Post-offense offenses: Definition and overview
Post-offense offenses are a central concept in German criminal law and refer to those criminal offenses that perpetrators frequently commit to secure the success of the original crime or to enable impunity after committing a principal offense. Typically, the term refers to specific actions that are temporally and factually linked to an already accomplished criminal act and are aimed at preventing its detection or securing the spoils. The concept of post-offense offenses is particularly relevant in connection with robbery offenses (§ 252 StGB), theft (§ 257 StGB), receiving stolen goods, and related criminal provisions.
Statutory basis of post-offense offenses
Relevant provisions in the StGB
Provisions concerning post-offense offenses are found in several sections of the German Criminal Code (StGB):
- Robbery with theft (§ 252 StGB)
- Robbery with extortion (§ 255 StGB)
- Assisting the offender (§ 257 StGB)
- Receiving stolen goods (§ 259 StGB)
- Perverting the course of justice (§ 258 StGB)
- Break of confiscation (§ 288 StGB)
These provisions have in common that they refer to actions taken after the completion of a principal offense, for example, to secure the spoils, hinder prosecution, or even prevent punishment.
Systematic classification
Distinction from other offenses
Post-offense offenses are to be distinguished from other categories of criminal acts:
- Preparatory offenses cover actions prior to the fulfillment of the legal elements of the offense.
- Accompanying offenses are committed in direct connection with the principal offense; in contrast, post-offense offenses require that the principal offense has already been completed.
Legality of the offense and concurrence
To fulfill a post-offense offense, it is required that there is a prior unlawful act. The perpetrator must actively act to secure its consequences or hinder its discovery. The distinction from concurring offenses, for example between robbery with theft and robbery, is of particular importance in case law and legal literature.
Robbery with theft (§ 252 StGB) as the classic post-offense offense
Elements of the offense
Robbery with theft is a prototype of a post-offense offense. § 252 StGB stipulates that a thief who is caught in the act and uses force or threats against a person will also be punished according to the provisions of robbery. The purpose is to secure the stolen goods after the theft has already been completed.
“Caught in the act”
The requirement is that the perpetrator is considered to be ‘caught in the act’ during a theft, which, according to the prevailing opinion, is the case if the perpetrator is still in an immediate temporal and spatial context with the act of taking.
Force or threat
The use of force or threats must serve to secure the spoils or to prevent pursuit.
Assisting the offender (§ 257 StGB) and perverting the course of justice (§ 258 StGB)
Assisting the offender
According to § 257 StGB, anyone who helps another to secure the benefits of an unlawful act against punishment is liable to prosecution. This provision is a classic post-offense offense as it targets actions following the commission of a criminal act.
Perverting the course of justice
Perverting the course of justice pursuant to § 258 StGB is also closely connected to post-offense offenses. Through an active act, after the crime has already occurred, efforts are made to prevent the punishment or apprehension of the offender.
Second tier: Receiving stolen goods (§ 259 StGB)
Receiving stolen goods refers to accepting an object originating from an unlawful prior offense or procuring it for oneself or a third party. Here too, the requirement for the offense is a completed prior offense, which is targeted for further securing or utilization.
Objective and subjective elements of the offense
Objective requirements
All post-offense offenses require the existence of a completed, unlawful prior offense. Temporal, personal, and factual proximity between the two acts is central.
Subjective requirements
In addition to the objective element of the offense, criminal intent and knowledge of the prior offense are usually necessary. This distinguishes post-offense offenses from, for example, negligent commissions.
Concurrence and sentencing
The commission of a post-offense offense regularly leads to so-called unitary concurrence, provided the post-offense is committed in relation to the same prior offense. If there are several post-offense offenses in relation to the same prior offense, a distinction must be made with regard to the principle of “consumption,” according to which a more serious offense absorbs a lesser one.
Criminal policy and practical significance
Post-offense offenses serve primarily to protect the enforceability of the state’s criminal claims as well as the protection of individual legal interests (e.g., property). They make it clear that criminal behavior does not end with the commission of the principal offense but may also encompass subsequent actions.
In practice, post-offense offenses are particularly significant in the area of property and asset offenses, as perpetrators often try to secure the spoils or evade pursuit through threats and violence.
Literature and case law
In case law and legal literature, there is ongoing discussion about the precise differentiation of certain post-offense offenses, the requirements for their application, and their significance for sentencing law. In particular, the interpretation of the term “caught in the act” in § 252 StGB and the prerequisites for a completed prior offense are focal points of current debates.
