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What is the difference between a legal prognosis and a criminal prognosis in criminal law?

March 14, 2025

Criminal law

Open in Omnilex

The difference between a legal forecast and a criminal forecast in criminal law is that the legal forecast represents the court's legal assessment of the likelihood of future offenses by a perpetrator, while the criminal forecast is the expert evaluation of the risk of recidivism, often based on psychological and criminological expertise.

The legal forecast is based on a comprehensive assessment of all relevant circumstances, such as the criminal record, personality, behavior during the proceedings, and future living conditions. All facts must be considered that allow valid conclusions about the perpetrator's character and the prospects of their probation (cf. (6B_1308/2023)). It is crucial for criminal decisions such as granting a suspension of sentence, ordering measures, or conditional release.

The criminal forecast particularly refers to crime development, i.e., the onset, nature, and frequency of previous criminal behavior, and serves as a crucial forecasting criterion for the legal forecast (cf. (BGE 148 IV 1)). It is often prepared by experts and provides the court with important information about the dangerousness and recidivism risk of the perpetrator.

In summary, the criminal forecast forms the professional basis for the court's legal forecast. While the criminal forecast represents the scientific assessment of recidivism risk, the legal forecast is the legal evaluation of this risk concerning legal decisions.

Quotes:

- (BGE 148 IV 1)

- (6B_1308/2023)

Sources

federal - I. criminal law department - January 21, 2024

6B_1308/2023

According to Article 42 of the Criminal Code (StGB), the court may partially suspend the execution of a prison sentence of at least one year and at most three years if this is necessary to sufficiently take into account the culpability of the offender. A fundamental requirement for a partially conditional sentence according to Article 43 StGB is, as with Article 42 StGB, that the legal prognosis of the offender is not unfavorable. The main area of application for a partially conditional sentence lies with prison sentences between two and three years. If the legal prognosis is not negative, the partially conditional deprivation of liberty replaces the fully conditional execution of sentence that is no longer possible in this range. Conversely, if there is no prospect that the offender can be positively influenced in terms of future legal behavior by the - fully or partially - granted suspension of sentence, the punishment must be served in full (BGE 144 IV 277 E. 3.1.1; 134 IV 1 E. 5.3.1; each with references). In assessing future behavior, all relevant circumstances must be considered. In addition to the circumstances of the offense, notably the offender's prior behavior and reputation, as well as any other facts that allow valid conclusions about the character of the offender and the prospects of his probation must also be taken into account. A relevant prognostic criterion is particularly the prior criminal record, the socialization biography, the work behavior, or the existence of social bonds. Personal circumstances up to the time of the decision must be included. It is impermissible to attribute priority to certain circumstances and neglect or completely ignore others (BGE 135 IV 180 E. 2.1; 134 IV 1 E. 4.2.1; each with references). The court has discretion in assessing the prognosis of future legal behavior.

Summary

federal - I. criminal law department - January 21, 2024

6B_1308/2023

According to Article 42 of the Criminal Code (StGB), the court may partially suspend the execution of a prison sentence of at least one year and at most three years if this is necessary to sufficiently take into account the culpability of the offender. A fundamental requirement for a partially conditional sentence according to Article 43 StGB is, as with Article 42 StGB, that the legal prognosis of the offender is not unfavorable. The main area of application for a partially conditional sentence lies with prison sentences between two and three years. If the legal prognosis is not negative, the partially conditional deprivation of liberty replaces the fully conditional execution of sentence that is no longer possible in this range. Conversely, if there is no prospect that the offender can be positively influenced in terms of future legal behavior by the - fully or partially - granted suspension of sentence, the punishment must be served in full (BGE 144 IV 277 E. 3.1.1; 134 IV 1 E. 5.3.1; each with references). In assessing future behavior, all relevant circumstances must be considered. In addition to the circumstances of the offense, notably the offender's prior behavior and reputation, as well as any other facts that allow valid conclusions about the character of the offender and the prospects of his probation must also be taken into account. A relevant prognostic criterion is particularly the prior criminal record, the socialization biography, the work behavior, or the existence of social bonds. Personal circumstances up to the time of the decision must be included. It is impermissible to attribute priority to certain circumstances and neglect or completely ignore others (BGE 135 IV 180 E. 2.1; 134 IV 1 E. 4.2.1; each with references). The court has discretion in assessing the prognosis of future legal behavior.

