Definition and Meaning of Obstruction of Justice
Obstruction of justice is a criminal offense under German criminal law and describes the unlawful prevention, hindrance, or delay of the prosecution or enforcement of a criminal act. The offense is regulated in Section 258 of the German Criminal Code (StGB) and serves to protect the administration of justice by ensuring that committed crimes are prosecuted and imposed penalties are enforced. Obstruction of justice falls within the context of judicial offenses, which are intended to protect the proper functioning of the administration of justice and, thus, the public’s trust in this institution.
Legal Basis
Statutory Regulation in Germany
The relevant provision is Section 258 StGB. According to the wording of the law, anyone who intentionally or knowingly causes another person to avoid, only with difficulty, or with delay be subjected to punishment, a measure of rehabilitation and security, a secondary penalty, or an ancillary legal consequence in whole or in part, is liable to prosecution.
Wording of Section 258 StGB
“Whoever intentionally or knowingly, in whole or in part, prevents another from being punished or subjected to a measure of rehabilitation and security for an unlawful act, shall be punished with imprisonment for up to five years or a fine.”
Systematic Placement
Obstruction of justice is classified in Section 21 of the Criminal Code ‘Offenses against the Administration of Justice’. It is among those offenses intended to ensure effective criminal prosecution.
Constituent Elements of Obstruction of Justice
Objective Elements
Actus Reus
The perpetrator must prevent, hinder, or delay criminal prosecution or enforcement in whole or in part. Typical forms include hiding a perpetrator, destroying evidence, providing false alibis, or persuading witnesses to remain silent.
Obstruction Result
A real disadvantage for the prosecution or enforcement is required. The offense is completed when prosecution or enforcement is at least temporarily impossible, made more difficult, or significantly delayed (the so-called result of obstruction).
Potential Perpetrators
Anyone can be a perpetrator of obstruction of justice, with the exception of a participant in the predicate offense (see privileged regulations below).
Subjective Elements
At least conditional intent is required. The person acting must therefore at least accept that their behavior may prevent, hinder, or delay the prosecution or punishment of another. Negligent obstruction of justice is not punishable under Section 258 StGB.
Distinctions and Related Offenses
Obstruction of Justice in Office (§ 258a StGB)
For public officials (e.g., police officers, judges, prosecutors) who abuse their official position to bring about obstruction, Section 258a StGB applies: ‘Obstruction of Justice in Office.’ This provision imposes more severe penalties.
False Accusation (§ 164 StGB) and Aiding (§ 27 StGB)
Obstruction of justice must be distinguished from false accusation (§ 164 StGB), which concerns the intentional incrimination of an innocent person. A clear distinction must also be made between it and aiding an offense; aiding occurs before or during the main act, while obstruction of justice requires that a crime has already been completed.
Criminal Liability for One’s Own Act (Self-Favoring)
According to Section 258 (5) StGB, a perpetrator is not punished for obstruction of justice if the obstructive act relates to the punishment or enforcement of measures regarding his own act. This follows from the principle nemo tenetur se ipsum accusare (no one is obliged to incriminate himself). Thus, anyone who actively prevents punishment for their own act does not make themselves criminally liable.
Concurrence
Relationship to Other Criminal Offenses
Obstruction of justice can coincide with other offenses, such as forgery (§ 267 StGB), for example, if a certificate is forged to cover up a crime. In such cases, ideal concurrence is possible, meaning both offenses are independently fulfilled.
Penalty and Legal Consequences
For simple obstruction of justice, Section 258 StGB provides for imprisonment of up to five years or a fine. The offense may be punished both in the attempt and upon completion. Particularly serious, however, is obstruction of justice in office (§ 258a StGB), for which imprisonment from six months to five years is threatened.
For special circumstances (e.g., attempted obstruction, less serious cases), the law provides for mitigated penalties.
Obstruction of Justice in Other Legal Systems
A comparable offense can be found in many European countries; for example, in Austria this is ‘Strafvereitelung’ under § 299 StGB, in Switzerland ‘hindering criminal prosecution’ according to Art. 305 StGB. In the Anglo-Saxon legal sphere, there are related offenses such as ‘Perverting the Course of Justice’ (England, Wales).
Practical Examples and Typical Case Scenarios
- Hiding a perpetrator: Anyone who conceals a wanted person to prevent their arrest.
- False alibi statements: Anyone who makes untrue statements about a suspect’s whereabouts in their favor.
- Manipulation of evidence: Destroying, hiding, or falsifying relevant pieces of evidence.
- Influencing witnesses: Persuading or threatening witnesses to prevent them from testifying.
Importance of Obstruction of Justice in the Legal Protection System
Obstruction of justice is a vital tool for preserving the integrity of criminal prosecution. It secures public confidence in investigative authorities and the judiciary. The provision protects not only the public interest in prosecution of crimes, but also the effective realization of the rule of law.
Literature and Further Resources
- Criminal Code (StGB), current version
- Fischer, Thomas: Criminal Code and Related Laws, Commentary
- Joecks, Wolfgang: Munich Commentary on the StGB, §§ 258–262
- Schönke/Schröder: Criminal Code, Commentary
See also
Note: The above explanations provide a comprehensive overview of obstruction of justice and serve in particular to promote general understanding and systematic classification of this criminal offense under German criminal law.
