Definition and fundamentals of limitation for prosecution
Limitation for prosecution is a central concept in criminal law and refers to the period within which criminal investigations can be initiated and prosecution pursued. Once this period has expired, prosecution of the offense is precluded. The statute of limitations serves legal peace and legal certainty, and takes into account the fact that, over time, evidence fades and interest in prosecution declines.
Statutory regulations on limitation for prosecution
The key provisions regarding limitation for prosecution in Germany are found in Sections 78 to 78c of the German Criminal Code (StGB). Numerous special statutes also contain limitation provisions that follow or modify the principles of the StGB.
Limitation periods
The duration of limitation for prosecution generally depends on the severity of the threatened penalty. Section 78 (3) StGB sets out the periods according to the maximum statutory penalty:
- 30 years for offenses punishable by life imprisonment,
- 20 years for offenses with a maximum sentence of more than ten years imprisonment,
- 10 years for offenses with a maximum sentence of more than five years up to ten years imprisonment,
- 5 years for offenses with a maximum sentence of more than one year up to five years imprisonment,
- 3 years in all other cases.
For certain offenses, such as murder (Section 211 StGB) or genocide (Section 6 VStGB), there is no statute of limitations at all (cf. Section 78 (2) StGB, Art. 102 GG).
Commencement of the statute of limitations for prosecution
The limitation period generally starts upon completion of the offense (Section 78a StGB). For continuing offenses or repeated offenses, the period begins when the unlawful situation is ended.
Suspension and interruption of the limitation period
The effect of the limitation for prosecution can, under certain conditions, be suspended (“suspension”, Section 78b StGB) or interrupted (“interruption”, Section 78c StGB).
Suspension of the limitation period
The limitation period is suspended, for example, as long as the law precludes prosecution (e.g., due to immunity or ongoing insolvency proceedings).
Interruption of the limitation period
An interruption occurs through certain actions exhaustively listed by law, such as the first interrogation of the accused, filing of a public charge, issuance of an arrest warrant, or a judicial search order. With each act of interruption, the limitation period begins anew. However, the total duration may not exceed double the statutory limitation period (Section 78c (3) sentence 2 StGB).
Legal consequences of limitation for prosecution
Once the limitation for prosecution has commenced, prosecution of the offense by prosecuting authorities or courts is precluded. Any pending proceedings must be discontinued, and proceedings not yet commenced may not be initiated. Legally, the offense is considered “barred by limitation.” A procedural impediment arises which must be observed throughout further proceedings. Any penalty order already issued, that has not become final, loses its effect.
Relationship to limitation of enforcement
A distinction must be made between limitation for prosecution and limitation of enforcement. While limitation for prosecution precludes criminal prosecution, limitation of enforcement concerns the enforceability of an already legally imposed sentence. Limitation of enforcement is also subject to statutory periods, which may differ from those for prosecution.
Limitation for prosecution in an international context
Developments in international and European law have influenced German law on limitation periods. Particularly for international crimes such as genocide and crimes against humanity, there are international legal obligations not to apply limitation periods, which are reflected in national regulations (cf. Art. 1 Statute of Limitation Act, ECtHR).
In addition, case law and legislation harmonize limitation rules in the context of European cooperation for cross-border crime, for example, through European Investigation Orders.
Limitation for prosecution in regulatory offenses
Limitation periods also exist under regulatory offenses law, and their application is based on the Act on Regulatory Offenses (OWiG). As a rule, the limitation period is three years; for minor regulatory offenses under Section 31 (2) OWiG, however, it is only six months.
Exceptions and special features of limitation for prosecution
Waiver of limitation and tolling of limitation period
Limitation is not a matter for disposition; waiver of the plea is inadmissible. In exceptional cases, however, there may be so-called tolling of the limitation period, such as in the case of temporary incapacity to be subject to criminal prosecution or unknown whereabouts of the offender.
Establishing and considering limitation periods
Assessment of limitation is one of the mandatory procedural requirements to be observed ex officio. A later finding of limitation in appellate proceedings results in the annulment of criminal court decisions.
