Concept and significance of failure to report criminal offenses
Die Failure to report criminal offenses constitutes a specific criminal offense under German criminal law, regulated in Section 138 of the Criminal Code (StGB). This refers to the punishable omission to bring a planned or already committed offense to the attention of the competent authorities, despite a legal obligation to do so. The main aim of this provision is to protect particularly important legal interests by promoting prosecution and the prevention of serious crime.
Historical development
The obligation to report certain offenses has its historical roots in the public interest in prosecuting serious crimes. Similar regulations were already present in the Prussian General Law of 1794 and the Criminal Code for the German Reich of 1871. The current form of Section 138 StGB is based on several reforms, including adjustments to the catalog of offenses, clarifying judgments, and legislative clarifications.
Legal foundations
Text of Section 138 StGB
Section 138 StGB stipulates:
“Anyone who learns of the preparation or commission of certain, particularly serious offenses specified by law and fails to report it in time to the competent authority shall be punished by imprisonment of up to five years or by a fine.”
The legal text thus distinguishes two scenarios:
- Failure to report a planned or already committed act,
- The obligation to report to a competent authority.
Protected legal interests and purpose of the norm
This provision primarily serves to protect the legal interests listed in Section 138 StGB (e.g., life, physical integrity, public safety) and, thereby, the public at large. It ensures that authorities become aware of impending serious crimes and can intervene early (prevention), but also that already committed crimes can be uncovered (repression).
Constituent elements of the offense
Catalog offense
The duty to report only applies to certain, exhaustively listed serious offenses specified by law, the so-called catalog offenses. These include, in particular:
- Preparation of a war of aggression (Section 80 StGB)
- High treason (Sections 81 ff. StGB)
- Murder and manslaughter (Sections 211, 212 StGB)
- Robbery and extortion (Sections 249, 253 StGB)
- and other serious offenses as listed in Section 138 StGB
Not all offenses are therefore subject to the reporting obligation.
Circle of offenders
The provision addresses all individuals who credibly become aware of the preparation or commission of one of these offenses. It does not matter whether the information was obtained through one’s own observation, reports by third parties, or other sources. No special standing, such as witness or participant, is required. However, participants (instigators, accomplices, or co-perpetrators) are exempt from liability under Section 138 StGB, as different liabilities already apply to these persons.
Point in time of gaining knowledge
Liability requires that knowledge of the crime is obtained in time so that its completion or continuation can still be prevented or prosecuted through reporting.
Reporting action
The duty to report is fulfilled when the competent authority is informed in time about the impending or completed offense. The competent bodies are, in principle, the police or the public prosecutor’s office. The report must contain information that enables effective prosecution; a mere “shot in the dark” report is not sufficient.
Timeliness and adequacy of the report
Liability ceases if the person making the report takes all reasonable actions in good time to inform the authorities so that the event can be prevented or clarified.
Exemption from liability
Justification and excuse grounds
Liability may be waived in individual cases, in particular,
- if the perpetrator omits the report in order to protect a close person (e.g., spouse, relatives), as far as compatible with Section 138 (4) StGB,
- if sufficient measures have already been taken to prevent or detect the offense,
- if the perpetrator reports at a later time (so-called active repentance, see Section 138 (6) StGB).
Distinction from other offenses by omission
Failure to report offenses must be distinguished from other omission offenses, such as failing to render assistance (Section 323c StGB). While in the latter, omission in an acute situation is already punishable, Section 138 StGB relates to the special duty to report certain particularly serious offenses.
Prosecution and sanctions
Violation of the duty to report may result in imprisonment of up to five years or a fine. The severity of the punishment, as usual, depends on the gravity of the guilt and the specific circumstances (e.g., the extent of withheld information, risk situation, personal circumstances of the perpetrator). Less serious cases may be punished more leniently at the judge’s discretion.
Practical relevance, statistics, and criticism
Application in practice
Section 138 StGB is applied comparatively rarely according to statistical records. This is due, on the one hand, to its restriction to particularly serious offenses, and on the other hand, to the narrow requirements and the evidentiary situation in individual cases.
