Criminal sentencing error: crediting pretrial detention as a distinct mitigating factor

The German Federal Court of Criminal Court (BGH) dismissed the revisions of two defendants against a conviction by the Landgericht Cottbus, ordering the defendants to bear the costs of their appeals and upholding the lower court’s judgment. The dispute concerned criminal sentencing, specifically whether the lower court committed an error of law by explicitly crediting the defendants’ time in pre-trial detention as a mitigating factor, a practice which the BGH identified as legally incorrect. Although the BGH noted that treating pre-trial detention as a distinct mitigating circumstance is a procedural error, it concluded that this did not disadvantage the defendants in the final outcome, thereby upholding the original sentence and rejecting the appeal.