Importance of limitation for prosecution in the context of the rule of law
Limitation for prosecution makes a decisive contribution to legal certainty and protection against limitless criminal prosecution. It prevents offenses from being prosecuted “forever,” unless they involve absolute crimes such as murder. The limitation of prosecution to an appropriate period reflects the tension between the state’s interest in penal sanction and individual rights.
Related topics:
Frequently Asked Questions
When does the limitation period for prosecution begin?
The limitation period for prosecution generally begins at the time the punishable act is completed (Section 78a StGB). In continuing offenses, the decisive point is the end of the punishable state, such as the end of wrongful withholding of maintenance or deprivation of liberty. For so-called result offenses, the decisive moment is when the result defined by law occurs—such as the moment a victim is dispossessed during theft. It should be noted that, in special cases such as legal amendments, consequences occurring outside Germany, or continuing acts, modified regulations may apply. In cases involving multiple participants, the start of the limitation period must generally be assessed separately for each person.
What events lead to interruption or suspension of limitation for prosecution?
Limitation for prosecution can be interrupted by certain actions of prosecuting authorities. According to Section 78c StGB, these include, among others, the interrogation of the accused, the notification of initiation of investigation proceedings, a judicial order for certain measures, or the filing of a public charge. Each of these acts causes the limitation period that has already passed to be erased and a new period to begin. Suspension of limitation occurs in several special cases, for example during ongoing proceedings in another country concerning the same offense or during proceedings before the Federal Constitutional Court regarding the constitutionality of the underlying criminal norm (Section 78b StGB). During such periods, the limitation period does not continue to run.
Which criminal offenses are not subject to limitation for prosecution?
There are certain offenses for which limitation for prosecution does not apply. Pursuant to Section 78 (2) StGB, murder (Section 211 StGB) and genocide (Section 6 VStGB) are not subject to limitation. This regulation is based on the particular severity and profound public interest in prosecuting such most serious crimes. Other offenses, such as crimes under the International Criminal Code (e.g., crimes against humanity), may also be exempt from limitation, where specifically provided by law. In practice, the non-applicability of limitation thus only concerns exceptionally serious crimes.
What periods apply for limitation for prosecution of different offenses?
The duration of limitation for prosecution depends on the severity of the maximum penalty for the particular offense and is regulated by Section 78 (3) StGB. The range extends from three years for offenses with a lower limit of up to five years imprisonment, five years for a threatened maximum penalty of up to one year, five years for up to five years, ten years for offenses with a threatened maximum penalty of over five up to ten years, and twenty years for offenses with up to life imprisonment. For especially serious offenses such as murder, as already noted, no limitation period applies. The exact application in each case must be carefully examined according to the individual offense.
Can limitation for prosecution be excluded by agreement between perpetrator and victim?
Limitation for prosecution is mandatory law and is therefore not at the disposal of the parties involved. Neither the victim nor the accused—nor both together—can waive, extend, or shorten the statutory limitation periods by agreement or mutual declaration. The interest in prosecution is a matter for the state and serves the public interest, so contractual or mutual arrangements between the parties have no effect on statutory limitation periods.
How does interrupted or suspended limitation for prosecution affect co-accused and accomplices?
An interruption of the statute of limitations in relation to one accused generally also interrupts the limitation for all other participants, co-perpetrators, participants or accomplices, insofar as the act of interruption relates to the facts alleged against all (Section 78c (3) StGB). This is intended to prevent limitation periods from being circumvented by staggered prosecution of individual participants. Suspension of the limitation may, however, have an individual effect and must be assessed for each person concerned.
What happens if the statute of limitations for prosecution has expired?
Once the limitation for prosecution has expired, criminal prosecution of the offense is generally precluded. There is a procedural bar that must be observed ex officio. This means criminal proceedings may no longer be initiated or a charge already brought must be withdrawn. A conviction is also no longer possible. If a court has mistakenly failed to observe the limitation period and a conviction occurs despite expiry, this is to be corrected through appellate proceedings. Expiry of limitation thus constitutes a permanent and final bar to criminal prosecution.
