Definition and Legal Nature of Offences Committed Abroad
Offences committed abroad refer, under German criminal law, to criminal offences where the facts of the case exhibit a cross-border element. These are offences which are committed either wholly or in part outside of German territory or where a foreign connection arises from certain actions. The regulations governing such offences can be found in particular in Sections 3 to 7 of the German Criminal Code (StGB) as well as in other specific legal provisions.
Definition and Delineation
Offences committed abroad are to be distinguished from domestic offences, in which the entire course of events and consequences of the act occur exclusively within the Federal Republic. The distinguishing feature of offences committed abroad is the cross-border component, which can take various forms, such as the execution of the act, the location of the crime, the place where the result occurs, or the consequences of the act happening abroad.
Essentially, three categories are distinguished:
- Crimes committed abroad: The offence is committed entirely abroad.
- Cross-border or partly domestically and abroad committed offences: The offence begins in Germany and continues abroad, or vice versa.
- Result crimes with a foreign connection: The result or a consequence of the offence occurs abroad, although the act itself occurred domestically or vice versa.
Statutory Regulation and Applicability of German Criminal Law to Offences Committed Abroad
German criminal law generally applies only within national borders (principle of territoriality, see § 3 StGB), but the law provides for various exceptions in which German criminal liability may arise even in the case of offences committed abroad.
Principle of Territoriality (§ 3 StGB)
According to the principle of territoriality, German criminal law applies to all offences committed within the scope of the Criminal Code. A crime scene within the meaning of German criminal law (§ 9 StGB) is any place where the perpetrator acted or, in the case of omission, ought to have acted, as well as the place where the result occurs.
Ubiquity Principle (§ 9 StGB)
The ubiquity principle extends the scope of application in that both the place of action and the place of result are considered the crime scene. If either of these places is within Germany, German criminal law applies, even if the other is abroad. In this way, many cross-border situations are also covered.
Exceptions: Extraterritorial Connecting Factors
German Criminal Law on Acts Committed Abroad (§§ 5, 6 StGB)
- Protective Principle (§ 5 StGB): German criminal law applies to certain catalogue offences directed against German legal interests, even if the offence was committed entirely abroad (e.g. high treason, terrorism, bribery, certain sexual offences).
- Universal Jurisdiction Principle (§ 6 StGB): For certain serious international offences (e.g. genocide, human trafficking, counterfeiting of currency), German criminal law applies worldwide, regardless of where the crime was committed or the nationality of the offender or victim.
Personal Connecting Criterion (§ 7 StGB)
- Active Personality Principle (§ 7 (2) No. 1 StGB): If a German national commits an offence abroad, German criminal law applies under certain conditions, even if the act is punishable under foreign law.
- Passive Personality Principle (§ 7 (1), (2) No. 2 StGB): If a German national becomes the victim of a crime abroad, German criminal law may apply.
Special Laws
In addition, various special laws exist with their own rules regarding the criminal liability of acts committed abroad (e.g. the Foreign Trade and Payments Act, Code of Crimes against International Law).
Practical Significance of Offences Committed Abroad
The prosecution of cross-border crimes is steadily increasing in times of substantial mobility and globalization. The cross-border movement of people and information means that German courts are increasingly required to deal with offences committed abroad.
Criminal Prosecution and International Cooperation
Enforcing German criminal claims for offences committed abroad often requires international cooperation. Bilateral and multilateral treaties exist for this purpose, including those on extradition and mutual legal assistance in criminal matters. Cooperation is carried out by means of requests for legal assistance, extradition treaties, and the International Arrest Warrant.
Requirements for the Prosecution of Acts Committed Abroad
The prosecution of acts committed abroad is often subject to certain requirements, in particular:
- Requirement of Double Criminality: The offence must be punishable not only under German criminal law, but also under the law of the place where the act was committed (exception: absolute universal jurisdiction offences).
- Prosecution in the State Where the Offence Took Place: In some cases, prosecution is conditional on the act being prosecuted or not prosecuted in the foreign country (§ 7 (2) StGB).
- Requirements of Application and Consent: Some offences may only be prosecuted upon the application of an authorized person or with the consent of the Federal Ministry of Justice.
Legal Consequences, Sanctions and Special Features
Prohibition of Double Jeopardy
A basic principle in dealing with offences committed abroad is the prohibition of double jeopardy (ne bis in idem): there must be no duplicate prosecution of the same matter by different states. This principle is established under international law and in various agreements (e.g. Article 54 of the Schengen Implementation Convention).
Effects on Enforcement
The enforceability of sentences imposed for a crime committed abroad depends on whether enforcement is possible within Germany. International conventions exist for the mutual recognition and enforcement of criminal judgments.
