Guilt is also a prerequisite for punishment and ultimately means the prerequisite that a person can be accused of the (unlawful) offence at all, as otherwise the offence would also remain unpunished, which does not mean that the offence would otherwise also remain without consequences.

Children under the age of 14 are generally not culpable due to their lack of insight, although offences committed by children are not without consequences either, as the youth welfare offices and family courts may become involved.

Even a person who is 14 years or older does not necessarily have to be culpable. This is particularly conceivable if the person is mentally ill. If a person is incapable of guilt, it must be examined whether other (compulsory) placement, e.g. in a psychiatric hospital, is necessary. However, this is not done because the offence is reproachable, but only if the offender poses a future danger to the general public.

In addition, an offence can be excused, so-called “excusable emergency” (cf. Section 35 StGB).

35 Excusable emergency

Anyone who commits an unlawful act in a present, unavoidable danger to life, limb or freedom in order to avert the danger to themselves, a relative or another person close to them acts without guilt. This does not apply if the offender could reasonably be expected to accept the danger under the circumstances, namely because he caused the danger himself or because he was in a special legal relationship; however, the penalty may be mitigated in accordance with Section 49 (1) if the offender did not have to accept the danger in view of a special legal relationship.
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This is the case if the offender cannot be blamed for the specific offence. For example, if there is a (non-culpable) danger to the life or health of the perpetrator or a close person and the danger cannot be averted in any other way. In contrast to a state of emergency, however, the danger averted does not have to be more serious than the impaired legal interest, as the excusable state of emergency requires a special personal connection to the perpetrator.

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