Definition and significance of the duty to report in criminal law
Die Duty to report in criminal law refers to the statutory obligation of certain persons to report the suspicion of a criminal offense to the competent law enforcement authorities, in particular the police or public prosecutor’s office. This legal obligation differs significantly from a so-called voluntary report, which any citizen can make at their discretion. The duty to report under criminal law exists exclusively in cases regulated by law and is particularly codified in the German legal system by Section 138 of the Criminal Code (StGB).
Legal basis of the duty to report
Statutory provision (Section 138 StGB)
The central provision for the duty to report in German criminal law is Section 138 StGB – Failure to report planned criminal offenses. According to this section, a person is liable to prosecution if they obtain reliable knowledge of the planning of certain serious criminal offenses (e.g. murder, manslaughter, robbery, high treason) and do not immediately notify the competent authority of this circumstance, provided the offense can still be prevented or the prosecution is still possible.
Elements of the offense
- Having knowledge of a planned and particularly serious crime: The provision only covers the catalog offenses conclusively listed in Section 138 (1) StGB.
- Immediate report: The notification must be made “without undue delay,” i.e. without culpable hesitation.
- Possibility of prevention: The duty to report exists only as long as the offense can still be averted or its consequences prevented.
Extended reporting obligations under special laws
In addition to Section 138 StGB, reporting obligations are also found in special legal provisions, such as:
- Section 14 (2) WaffG: Duty to report security-relevant facts in connection with weapons.
- Narcotics Act (BtMG): Here, in certain cases, there are notification obligations to authorities.
Dogmatic classification of the duty to report
The duty to report is among the so-called true omission offenses in German criminal law, meaning the law requires active conduct and sanctions the failure to perform the required act. The duty to report thus stands at the intersection of confidentiality obligations, protective relationships, and the state’s interest in prosecution.
Relation to confidentiality obligations
Certain professional groups, such as physicians or clergy, are subject to statutory confidentiality obligations. Section 139 StGB provides exceptions to the duty to report for holders of professional secrets and significantly limits their obligation to disclose planned crimes in order to protect the relationship of trust.
Scope and limitations of the duty to report
Crimes subject to the duty to report
Only the particularly serious criminal offenses listed in Section 138 (1) StGB are subject to the duty to report. These include, among others:
- Preparation of a war of aggression
- High treason
- Murder and manslaughter
- Robberies
- certain sexual offenses
- Causing an explosion with explosives
For other, non-catalogued criminal offenses, there is no statutory reporting obligation.
Perceptibility and reasonableness
The obligation to report presupposes that the person has reliable knowledge of the planned criminal offense and that a reasonable person, taking all circumstances into account, would expect the commission of the act to be serious.
The duty to report does not apply if
- the perpetrator has already taken action to prevent the crime,
- the person is unable to make a report due to their own fault,
- a special duty of protection exists, such as towards family members (Section 138 (3) StGB).
Legal consequences and sanctions for violation of the duty to report
Criminal liability under Section 138 StGB
A violation of the duty to report can result in a prison sentence of up to five years or a fine. The sanction aims to prevent serious threats to state and public security.
Elimination of criminal liability
Criminal liability is excluded if the report is made “in good time” or if there are legitimate reasons for refraining (e.g. family ties, professional confidentiality).
Duty to report in the international context
Many legal systems have their own regulations on the duty to report, such as in Austria by Section 94 StGB or in Switzerland by Article 321 StGB. The specific details and the catalog of covered offenses vary, but the preventive protective purpose against particularly serious crimes is common to all.
Distinction: Voluntary report and obstruction of justice
Voluntary report
In contrast to the duty to report, any person is generally free to report a criminal offense without any legal obligation.
Obstruction of justice
The failure to report criminal offenses already committed, which are not listed in Section 138 StGB, is fundamentally not punishable, but can be punished as Obstruction of justice (Section 258 StGB) if active measures are taken to prevent the prosecution of an offender.
Significance and purpose of the duty to report under criminal law
The criminal duty to report serves to protect particularly important legal interests, the prevention of the most serious crime, and the early prevention of significant risks to the public and the state. It represents a necessary corrective between individual protective interests (e.g. confidentiality) and public security interests.
