Question juridique clé
Whether the sentencing court erred by excluding a § 21 StGB diminished capacity factor from the concrete sentencing assessment because it had already been used for sentencing range mitigation under § 50 StGB.
Solution extraite
§ 50 StGB bars double consideration only when determining the statutory sentencing range; in the concrete sentencing assessment, the court must still weigh all relevant circumstances, including those that supported range mitigation, with their remaining significance.
Motifs extraits
The lower court applied the double-counting prohibition too broadly. The sentencing judge must first determine the applicable range and then assess sentence severity under § 46 StGB on the basis of a comprehensive evaluation of all mitigating and aggravating circumstances. A factor used to reduce the range is not excluded from the later overall assessment, but may only be taken into account with its residual weight.