Frequently Asked Questions
What acts can be considered obstruction of justice?
In principle, obstruction of justice encompasses all forms of conduct that aim to prevent or at least significantly hinder the punishment of an offender for an already committed crime. This particularly includes active or passive intervention in favor of a suspect, such as preventing evidence from being presented (e.g., destroying or hiding evidence), intentionally giving false testimony on their behalf, assisting in escape or hiding the perpetrator, but also consciously failing to report a completed crime to the authorities, provided that such omission is not independently punishable. Decisive is that the act is subjectively aimed at impeding prosecution and is objectively suitable to actually obstruct or at least considerably hinder prosecution. Mere general expressions of sympathy or acts that only provide moral support are not covered, as long as these do not concretely impair the interests of prosecution.
What requirements must be met for criminal liability for obstruction of justice?
For criminal liability under Section 258 StGB, several conditions must be cumulatively met. First, there must be an unlawful act by another person for which prosecution and punishment are potentially affected by the conduct. Next, there must be an objective act through which the punishment, enforcement, or determination of the act or the offender is prevented or significantly hindered. Subjectively, intent is required—that is, the perpetrator must know and want to obstruct prosecution. Negligent obstruction is not a constituent element of the offense. In addition, a so-called external act must be involved, meaning a perpetrator cannot be criminally liable for obstruction regarding their own crime. Furthermore, close relatives of certain types (e.g., spouses, parents) are privileged by Section 258 (6) StGB and thus benefit from the provision.
To what extent can omissions also be punishable?
In addition to active acts, an omission can also constitute obstruction of justice if a so-called guarantor position exists. This means that someone is legally obliged to ensure prosecution—for example, public officials such as police officers, prosecutors, or judges. If such persons wrongfully fail to prosecute or forward a known fact, thereby contributing to the obstruction of prosecution, they fulfill the elements of obstruction by omission under Section 13 StGB. For private individuals, in the absence of such a duty, criminal liability for omission generally does not exist, but they may possibly be held liable under other provisions, e.g., prosecuting innocents (§ 344 StGB) or obstruction of justice in office (§ 258a StGB).
What role does completion of the predicate offense play in obstruction of justice?
Criminal liability for obstruction of justice requires that a so-called predicate offense has actually been completed. This means that the offense for which prosecution is to be obstructed must have already been committed and concluded; mere preparatory actions or attempted offenses are not sufficient. The exact legal classification of the predicate offense is not decisive; it suffices that criminal conduct objectively exists. An error regarding the existence of the predicate offense may, however, impact the perpetrator’s intent and may result in no liability if, for example, the perpetrator mistakenly assumes a crime which in fact did not occur.
Are there exceptions or privileges to the offense of obstruction of justice?
According to Section 258 (6) StGB, close relatives of the offender (e.g., spouse, fiancé, parents, children, siblings) are privileged, i.e., they are generally not punished for obstruction of justice committed in favor of the offender. This exception acknowledges the special trust relationship and solidarity within the family and supplements the right to refuse testimony in criminal proceedings. However, the privilege applies only to such relatives who act in favor of the perpetrator. Obstruction of justice to the detriment of another is not covered by these rules. Likewise, the exception does not apply in cases of commercial or gang-related conduct.
What distinguishes obstruction of justice from favoring (§ 257 StGB)?
Although both offenses serve to protect criminal justice, they differ substantially in scope. Favoring (§ 257 StGB) covers acts intended to secure benefits from an unlawful act for the offender or to reward him for it, regardless of whether prosecution is thereby affected. Obstruction of justice (§ 258 StGB), however, is solely concerned with preventing or hindering prosecution, enforcement, or determination of the act or perpetrator. Thus, obstruction of justice is the more specific offense and prevails over favoring in cases of concurrence, if both are fulfilled.
Can public officials also be criminally liable for obstruction of justice?
Specifically for public officials, in addition to general Section 258 StGB, there is the qualified offense of obstruction of justice in office under Section 258a StGB. This provides for increased penalties for public officials who, in the course of their duties, intentionally and knowingly commit obstruction of justice (for example, a police officer who deliberately makes evidence disappear). The provision covers any unlawful act whose prosecution the official is required by duty to ensure. The protected interest is, in particular, maintaining trust in the rule of law and the functioning of German law enforcement authorities. Attempt is already punishable, and from a service law perspective, in addition to criminal sanctions, disciplinary consequences may result.
What penalties can be imposed following conviction for obstruction of justice?
The penalty for obstruction of justice is generally determined under Section 258 StGB, and provides for imprisonment of up to five years or a fine. In less serious cases, the penalty may be reduced. Special severity may be found if obstruction prevents enforcement of a penalty or measure; in such cases, a minimum imprisonment of six months up to five years is stipulated (§ 258 (2) StGB). For public officials under Section 258a StGB, the penalty is increased and ranges from six months to five years’ imprisonment, or from three months to five years in less serious cases. In addition to the primary penalty, further consequences such as loss of employment, confiscation of assets, or other ancillary penalties may occur.
