Non-punishable subsequent act (prior offense)
The non-punishable subsequent act (prior offense) is a legal term from German criminal law that deals with certain behaviors of an offender after the completion of a criminal offense (prior offense), which, despite their closeness to the main act, are themselves no longer or not separately punishable. The term is central for distinguishing actual criminal offenses from subsequent, but non-punishable, actions in connection with a previously committed act. The following comprehensively explains the meaning, legal classification as well as the most important individual cases and issues of differentiation relating to the non-punishable subsequent act.
Term and distinction
Definition
Non-punishable subsequent acts are actions performed after the completion of a criminal offense, without a separate criminal provision or an applicable offense such as obstruction of justice. Non-punishable subsequent acts must therefore be distinguished from punishable subsequent acts (e.g., facilitation pursuant to § 257 StGB, obstruction of justice according to § 258 StGB), as well as from participation or aiding and abetting the main offense.
Historical and doctrinal development
The term arose from the necessity to restrict criminal law to active violations or endangerment of legal rights. The purpose is to prevent criminal law from being extended to preceding or subsequent actions that are factually neutral regarding the offense. Already in classical criminal law doctrine, the distinction between punishable and non-punishable subsequent acts was developed and further refined in the course of criminal law reforms.
Difference to aiding and abetting, participation, and punishable subsequent acts
Distinction from punishable subsequent acts
Punishable subsequent acts are independent offenses that offenders or third parties commit after completion of a crime and for which they can be prosecuted under the Criminal Code. These include, in particular:
- Facilitation (§ 257 StGB): Assistance regarding acquisition, retention, or exploitation of the criminally obtained benefit by a third party.
- Obstruction of justice (§ 258 StGB): Actions aimed at preventing or attempting to prevent prosecution of the offender.
In contrast, certain subsequent actions, such as hiding one’s own weapon, remain non-punishable for the perpetrator.
Distinction from aiding and abetting and joint principals
Aiding and abetting and joint principals relate to participation in the commission of or preparation for the offense itself. The non-punishable subsequent act only begins once the main offense has been completed or finished. The period between attempt, completion, and consummation is decisive here (cf. § 24 (2) StGB – withdrawal from the attempt).
Legal policy background and systematics
The non-punishability of certain subsequent acts is derived essentially from the principle of culpability and the so-called self-benefit privilege. The perpetrator should not be disadvantaged by taking actions after the offense to conceal it or secure the loot for oneself, provided there is no specific criminal offense covering such actions. Criminal law thus excludes an overextension to all post-offense behaviors to maintain proportionality and systematic coherence.
Typical scenarios and examples
Classic cases of non-punishable subsequent acts
The following actions are generally considered non-punishable subsequent acts if no specific criminal provision is violated:
- Exploitation of the loot by the thief themself: If the thief retains, consumes, or sells the stolen item, this by itself does not generally constitute an independent punishable act (distinction from handling stolen goods, § 259 StGB, which only applies to third parties).
- Eliminating one’s own traces: If the perpetrator subsequently tries to eliminate traces of the crime, e.g., by burning clothing or the tool used, this behavior is generally non-punishable.
- Retaking the object of deception: In cases of fraud (§ 263 StGB), the subsequent appropriation of obtained money has likewise often been regarded as a non-punishable subsequent act.
Different assessment in case of third-party involvement
If third parties subsequently realize gains from the offense or eliminate traces, these often constitute independent crimes, particularly facilitation or handling stolen goods (§ 257, § 259 StGB). The privilege applies only to the principal offender, not to outsiders.
Limits of non-punishable subsequent acts
Criminal liability despite being a subsequent act
Not every conduct of the perpetrator after completion of the offense is necessarily non-punishable. As soon as a special protective provision is violated or an independent criminal statute applies, criminal liability exists. Examples include:
- Obstruction of justice on behalf of third parties: If one attempts to prevent prosecution for others, this is punishable (§ 258 StGB).
- False accusation (§ 164 StGB): Anyone who, through their post-offense behavior, accuses another person commits a criminal offense.
