Definition and Legal Classification of Expungement
Expungement is a central concept in German criminal law and refers to the removal of criminal entries from the Federal Central Register (BZR) or from the certificate of conduct. It plays a significant role in the resocialization of convicted individuals and is a key element of the so-called right to be forgotten in criminal enforcement. More broadly, expungement serves to restore one’s good standing in legal dealings and to protect against the stigmatizing effects of a criminal conviction.
Fundamentals and Statutory Regulations
The Federal Central Register (BZR)
The Federal Central Register is maintained by the Federal Office of Justice. It contains information about criminal convictions, certain procedural decisions, and other relevant entries, for example from disciplinary law. The legal basis is the Federal Central Register Act (BZRG).
Expungement and Deletion under the BZRG
Expungement is regulated in the BZRG through the terms ‘erasure’ and ‘deletion’. In principle, final criminal convictions are erased or deleted from the register after the expiration of specified periods (§§ 46 ff. BZRG). The relevant provisions are:
- § 45 BZRG: Periods for Expungement of Entries
- § 46 BZRG: Commencement and Calculation of Periods
- § 47 BZRG: Exceptions to Expungement/Erasure
- § 51 BZRG: Effect of Erasure and Deletion
Requirements and Process of Expungement
Expungement Periods
The expungement periods depend on the nature and severity of the offense as well as the imposed sanction:
- Five years: Generally for fines and warnings with reservation of punishment, juvenile sentences up to one year, and other less serious sanctions
- Ten years: For custodial sentences up to a certain maximum (usually up to three years), provided certain conditions are met (e.g., no repeat offenses)
- Fifteen years: For serious offenses, especially when a higher custodial sentence is imposed or preventive detention is ordered
The decisive factor is always the statutory scheme. If a new offense is committed after the first conviction, the expungement period is regularly extended.
Commencement of the Expungement Period
The expungement period begins, pursuant to § 46 BZRG, on the date of the first final decision or the date when the sanction is fully enforced, has become time-barred, or is remitted. Interruptions by further convictions or new entries lead to an adjustment of the starting date.
Legal Consequences of Expungement
Effect in Legal Transactions
After expungement, the person is considered not to have a criminal record. The erased conviction may neither be mentioned nor used in the certificate of conduct or to third parties (§ 51 BZRG). Authorities and courts are, as a rule, not permitted to take deleted entries into account.
Restrictions and Exceptions
Certain exceptions exist, for example in the context of retrial proceedings, ongoing investigations, or specific security checks. Criminal and disciplinary courts, probation and enforcement authorities may under circumstances have extended access rights.
Special Aspects of Expungement
Repeat Offenders and New Convictions
If a person reoffends, the legal effect of expungement is reduced, and expungement periods are extended or interrupted. Certain repeat offenses can prevent the expungement of old entries, as the prognosis for resocialization is then considered impaired.
Expungement of Ancillary Penalties and Measures
Entries concerning ancillary penalties such as driving bans or measures of rehabilitation and security (e.g., supervision of conduct, withdrawal measures) are subject to separate expungement periods as regulated in §§ 46, 50 BZRG.
Special Regulations for Juvenile Offenders
According to § 63 BZRG, shortened expungement periods and independent regulations apply to juveniles and young adults, placing emphasis on the idea of resocialization.
Procedure and Implementation
Automatic Process
Expungement generally occurs automatically after the expiration of the expungement period without a separate application. The Federal Office of Justice continuously reviews the entries and carries out the deletion.
Possible Applications and Remedies
In the case of objections or incorrect entries, an application for correction or early deletion may be filed, for example in the case of incorrect registrations or for special reasons under § 52 BZRG.
Significance of Expungement in Practice
The proper expungement of criminal judgments is of immense importance regarding personality rights, access to the labor market, and the social life of former offenders. Expungement promotes resocialization and prevents lifelong stigmatization. In working life, in official applications, or in international proceedings (e.g., visa applications), the effects of expungement are of decisive relevance.
Summary
Expungement is a core element of the statutory regulations on dealing with criminal convictions in German law. It ensures that culpable conduct is not permanently associated with a person and thus enables a new start in social life. The Federal Central Register Act governs the exact requirements on periods, prerequisites, procedures, and effects in detail and with differentiation. Consistent application and observance of these regulations protect against discrimination and promote the goal of reintegration.
Frequently Asked Questions
How long does it take for an offense to be deleted from the certificate of conduct?
