Concept and Definition of Mistake of Prohibition
A mistake of prohibition is a concept in German criminal law and refers to a person’s error regarding the legal inadmissibility of their conduct. It exists when a person, at the time of committing an act, does not recognize or does not consider it possible that their behavior is unlawful. The mistake of prohibition thus concerns the level of unlawfulness and must be distinguished from the mistake of fact (an error regarding factual circumstances). The regulations on the mistake of prohibition are found in Section 17 of the German Criminal Code (StGB).
Systematic Classification in Criminal Law
Doctrine of Mistake and Distinction
The doctrine of mistake basically distinguishes between:
- Mistake of Fact (Section 16 StGB): Concerns erroneous ideas about actual circumstances that constitute the statutory elements of an offence.
- Mistake of Prohibition (Section 17 StGB): Concerns erroneous ideas about the legal assessment of one’s own action (lack of or faulty awareness of wrongdoing).
The mistake of prohibition must also be distinguished from the mistake regarding justification:
- Mistake regarding justification: Error about the extent or existence of a ground of justification.
- Mistake of Prohibition: Error regarding the existence of a prohibitive norm or whether the behavior is not allowed.
Objective and Subjective Aspect
The mistake of prohibition assumes that the offender knows the actual course of events (thus acts intentionally), but is mistaken about the unlawfulness of their conduct. Such knowledge or misconception is located on the social–ethical level.
Types of Mistake of Prohibition
A distinction is made between two variants:
Direct Mistake of Prohibition
The offender believes their conduct is permissible because they have an incorrect legal assessment — for example, because they are unaware of a criminal norm or misinterpret it.
Indirect Mistake of Prohibition
Here, the offender mistakenly believes in the existence of a ground of justification, such as a supposed right of self-defence or a situation involving consent, even though no such ground actually exists.
Requirements for a Mistake of Prohibition
Lack of Awareness of Wrongdoing
The offender has no awareness of wrongdoing or considers their conduct legally permissible.
Unavoidability of the Error
According to Section 17 sentence 1 StGB, only the unavoidable mistake of prohibition excuses. The offender must have acted within the reasonable opportunities available to him to avoid the mistake. Thus, personal education, capacity for understanding, and the reasonableness of obtaining legal advice are relevant.
Standard for Unavoidability
The standard is based on the so-called “layman’s standard”: An average person can be expected to know simple prohibitive norms. In case of doubts, the offender must independently inquire about the legal situation. For complex regulations or when abroad, unavoidability may more readily be assumed.
Legal Consequences of the Mistake of Prohibition
Unavoidable Mistake of Prohibition (Section 17 sentence 1 StGB)
If the mistake of prohibition was unavoidable, the offender acts without guilt and is therefore not punishable. The act remains unlawful, but is not punished due to lack of guilt.
Avoidable Mistake of Prohibition (Section 17 sentence 2 StGB)
If the mistake is avoidable, the punishment can be mitigated according to Section 17 sentence 2 StGB. The offender is accused of a breach of due care in dealing with the legal situation, which means at least some degree of guilt is present (negligence with regard to awareness of wrongdoing). The penalty may be reduced according to the rules concerning attempt liability and reduction of guilt.
Relevance for Sentencing
The question of whether a mistake of prohibition was avoidable or unavoidable has an impact on the extent of the punishment or on sentencing (§ 49 para. 1 StGB). In the case of an avoidable mistake, the punishment can be mitigated. Additionally, the actual capacity for guilt may be reduced.
Special Issues in Individual Cases
Ignorance of Criminal Provisions
As a rule, ignorance of the law is no excuse (Latin: “Ignorantia legis non excusat”), but an unavoidable mistake of prohibition may be considered in cases of particularly unclear legal situations or exceptional circumstances.
Mistake Regarding Foreign Legal Provisions
Particularly in cases involving foreign law and international regulations, a mistake of prohibition may be unavoidable if the legal situation is opaque or not accessible to a layperson.
Mistake Concerning Omission
A mistake of prohibition can also occur in cases of omission, for example when a person does not realize that they have a duty to act (guarantor’s obligation).
Examples of Mistakes of Prohibition
- A citizen believes he is in the right and resists an allegedly unlawful arrest.
- A person is convinced that taking discarded items from rubbish does not constitute a criminal offense.
- Someone mistakenly believes that exporting certain goods abroad is not subject to legal restrictions.
Distinction from Other Errors
Mistake of Fact (§ 16 StGB)
Occurs when the offender is mistaken about factual circumstances, such as believing someone else’s property is ownerless.
Mistake Regarding the Factual Requirements of Justification
Concerns an error about the actual prerequisites of a ground of justification (e.g., the offender mistakenly believes he is being attacked, which is actually not the case).
Mistake regarding justification
Concerns an error regarding the existence or extent of a ground of justification (e.g., the offender believes self-defense may be exercised even in the case of trivial matters).