- Manipulation of evidence: For example, if witnesses or experts are influenced, there may be liability under §§ 153 ff. StGB (perjury, false testimony).
Involvement of multiple perpetrators
If several persons are involved in an offense, the question arises as to how the non-punishable subsequent act affects joint principals or participants. In principle, the self-benefit privilege also applies here, but the aiding or support of another perpetrator in the post-offense phase is not privileged.
Self-benefit privilege
The term self-benefit privilege describes the principle that the perpetrator cannot criminalize themselves after the main offense, as long as no special provision applies. This is in line with the rule of law principle that no one should be forced to actively participate in their own punishment or place themselves in a worse position than already caused by the main offense.
Non-punishable subsequent act in relation to joint principals, participation, and attempt
Joint principals and non-punishable subsequent acts
In the case of joint principals (§ 25 (2) StGB), the privilege likewise applies only to actions concerning one’s own share in the act after its commission. Assisting co-perpetrators in retaining benefits from the offense may, however, constitute facilitation.
Participation (instigation, aiding and abetting)
Anyone who interferes in the benefit of the offense after completion is generally punishable as an accessory or handler; the privilege of non-punishability does not apply to mere participants.
Attempt stage
The defining criterion between attempted offense and subsequent act lies in what is known as the completion of the act. Only after all acts constituting the offense have ended and the result has occurred does the phase begin in which non-punishable subsequent actions may arise.
Overview of relevant case law and literature
The case law has confirmed and delineated the principle of non-punishable subsequent acts in numerous decisions. Important references:
- BGHSt 3, 40 (Principle decision on the distinction between aiding and subsequent acts)
- BGHSt 13, 59 (On the applicability of the self-benefit privilege)
- Fischer, Criminal Code, Commentary, § 257 marginal 1 ff.
Summary
The non-punishable subsequent act (prior offense) in German criminal law refers to conduct following the completion of an offense which—provided no specific criminal provision applies—is not additionally punishable for the principal offender. This principle protects against overextension of criminal liability and upholds the principles of culpability and self-benefit. Precise distinction from punishable subsequent acts and application in individual cases are essential to ensure clear differentiation of criminal liability. The concept is of fundamental importance for the systematics of (German) criminal law and its practical application.
Frequently asked questions
What types of non-punishable subsequent acts in connection with a prior offense does legal scholarship differentiate?
Legal scholarship distinguishes, with regard to non-punishable subsequent acts following a prior offense, in particular between so-called ‘acts of facilitation’, ‘loot-securing offenses’, and ‘subsequent self-benefits.’ This concerns actions that are performed after completion of a punishable prior offense and whose sole purpose is to secure, enjoy, or protect from seizure the advantage from the prior offense. Under § 257 StGB (facilitation), for example, certain aid to prevent the seizure or inclusion of assets obtained from the prior offense is only conditionally punishable. The central doctrinal distinction is whether independent offenses exist (e.g., handling stolen goods, money laundering), or whether they are merely non-punishable subsequent acts (such as the perpetrator’s simple securing of the loot after the completed act). Whether and when non-punishability applies is mainly a matter for individual assessment and depends on the distinction between possible punishable participation in the prior act, continuing offenses, or new, independent offenses.
Under what circumstances does a subsequent act following a prior offense remain non-punishable?
A non-punishable subsequent act generally exists when the action in question is performed after completion of all legally relevant acts and is solely aimed at improving one’s own position after the prior offense (e.g., hiding the loot by the original offender). According to prevailing opinion, such activities are to be considered as non-punishable subsequent offenses, provided they are exclusively connected with the prior offense and have no new unlawful content. The non-punishability of subsequent acts is, however, excluded if the action fulfills the facts of an independent offense, especially a so-called subsequent act offense such as handling stolen goods (§ 259 StGB), money laundering (§ 261 StGB), or facilitation (§ 257 StGB), and the legislator has explicitly provided for criminal liability—with the exception of self-benefit, which, for example in money laundering and facilitation, follows the principle of self-protection.