The duration until an offense is deleted from the certificate of conduct essentially depends on the type and amount of the imposed sentence. According to § 34 of the Federal Central Register Act (BZRG), the periods are generally 3, 5, or 10 years. For minor sentences, such as fines of no more than 90 daily rates, the deletion period is usually 3 years. Prison sentences of less than three months are also deleted after 3 years, provided there are no further convictions. For prison sentences between three months and one year, if their execution has been suspended on probation, the period is also 3 years. For higher sentences or repeat offenses, periods of 5 or even 10 years generally apply. It is important to note that the periods begin to run only from the day of the first criminal judgment and at the earliest with legal finality of the decision. Multiple convictions can result in an extension of the deletion period.
Can the deletion of my conviction be expedited?
An early deletion of an entry in the Federal Central Register is generally not provided for. The statutory periods under §§ 45, 46 BZRG are mandatory and may be reduced only in exceptional cases, for example by way of clemency or in cases of error. This means that deletion before the expiry of the period is normally not possible. In some cases, such as the rehabilitation of former GDR convictions, special deletion regulations may, however, apply. After the period expires, deletion is carried out automatically, without the need for a separate application.
Which offenses are not deleted?
Not all offenses are subject to the general deletion periods. According to § 51 BZRG, certain entries—such as serious sexual offenses or certain particularly severe repeat offenses—may remain permanently stored, especially if they resulted in a measure of preventive detention. Convictions to life imprisonment or the revocation of certain fundamental rights are also not deleted. Additionally, ongoing proceedings, unpaid fines, or uncompleted probation periods are not deleted either. Some professional bans can also prevent deletion for as long as the ban is in effect.
How does deletion affect the obligation to provide information in a professional context?
Once a conviction has been deleted, according to § 53 BZRG the so-called ‘right to lie’ applies: The affected person is not required to disclose this deleted prior conviction in an employment relationship, nor must a question from the employer regarding deleted entries be answered truthfully. The deleted conviction generally has no effect in the employment law context, and authorities or courts may not, with very few exceptions, use it to the detriment of the affected person. This is particularly relevant for job applications and cases requiring official certificates of conduct; deleted entries no longer appear there.
Does deletion in the Federal Central Register differ from deletion in the certificate of conduct?
Yes, there is a significant difference between deletion in the Federal Central Register (BZR) and the entries displayed in the certificate of conduct. The certificate of conduct is an extract from the BZR and serves to disclose certain contents to third parties, such as employers. Depending on the severity and number of prior convictions, some entries may still be maintained in the BZR but no longer appear in the certificate of conduct. In some cases, milder penalties, such as small fines, or offenses tried under juvenile criminal law, are not shown in the certificate of conduct at all, even though they remain stored in the BZR for some time. However, the deletion periods apply independently in each case, so a conviction may disappear from the certificate of conduct before it is deleted from the BZR.
What happens to stored data after the deletion period expires?
After the relevant period expires in accordance with the BZRG, the entries are deleted systemically, meaning they may no longer be transmitted, used, or utilized for information purposes by authorities. Technically, the data are not immediately removed from all databases but are marked as ‘deleted’. As such, they are blocked and may only be accessed in exceptional cases during criminal investigations or legal proceedings if expressly permitted by law. Full physical deletion from electronic storage occurs with some delay as part of regular data maintenance. After deletion has been carried out, the information may no longer be retrieved or passed on by authorities.
What impact does deletion have on ongoing probation periods or ancillary penalties?
As long as a probation period is running or, for example, supervision of conduct has not been completed, the deletion period generally does not even begin to run. According to § 36 BZRG, the prerequisite for the commencement of the period is the full completion of the sentence, i.e. after enforcement is complete and the end of any measures or probation periods. In the case of a conviction to ancillary penalties—such as driving bans or professional bans—the period also begins only after they have expired. Only once all criminal law obligations have been successfully completed can the relevant deletion periods begin to run.
Can a deleted conviction still be taken into account in the case of new offenses?
Deleted convictions may not, pursuant to § 51 BZRG, generally be used to the detriment of the individual after deletion, particularly not when determining the penalty in repeat offender provisions (§ 47 StGB). However, in very rare exceptional cases—such as where there is significant relevance to hazard prevention or certain professional bans—recourse to deleted convictions may still occur. Such exceptions are, however, applied extremely restrictively, in order to uphold the rule of law principle of resocialization as well as the prohibition of double punishment.
