Definition and Fundamentals of Grounds for Extinction of Punishment
Grounds for Extinction of Punishment are legal provisions in criminal law by which an already incurred and existing criminal liability is subsequently eliminated. While the prerequisites for criminal liability (such as fulfillment of statutory elements, unlawfulness, and guilt) are to be examined at the time of the offense, grounds for extinction of punishment—also referred to as reasons for the extinction of punishment or circumstances exempting from punishment—affect criminal liability retroactively. As a result, an already incurred criminal liability ceases to exist; its legal consequences (punishment or measure) can therefore no longer arise or persist.
Grounds for extinction of punishment must therefore be distinguished from impediments to prosecution (e.g., lack of criminal complaint, immunity) and mitigating circumstances (e.g., confession).
Types of Grounds for Extinction of Punishment
The grounds for extinction of punishment regulated in the Criminal Code (StGB) and in supplementary laws can generally be divided into those regulated by statute and those developed in case law. They serve as central mechanisms within the system of criminal justice.
1. Amnesty
Amnesty is a state act by which the actions of a particular group of persons or specific offenses are retroactively declared free from punishment. In Germany, an amnesty requires a formal law enacted by parliament. Amnesty can affect both the conviction and the punishment itself and leads to the extinction of criminal liability and its legal consequences for those affected.
2. Pardon
Pardon is an executive act (e.g., by the Federal President or a state head) and, in individual or exceptional cases, involves the lifting, mitigation, or conversion of a legally imposed sanction. It does not affect the substantive guilt but rather individually suspends its enforcement.
3. Statute of Limitations
a) Limitation on Prosecution
The limitation on prosecution is legally regulated in the StGB, especially in §§ 78 et seq. StGB. It provides that, after a certain period, an offense can no longer be prosecuted criminally. This subsequently eliminates criminal liability, but not the act itself. The length of limitation periods depends on the relevant statutory penalty range.
b) Limitation on Enforcement
In some cases, the limitation on enforcement is also classified as a ground for extinction of punishment. It ensures that, after another specified period, a legally imposed sentence can no longer be executed (§§ 79 et seq. StGB).
4. Personal Grounds for Extinction of Punishment
Some statutes contain so-called personal grounds for extinction of punishment, the presence of which retrospectively removes liability for certain persons. Examples:
- Extinction of punishment through active repentance (§ 306e StGB): Anyone who extinguishes a fire in certain arson offenses in time can be exempted from punishment.
- Withdrawal from Attempt (§ 24 StGB): Anyone who voluntarily and successfully withdraws from an attempt will not be punished.
- Perpetration involving relatives (so-called petition privilege, § 258 para. 6 StGB, § 261 para. 9 StGB): In such cases, certain relatives are subsequently released from punishment, for example, in the case of feigned or aided offenses within the family.
5. Active Repentance
Active repentance is provided for in several places in the Criminal Code (e.g., §§ 261 para. 9, 306e, 320, 330b StGB and other provisions). It enables express legal extinction of punishment by lawmakers through subsequent disclosure, restitution of damages, or action before completion of the offense.
6. Other Statutory Grounds for Extinction of Punishment
German law provides for specific, specially regulated grounds for extinction of punishment:
- Voluntary Disclosure in Tax Criminal Law (§ 371 AO): The voluntary disclosure leading to exemption from punishment, under certain circumstances, eliminates criminal liability for tax evasion.
- Disclosure in accordance with § 31 BtMG: Anyone who, in narcotics criminal law, voluntarily comes forward early and contributes to clarification will, in certain cases, not be punished.
Distinction between Grounds for Extinction of Punishment and Other Legal Concepts
Impediments to Prosecution
Grounds for extinction of punishment must be distinguished from impediments to prosecution, which prevent prosecution from the outset but do not affect substantive liability (e.g., immunity, lack of criminal complaint).
Significance in Criminal Proceedings
In criminal proceedings, grounds for extinction of punishment—if they exist after liability has arisen—must be considered at any time (“principle of official investigation”). They can lead to extinction of punishment at the beginning, during the proceedings, or even after a judgment has become final.
The Role in Substantive Criminal Law
Grounds for extinction of punishment have a direct influence on the verdict. They result in no punishment or no further punishment being imposed, or in an already imposed punishment being lifted.
International References and Comparative Perspective
Comparable regulations also exist in international criminal law and different legal systems. Examples include the statute of limitations, which is regulated in a similar way in most countries, or voluntary disclosure exempting from punishment in other legal systems.
Practical Relevance and Importance
Grounds for extinction of punishment serve legal certainty and reflect societal, constitutional, and penal policy considerations. They affect both the systematics and the humanity of criminal law and are intended to ensure that, under certain circumstances, punishment can be waived—for example, in the case of active repentance or with the passage of time.
Literature and Further Information
- Criminal Code (StGB), §§ 24, 78 et seq., 306e, 258 para. 6
- Leipzig Commentary on the Criminal Code
- Schönke/Schröder, Criminal Code, Commentary
- Roxin, Criminal Law General Part
Note: This article provides a general overview of the concept of grounds for extinction of punishment. Where individual cases are concerned, the specific legal assessment may differ and should be examined in each case on the basis of the applicable provisions.