Summary

federal_leading - 1. Excerpt from the judgment of the Criminal Division in the case of the Public Prosecutor's Office of the Canton of Solothurn against A. and vice versa (Appeal in Criminal Matters) - August 22, 2021

BGE 148 IV 1

According to § 64 StGB, the court responsible for the assessment must decide again on a possible detention. In both cases of subsequent detention based on Art. 62c para. 4 StGB and of original detention under Art. 64 para. 1 StGB, the judge must conduct a comprehensive assessment for the crucial question regarding the legal forecast. The development of criminality, i.e. the beginning, nature, and frequency of previous criminal behavior, is a crucial forecasting criterion (HEER/HABERMEYER, in: Basler Kommentar, Criminal Law, Vol. I, 4th ed. 2019, N. 68 to Art. 64 StGB). Therefore, doctrine and jurisprudence recognize that in detention under Art. 64 para. 1 StGB, for the legal forecast, not only the new acts to be assessed must be taken into account but also any prior convictions - irrespective of the intervening removal from the criminal record (BGE 135 IV 87 E. 2.5; HEER/HABERMEYER, op. cit., N. 68 to Art. 64 StGB). Likewise, in assessing a subsequent detention due to the hopelessness of the previously ordered stationary therapeutic measure (cf. Art. 62c para. 4 StGB), new delinquency cannot simply be disregarded. A separate continuation of the two proceedings was therefore neither possible nor warranted. 3.6.2 The District Court of Olten-Gösgen (by decision of June 4, 2020 and judgment of December 10, 2020) and the Cantonal Court of Solothurn (in the decisions of July 8, 2020 and March 18, 2021) therefore rightly advocated for a procedural union and for the conclusive assessment of the pending proceedings concerning detention in the first-instance criminal judgment (cf. Art. 80 para. 1 sentence 1 StPO). The criminal proceedings regarding new offenses, in which the detention is to be decided again, take precedence over the independent subsequent measure proceedings in this respect. This principle is also laid down in Art. 62a para. 1 lit.

Summary

federal_leading - 1. Excerpt from the judgment of the Criminal Division in the case of the Public Prosecutor's Office of the Canton of Solothurn against A. and vice versa (Appeal in Criminal Matters) - August 22, 2021

BGE 148 IV 1

According to § 64 StGB, the court responsible for the assessment must decide again on a possible detention. In both cases of subsequent detention based on Art. 62c para. 4 StGB and of original detention under Art. 64 para. 1 StGB, the judge must conduct a comprehensive assessment for the crucial question regarding the legal forecast. The development of criminality, i.e. the beginning, nature, and frequency of previous criminal behavior, is a crucial forecasting criterion (HEER/HABERMEYER, in: Basler Kommentar, Criminal Law, Vol. I, 4th ed. 2019, N. 68 to Art. 64 StGB). Therefore, doctrine and jurisprudence recognize that in detention under Art. 64 para. 1 StGB, for the legal forecast, not only the new acts to be assessed must be taken into account but also any prior convictions - irrespective of the intervening removal from the criminal record (BGE 135 IV 87 E. 2.5; HEER/HABERMEYER, op. cit., N. 68 to Art. 64 StGB). Likewise, in assessing a subsequent detention due to the hopelessness of the previously ordered stationary therapeutic measure (cf. Art. 62c para. 4 StGB), new delinquency cannot simply be disregarded. A separate continuation of the two proceedings was therefore neither possible nor warranted. 3.6.2 The District Court of Olten-Gösgen (by decision of June 4, 2020 and judgment of December 10, 2020) and the Cantonal Court of Solothurn (in the decisions of July 8, 2020 and March 18, 2021) therefore rightly advocated for a procedural union and for the conclusive assessment of the pending proceedings concerning detention in the first-instance criminal judgment (cf. Art. 80 para. 1 sentence 1 StPO). The criminal proceedings regarding new offenses, in which the detention is to be decided again, take precedence over the independent subsequent measure proceedings in this respect. This principle is also laid down in Art. 62a para. 1 lit.

Summary


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