Feigning a criminal offense
Feigning a criminal offense is a criminal offense under German criminal law that penalizes the conscious and intentional creation of the appearance of a crime that was not actually committed. The purpose of the regulation is to protect the administration of justice from unnecessary expenditure and misleading of state prosecution authorities. The offense is set out in Section 145d of the German Criminal Code (StGB).
Legal basis and statutory regulation
Wording of Section 145d StGB
Section 145d StGB – Feigning a Criminal Offense – currently reads as follows:
“(1) Whoever, contrary to better knowledge, feigns to an authority or a body responsible for receiving complaints,
1. that a wrongful act has been committed, or
2. that a specific person has committed a wrongful act,
shall be punished with imprisonment of up to three years or with a fine.”
Protected legal interest
The primary protected legal interest of Section 145d StGB is the functioning of criminal justice. The provision seeks to prevent police, public prosecutors, and courts from being hampered by fabricated complaints and false statements in their work, and to avoid the waste of resources. Secondarily, the provision also protects individuals from unjustified criminal persecutions.
Elements of the offense
Actus reus (criminal act)
The offense covers various actions:
- Feigning a wrongful act: A prosecutable wrongful act, in particular a criminal offense, is fabricated, i.e., presented as if it had been committed, even though this is not true.
- Feigning perpetration by a specific person: It is alleged or suggested that a specific person has committed a criminal act, even though this is not the case.
These acts must be directed toward an authority or a body responsible for receiving complaints. This particularly includes police, public prosecutors, and courts.
Objective elements of the offense
Essential elements are:
- Addressee: The deception must take place toward a German authority or a body responsible for receiving criminal complaints. Informal communication beyond this scope, such as with private individuals, is not relevant to the offense.
- Feigning: The impression must be given that an offense was actually not committed or that a specific, actually uninvolved person committed it.
- Relevant act: What matters is the feigning of wrongful acts, primarily criminal offenses, i.e., actions which are punishable and can at least give rise to an initial suspicion.
Subjective elements of the offense
The perpetrator must act contrary to better knowledge, meaning that they know the statements made are untrue and accept this knowingly. Negligently reporting false facts is not sufficient; what is required is always an intentional, knowingly false statement.
Distinction from other offenses
False accusation (Section 164 StGB)
The criminal offense of false accusation under Section 164 StGB differs in that another person is accused of a misdemeanor or felony to initiate official proceedings or other official actions against that person. The focus here is on initiating sanctions against uninvolved parties, whereas Section 145d StGB primarily protects the application of the law.
False unsworn testimony and perjury (Sections 153, 154 StGB)
Feigning a criminal offense must be distinguished from giving false witness or perjury, as the latter relate to unsworn or sworn statements before a court, whereas Section 145d StGB already applies at the stage of merely filing a complaint.
Feigning facts to other authorities
Not every false statement to authorities falls under Section 145d StGB. The provision is tailored to the feigning of criminal acts and is distinct from general offenses such as fraud (Section 263 StGB) or forgery (Section 267 StGB).
Penalties and legal consequences
Range of penalties
The penalty for feigning a criminal offense under Section 145d StGB is imprisonment of up to three years or a fine.
Procedural consequences
Feigning a criminal offense not only justifies the prosecution of the perpetrator, but can also establish civil claims for compensation by the wrongfully accused person, such as claims for damages due to disadvantages suffered as a result of the false report.
Existence of public interest
Prosecution is generally carried out in the public interest and does not require an application, as it is an official offense (Offizialdelikt).
Practical examples and application cases
Example 1: Feigning theft
A policyholder reports the theft of a bicycle to the police in order to receive benefits from their insurance. However, the theft never took place.
Example 2: False accusation of a person
A person claims to the police that their neighbor stole a car, even though this is untrue. The neighbor is wrongly suspected.
Example 3: False bomb threat without naming an offender
An unknown individual calls the police and reports that an explosive device has been placed in a shopping center, even though no actual explosive device exists.
Further legal aspects
Attempt
An attempt to feign a criminal offense is not punishable under German law, as it is a so-called misdemeanor (Vergehen) and the attempt is only punishable in exceptional cases expressly stated by law, which does not apply to Section 145d StGB.
Perpetration and participation
The perpetrator can be any natural person capable of understanding and acting. Joint perpetration and incitement are possible according to the general principles of criminal law.
