Attempts: Withdrawal
| Author | Michael Bohlander |
| DOI | 10.1350/jcla.2006.70.2.135 |
| Published date | 01 April 2006 |
| Date | 01 April 2006 |
| Subject Matter | Federal Court of Justice of Germany (Ordinary Jurisdiction) (Bundesgerichtshof—BGH), 1st Criminal |
instructions’, as these explanations by appellate courts for retrials are
generally called among the German trial judiciary.
This case is available at www.hrr-strafrecht.de by entering the case
number or the citation BGH HRRS 2005 Nr. 665 into the search
engine.
Michael Bohlander
Attempts: Withdrawal
Case No. 1 StR 503/04, 14 June 2005
A was in financial trouble because his divorced wife, W, was demand-
ing a large sum of money from him. He thought that the new partner
(P) of his ex-wife was behind all of this and decided to have P
‘removed’ by a hired killer. A friend helped him make contact with a
man who called himself ‘N’, but who was, in fact, a police agent
working undercover, and who merely posed as a hitman. On 30
March 2004 A told N that he wanted a ‘full disposal’ of P, just ‘driving
him away’ would not be enough. He then filled N in on the details as
to how the murder could be committed, i.e. that P was often at home
alone because W’s father was in hospital at the time and she visited
him very often. When N asked about the payment, A handed him
4,000 euros and promised a further 8,000 euros on completion of the
deal. N pretended to be prepared to kill P, but asked A for more
information, such as the address of W and the layout of the house,
etc. A then agreed to meet N a second time and show him the
house.
At that second meeting when he showed N the house, A told N that
he had received a letter from W’s solicitors setting out the claim by W
and modalities of a settlement. A told N that he was first going to see
whether a settlement could be reached, but if it could not, then the
‘whole thing should go through’. Because of this, he told N he could
keep the down payment of 4,000 euros. However, because W’s father
would by then be out of hospital, the murder would become more
difficult to commit, and they would need a silencer and possibly would
have to drug P in the process of getting him away from the house, but
the actual methods were left to N’s choice. He told N that he would
contact him, if he wanted the plan to go through.
On 23 April 2004 A was arrested without having contacted N again.
A was sentenced by a district court (Landgericht) to three-and-a-half
years’ imprisonment on a conviction for attempted procurement to
murder. He appealed against the conviction on the grounds that he had
withdrawn from the attempt and thus not committed any offence.
H
ELD
,
DISMISSING THE APPEAL
,A had not withdrawn effectively from
the attempt to procure N into killing P, because s. 31(1)Nr. 1 and (2) of
the Criminal Code required the honest and sincere, as well as voluntary,
Attempts: Withdrawal
135
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