Withdrawal from attempt under section 16 StGB: lifting of punishment by timely turning away

Under section 16 StGB the perpetrator is not to be punished for the attempt if they voluntarily give up execution or prevent the result. Where several participants are involved, the offence must be prevented or there must be a serious effort to prevent it. The provision is a personal ground for the lifting of punishment and applies only to the person who withdraws.

The central requirements are voluntariness of the turning away and timely performance of the act of withdrawal. A person acts voluntarily if on their own decision they no longer want to bring the offence to completion although they could still complete it. Whoever is forced to give up by an external obstacle does not withdraw voluntarily.

Withdrawal presupposes that the offence is not yet completed. In the stage of the unfinished attempt, giving up further execution is sufficient. In the stage of the finished attempt active prevention of the result is required.

Where several participants are involved, the personal retreat is not enough. Whoever wants to withdraw must actually prevent the offence or make serious efforts to prevent it. The background is that otherwise the other participants could carry the offence to completion and the defendant could not free themselves from shared responsibility by silence alone.

What is required is an effective act, for example notifying the police, removing the tool of the offence or warning the victim. If the offence is completed despite these efforts, the withdrawal still holds if the effort was serious.

From a legal perspective the evidentiary position is particularly important here. The court examines the seriousness on the basis of the concrete steps the defendant has taken. Mere intentions or declarations do not suffice.

Withdrawal under section 16 StGB is only possible if the offence, from the defendant's perspective, could still be brought to a conclusion. If the attempt appears to the defendant as having failed because the plan no longer seems completable, withdrawal is excluded.

The boundary follows the subjective view of the defendant. If they consider the offence still possible and nevertheless give it up, withdrawal is possible. If they recognise that the attempt has failed, for example because the victim escaped or the tool malfunctioned, the stage open to withdrawal is gone.

From a legal perspective this question is often decisive. The precise account of the defendant's conception is therefore a central point of the defence where withdrawal is asserted.

Withdrawal from the attempt lifts liability only for the attempt of the originally intended offence. Other offences that have already been separately realised are not covered. Whoever has caused criminal damage, assault or a weapons offence on the way to the offence remains punishable for those.

This limitation is frequent in practice. An attempted burglary that is voluntarily broken off before the loot is taken can nonetheless lead to criminal damage by the breaking of the door. Withdrawal from the attempted theft leaves this liability untouched.

From a legal perspective a twofold examination is therefore required. First the requirements of withdrawal and second the separately realised offences. The defence must keep both levels in view.