Death of the Defendant
The term Death of the Defendant describes the legal consequences and effects that the death of a person during an ongoing criminal proceeding has on the process and its participants. It plays a significant role both in criminal procedural law as well as in civil law regarding claims for damages and in state liability law. In Germany, the death of the defendant is primarily governed by the Code of Criminal Procedure (StPO).
Legal Foundations in Criminal Law
Termination of Proceedings pursuant to Section 206a StPO
If the defendant dies during criminal proceedings, the process must be discontinued pursuant to Section 206a (1) of the Code of Criminal Procedure (StPO) without further examination of the facts. In this case, prosecution is no longer possible for factual reasons, as the defendant, as the subject of the process, no longer exists. This applies at all stages of proceedings—during the investigation, the main proceedings before court, and during ongoing appellate proceedings.
Impacts on the Investigation Phase
Already during the investigative proceedings, for example, when the public prosecutor learns of the defendant’s death, the proceedings must be discontinued pursuant to Section 170 (2) StPO. The same applies to any ancillary penal matters, such as security proceedings or independent confiscation proceedings.
Discontinuance in Main Proceedings
If the defendant dies after an indictment has been filed, the proceedings must be discontinued by court order (§ 206a StPO). In this case, the court no longer reviews the question of guilt but confines itself to examining the procedural prerequisite of the defendant’s life.
Special Features Regarding Appeals
If the convicted person dies after the first-instance judgment has been delivered but before the final conclusion of the process, the proceedings must be discontinued with regard to the deceased. Legal consequences already imposed, such as fines or imprisonment, are no longer enforced against the deceased. Appeal proceedings are likewise terminated; a judgment already rendered does not become final.
Legal Consequences of the Death of the Defendant
Substantive Exemption from Punishment
With the death of the defendant, criminal prosecution is permanently discontinued. The initiation or continuation of criminal proceedings is legally precluded, as personal criminal liability ends with death. A posthumous conviction is fundamentally not permissible in the German legal system.
Asset Penalties and Confiscation
Asset-based measures such as confiscation or forfeiture can no longer be directly ordered against the estate after the defendant’s death. In exceptional cases, an independent confiscation procedure under Section 435 StPO is possible if the actions are directed at third parties (for example, heirs).
In Absentia Proceedings
The in absentia proceedings do not apply. If the defendant dies while absent from the proceedings, the case is discontinued. Conducting proceedings against a deceased person contravenes the principle that prosecution always requires a living person as the defendant.
Consequences for Co-Plaintiffs and Private Prosecutors
Discontinuance of Proceedings
For co-plaintiffs and private prosecutors as well, the death of the defendant means that the criminal proceedings against this person must be discontinued. Claims from the adhesion proceedings (civil claims within criminal proceedings) must, if they exist, be further pursued in civil court.
No Transfer of Criminal Charges
The criminal proceedings and the criminal complaint do not transfer to the heirs of the defendant. Continuation by or against third parties is also excluded. The public prosecution is directed solely against the accused (defendant) and cannot be extended to their estate or surviving relatives.
Death of the Defendant in an International Context
Other jurisdictions, such as Anglo-American law, generally provide similar regulations. There, too, criminal prosecution is extinguished upon the death of the accused. However, details regarding asset-related consequences may differ, especially concerning the confiscation of illicit assets.
Effects in Civil and Administrative Law
In civil law, such as regarding official liability claims or damages, the death of the defendant does not cause the civil proceedings to be discontinued. The heirs assume the legal position of the deceased. Any claims arising from offenses or unlawful acts can be asserted against or through the estate. In administrative law, comparable principles must be observed, especially when the death of a party to the proceedings affects the parties and their legal representation.
Practically Relevant Application Cases
- Proceedings Against Unknown Deceased Persons: If the identity of the accused is not established at the time of death, the proceedings are discontinued as soon as death is confirmed.
- Conviction After Death (“posthumous”): German law does not permit posthumous findings of guilt for the purposes of ‘honor’ or to provide proof; investigations and prosecutions against deceased persons are inadmissible.
- Continuation of Investigations for Rehabilitation: Exceptionally, investigations may continue if this serves to rehabilitate or to protect surviving relatives from false suspicion, but always outside of formal criminal prosecution.
Summary
Der Death of the Defendant constitutes a mandatory procedural bar in criminal proceedings and, regardless of the procedural stage, leads to the immediate discontinuance of criminal prosecution. No conviction can be rendered under criminal procedure; civil and asset-related cases must be distinguished from this and can, under certain circumstances, be pursued further. Under German and comparable international law, the principle applies that personal criminal liability expires upon death, while asset-related consequences must be evaluated on a case-by-case basis.
Frequently Asked Questions
What happens to criminal proceedings if the defendant dies during the process?
Upon the death of the defendant, the criminal proceedings are generally discontinued immediately. The legal basis for this is Section 206a (1) of the Code of Criminal Procedure (StPO), which requires discontinuation if a procedural impediment—such as the death of the defendant—exists. Prosecution is limited to living natural persons, so prosecution beyond death is excluded. Coercive measures, such as pre-trial detention or seizures, must be lifted unless still required for other defendants. The proceedings can only be continued in very rare exceptions, such as posthumous rehabilitation of the deceased (for example, by reopening the case in their favor under Section 359 No. 5 StPO), in which case there are no findings of guilt or sentences imposed.
What happens to civil claims from criminal proceedings when the defendant dies?
Civil claims, especially so-called adhesion petitions under Sections 403 et seq. StPO, cannot be pursued further in the criminal process if the defendant is deceased, because the proceedings will be discontinued. Those affected must then assert their claims in civil court and enforce them against the estate of the deceased or against their heirs. The heirs generally assume civil liability, but only with the estate.
Can investigations continue after the death of the defendant?
Criminal investigations are generally discontinued once the authorities learn of the defendant’s death, because the process cannot be continued. Exceptions only exist when there are other co-offenders who are still being investigated. In this context, information about the acts or involvement of the deceased can still be collected. However, there is no legal basis for a criminal procedural ‘finding of guilt’ or sanction against the deceased.
Does the death of the defendant have an impact on any ongoing security measures (e.g., preventive detention, placement in a psychiatric facility)?
With the death of the defendant, all custodial and other security measures come to an end, as these serve solely to protect the public from the defendant. Placement in a psychiatric institution or preventive detention, once ordered and already in effect, must be terminated immediately upon the death of the affected person (§ 67d (3) StGB).
What happens to fines or penalties imposed if the defendant dies?
If a fine or penalty has already become final and the defendant subsequently dies, any outstanding amounts as penalties generally are no longer enforced, as criminal liability is highly personal and thus not inheritable (§ 46 (1) OWiG and § 45 StGB). However, costs of proceedings or claims for damages, which are civil law claims, may fall into the estate.
Can heirs be held liable for outstanding obligations from criminal proceedings?
Criminal liability is not transferable; fines or imprisonment extinguish with death and cannot be enforced against the heirs. However, civil ancillary claims, such as claims for damages or procedural costs, may become part of the estate and thus must be fulfilled by the heirs, provided they do not renounce the inheritance.
Are ongoing appeals, revisions, or complaints continued if the defendant dies?
With the death of the defendant, all appeal proceedings (revision, appeal, complaint) are terminated, as the main criminal proceedings against them cannot be conducted further. An exception applies only to the reopening of the already concluded proceedings in favor of the deceased (§ 359 et seq. StPO), for example, by close relatives seeking rehabilitation. However, no findings of guilt or sentences or final convictions can be rendered after death.
