Limitation of criminal offences: when an offence may no longer be prosecuted

§ 78 Abs. 3 StGB grades five periods according to the maximum penalty threatened:

• thirty years for offences that carry a life sentence,
• twenty years for offences that carry a maximum of more than ten years of imprisonment,
• ten years for offences that carry a maximum of more than five and up to ten years of imprisonment,
• five years for offences that carry a maximum of more than one year and up to five years of imprisonment,
• three years for the remaining offences.

What governs is the penalty threatened by the statute whose definition the offence fulfils, without regard to increases or reductions provided for by the General Part or by the rules on particularly serious and less serious cases (§ 78 Abs. 4 StGB). A particularly serious case therefore does not extend the period.

Two examples: Körperverletzung under § 223 Abs. 1 StGB and Betrug under § 263 Abs. 1 StGB carry imprisonment of up to five years or a fine and fall into the five year group of § 78 Abs. 3 Nr. 4 StGB. Negligent Körperverletzung under § 229 StGB carries imprisonment of up to three years or a fine and falls into the three year group of § 78 Abs. 3 Nr. 5 StGB. Offences under § 211 StGB are not subject to limitation under § 78 Abs. 2 StGB.

Here lies the real point. § 78c Abs. 1 StGB lists twelve acts that interrupt limitation. They include the first examination of the Beschuldigter, the person against whom the investigation is being conducted, the notification that an investigation has been opened against them, or the ordering of that examination or notification (number 1), every judicial order for a Beschlagnahme (formal seizure) or a search (number 4), the Haftbefehl (a written detention order) (number 5), the preferring of public charges (number 6), the opening of the main proceedings (number 7) and the Strafbefehl (a written court order imposing a penalty without a main hearing) (number 9).

After every interruption, limitation begins afresh (§ 78c Abs. 3 Satz 1 StGB). In the case of a written order or decision, the interruption takes effect at the point at which it is drawn up (§ 78c Abs. 2 Satz 1 StGB). A step of which the Beschuldigter knows nothing may therefore already have restarted the period.

There is a limit. Prosecution is time barred at the latest once twice the statutory limitation period has elapsed since the point named in § 78a StGB, and, where the limitation period under special statutes is shorter than three years, once at least three years have elapsed (§ 78c Abs. 3 Satz 2 StGB). Suspension under § 78b StGB remains unaffected by this (§ 78c Abs. 3 Satz 3 StGB). An interruption moreover operates only against the person to whom the act relates (§ 78c Abs. 4 StGB).

The two periods are easily confused. An offence that can be prosecuted only on application is not prosecuted where the person entitled to apply fails to make the application before a period of three months expires (§ 77b Abs. 1 Satz 1 StGB); that period begins at the end of the day on which they learn of the offence and of the identity of the offender (§ 77b Abs. 2 Satz 1 StGB). It concerns the application, not whether the offence can be prosecuted. More on this is in the guide on withdrawing a report.

Limitation is a bar to the proceedings. During the investigation the Staatsanwaltschaft (the public prosecution office) discontinues the proceedings (§ 170 Abs. 2 StPO). Where the bar emerges only after the main proceedings have been opened, the court may discontinue the proceedings by order outside the Hauptverhandlung (§ 206a Abs. 1 StPO); the order can be challenged by way of sofortige Beschwerde (an appeal that must be lodged within a fixed short period) (§ 206a Abs. 2 StPO).

One consequence nevertheless remains possible. § 78 Abs. 1 Satz 2 StGB expressly excepts § 76a Abs. 2 StGB. Under that provision, on the conditions named there, the independent ordering of the confiscation of the proceeds of the offence and the independent confiscation of the value of those proceeds is admissible even where prosecution of the offence is time barred. Limitation therefore does not in every case mean that what was obtained may also be kept for good. How such an order proceeds is described in our guide on securing assets.

Can I work out for myself whether my case is time barred? You can read the basic period off § 78 Abs. 3 StGB. Whether it is still running depends on interruptions under § 78c StGB and on suspension under § 78b StGB, and both of those are in the case file, not in the statute.

Is a Körperverletzung time barred after five years? The basic period for § 223 Abs. 1 StGB is five years (§ 78 Abs. 3 Nr. 4 StGB). For aggravated forms with a higher sentencing range a different tier applies, and interruptions can restart the running of the period.

Are there advantages in simply waiting? No. It does not tell you what is in the case file, and every examination, every judicial search order and every Strafbefehl may have interrupted the period (§ 78c Abs. 1 StGB).

I only found out about the offence now. Does that change the period? Not for the limitation of prosecution: it begins when the offence is completed (§ 78a StGB), not when you gain knowledge. The position is different for the period for a Strafantrag (§ 77b Abs. 2 Satz 1 StGB).