Literature
- Criminal Code with explanations on Section 138 StGB
- Tröndle/Fischer: Commentary on the StGB
- Küper, H.: The obligations to report and disclose in criminal law, JuS 1987, p. 952 ff.
See also
This article provides a comprehensive and detailed presentation of the duty to report in criminal law, with particular regard to its legal foundations, exceptions, limitations, and systematic structure under German law, as well as its significance in an international context.
Frequently asked questions
When does a duty to report exist under criminal law and for which offenses does it apply?
The duty to report in criminal law is regulated in Section 138 of the Criminal Code (StGB). It applies when someone becomes aware of the planning or execution of certain particularly serious criminal offenses and fails to timely notify the competent authority. The obligation applies in particular to the offenses listed exhaustively in Section 138 StGB, such as murder, manslaughter, genocide, extortionate kidnapping, hostage-taking, robberies, certain offenses endangering the state, as well as terrorist offenses. The duty to report generally refers to the preparation, not the completed offenses, except in some specific cases where knowledge of crimes already committed may also trigger the duty if it could prevent further commission or continuation of the offense. The precise extent of the duty to report results from the detailed enumeration in Section 138 StGB.
Who is excluded from the duty to report according to Section 138 StGB?
There are statutory exceptions to the duty to report under Section 138 StGB. In particular, persons are not obliged to make a report if they were themselves involved in the planned or committed offense or could not prevent the offense without exposing themselves or a close relative to the risk of criminal prosecution (see Section 138 (2) StGB). Certain holders of professional secrets, in particular lawyers, defense counsels, clergy, and in some cases doctors or psychotherapists, can also be released from the duty to report by their confidentiality obligation if they learn of the offense in the course of their profession. However, complex considerations apply in this context, for example regarding the duty to disclose in the event of a conflict.
What are the legal consequences of violating the duty to report?
Anyone who, contrary to Section 138 StGB, fails to report the planning or execution of a reportable crime in a timely manner becomes liable to prosecution and may face imprisonment for up to five years or a fine. This provision constitutes an independent protective statute intended to ensure that particularly serious offenses do not go undetected or continue to be perpetrated. Criminal liability requires that the person under the duty to report has actual knowledge, not merely vague suspicions, regarding the planned or ongoing crime. At the same time, the penalty may be reduced or omitted entirely if the person has contributed in good time and successfully to the prevention of the offense (Section 138 (4) StGB).
How must a report be filed in the context of the duty to report?
A report under Section 138 StGB must be made without undue delay, meaning without culpable hesitation. It should be submitted to a competent authority such as the police or the public prosecutor’s office. The notification must be sufficiently specific and precise so that the authority can recognize the offense and, if necessary, its potential danger and take appropriate action. An informal notification is sufficient; neither an application nor a formal criminal complaint is necessary. The decisive factor is solely that the transmission of the information is suitable for preventing the commission of the crime.
Does the duty to report differ from the general duty to testify?
The duty to report (Section 138 StGB) is fundamentally different from the general duty to testify. While the duty to testify obliges a person to give evidence in criminal proceedings when summoned, the duty to report requires proactive notification to authorities of an impending or ongoing particularly serious crime—before the offense or proceedings have begun—in order to prevent it. The duty to report exists independently of any initiated investigation and is primarily aimed at prevention and averting danger, while the duty to testify supports the clarification of crimes that have already occurred.
Is there a duty to report offenses that have already been committed?
The duty to report under Section 138 StGB generally relates to knowledge of the planning or execution of planned, not yet completed, offenses. There is basically no obligation to report offenses that have already been completed unless a further serious offense could be prevented or repetition avoided by reporting (e.g., serial or continuing offenses). In most cases, the duty to report already committed crimes is therefore excluded, unless the law expressly provides for an exception.
What is the significance of the subjective component (knowledge and intent) regarding the duty to report?
Criminal liability for failure to report under Section 138 StGB requires that the offender has certain knowledge that a reportable offense is being prepared or committed. Mere suspicion or conjecture is not sufficient; the person subject to the duty must be seriously convinced of the offense. It is also relevant whether reporting is reasonable for the obligated person—in other words, they must be able to make a report and must not be prevented from doing so by legal barriers (e.g., rights to refuse testimony or the privilege against self-incrimination). Therefore, the subjective conviction and assessment of individual circumstances play a central role in evaluating criminal liability.