Criticism and reform considerations
In professional circles, this provision is at times assessed critically, as it serves as a subsidiary criminal offense. Critics point to ambiguities in determining the “timely report” and the expectation that laypersons can sufficiently identify catalog offenses. Reform efforts therefore aim both at clarification and at either expansion or limitation of the reporting obligations.
International context
Comparable provisions on failure to report serious offenses exist in other legal systems, such as Austrian or Swiss law, each with different catalogs of notifiable offenses. At the European level, there is no uniform regulation, but numerous guidelines on victim protection and crime prevention, which suggest or expressly provide for similar reporting obligations.
Literature and further information
For a more in-depth examination of the topic of failure to report criminal offenses, it is recommended to consult standard works on the Criminal Code, commentary literature, as well as current decisions of the Federal Court of Justice and relevant professional journals.
See also:
- Criminal Code (StGB)
- Offense by omission
- Duty to report
- Code of Criminal Procedure (StPO)
Frequently asked questions
Who is required under German law to report criminal offenses?
Under German law, there is no general obligation for everyone to report a criminal offense. However, Section 138 Criminal Code (StGB) provides for an exception: Anyone who reliably becomes aware of certain serious offenses, the so-called “catalog offenses” (including murder, manslaughter, robbery, and severe arson), and reports them in time or otherwise prevents the crime, remains unpunished. However, if one fails to do so in violation of duty, one becomes liable to prosecution for failure to report planned offenses. It should be noted that this duty does not cover every completed offense, but expressly applies only to knowledge of the impending commission of particularly serious offenses.
When is an omitted report punishable?
Liability for failure to report can only be assumed under Section 138 StGB if someone (a) reliably learns of the planning of one of the serious offenses listed in the law, (b) it is possible and reasonable for them to prevent the offense by reporting to the competent authority or by other means, and (c) they deliberately omit to do so. There is no liability if there are serious doubts as to the truth of the information about the offense, or if the offense has already been completed and can no longer be prevented. The time of gaining knowledge, one’s own ability to exert influence, and any existing exceptions (such as witness privileges) must be examined on a case-by-case basis.
What exceptions to the duty to report exist?
There are numerous exceptions to the duty to report under Section 138 StGB. In particular, there is no duty to report if the potential reporter is professionally obliged to confidentiality protected by criminal law, for example, as Rechtsanwalt, doctor, or pastor. Those who would expose themselves or close relatives (such as a spouse or children) to prosecution by reporting are always exempt from the reporting obligation under Section 139 StGB. Furthermore, there is no duty to report if the offense has already been averted or if the information is too vague and not concrete enough to substantiate a specific report.
What legal consequences does failure to report an offense have?
Failure to report planned serious offenses under Section 138 StGB is punishable by imprisonment of up to five years or a fine. However, a prerequisite is that the perpetrator was certain about the impending offense and could have prevented it. The actual consequences depend on the specific circumstances, with courts in particular examining whether the offense could indeed have been prevented and to what extent the person concerned could reasonably be expected to take active steps.
Is there an obligation to report even after a crime has been completed?
The obligation under Section 138 StGB applies exclusively to impending offenses. If a crime has already been committed and can no longer be prevented, there is, under German law, no general statutory obligation to file a report outside specific professional groups (such as civil servants within the scope of their official duties). An exception may apply in special constellations, for example, where criminal law duties exist in the public service or specific reporting obligations in other legal areas (e.g., tax offenses under the Fiscal Code in certain cases).
How is knowledge of a planned offense proven?
In the context of an investigation, the public prosecutor must prove that the accused reliably knew of the impending crime and that reporting was in fact possible and reasonable. This is demonstrated primarily by witness statements, communication data, and the context in which the information was obtained. A mere rumor or vague suspicion is not sufficient, legally, to meet the requirements of failure to report under Section 138 StGB. The burden of proof generally lies with the public prosecutor’s office.
Can companies or their employees also be held liable for failure to report?
In principle, Section 138 StGB addresses natural persons, i.e., individuals. Companies as legal entities are not directly criminally liable; however, senior employees, managing directors, or other decision-makers can be held responsible if, as natural persons, they meet the requirements of Section 138 StGB. In addition, companies may have civil or administrative obligations (e.g., reporting corruption cases under compliance regulations), the breach of which may also have legal consequences.
