence is not included twice in the total sentence and protects defendants from an impermissible increase in the sentence due to incorrect total sentence formation.
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