Frequently Asked Questions
Who decides whether grounds for extinction of punishment exist?
The decision regarding the existence of grounds for extinction of punishment is generally made by the competent criminal court. In the investigation phase, the public prosecutor’s office may terminate the proceedings if there are obvious grounds for extinction of punishment. At a later stage, particularly after charges have been brought, it is up to the court—as master of the proceedings—to examine all relevant questions of fact and law, which explicitly includes potential grounds for extinction of punishment. The court examines ex officio whether circumstances have arisen that could lead to extinction of criminal liability, such as limitation, effective withdrawal from an attempt, or active repentance according to §§ 24, 31 StGB or amnesty. The accused may himself assert grounds for extinction of punishment, but is not obliged to do so, as these must be considered by the court in the context of substantive case management anyway.
Can a ground for extinction of punishment be considered during an appeal?
Yes, grounds for extinction of punishment must also be considered in appellate proceedings. The Higher Regional Court or the Federal Court of Justice, as appellate instances, have to examine ex officio, regardless of any complaints raised, whether a ground for extinction of punishment had arisen at the time of their decision—for example, limitation of prosecution during the duration of proceedings. Even after a judgment has been issued, new grounds for extinction of punishment such as pardon or amnesty may apply, resulting in an ongoing punishment no longer being enforced. In criminal proceedings, the court may also, upon application or ex officio, issue orders for termination due to a ground for extinction of punishment.
What role does limitation play as a ground for extinction of punishment?
Limitation is a classic example of an objective ground for extinction of punishment. It means that, after expiry of certain statutory periods, criminal liability for an act lapses, even if its substantive elements continue to be fulfilled. A distinction is made between limitation on prosecution (§§ 78 et seq. StGB), after expiry of which prosecution is inadmissible, and limitation on enforcement (§§ 79 et seq. StGB), after the occurrence of which an imposed sentence can no longer be executed. The exact periods depend on the penalty range of the respective act and may under certain conditions be suspended or reset, for example, due to specific procedural actions. Limitation must be observed at any stage, both during the investigation and in later process stages.
What is the impact of an amnesty on final judgments?
Amnesties are acts of sovereign clemency and operate as a special ground for extinction of punishment with ex tunc effect. Through an amnesty law, specified offenses are retroactively declared punishable, so that criminal liability is annulled by force of law, regardless of whether a judgment is already final. Sentences already executed are usually not reversed, but pending proceedings are discontinued and outstanding sentences are no longer enforced. The procedure is governed by the relevant provisions of the respective amnesty law, which courts and prosecutors must apply without exception.
What is the significance of active repentance as a ground for extinction of punishment?
Active repentance is, in certain statutory provisions, expressly stipulated as a personal ground for extinction of punishment, for example, in offenses such as arson (§ 306e StGB) or certain state security offenses. It requires that, after completion but before the onset of serious harm, the perpetrator voluntarily contributes to averting the damage, for example by extinguishing a fire or preventing further consequences. Repentance must take effect in time and already be effective at the relevant moment. If the requirements are met, the law fully annuls the perpetrator’s liability, unless specific exceptions exist. The precise structure and possible participation of third parties are set out in the relevant provision.
How is withdrawal from an attempt legally treated as a ground for extinction of punishment?
According to § 24 StGB, an offender can, under certain conditions, exempt himself from punishment by withdrawing from an attempt. This applies when the perpetrator voluntarily gives up further execution or prevents the completion of the offense. If withdrawal is effective, criminal liability for the attempt lapses, even if preparatory or execution acts objectively took place. What matters is voluntary abandonment of the act and prevention of its result. The ground for extinction of punishment by withdrawal must be examined ex officio, so no application by the perpetrator is necessary.
Can pardons also operate as a ground for extinction of punishment?
Pardons represent an extrajudicial, individual ground for extinction of punishment. They are usually based on a decision by the head of state or another competent authority and, in individual cases, result in remission, conversion, or lifting of a sentence. A pardon can be granted for both final and non-final judgments and leads to suspension of further enforcement or the sentence being considered settled. However, the underlying criminal liability is not annulled, in contrast to an amnesty; rather, it is a case-by-case pardon.
Are there differences in the application of grounds for extinction of punishment between adult and juvenile criminal law?
In juvenile criminal law (§§ 1 et seq. JGG), the same substantive grounds for extinction of punishment generally apply as in adult criminal law (StGB), in particular limitation, amnesty, active repentance, and withdrawal. However, depending on the individual case and specifics of juvenile proceedings (e.g., educational measures, disciplinary means), different procedural consequences may occur. In addition, the court in juvenile cases may more frequently forego imposing a formal sentence from the outset, so the significance of grounds for extinction of punishment can have different effects in practice. Special provisions such as the offer of offender-victim mediation may also lead to termination of further prosecution.
