Failure to report a criminal offense
Definition and General Significance
Das Failure to report a criminal offense refers to the failure to report a criminal offense to the competent authorities, despite a legal obligation to do so. In many legal systems, this conduct constitutes a criminal offense under certain conditions. The legislator views the failure to report certain serious offenses as a threat to public interests and, by enacting corresponding regulations, aims to protect the general public and ensure effective prosecution.
Statutory Provisions in Germany
Relevant Regulation: Section 138 of the German Criminal Code (StGB)
The failure to report a criminal offense is regulated in Germany primarily in Section 138 of the Criminal Code (StGB) which is also referred to as “Failure to report planned offenses.” According to the law, anyone who fails to report certain serious crimes to the authorities, despite learning of their planning or execution and it still being possible to prevent the offense, is liable to prosecution.
Wording of Section 138 StGB:
Anyone who credibly obtains knowledge of the preparation or execution of certain serious crimes and fails to report this in due time to the competent authority or to the person threatened, although this would be necessary to prevent or continue the offense, is liable to prosecution.
Protected Legal Interests
The criminal provision protects the legal interest of public safety as well as the interest in effective prosecution and prevention of serious crimes. In a broader sense, it is intended to maintain legal peace and to avoid obstruction of justice by third parties.
Notification Obligations and Statutory Elements
Offenses subject to notification
The criminal offenses that must be reported pursuant to Section 138 StGB are conclusively listed in the law and include, for example:
- Preparation of a war of aggression (Section 80 StGB (old version)/Section 80a StGB),
- High treason (Sections 81-83 StGB),
- Treason (Sections 94-98a StGB),
- Counterfeiting of money and securities (Sections 146-151 StGB),
- Murder (Section 211 StGB),
- Manslaughter (Section 212 StGB),
- Robbery and extortion under certain circumstances (Sections 249-255 StGB),
- and others.
The provision thus extends to a variety of particularly dangerous offenses.
Category of offenders
Anyone, regardless of their relationship to the perpetrator or victim, is liable to prosecution if they specifically become aware of the planned or ongoing criminal offense and fail to report it. However, there are exceptions to the notification requirement for certain professional groups such as clergy and certain professional confidentiality holders.
Objective Requirements
In order for failure to report a crime to be punishable, the following conditions must be met:
- The knowledge of the preparation or execution of one of the offenses listed in the catalog of Section 138 StGB.
- The offense has not yet been completed; there is still a possibility for prevention or continuation.
- The report is omitted despite an actual possibility to do so.
Subjective Requirements
The person must have acted intentionally, that is, they were aware of the imminent or ongoing crime and consciously and willfully failed to report it.
Exclusion of criminal liability
Failure to report remains exempt from punishment if reporting was unreasonable for the person concerned or if they had already prevented the crime in another way. If reporting would have posed a danger to the life, limb, or freedom of the person or their relatives, the obligation may also be waived.
Legal Framework and Sanctions
Penalties
Under Section 138 StGB, the legislator imposes a penalty of up to five years’ imprisonment or, alternatively, a fine for failure to report a criminal offense. Criminal liability does not arise, however, if the duty to report did not exist for lawful reasons or timely notification was not possible.
Concurrence with other criminal offenses
Failure to report a criminal offense can coincide with other offenses, especially obstruction of justice (Section 258 StGB). The difference is that Section 258 StGB covers actively impeding prosecution, whereas Section 138 StGB concerns merely the failure to report.
Distinction from the failure to comply with reporting obligations in other areas of law
Distinction from other notification duties
In addition to the criminal law duty to report, there are further notification or reporting obligations in other legal areas, such as administrative offenses or tax law. These differ significantly from the failure to report a crime under Section 138 StGB with regard to scope, addressees, and sanctions.
Constitutional and European law aspects
Failure to report a crime sits at the intersection of public interest and individual fundamental rights, such as the right to refuse testimony or protection against self-incrimination. European law provisions, such as EU directives to combat serious crimes, also influence national legal interpretation and reform efforts.
Practical Relevance and Case Law
Frequency and significance
In practice, the provision of Section 138 StGB is applied relatively rarely and is considered a subsidiary protective measure to penalize third party contributions in particularly egregious offenses.
