1. Who gets a suspended sentence?
Suspension of the custodial sentence on probation is only possible for custodial sentences of up to two years. If a higher prison sentence is pronounced by the court, probation is not possible. Approximately three quarters of all prison sentences not exceeding two years are suspended on probation.
The judge decides at his discretion whether a custodial sentence can be suspended on probation. The aim of agreements in criminal proceedings is often to reach an agreement with the court and the public prosecutor’s office on a suspended sentence prior to the trial.
The judge prepares a social prognosis which deals with the future development of the offender. The judge can only suspend a sentence on probation if it is likely that the offender will not commit any more crimes in the future without the influence of the penal system. In his prognosis, the judge primarily takes into account the personality of the offender, his previous life (in particular previous convictions), the circumstances of the offence and the living conditions of the offender.
It is particularly favourable for the perpetrator if he lives in solid circumstances, i.e. has a stable home and work and stable family connections. It always depends on the overall appreciation of all circumstances. It may also be important whether the offender has made good the damage caused by the offence.
A probation can also be considered, for example, if the offender has not been previously convicted and the judge assumes that it is a one-off derailment of the offender.
A probation is however very rare, if a perpetrator already has offended several times against probation conditions or the new act has been committed even still during a current probation.
It belongs to the tasks of the criminal defense lawyers to create facts at an early stage which favour a positive social prognosis. This can be, for example, a so-called victim-offender mediation, i.e. an agreement with the injured party of a crime who receives compensation for the consequences suffered. In criminal tax proceedings, the settlement of any tax debts plays a decisive role in the sentencing – and thus, in borderline cases, also in probation – of the offender.