Summary and Significance of the Mistake of Prohibition
The mistake of prohibition is a central element in German criminal law for assessing guilt. It connects the objective unlawfulness of the act with the subjective culpability of the perpetrator. The distinction from related forms of mistake is of key significance in assessing criminal liability in individual cases. The legal consequences range from complete impunity to merely mitigated sentences in the case of an avoidable error. The individual assessment of unavoidability is the essential evaluation standard for courts and criminal prosecution authorities.
Sources:
- Criminal Code (StGB), in particular § 17
- Fischer, Criminal Code, Commentary, § 17
- Schönke/Schröder, Criminal Code, Commentary, § 17
- Lackner/Kühl, Criminal Code, Commentary, § 17
- BGHSt 2, 194; BGHSt 18, 244
This article offers a comprehensive overview of all essential legal aspects of the mistake of prohibition and supports understanding of this complex topic within German criminal law.
Frequently Asked Questions
What requirements does case law impose on the unavoidability of the mistake of prohibition?
Case law requires, for an unavoidable mistake of prohibition, that despite all reasonable efforts under the circumstances of the case, the offender did not gain awareness of wrongdoing. Based on the principle of “ignorantia legis non excusat” (ignorance of the law is no excuse), only those who have thoroughly inquired and made serious efforts to clarify can invoke an unavoidable mistake of prohibition. This includes obtaining information from competent authorities, such as government agencies, specialist lawyers, or experienced third parties. It is also necessary that these inquiries are concrete and specific to the matter in question. Mere reliance on one’s own legal opinion or general ignorance is insufficient. The offender must have exhausted all individual reasonable possibilities; however, educational background, life experience, and the complexity of the legal matter are to be taken into account. Only when, after all these efforts, doubts about unlawfulness still remain, can an unavoidable mistake of prohibition be recognized.
Is seeking legal advice always sufficient to make a mistake of prohibition appear unavoidable?
In principle, seeking qualified legal advice can be strong evidence for an unavoidable mistake of prohibition, but it does not guarantee its recognition in every case. The inquiry must be concrete, comprehensive, and related to the specific matter. Moreover, the offender must fully disclose and accurately present the facts, and seek expert opinion from a genuinely qualified adviser. If the offender only receives unclear or tentative advice or ignores apparent concerns raised by the adviser, the mistake of prohibition may still be considered avoidable. The offender’s own responsibility remains to question contradictory information and, if necessary, seek further clarification. The decisive factor is whether the overall effort can be considered sufficient by both objective and subjective standards.
Will a mistake of prohibition also be recognized if there is knowledge of conflicting legal opinions or legal uncertainty?
If the offender is aware of conflicting legal opinions or a vague legal situation, the standard for unavoidability is particularly high. In such a situation, it is not sufficient to rely on any opinion favorable to one’s own interests. The offender must conduct a careful and critical examination of the different legal opinions. In case of doubt, they must refrain from acting or at least seek further specialized advice and, if necessary, even binding clarification (e.g., through administrative or court proceedings). The recognition of a mistake of prohibition is generally ruled out under such circumstances unless all reasonable efforts to clarify have been demonstrably exhausted and an unavoidable uncertainty remained.
What is the difference between a mistake of fact and a mistake of prohibition with regard to legal consequences?
A mistake of fact, meaning ignorance of a circumstance that is an element of the offense, results under Section 16 StGB in the absence of intent, and thus the offender is not punished — unless there is criminal liability for negligence. The mistake of prohibition, on the other hand, concerns the legal assessment of the offender’s own conduct as permitted or forbidden. If the mistake of prohibition is avoidable (Section 17 sentence 2 StGB), the offender is punished despite the lack of awareness of wrongdoing, possibly with mitigation of punishment. Only an unavoidable mistake of prohibition leads to exoneration from punishment. The requirements for presentation and proof are different: while with a mistake of fact the offender’s actual ideas are paramount, in the case of a mistake of prohibition a comprehensive examination of the perpetrator’s efforts to clarify the legal situation is necessary.
What special requirements apply to business activities or legal entities in relation to a mistake of prohibition?
For entrepreneurs and persons in managerial positions, the requirements for avoiding a mistake of prohibition are increased. They are obliged in the course of their business to inform themselves about applicable rules and any special regulations. Business due diligence requires them, particularly in complex or risky legal matters, to obtain expert advice (e.g., from lawyers, tax advisors) or, if necessary, to establish internal review mechanisms. They also cannot simply invoke ‘organizational confusion’ or delegated responsibilities, but ultimately remain responsible for compliance with relevant regulations. Therefore, for decision-makers in companies, a mistake of prohibition will only be recognized as unavoidable in exceptional cases.
Does the offender have to allege and prove that a mistake of prohibition existed?
While the prosecution generally bears the burden of proving all facts that support criminal liability, it is up to the accused to provide concrete indications of the existence of a mistake of prohibition and its unavoidability because these involve internal personal circumstances to which only the accused can give useful information. If this is done convincingly, the court must then examine the plausibility and reasonableness of the efforts to obtain information as well as the credibility of the mistake. Merely making general assertions or unsubstantiated claims is generally insufficient.