What is the difference between a non-punishable subsequent act and a punishable subsequent act?
The distinction between non-punishable and punishable subsequent acts is one of the fundamental doctrinal issues in criminal law and is based on the question of whether the subsequent act creates new injustice, separate from the prior offense. Non-punishable subsequent acts are merely ‘consequences of the act’ or reflex actions within the execution of the offense, such as carrying away or briefly hiding the loot directly after a theft by the perpetrator. Punishable subsequent acts, by contrast, involve a new, independent harmful act that goes beyond the original offense and fulfills a separate criminal offense (e.g., handling stolen goods, when a third party takes possession of the loot). Doctrinally, particular attention is paid to the degree of wrongdoing, the group of offenders, and the legislator’s intent.
What role does the prohibition of self-benefit play in relation to non-punishable subsequent acts?
The criminal law prohibition on self-benefit ensures that persons are not punished, without express legal grounds, for actions performed after a prior offense that are directed solely at their own advantage. In particular, with offenses such as § 257 StGB (facilitation), § 259 StGB (handling stolen goods), and § 261 StGB (money laundering), the so-called ‘sole perpetrator privilege’ is provided, which prevents the original perpetrator from incurring additional criminal liability through subsequent security, use, or enjoyment of the criminal gains. The legislator has justified this to avoid multiple punishments for the same wrongful act and to prevent excessive sanctioning. An exception exists, however, in that third party involvement in such subsequent acts may indeed be subject to punishment.
To what extent can a third party be prosecuted for a subsequent act?
While the original offender may remain non-punishable in certain cases for actions related to follow-up or securing the gains after the offense, third parties can indeed be held criminally liable for their involvement. Facilitation (§ 257 StGB), handling stolen goods (§ 259 StGB), and money laundering (§ 261 StGB) are explicit subsequent act offenses in which third parties, who were neither joint principals nor participants in the original offense, may be prosecuted for independent, qualifying acts of assistance. Liability for such actions presupposes that the third party acts with knowledge of the prior offense and fulfills the requirements of the relevant criminal provision. Case law often requires demonstrable intent regarding the prior offense and its advantage.
How is completion of the prior offense distinguished to determine the start of a subsequent act?
Establishing the so-called ‘material end’ is decisive in distinguishing prior offense from subsequent act. Only upon full completion of conduct and fulfillment of all essential statutory elements does the timeframe for a subsequent act begin. The completion of the act (fulfillment of all statutory elements) must be distinguished from the consummation of the act (conclusion of all significant effects). For example, carrying away the loot immediately after a theft is still considered part of the offense’s execution, while later, targeted securing or disposal of the loot after all danger has subsided constitutes a subsequent act. From that point on, subsequent offenses by third parties or independent subsequent offense charges may come into consideration.
What is the significance of non-punishable subsequent acts regarding sentencing or the formation of aggregate sentences?
Although certain subsequent self-benefit acts are not independently punishable, such conduct may nevertheless be taken into account during sentencing—for example, as an expression of particular criminal energy, unscrupulousness or persistence. The court may view efforts to secure the loot long-term as an aggravating factor. Likewise, subsequent behavior may, under certain circumstances, affect the formation of aggregate sentences, for instance, if multiple offenses are adjudicated together. The precise evaluation is left to the trial court’s discretion.
Are there any relevant supreme court decisions on non-punishable subsequent acts?
The case law, especially that of the Federal Court of Justice, has repeatedly addressed the distinction between non-punishable and punishable acts committed after the principal offense (“Nachtat”). Key decisions deal, for example, with the transition from the commission of the offense to post-offense conduct, the scope of the single-offender privilege, and the interpretation of personal grounds for exemption from punishment (§ 257 para. 3, § 261 para. 9 German Criminal Code). In each case, an individual assessment is essential, taking into account the specific circumstances of the offense, the identity of the perpetrator, and the statutory elements of the respective offenses. Through the courts’ case law, a body of guiding principles has developed regarding the application and limits of non-punishable post-offense conduct.
