Concept and Definition of the Reservation of Criminal Prosecution
Der Reservation of Criminal Prosecution is a central concept in German and European law, particularly relevant in the context of international legal assistance, integration of criminal liability, and in the context of multi-norm conflicts. The reservation of criminal prosecution refers to the legal possibility for a state to refuse the recognition of foreign criminal judgments or measures, or to make them subject to certain conditions.
The reservation of criminal prosecution is especially discussed in connection with extradition, recognition and enforcement of foreign penalties, as well as the application of foreign criminal laws. Its purpose is to protect national legal interests and is an essential tool to safeguard a state’s sovereignty in criminal law.
Legal Basis and Areas of Application
National Law
In German criminal law, the reservation of criminal prosecution is particularly significant in the context of so-called foreign offenses (§ 7 StGB, § 9 OWiG). This concerns cases where a person has committed a crime outside of Germany, but prosecution or enforcement is to take place domestically.
The reservation of criminal prosecution allows the restriction of prosecution or the recognition of foreign decisions when certain requirements are not met, for example:
- Lack of reciprocity
- Violation of essential principles of the German legal system (ordre public)
- Minor significance of the offense or punishment
- Limitation period under German law
International Law and European Law
In the international context, the reservation of criminal prosecution is enshrined in numerous treaties and conventions. A key example is the European Convention on Extradition (EuAlÜbk) as well as the European Convention on the Transfer of Sentenced Persons. These regulations regularly recognize that certain extradition requests or foreign criminal judgments may be subject to a national reservation of criminal prosecution.
Furthermore, the reservation of criminal prosecution is maintained within the framework of mutual recognition of judicial decisions in the European Union (e.g., when implementing the Framework Decision on the European Arrest Warrant) in order to respect national particularities and constitutional requirements.
Typical Reservations in International Law
- Political offenses
- Military or tax offenses (so-called fiscal reservation)
- Risk of double jeopardy (ne bis in idem)
- Fundamental guarantees of human rights
Purpose and Function of the Reservation of Criminal Prosecution
The reservation of criminal prosecution serves several functions:
- Preservation of state sovereignty: No state should be compelled to facilitate actions that conflict with its fundamental values or legal principles.
- Protection of fundamental legal principles: The reservation allows for the protection of human and civil rights as well as principles of fair criminal procedure.
- Control of legal assistance: National judicial and administrative authorities can examine in individual cases whether support or recognition may occur.
Forms and Legal Consequences
Reservation of criminal prosecution in extradition law
In extradition law, the reservation of criminal prosecution allows the requested state to refuse the surrender of a person to another state if the requirements under national law are not met. Typical grounds for refusal include the act not being punishable under German law (principle of dual criminality) or having a political character.
Reservation of criminal prosecution in the enforcement of foreign decisions
The recognition and enforcement of foreign criminal judgments are also generally subject to a reservation of criminal prosecution. It is regularly examined whether the foreign judgment is enforceable according to national standards and compatible with the fundamental principles of the domestic legal system.
Reservation of criminal prosecution in conflict-of-laws
Private international law also recognizes reservations of criminal prosecution, for example, in connection with the application of foreign legal provisions such as § 6 EGBGB (ordre public reservation). Here, the application of foreign regulations is refused insofar as they are incompatible with the fundamental national principles.
Distinctions and Related Terms
Ordre Public Reservation
Der Ordre Public Reservation is a related concept, where the recognition or application of foreign law is not permitted if it collides with the core values of the domestic legal order. Unlike the reservation of criminal prosecution, however, the ordre public reservation pertains to the entire legal system and not only to criminal offenses.
Fiscal Reservation
With the Fiscal Reservation legal assistance in cases of tax and financial offenses is regularly restricted or excluded. This is particularly significant in extradition law and in the field of mutual administrative assistance.
Significance and Current Developments
The reservation of criminal prosecution is highly relevant in light of the increasing internationalization of criminal law and cross-border crime. The growing degree of international cooperation—especially within the European Union—necessitates a clear definition and limitation of national reservations of criminal prosecution without compromising the fundamental principles of the domestic legal system.
At the European level, ongoing discussions focus on harmonizing the grounds for refusal and reservations to ensure legal certainty and efficient cross-border prosecution.
