Definition and Concept of the Declaration of Immunity from Prosecution
Die Declaration of Immunity from Prosecution is a legal instrument by which actions that could be considered criminal offenses under applicable law are exempted from prosecution under defined conditions. Frequently, a declaration of immunity from prosecution is issued by statute, administrative act, or explicit official notification and results in certain acts not being prosecuted or enforced. This legal provision is particularly relevant in tax law but also applies in various other areas of criminal law.
Legal Basis for the Declaration of Immunity from Prosecution
General Principles of Regulation
The requirements and effects of the declaration of immunity from prosecution are regulated in various legal provisions. As a general rule, a statutory basis is required for the validity of such a declaration. There is no general provision for declarations of immunity from prosecution in the German legal system; rather, they are linked to specific occasions and factual situations.
Most Relevant Areas of Application
Declaration of Immunity from Prosecution in Tax Law
In tax law, a declaration of immunity from prosecution is particularly relevant for voluntary self-disclosures (§ 371 Fiscal Code, AO). Through a valid self-disclosure, taxpayers can, under certain conditions, achieve immunity from prosecution for previously undeclared tax offenses. Full and voluntary disclosure of all tax-relevant facts is required, as is the timely payment of the evaded amounts.
Amnesty Laws and Transitional Provisions
In certain historical or political contexts, declarations of immunity from prosecution are made by amnesty laws. In this way, offenses—often in connection with political upheavals or regime changes—are collectively declared exempt from prosecution. Some of the best-known examples include amnesties following wars or revolutions.
Declaration of Immunity from Prosecution upon Self-Disclosure Outside Tax Law
In a few other areas, a voluntary self-disclosure can lead to immunity from prosecution, provided this is explicitly provided for by special laws (e.g., in environmental law in cases of certain breaches of reporting obligations).
Requirements for a Declaration of Immunity from Prosecution
A declaration of immunity from prosecution is always subject to precisely defined conditions stipulated in the relevant legal provisions. The most important general requirements are:
Legal Basis
The action concerned must be explicitly exempted from criminal liability by a legal provision. Mere non-prosecution for reasons of expediency is not sufficient.
Complete and Timely Disclosure
Especially in tax law, it is necessary for all relevant information to be provided and all corrections to be made in full in order to obtain immunity from prosecution. Incomplete or late disclosures do not confer immunity from prosecution and may trigger additional criminal and civil consequences.
No Knowledge of Discovery
In most cases, the actions in question must not have been discovered by the prosecuting authorities at the time of disclosure, nor must an investigation have already been initiated.
No Grounds for Exclusion
Certain particularly serious offenses (e.g., large-scale tax evasion) may be expressly excluded from the possibility of immunity from prosecution. Repeat use of this legal instrument may likewise be excluded.
Legal Effects of the Declaration of Immunity from Prosecution
Exemption or Termination of Prosecution
By means of the declaration of immunity from prosecution, either the initiation of an investigation is prevented or an already initiated proceeding is terminated. In both cases, there is no criminal punishment for the action concerned.
Effect with Regard to Further Participants
The declaration of immunity from prosecution can, if provided for by law, also extend to accessories or instigators. However, this is regularly subject to additional requirements and is not automatically guaranteed.
Civil and Administrative Law Implications
The declaration of immunity from prosecution generally refers exclusively to criminal liability. Any civil liability, e.g., for damages, remains unaffected. Similarly, administrative consequences may be imposed.
Limits and Criticism of the Declaration of Immunity from Prosecution
Systematic Criticism
Declarations of immunity from prosecution are particularly controversial with regard to equal treatment and the protection of legal interests. Critics argue that the option for subsequent immunity from prosecution creates an incentive to break the law first and only exonerate oneself by disclosure afterward.
Restriction to Strictly Limited Exceptional Cases
German law allows a declaration of immunity from prosecution only on a statutory basis and only in strictly limited exceptional cases. Without express normative authorization, a declaration of immunity from prosecution is not possible.
Distinctions and Related Terms
Amnesty and Pardon
In contrast to the declaration of immunity from prosecution, which negates the existence of an offense from the outset or excludes prosecution, amnesty and pardon (clemency) affect existing penalties or convictions retrospectively. An amnesty can retroactively remit penalties and proceedings for a defined group of persons or specific offenses; a pardon lifts or mitigates an individual, already imposed, and legally binding penalty.
Waiver of Prosecution and Discontinuation of Proceedings
To be distinguished from the declaration of immunity from prosecution is the discontinuation of investigations due to lack of public interest (§ 153 Code of Criminal Procedure, StPO) or after fulfillment of certain conditions (§ 153a StPO). In these cases, the offense remains, but is not prosecuted further.
International Perspective
Declarations of immunity from prosecution are found in varying forms internationally. Many countries are familiar with similar instruments, such as tax-related voluntary self-disclosure, criminal amnesties, or specific legislative procedures to resolve political upheavals. The structure and conditions for immunity from prosecution, however, depend on the respective legal system.