Summary
Post-offense offenses represent an important category in German criminal law, aimed at also covering subsequent criminal acts in connection with an already committed principal offense. The particularity of these offenses lies in their focus on actions that immediately follow the completion of a crime and whose purpose is securing the criminal success or preventing state sanctions. Knowledge of their requirements, their distinction from other offenses, as well as practical issues of assessment, is essential for understanding and applying German criminal law.
Frequently asked questions
What are the legal consequences of post-offense offenses in criminal proceedings?
Post-offense offenses can have significant legal consequences for the accused or defendant in criminal proceedings. They are particularly relevant to arrest warrants (§ 112 Code of Criminal Procedure – StPO). The offenses, such as risk of collusion or risk of recurrence, serve to justify the risk that the accused’s conduct after the initial offense may jeopardize criminal prosecution or lead to further criminal acts. If, for example, it is assumed that the accused will destroy evidence or influence witnesses, this can justify the ordering or continuation of pre-trial detention. Post-offense offenses also play a prominent role in examining grounds for detention, as they do not concern the original offense but rather relate to conduct after its commission, which acquires independent legal significance in the proceedings.
When does a post-offense offense exist within the meaning of German criminal procedure law?
A post-offense offense exists when, after the commission of a crime, an act or omission follows that is intended to thwart, hinder, or influence the conduct of criminal proceedings. This is illustrated legally by the grounds for detention regulated in § 112 para. 2 StPO, such as risk of collusion, risk of flight, and risk of recurrence. For example, the risk of collusion covers conduct aimed at influencing witnesses, destroying or altering evidence, or otherwise impairing truth-finding in the criminal proceedings. The decisive time for assessing whether a post-offense offense exists is the period after the offense has been committed, with the conduct of the accused or defendant being of particular importance.
How do post-offense offenses differ from other grounds for detention under criminal procedure?
While the classic grounds for detention, such as flight (§ 112 para. 2 no. 1 StPO) or risk of flight (§ 112 para. 2 no. 2 StPO), are primarily intended to secure criminal proceedings by ensuring the physical presence of the accused, post-offense offenses such as risk of collusion are aimed at preventing manipulation of the criminal proceedings through subsequent actions. Post-offense offenses are thus not directly related to the original crime but rather to subsequent procedural conduct. Their purpose is to prevent interference with the criminal proceedings by actions of the accused following the crime or during the pending proceedings.
What typical behaviors constitute post-offense offenses in practice?
Typical behaviors that are evaluated as post-offense offenses in criminal proceedings are varied. These include, for instance, influencing potential witnesses—through threats, coercion, or bribery—attempting to destroy or falsify evidence (e.g., document forgery or destruction of data carriers), as well as conspiring with accomplices for a unified statement or defense strategy. The escape from custody or the deliberate attempt to evade proceedings is also included. For the assumption of a post-offense offense, the specific behavior and the resulting danger to the proceedings are decisive, with courts making an individual assessment in each case.
What role do post-offense offenses play in decisions regarding pre-trial detention?
Post-offense offenses are essential for assessing the grounds for detention under § 112 StPO, especially with regard to risk of collusion (§ 112 para. 2 no. 3 StPO). If there are indications of conduct by the accused that could harm the proceeding, pre-trial detention may be ordered or continued to secure the case. The public prosecutor’s office and the court must carefully weigh whether there is indeed an abstract or concrete risk—e.g., that a witness could be influenced or evidence manipulated by the accused after the crime. Not every action suffices for this purpose; rather, specific, verifiable circumstances are required to conclude that there is an increased risk to due process.
Can post-offense offenses be independently criminally punishable?
Post-offense offenses do not in themselves constitute independent criminal liability, but rather represent relevant grounds for detention in criminal proceedings. However, acts that qualify as post-offense offenses can also at the same time be criminal offenses under the German Criminal Code, such as perverting the course of justice (§ 258 StGB), forgery (§ 267 StGB), making a false statement under oath (§ 153 StGB), coercion (§ 240 StGB), or threat (§ 241 StGB), for example. In these cases, the act in question can constitute both a post-offense offense for detention measures and trigger separate criminal prosecution.
How does the court review the existence of a post-offense offense?
The review of a post-offense offense is the responsibility of the law enforcement authorities and the court as part of an individual case assessment. There must be concrete, objectively verifiable facts that go beyond mere suspicion and make a risk to the proceedings likely. For this purpose, the court evaluates both the actual conduct of the accused after the offense, existing indications (e.g., attempted contact with witnesses, observed manipulation of evidence), as well as previous behaviors, in order to reach an appropriate decision regarding detention. In case of doubt, the principles of § 112 StPO must be interpreted restrictively, as deprivation of liberty is always the last resort.