Immunity upon withdrawal
Simply withdrawing the misleading report does not automatically lead to immunity from punishment. It may be considered as a mitigating factor in sentencing, but does not fundamentally remove criminal liability.
Statistics and practical relevance
Feigning a criminal offense is not an uncommon offense in practice. Especially in cases involving insurance, neighborhood disputes, or asserted victim protection interests, there are frequently circumstances that lead to criminal proceedings under Section 145d StGB.
Literature and further provisions
- Section 145d StGB – Feigning a Criminal Offense
- Section 164 StGB – False Accusation
- Section 153 StGB – False Unsworn Testimony
- Section 263 StGB – Fraud
- Code of Criminal Procedure (StPO)
- BGH, Judgment of 1.6.1994 – 3 StR 171/94
Conclusion
Feigning a criminal offense under Section 145d StGB is a significant criminal provision for the protection of proper law enforcement and the prevention of abusive official burdens. The provision covers in particular the intentional and knowingly false reporting of criminal offenses to authorities. It serves both the protection of public interests in effective law enforcement and the interest of affected individuals in being protected from groundless criminal measures. In practice, the offense appears in diverse situations and is of central importance for a functioning criminal justice system.
Frequently asked questions
What penalties can be expected for feigning a criminal offense under German criminal law?
Feigning a criminal offense is governed by Section 145d of the German Criminal Code (StGB). Anyone who feigns to an authority or an official responsible for receiving complaints, contrary to better knowledge, that a wrongful act has been committed, shall be punished with imprisonment of up to three years or a fine. The same penalty applies to those who falsely accuse someone of such an act or falsely pretend their own involvement or co-perpetration. The sentence is determined by the circumstances of the individual case, especially the scope of the deception and its consequences, such as the extent of the investigations triggered. In serious cases, additional procedural consequences such as covering the investigation costs and further requirements may be imposed.
When does someone become criminally liable for feigning a criminal offense?
Criminal liability requires that the deception is made to an authority or an official responsible for receiving complaints, and that the perpetrator acts knowingly with awareness of the falsehood. Simply making a false statement to private individuals is not sufficient. It is enough if a report is made to the police, prosecutor, or other competent state authority, even if no actual offense has taken place. It is decisive that this can or does trigger official investigations.
Which authorities are relevant in the case of Section 145d StGB?
The wording of the law explicitly refers to authorities or officials responsible for receiving complaints. This includes in particular the police, public prosecutors, courts, and, where applicable, customs and regulatory authorities. Simply feigning a crime to purely private individuals or organizations is not sufficient, unless they are authorized to receive criminal complaints. In cases of doubt, public service employees may also be included if they perform a complaint-receiving function.
What role does the perpetrator’s intent play?
Intent is a mandatory requirement for criminal liability under Section 145d StGB. This means the perpetrator must act contrary to better knowledge, i.e., know that the report is false and that no offense has been committed. Someone who is mistaken or reports a supposed offense in good faith is not criminally liable. Case law therefore demonstrably requires conscious misleading of the authorities.
Are there mitigating or aggravating circumstances?
Depending on the severity of the consequences and the perpetrator’s motives, the court may use the full range of penalties. Lesser investigative effort or a fast withdrawal of the false report can be grounds for mitigation. Aggravating factors include extensive, costly investigations, especially if they tie up significant resources or delay other criminal proceedings. The perpetrator’s motive, for example to denounce others or divert attention from their own crimes, can also affect the sentence.
Can the state reclaim costs incurred as a result of feigning a crime?
Yes, pursuant to Section 465 of the Code of Criminal Procedure (StPO) and supplementary provisions, the state treasury may claim from the perpetrator the costs incurred by the investigations. This includes expenses for police operations, expert reports, forensic evidence, or other measures taken to solve the supposed crime. Reimbursement is sought in a separate cost recovery procedure.
Is feigning a criminal offense subject to a statute of limitations?
Like all criminal offenses, feigning a criminal offense is subject to the statutory limitation period. According to Section 78(3) No. 4 StGB, the limitation period for offenses punishable with a maximum sentence of up to three years is five years. The period begins with the completion of the offense, usually the act of feigning itself.
Is attempted commission of the offense also punishable?
No, only completed crimes are punishable under Section 145d StGB for feigning a criminal offense. Attempt is not specifically punishable. Only after a report is actually made to a competent authority is the offense completed and can be prosecuted.