Literature and Further Information
- Schroeder, Criminal Law General Part, 7th edition, 2020
- Kreicker, Criminal Cooperation in Europe, 2nd edition, 2019
- Joecks/Miebach (eds.), Code of Criminal Procedure with GVG, EGGVG, and ECHR, current edition
- Fischer, Criminal Code and Related Laws, Commentary, updated annually
The term ‘reservation of criminal prosecution’ thus constitutes a fundamental protection mechanism for national criminal law and ensures that international legal cooperation always takes place in accordance with the country’s own legal and constitutional principles.
Frequently Asked Questions
When does the reservation of criminal prosecution apply in international law?
The reservation of criminal prosecution in international law becomes particularly relevant when several countries could claim jurisdiction for the same offense. This may be the case, for example, if an act was committed abroad and is also punishable under the law of the home country. Many national legal systems—including the German Criminal Code (§ 7, § 9 StGB)—therefore stipulate that the prosecution and punishment of an act committed abroad are subject to the reservation that the perpetrator has not already been punished abroad (ne bis in idem), or that proceedings have not already been brought or are ongoing abroad. The reservation of criminal prosecution thus protects against double jeopardy but also ensures that sanctions are not entirely omitted if the foreign state does not take action. Additionally, international law, such as the European Convention on Extradition and the Schengen Convention, contains provisions coordinating criminal prosecution reservations and preventing conflicting prosecutions.
How does the reservation of criminal prosecution affect the prosecution of offenses committed abroad in Germany?
If an act committed abroad is prosecuted under German law, this is often tied to additional conditions, including the reservation of criminal prosecution (§ 7 (2) no. 2 StGB). This means that prosecution in Germany may depend on there being no prosecution or conviction abroad. It is also checked whether the perpetrator has already been convicted abroad and whether that judgment has been enforced or is still enforceable. Even if a foreign sanction has already been imposed, this can affect a domestic indictment—up to and including a preclusion of prosecution. In practice, the reservation of criminal prosecution means that prosecutors and courts must first thoroughly check whether foreign prosecution has occurred, to what extent, and whether further domestic prosecution is permissible.
What are the legal consequences of violating the reservation of criminal prosecution?
Disregarding the reservation of criminal prosecution can have significant legal consequences: If a person is prosecuted in Germany for an offense for which they have already been finally convicted abroad, this violates the principle of “ne bis in idem,” that is, the prohibition of double jeopardy. Such a violation leads to the inadmissibility of the domestic proceedings, and courts are obliged to discontinue the proceedings or—if a conviction nonetheless occurs—to overturn the judgment. It constitutes a procedural bar that must be considered throughout the criminal proceedings and may be examined ex officio at any time. In cases of a violation of international agreements providing for a reservation of criminal prosecution, there may also be diplomatic complications.
How is the reservation of criminal prosecution considered in extradition law?
The reservation of criminal prosecution is of particular importance in extradition law. It ensures that a person who has already been prosecuted or punished for the same act in another state is not extradited again to face prosecution for the same act. Most bilateral and multilateral extradition agreements—including the European Convention on Extradition—contain explicit provisions on the reservation of criminal prosecution and the prohibition of double jeopardy. These principles are implemented in German extradition law through § 3 IRG (Act on International Cooperation in Criminal Matters). Prior to extradition, it is therefore always checked whether there is a legal risk of double prosecution and whether a foreign sentence has already been enforced.
What role does the reservation of criminal prosecution play in the recognition of foreign criminal judgments?
In the recognition and enforcement of foreign criminal judgments within Germany or the EU, the reservation of criminal prosecution is a key criterion. Only if it is established that the relevant offenses were not, or not fully, prosecuted abroad, or if the judgment does not conflict with domestic prosecution, may the foreign judgment be recognized. Via procedures such as the framework decision principle of mutual recognition (e.g., European Arrest Warrant), it is checked whether the conditions of the reservation of criminal prosecution are met. A foreign judgment can preclude a domestic prosecution if the criminal act is identical and does not fall under exceptions (e.g., new facts, new evidence).
To what extent can the reservation of criminal prosecution be modified by bilateral or multilateral agreements?
The reservation of criminal prosecution is generally governed by national law but may be shaped or restricted by international treaties. States can establish rules through bilateral or multilateral agreements on how to deal with competing jurisdictions and the reservation of prosecution. A prominent example is the Schengen Convention, which in Articles 54 et seq. sets out the prohibition of double prosecution (ne bis in idem) and regulates the reservation of prosecution at the community level. International treaties can also provide instructions to prosecutors and courts on how to handle requests for prosecution or transfer and when the reservation of criminal prosecution applies or can be waived.