Summary
Offences committed abroad constitute a significant and complex area of German criminal law that responds to the challenges of cross-border crime. The legal provisions in Sections 3 to 7 of the Criminal Code establish differentiated connecting factors to cover foreign matters and ensure effective prosecution. International cooperation, the requirement of double criminality, and protection against double jeopardy are key elements in this context. With increasing globalization, offences committed abroad will continue to gain practical and legal significance in the future.
Frequently Asked Questions
When does German criminal law apply to offences committed abroad?
German criminal law also applies to acts committed abroad under certain conditions, even when the location of the offence is outside Germany. This arises from the provisions in §§ 3 et seq. StGB (German Criminal Code). The so-called extension principles are decisive, particularly the principles of universal jurisdiction, active and passive personality, and the protective principle. Thus, German criminal law may apply, for instance, if the perpetrator or victim is a German national (§§ 7 (1), (2) StGB), if there is a special German state interest (§ 5 StGB), or if Germany is bound by international obligations. The precise application depends on the type of offence and on international jurisdictional rules. Generally, conduct must be punishable under both foreign and domestic law, unless a specially regulated exception applies (§ 7 (2) No. 2 StGB). In all cases, actual prosecutorial feasibility, such as questions of extradition or mutual legal assistance, must be considered in addition to legal aspects.
How is the prosecution procedure regulated for offences committed abroad?
The procedure for prosecuting offences committed abroad is governed by the general provisions of the Code of Criminal Procedure (StPO), as modified by specific regulations for acts committed abroad. Jurisdiction generally lies with prosecutors and courts at the residence (or habitual abode) of the accused, as long as this person is located in Germany. If an offence falling under German criminal law exists (see §§ 3 et seq. StGB), an investigation is initiated—provided the statutory requirements are met. International cooperation plays a central role: requests for mutual legal assistance, extradition proceedings, and the exchange of information between authorities in different countries may become necessary. The prohibition of double jeopardy (ne bis in idem, § 7 (2) No. 3 StGB) must also be observed: if the perpetrator has already been punished abroad, renewed prosecution in Germany may be excluded or the sentence may be credited.
What difficulties arise in gathering evidence in cases of offences committed abroad?
Evidence gathering in cases of offences committed abroad is often associated with considerable practical and legal problems. Witnesses, experts, or evidence may be located abroad and therefore subject to the sovereignty of the foreign state, meaning that international legal assistance procedures usually have to be used to obtain such evidence. The basis for this is formed by international agreements such as the European Convention on Mutual Assistance in Criminal Matters, various EU regulations, and bilateral treaties. The likelihood of success often depends on the willingness of the foreign state to cooperate. Difficulties can include language barriers, differences in legal cultures, divergent codes of criminal procedure, and stricter data protection regulations abroad. Ultimately, the lack of evidence may make the presentation of proof more difficult or even impossible, which in extreme cases can lead to the termination of proceedings in Germany.
What effect do foreign judgments and sentences have in Germany?
The effects of foreign judgments and imposed sentences are treated differently under German law. As a rule, the prohibition of double jeopardy (ne bis in idem) applies, meaning that a substantive retrial for the same offence is generally excluded if there is a final decision abroad (§ 7 (2) No. 3 StGB). However, this does not always apply to all sanctions; for example, a foreign administrative offence may also be prosecuted in Germany if there is no corresponding equivalence. Foreign sentences can, under certain conditions, be recognized and enforced in German enforcement proceedings, a decision which lies with the courts (§§ 49 et seq. IRG – Law on International Mutual Assistance in Criminal Matters). Whether and how credit is given for foreign sanctions or even a transfer of enforcement takes place depends on the relevant international agreement and its implementation.
To what extent must limitation periods be observed in cases of offences committed abroad?
In principle, the German rules on the statute of limitations (§§ 78 et seq. StGB) apply to offences committed abroad, provided German criminal law is applicable. However, certain special rules on suspension or interruption periods may apply in cases involving acts committed abroad—for example, if proceedings could not be conducted due to legal or factual impossibilities. In addition, limitation periods may be calculated differently abroad; however, this is generally irrelevant for the application of German law. What matters for prosecution is whether the offence is still not time-barred under German law, regardless of whether a limitation period has already expired in the country where the offence was committed.
What role does international law play in the context of offences committed abroad?
International law is one of the central frameworks governing the admissibility of the application of German criminal law to acts committed abroad. Principles such as state sovereignty, the prohibition of intervention, and the prohibition on extraditing German nationals set limits for German criminal law. At the same time, international agreements (e.g. regarding terrorism, human trafficking, or corruption) oblige Germany to prosecute certain offences even when committed abroad. Rights and obligations arising from extradition treaties, mutual legal assistance agreements, European law (such as the European Arrest Warrant) and international conventions essentially determine when and how German criminal law may be applied to offences committed abroad and enforced. National implementation of these international obligations takes place both through legislative adjustments and through practical cooperation between investigation and judicial authorities.
