Term and significance of the scope of criminal law
Der Scope of criminal law includes all regulations that determine when and for whom a country’s criminal laws apply. It defines the territorial, personal, material, and temporal limits of criminal law provisions. This scope is decisive in answering when and to what extent an act is judged according to the rules of the respective Criminal Code. In Germany, the scope is particularly regulated by Sections 3 to 7 of the Criminal Code (StGB).
Material scope
Definition
The material scope describes which acts are subject to criminal law. It is essentially derived from the provisions of the Criminal Code and any related statutes containing criminal law regulations.
Distinction
Not every unlawful act is a criminal offense. Within the material scope, a distinction is made between:
- Criminal offenses under the Criminal Code
- Regulatory offenses, which only lead to a fine
- Civil law offenses without criminal significance
Territorial (local) scope
Territoriality principle
According to the principle of territoriality, a country’s criminal law generally applies to acts committed within its territory. Under Section 3 of the StGB, German criminal law applies to all offenses committed domestically.
Ubiquity principle
Das Ubiquity principle according to Section 9 of the StGB, an offense is considered to have been committed at every place where the perpetrator acted, should have acted in the case of an omission, or where the result constituting the offense occurred.
Special cases
- Ships and aircraft: According to Section 4 of the StGB, German criminal law also applies to German ships and aircraft outside German territory.
- Extraterritoriality: Special regulations apply to certain offenses or groups of persons (such as diplomatic missions).
Personal scope
Principle
The personal scope clarifies to which persons the criminal laws apply. German criminal law makes only a few distinctions in exceptional circumstances.
Special regulations
- Children and adolescents: Children under the age of 14 are, according to Section 19 of the StGB, not criminally responsible and thus not liable to prosecution. Juveniles are judged under the Juvenile Court Act (JGG).
- Diplomats: Persons with diplomatic immunity enjoy immunity from prosecution under certain circumstances.
Temporal scope
Prohibition of retroactivity
The prohibition of retroactivity is regulated in Article 103 paragraph 2 of the Basic Law. It states that an act may be punished only if it was already punishable before it was committed (nulla poena sine lege praevia).
Transitional law
If criminal law is changed after the act but before the decision, the more lenient law generally applies (Art. 103 para. 2 GG in conjunction with Sec. 2 para. 3 StGB).
Exceptions to the principle of territoriality
Universal jurisdiction principle
According to the Universal jurisdiction principle (Section 6 StGB), German criminal law may also apply if the act was committed abroad and has no connection to Germany, provided it is of special interest to the international community (e.g., genocide, terrorism).
Nationality principle
Das Nationality principle allows the application of German criminal law to offenses committed abroad by German nationals (Section 7 (1) StGB) or to offenses committed against German nationals (Section 7 (2) StGB).
Protective principle
According to the Protective principle allows German criminal law to be applied even to acts committed abroad as soon as the legal interests of the German state or its citizens are affected.
International context and distinction
Harmonization of law in Europe
Within the European Union, there are efforts to harmonize criminal law in order to clearly regulate the scope in cases of cross-border crime. Mutual legal assistance and extradition treaties play a prominent role in this regard.
Extradition proceedings
The question of which national criminal law applies often affects extradition proceedings, where it is examined whether the act in question is punishable in both the requesting and the requested state (principle of double criminality).
Summary
The scope of criminal law comprehensively regulates under what circumstances an act can be prosecuted under German criminal law. The material, territorial, personal, and temporal scopes must be differentiated and considered. Special regulations and international treaties may extend or limit the ability to apply national criminal law beyond its own borders. Decisions regarding applicability must always be made based on the relevant provisions, which require a complex balancing process in each case.
Frequently Asked Questions
What is the significance of the scope of criminal law for the application of the Criminal Code?
The scope of criminal law determines to which facts and persons the Criminal Code (StGB) applies. It establishes under which circumstances the German criminal laws may be enforced. This concerns, in particular, territorial (principle of territoriality), personal (principle of personality, active and passive), material, and temporal aspects. In principle, German criminal law applies to all offenses committed within Germany (Section 3 StGB), regardless of the nationality of the perpetrator or victim. Under certain conditions, German criminal law may also apply to offenses committed abroad, for example, when there is a special protective interest or where prosecution is provided for in international treaties (Sections 4-7 StGB). The precise distinction is essential to ensuring clear and fair criminal prosecution and to avoid conflicts with foreign legal systems.
When does German criminal law apply to offenses with a foreign connection?
German criminal law may also apply to offenses committed abroad if certain conditions are met. These cases are detailed in Sections 5 and following of the StGB. For example, German criminal law may apply to offenses abroad if they are committed against Germans (passive nationality principle), by Germans abroad (active nationality principle), if there is an international interest in protection (universal jurisdiction principle, e.g., genocide or human trafficking), or if application is required due to international obligations. It is also relevant whether the act is punishable abroad (so-called ‘double jeopardy’ or reciprocity principle, Section 7 (2) StGB), although there are exceptions, for example, in the case of particularly serious offenses.
To whom does German criminal law apply?
German criminal law generally applies to all persons who commit offenses within Germany, regardless of their nationality, residency status, or age—provided they are of criminally accountable age. It also takes into account offenses committed by Germans abroad or offenses against Germans (see active and passive nationality principle). In special cases, criminal law may apply to offenses committed abroad by foreigners, particularly when there is a special link to Germany or required by international treaties. However, it is limited by diplomatic and international regulations, such as immunities of heads of state or diplomats.
How is the temporal scope of criminal law regulated?
The temporal scope of criminal law determines which criminal law applies in the event of legal amendments. According to Section 2 of the StGB, the prohibition of retroactivity applies: no one may be punished for an act that was not punishable at the time it was committed. If a law is amended after the act, the most lenient law applies to the perpetrator (the lex mitior principle). However, exceptions exist, particularly when new criminal laws expressly provide for retroactivity, which is, however, subject to strict constitutional limitations.
What role does the principle of territoriality play in the scope of criminal law?
The principle of territoriality is the fundamental principle upon which the territorial scope of criminal law is based. It states that offenses committed within the territory of the Federal Republic of Germany are always to be judged by German law (Section 3 StGB). This includes both completed and attempted offenses and encompasses cases where only part of the conduct or the result occurs within Germany (Section 9 StGB, so-called ubiquity principle). Exceptions exist where international agreements or principles of international law dictate otherwise.
What is the significance of international treaties for the scope of German criminal law?
International treaties are decisive for the extension or limitation of the scope of German criminal law, especially in the field of international criminal law. They may require certain offenses to be prosecuted regardless of location or perpetrator (e.g., Geneva Conventions, UN Convention Against Human Trafficking). At the same time, treaties—such as those on extradition or legal assistance—determine in which cases German criminal jurisdiction is limited or is given priority. National regulations can thereby be expanded or limited, so that there is a close interconnection between national law and international obligations.
How are offenses dealt with that are committed both domestically and abroad?
Complex cases in which an offense has connections to both Germany and another country (so-called ‘cross-border offenses’ or ‘outcome acts with a foreign component’) are judged under the so-called ubiquity principle (Section 9 StGB). According to this, an act is considered committed domestically if either the place of the action relevant to fulfilling the criminal offense or the place of the result is within Germany. This ensures that German jurisdiction applies in all cases where a material part of the criminal conduct has a connection to Germany, even if other parties or parts of the offense occurred abroad.