References and Further Sources
- Fiscal Code (AO), especially §§ 371, 398a
- Code of Criminal Procedure (StPO)
- Criminal Code (StGB)
- Standard works on German criminal law and tax criminal law
- Publications by the Federal Ministry of Finance (BMF) on the tax-related self-disclosure leading to immunity from prosecution
Conclusion: The declaration of immunity from prosecution is an important but restrictively designed instrument within the German legal system. In clear exceptional cases, it offers the possibility to retrospectively exempt criminal acts from prosecution under carefully examined and legally regulated conditions. Its scope is narrowly defined, and its legal significance usually remains limited to specialized areas such as tax law and certain political contexts. Distinguishing it from amnesty, pardon, and procedural discontinuation is crucial to avoid legal uncertainty.
Frequently Asked Questions
Who is entitled to make use of a declaration of immunity from prosecution?
A declaration of immunity from prosecution can generally only be invoked by persons who are recognized as entitled under the respective law. In tax or fiscal law contexts, this usually involves natural and legal persons as well as entities obliged to pay taxes and who could previously be accused of a limited legal offense (e.g., tax evasion or undeclared assets). The relevant laws may also specify in detail whether heirs, asset managers, or voluntary representatives may submit such a declaration, or whether certain professional groups (such as public officials, tax advisors, or auditors) are excluded from its application. Entitlement may also depend on residency, habitual residence, nationality, or the existence of a domestic tax obligation. The respective legal basis must always be observed, as it conclusively defines the prerequisites for entitlement.
What are the legal consequences of a valid declaration of immunity from prosecution?
With a valid declaration of immunity from prosecution, and provided all statutory requirements are strictly met, the applicant is assured that they will not be prosecuted for the facts disclosed in the declaration. This means that for the offenses in question—often tax or financial offenses—prosecution, imposition of penalties, and the initiation and continuation of investigation or criminal proceedings are excluded. Generally, the confiscation of criminal proceeds, incidental consequences, or the imposition of fines in connection with the disclosed conduct are also excluded. However, civil claims or additional tax assessments are generally not covered by the declaration; that is, the material claims of the state or third parties for repayment or back payment generally remain. The declaration also applies only to the facts disclosed therein—later or undisclosed violations may still be prosecuted.
Are there deadlines or specific points in time for submitting a declaration of immunity from prosecution?
The permissibility and effectiveness of a declaration of immunity from prosecution are regularly subject to certain deadlines. Decisively, the declaration is generally only effective if submitted before the offense concerned has been discovered from a legal perspective, or at least before criminal proceedings have been initiated or a notice of audit has been served. The respective laws define the so-called “time of discovery” with varying strictness; often, the knowledge of tax authorities or prosecuting authorities is decisive. In some cases, the initiation of criminal proceedings, discovery during a tax audit, or actual establishment of the offense by public bodies may be significant. If the declaration is submitted after such deadlines, it is no longer effective and does not preclude prosecution.
What formal requirements must be observed for a declaration of immunity from prosecution?
The declaration of immunity from prosecution is subject to strict formal requirements. As a rule, it must be made in writing, personally signed, and submitted either personally or by an authorized representative—often with a power of attorney attached. All relevant facts must be fully and correctly disclosed. This particularly concerns the exact designation of the types of taxes, the periods disclosed, amounts, assets, and their sources. Omissions, incompleteness, or gross errors in describing the facts—even if due to negligence—can render the declaration invalid, thus forfeiting protection from prosecution. Accompanying documents, such as copies of bank statements, contracts, or proof of ownership, are regularly to be attached if they assist in clarification.
Can a declaration of immunity from prosecution be subsequently corrected or supplemented?
A subsequent correction or supplementation of an already submitted declaration of immunity from prosecution is in principle possible, provided it has not yet been finally decided upon or the immunity has not yet been formally granted. The correction must be made at the latest when the authorities point out any incompleteness or request further clarification. In many jurisdictions, any correction or supplementation must likewise meet all formal requirements and be complete. If the supplementation is provided too late—that is, only after the authorities have become aware of flaws in the original declaration or criminal proceedings have already commenced—immunity may be lost in whole or in part.
Are there exceptions or restrictions where a declaration of immunity from prosecution is excluded?
Yes, statutory provisions typically exclude the possibility of a declaration of immunity from prosecution in certain cases from the outset. These cases include, among others, particularly serious offenses, tax evasion as part of a gang or on a commercial basis, certain economic offenses, corruption offenses, or cases involving particularly high amounts of damage. Immunity may also be excluded if investigations have already begun or a search is in progress. It is essential to review the specific statutory grounds for exclusion, as these can be very different and are also subject to ongoing legal amendments.
What duties of cooperation does the applicant have in proceedings concerning a declaration of immunity from prosecution?
The applicant is obliged to participate fully and actively in clarifying the facts. This includes, in particular, the complete disclosure and documentation of all facts to be declared, the provision of all relevant documents, and the truthful answering of further questions posed by the authorities. The authorities are entitled to request additional information, statements, or evidence. If the applicant fails to meet their cooperation obligations, does so late, or inadequately, this may result in the declaration being invalid or have mitigating effects on sentencing. In cases of doubt, the authorities regularly decide to the detriment of the applicant, so careful and complete fulfillment of cooperation duties is essential.
