Grounds for Preclusion (or Removal) of Punishment – Legal Situation, Definition, and Systematics
The Term Grounds for Preclusion or Removal of Punishment refers in criminal law to those grounds which, despite an objectively and subjectively fulfilled criminal offense, fully or partially preclude the imposition of a penalty. The systematic classification and precise distinction from other legal institutes is crucial for understanding this concept.
General Definition and Distinction from Other Legal Institutes
Grounds for preclusion of punishment are legal prerequisites that result in conduct that is otherwise statutory, unlawful, and culpable not being punished as an exception. They must be distinguished from justification grounds (e.g., self-defense) and grounds excluding culpability (e.g., lack of culpability, mistakes). In contrast to these, grounds for preclusion of punishment do not pertain to statutory elements, unlawfulness, or culpability, but rather stand “outside” these steps of examination. Instead, they function as “personal or objective barriers” that preclude criminal liability—despite the presence of all offense elements.
Types of Grounds for Preclusion (or Removal) of Punishment
Grounds for preclusion of punishment can, in principle, be divided into the following groups according to their content and effect:
Personal Grounds for Preclusion of Punishment
These grounds are based on the person of the perpetrator or participant. Classic examples include:
- Family relationships: For example, Section 258 (6) StGB (obstruction of justice to the benefit of close relatives)
- Parent-child relationship in certain offenses
Factual Grounds for Preclusion of Punishment
These concern circumstances outside the person, for example:
- Obstacles to prosecution: e.g., lack of prerequisites for a criminal complaint in petition offenses or absolute age of criminal responsibility (Section 19 StGB)
- Exclusion of punishment due to reparation: In certain offenses, active repentance or special compensation for damages can lead to exemption from punishment (e.g., Section 24 StGB – withdrawal from attempt)
Grounds for Revoking Preclusion of Punishment
The term “grounds for revoking preclusion of punishment” describes situations in which a ground for preclusion of punishment is removed by special actions or circumstances, thus reinstating criminal liability. A classic example is withdrawing from the withdrawal as per Section 24 StGB: If after his withdrawal the perpetrator nevertheless contributes to the completion of the offense, the (original) ground for preclusion of punishment ceases to apply and punishment is (again) possible.
Systematic Classification in Criminal Law
The Scheme of Examination in Offense Analysis
In the structure of criminal law, the examination of grounds for preclusion of punishment regularly takes place after the determination of statutory elements, unlawfulness, and culpability. They are considered as so-called “negative elements of criminal liability” in the final step of examination considered.
Distinction from Other Negative Elements of Criminal Liability
- Procedural Obstacles (procedural law): These prevent the conduct of criminal proceedings (e.g., statute of limitations), but strictly speaking are not substantive grounds for preclusion of punishment.
- Grounds for Exclusion of Unlawfulness and Culpability: Affect the nature of the offense and attribute a “negative assessment” to it; in contrast, grounds for preclusion of punishment function as external factors of exclusion.
Examples of Central Grounds for Preclusion (or Removal) of Punishment in Substantive Criminal Law
1. Withdrawal from Attempt (Section 24 StGB)
A withdrawal from a punishable attempt results in the otherwise completed offense remaining unpunishable. The prerequisite is a voluntary abandonment of further execution of the offense; this constitutes an independent, autonomous personal ground for preclusion of punishment.
2. Activity within the scope of professional secrecy (Section 203 StGB)
If a participant is legally authorized to maintain confidentiality, their criminal liability for disclosing another’s secrets lapses.
3. Requirement of a criminal complaint (Sections 77 et seq. StGB)
The absence of a valid criminal complaint prevents the prosecution of certain offenses, such as insult or trespass.
4. Applicability of Section 258 (6) StGB – Privilege for Relatives
Relatives who commit obstruction of justice to protect a family member from punishment are exempted from liability.
Grounds for Preclusion of Punishment in Auxiliary Criminal Law
In addition to the Criminal Code (StGB), grounds for preclusion of punishment are also found in many ancillary statutes, sometimes with special regulation, e.g.:
- Narcotics Act (BtMG): Section 31 BtMG provides for mitigation or preclusion of punishment if the perpetrator significantly contributes to the clarification of a narcotics offense.
- Money Laundering Act (GwG): Self-disclosure or voluntary revelation may entail effects excluding punishment.
Effect and Consequences of Grounds for Preclusion (or Removal) of Punishment
Criminal Law Effect
The existence of a ground for preclusion of punishment means that the relevant conduct may not be penalized. There is an obstacle to prosecution relating only to the concrete individual and the offense. Depending on the provision, the ground may operate in an absolute or relative manner (i.e., with the possibility of resumption under certain conditions).
Effects on Participants
In the context of multi-level participation requirements, the ground for preclusion of punishment may apply individually to only certain participants (so-called personal exclusion from punishment). This must be assessed separately when examining the liability for participation.
Relationship to Grounds Extinguishing Punishment
Grounds extinguishing punishment, also often used synonymously, are above all those circumstances that subsequently lead to the termination of criminal liability (such as subsequent amnesty, pardon, or occurrence of a statute of limitations). They generally have an ex nunc effect and differ from genuine grounds for preclusion of punishment, which already originally prevent the establishment of liability.