Court Decisions
Case law regularly deals with questions regarding the reasonableness of reporting, the precise definition of intent, and the evaluation of the perpetrator’s will when the report is omitted. The key factor is always the possibility of preventing or continuing the crime.
International regulations
Comparable provisions also exist outside Germany. The Austrian Criminal Code (Section 286 StGB) and the Swiss Criminal Code (Art. 258 StGB) contain similarly structured norms. The international trend is towards emphasizing the obligation to report particularly serious offenses to protect the public, while at the same time appropriately considering the protection of personal and family interests.
Summary
Das Failure to report a criminal offense constitutes a criminal offense if the legal requirements of Section 138 StGB are met. The provision serves to prevent and prosecute particularly serious crimes, but requires a high standard of proof and subjective intent. The duty to report is characterized by the tension between public interest and individual protection, and presupposes effective prosecution of significant offenses. The legal institution is widespread internationally and is always subject to the balance between state prosecution and the protection of private interests.
Frequently Asked Questions
Is there an obligation to report a criminal offense?
In principle, German law does not impose a general obligation on private individuals to report an observed or suspected criminal offense. Failure to report a crime is—notwithstanding certain exceptions—not punishable in most cases. However, there are exceptions regulated in Section 138 of the Criminal Code (StGB): Anyone who learns of certain serious crimes (e.g., murder, robbery, high treason) beforehand or immediately after their commission and does not promptly notify the competent authority may be liable for failing to report planned offenses. However, this obligation only relates to specific offenses expressly named in Section 138 StGB.
What are the consequences if you fail to report a criminal offense subject to notification under Section 138 StGB?
If someone required to report becomes aware of a notifiable, impending, or completed criminal offense under Section 138 StGB and does not inform the competent authority, this may result in up to five years’ imprisonment or a fine. It should be noted that criminal liability only arises if the omission is intentional and the person is actually able to make the report. Special rules apply, for example, for relatives, who are not required to report if it would incriminate themselves or close relatives (Section 138 (3) StGB).
Is there a reporting obligation for public officials and certain professional groups?
Public officials, civil servants, and especially obligated professional groups (such as tax advisors or doctors) may, under certain circumstances, be required to report crimes. This obligation does not arise solely from criminal law, but often also from service regulations or special legal provisions. Violation of such obligations can result in disciplinary measures and—depending on the nature of the omitted report—criminal consequences, especially in cases of offenses explicitly named in the law or in the case of aiding/abetting by omission.
Could failure to report a crime have civil law consequences?
In some cases, failure to report a crime may have civil law consequences, especially if the omission results in harm to a third party (e.g., if an employer suffers financial loss due to failure to report criminal acts by an employee). In such cases, liability for damages under the principles of tort (Section 823 BGB) or for breach of contractual duties may arise. However, there must be a direct causal link between the omission and the resulting damage, as well as fault.
Are there exceptions for close relatives or persons in special relationships?
Yes, the law provides exceptions to the reporting obligation for close relatives and persons in special relationships of trust. Pursuant to Section 138 (3) StGB, the duty to report does not apply if the perpetrator himself or one of his relatives was involved in the prior offense, or if reporting would pose a danger to themselves or a relative. The purpose of this exception is to protect family and trust relationships, which would otherwise be severely compromised by a reporting obligation.
What if someone does not report a crime but cooperates in the investigation?
Anyone who initially failed to report a crime but cooperates extensively in the investigation and aids clarification may be treated more leniently. The specific consideration is at the discretion of the court and depends on the individual circumstances, such as the importance of the statement and the timing of the cooperation. The original accusation for failure to report under Section 138 StGB may still remain, even if the subsequent conduct has a mitigating effect.
Does the duty to report also apply to juveniles or children?
For minors, it is first examined whether the wrongfulness of failing to report was comprehensible and reasonable for them. For children under 14, the so-called incapacity for guilt applies (Section 19 StGB), and they are therefore not criminally liable. Juveniles between 14 and 17 years of age and young adults up to 21 are subject to the special rules of the Youth Courts Act (JGG), where the degree of insight and maturity is paramount. Criminal liability for failing to report is therefore examined particularly carefully in those under 18.
