Criminal Procedure Germany

[Lorri Dent]

4) A law which was intended to be in force only for a determinate time is, as a rule, still to be applied to acts committed whilst it was in force even after it ceases to be in force. This does not apply to the extent that a law provides otherwise.

Regardless of which law is applicable at the place where the offence was committed, German criminal law applies to offences committed on a ship or an aircraft which is entitled to fly the federal flag or to carry the national insignia of the Federal Republic of Germany.

(1) German criminal law applies to offences committed abroad against a German national if the act is a criminal offence at the place of its commission or if that place is not subject to any criminal law jurisdiction.

(2) German criminal law applies to other offences committed abroad if the act is a criminal offence at the place of its commission or if that place is not subject to any criminal law jurisdiction and if the offender

(1) An offence is deemed to have been committed at every place where the offender acted or, in the case of an omission, was required to act or in which the result, if it is an element of the offence, occurs or was to have occurred as envisaged by the offender.

(2) Acts of participation are not only committed at the place where the offence was committed, but also at every place where the participant acted or, in the case of an omission, was required to act or where, as envisaged by the participant, the offence was to have been committed. If the participant to an offence committed abroad acted within the territory of the Federal Republic of Germany, German criminal law applies to the participation even if the act is not a criminal offence according to the law of the place of its commission.

(3) For the purposes of those provisions which refer to this subsection, ʻcontentʼ means that which is contained in writings, on audio or visual media, on data carriers, in images or other materialised content or which is also transmitted independently of any storage using information or communication technologies.

(1) Whoever fails to prevent a result which is an element of a criminal provision is only subject to criminal liability under this law if they are legally responsible for ensuring that the result does not occur and if the omission is equivalent to the realisation of the statutory elements of the offence through a positive act.

then any law under which special personal attributes, relationships or circumstances (special personal characteristics) give rise to criminal liability also applies to the representative if these characteristics do not exist in the person of that representative but in the entity, partnership or person represented.

and that person acts on the basis of this commission, then any law under which special personal characteristics give rise to criminal liability also applies to the person commissioned if these characteristics do not exist in the person commissioned but in the person of the owner of the business. An enterprise is equal to a business within the meaning of sentence 1. If a person acts on the basis of a similar commission for an agency performing public administrative services, sentence 1 applies analogously.

(1) Whoever, at the time of the commission of the offence, is unaware of a fact which is a statutory element of the offence is deemed to lack intention. Any criminal liability for negligence remains unaffected.

(2) Whoever, at the time of commission of the offence, mistakenly assumes the existence of facts which would satisfy the elements of a more lenient provision may only be punished for the intentional commission of the offence under the more lenient provision.

If, at the time of the commission of the offence, the offender lacks the awareness of acting unlawfully, then the offender is deemed to have acted without guilt if the mistake was unavoidable. If the mistake was avoidable, the penalty may be mitigated pursuant to section 49 (1).

If the law imposes a more severe penalty based on a specific result of an offence, the offender or the participant is only liable to the more severe penalty in the event of being charged with at least negligence with respect to that result.

Whoever, at the time of the commission of the offence, is incapable of appreciating the unlawfulness of their actions or of acting in accordance with any such appreciation due to a pathological mental disorder, a profound disturbance of consciousness or intellectual disability or any other serious mental disorder is deemed to act without guilt.

(3) If the offender fails to realise, due to gross ignorance, that the attempt could under no circumstances have led to the completion of the offence on account of the nature of its object or the means by which it was to be committed, the court may dispense with imposing a penalty or may mitigate the penalty at its discretion (section 49 (2)).

(1) Whoever voluntarily abandons the further commission of the offence or prevents its completion incurs no penalty for attempt. If the offence is not completed without any action on the part of the person abandoning the attempt, no penalty is incurred if that person has made voluntary and earnest efforts to prevent the completion of the offence.

(2) If the law provides that special personal characteristics aggravate, mitigate or rule out punishment, then this applies only to that party to the offence (offender or participant) in whom they are present.

(1) Whoever attempts to induce or incite another to commit a serious criminal offence incurs a penalty under the terms of the provisions governing attempted serious criminal offences. The penalty must, however, be mitigated pursuant to section 49 (1). Section 23 (3) applies accordingly.

Whoever, when faced with a present danger to life, limb, liberty, honour, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from themselves or another is not deemed to act unlawfully if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. However, this only applies to the extent that the act committed is an adequate means to avert the danger.

(1) Whoever, when faced with a present danger to life, limb or liberty which cannot otherwise be averted, commits an unlawful act to avert the danger from themselves, a relative or close person acts without guilt. This does not apply to the extent that the offender could be expected, under the circumstances, to accept the danger, in particular because said offender caused the danger or because of the existence of a special legal relationship; the penalty may, however, be mitigated pursuant to section 49 (1), unless the offender was required to accept the danger on account of the existence of a special legal relationship.

(2) If, at the time of the commission of the act, a person mistakenly assumes that circumstances exist which would provide an excuse under the terms of subsection (1), that person incurs a penalty only if the mistake was avoidable. The penalty must be mitigated pursuant to section 49 (1).

Members of the Bundestag, the Federal Convention or of a legislative body of one of the Lnder may at no time be held liable outside of the body on account of a vote they cast or a statement they made within one of those bodies or one of their committees. This does not apply to defamatory insults.

If a fine cannot be recovered, it is to be substituted by imprisonment. One daily rate corresponds to one day of imprisonment. The minimum term of default imprisonment for failure to pay a fine is one day.

(1) If a person has been sentenced to imprisonment or to a fine for an offence, the court may ban the offender from driving all classes of motor vehicle or a specific class of motor vehicle on public roads for a period of between one month and six months. Imposition of a driving ban may in particular be considered in cases where the offence was not committed whilst or in connection with the driving of a motor vehicle or in breach of the duties of a driver of a motor vehicle if this appears necessary either to have an influence on the offender or to defend the legal order or if it means imposition of a sentence of imprisonment or its enforcement can thereby be avoided. A driving ban is typically to be imposed in the cases of conviction pursuant to section 315c (1) no. 1 (a), (3) or section 316 if disqualification from driving pursuant to section 69 is not ordered.

(2) The driving ban takes effect when the driving licence is confiscated upon the judgment having become final, but no later than one month after the judgment has become final. National and international driving licences issued by a German authority are to be confiscated for the duration of the ban. This also applies if the driving licence was issued by an authority of a Member State of the European Union or another Contracting Party to the Agreement on the European Economic Area if the holder is ordinarily resident in Germany. The driving ban is endorsed on any other foreign driving licences.

(3) If a driving licence is to be confiscated or the driving ban to be endorsed on a foreign driving licence, the duration of the ban is calculated from the day on which those conditions are met. Any period during which the offender was detained in an institution by official order does not count towards the duration.

(4) If the court has imposed several driving bans against an offender which have become final, the durations of these bans are to be calculated consecutively. The duration of the ban which has become final first runs first. If more than one driving ban becomes final at the same time, the duration of the ban which was imposed first runs first, and if the driving bans were ordered at the same time, the time of the earlier offence is decisive.

(1) Whoever is sentenced to imprisonment for a term of at least one year for a serious criminal offence loses the ability, for a period of five years, to hold public office and be elected in public elections.

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