Summary
Grounds for preclusion (or removal) of punishment constitute a central type of institution in criminal law that prevents punishment despite a completed offense. They must be carefully distinguished from grounds for justification and exclusion of culpability as well as procedural obstacles. Their systematic importance derives from their place in the overarching examination scheme of criminal law, and their precise analysis is crucial for the legally certain assessment of offenses and forms of participation. They have a significant impact on individual and objective criminal liability and are regulated in diverse forms both in core and ancillary criminal law.
Frequently Asked Questions
When does a ground for exclusion apply for relatives (Section 258 StGB)?
A ground for exclusion for relatives applies when a person helps a close relative—meaning in particular family members such as spouses, partners, fiancés, siblings, parents, or children—to commit an offense or fails to report it and is legally privileged to do so. For example, Section 258 (6) StGB provides that relatives shall not be punished for giving aid or obstructing prosecution if they act for the benefit of the offender. The exclusion aims to avoid overburdening family ties with criminal law obligations and to prevent conflicts between legal duties and family solidarity. The precise scope of the term relative is defined in Section 11 (1) no. 1 StGB; this includes also adopted or in-law persons in direct line. It should be noted that the exclusion only applies to certain offenses (e.g., obstruction of justice, but not murder or manslaughter) and generally does not protect forms of participation outside family solidarity. The exclusion for relatives is not to be understood as general immunity but only takes effect in the explicitly stated cases.
Do grounds for preclusion of punishment also apply to attempts and participation?
Grounds for preclusion of punishment generally also apply to attempted offenses, unless the law expressly excludes this or a different assessment is required in the specific case. If an offense is not punishable only if the requirements of the ground for preclusion of punishment are fully met, this also applies if the offense was only attempted. The same applies with regard to participatory acts such as instigation and aiding: If a personal ground for exclusion from punishment (e.g., status as a relative under Section 258 (6) StGB) applies to the participant, this personal ground (§ 29 StGB, principle of accessory liability) can also remove the liability of that participation. Conversely, a personally effective ground for preclusion of punishment for the main perpetrator does not affect the punishment of a participant if the latter cannot invoke the ground. In summary, a differentiated examination of the specific form of participation and the respective ground for preclusion of punishment is required in each case.
How do grounds for preclusion of punishment differ from grounds extinguishing punishment?
Grounds for preclusion of punishment precede grounds extinguishing punishment because they operate before or at the time of the offense; they prevent the emergence of criminal liability from the outset. Typical examples include the victim’s consent in certain offenses, self-defense excess under Section 33 StGB in cases of excusable self-defense, or the exclusion for relatives pursuant to Section 258 (6) StGB. Grounds that extinguish punishment, by contrast, generally take effect only after the offense has been committed, by which they cause an already established criminal liability to cease or be prevented due to subsequent circumstances. Examples include withdrawal from attempt (§ 24 StGB), active repentance for certain crimes (Sections 306e, 320 StGB), or acts of clemency. While grounds for preclusion of punishment modify offense requirements, grounds that extinguish punishment function as subsequent, procedural, or substantive reasons for exemption from punishment.
Must grounds for preclusion of punishment be considered ex officio?
Yes, grounds for preclusion of punishment are always to be considered ex officio (so-called official principle) by the prosecuting authorities and the court as matters of substantive decision. They do not require assertion by the accused or the defense and can also be applied against their will. Law enforcement authorities and courts are obliged to investigate exonerating circumstances in favor of the accused (§ 244 (2) StPO, principle of in dubio pro reo), which include, in particular, grounds for preclusion and removal of punishment.
Can grounds for preclusion of punishment be revoked or subsequently fall away?
Grounds for preclusion of punishment, especially those based on personal circumstances or objective facts, generally take effect definitively as soon as their requirements are present at the time of the offense. They cannot be revoked, as they prevent the emergence of criminal liability. A subsequent lapse or a change in the requirements after the offense does not affect criminal liability. To be distinguished from this are grounds extinguishing punishment, where a subsequent development is decisive (e.g., withdrawal from attempt before completion of the offense).
How do individual grounds for preclusion of punishment affect cases of joint perpetration?
Individual grounds for preclusion of punishment (such as exclusion for relatives) apply exclusively to the person for whom they exist. In cases of joint perpetration, this means that only the “protected” co-offender benefits from the exclusion, while the other co-offender remains fully liable if their personal prerequisites are not met. The differentiation follows the principle of the personal nature of grounds for preclusion of punishment. An exception may apply if the individual exclusion grounds are incorporated into the joint act and acted upon collectively, though this must be reviewed legally on a case-by-case basis.
What is the significance of grounds for preclusion of punishment in juvenile criminal law?
Grounds for preclusion of punishment also apply without restriction in juvenile criminal law. The general provisions of criminal law, and thus any grounds for preclusion or removal of punishment, apply to juveniles and young adults under Section 1 JGG, provided the Juvenile Courts Act does not provide otherwise. In particular, the exclusion for relatives and other general grounds for preclusion of punishment are relevant in the context of juvenile criminal law and result in absolute impunity if the legal requirements are met.
