Withdrawing a report: why only the Strafantrag can be taken back

Both can be lodged with the Staatsanwaltschaft, with the authorities and officers of the police service and with the Amtsgerichte (§ 158 Abs. 1 Satz 1 StPO). That is where what they have in common ends.

The Anzeige communicates a set of facts to an authority. Once the communication is in the world, it cannot be brought back. The Strafantrag, by contrast, is a declaration by which the injured person demands prosecution. In the case of criminal offences whose prosecution takes place only on such an application, the identity and the will to prosecute of the applicant must be established (§ 158 Abs. 2 StPO). Only that declaration can be withdrawn.

At the police station, both can be recorded at the same time. Anyone who wants to withdraw a report should therefore first have it clarified whether a Strafantrag was made at all and whether the reported offence is an Antragsdelikt.

The application can be withdrawn; the withdrawal may be declared until the criminal proceedings have been concluded with final effect (§ 77d Abs. 1 Satz 1 und 2 StGB). What is decisive is the third sentence of the same provision: an application that has been withdrawn cannot be made again (§ 77d Abs. 1 Satz 3 StGB). The withdrawal is therefore final, even if the situation changes again later.

Unless the statute provides otherwise, the person entitled to make the application is the injured person (§ 77 Abs. 1 StGB). Where that person lacks legal capacity or has limited legal capacity, the statutory representative in personal matters and the person holding parental care may make the application (§ 77 Abs. 3 StGB). Where several people are entitled, each may make the application independently (§ 77 Abs. 4 StGB); a withdrawal by one person does not then automatically dispose of another person's application. In the case of offences by or against public officials and soldiers, the superior in the service may also be entitled to apply (§ 77a Abs. 1 StGB).

The period for making the application is three months and begins at the end of the day on which the person entitled learns of the offence and of the identity of the offender (§ 77b Abs. 1 Satz 1 und Abs. 2 Satz 1 StGB). It is not the limitation period for the offence; we explain the differences in the guide on limitation in criminal law.

Even where the proceedings continue, you are not at their mercy. Those entitled to refuse to give evidence include fiancés, spouses, even where the marriage no longer exists, civil partners, even where the partnership no longer exists, and people who are or were related to the accused person in the direct line or related by marriage, or related in the collateral line up to the third degree or related by marriage up to the second degree (§ 52 Abs. 1 StPO). You must be informed of this right before every examination, and a waiver can be revoked even during the examination (§ 52 Abs. 3 StPO).

Independently of that, every witness may refuse to answer questions the answering of which would expose them or one of the relatives named in § 52 Abs. 1 StPO to the risk of being prosecuted for a criminal offence or an Ordnungswidrigkeit, a regulatory offence punishable by an administrative fine (§ 55 Abs. 1 StPO). You must be informed of this as well (§ 55 Abs. 2 StPO).

These rights are no substitute for a withdrawal and no recommendation to make use of them.

Some people want to withdraw a report because it arose out of a quarrel and is not accurate. In that case three provisions should be known before any further declaration is made.

Whoever, against their better knowledge, accuses another person before an authority of an unlawful act with the intention of bringing about or continuing official proceedings against them is punished with imprisonment of up to five years or with a fine (§ 164 Abs. 1 StGB). Whoever, against their better knowledge, pretends to an authority that an unlawful act has been committed is punished with imprisonment of up to three years or with a fine, where the act is not subject to a penalty under the other provisions named there (§ 145d Abs. 1 Nr. 1 StGB). And where proceedings have been brought about by an untrue report made intentionally or recklessly, the court has, after hearing the person who made the report, to impose on them the costs of the proceedings and the necessary expenses incurred by the Beschuldigter, the person against whom the investigation is being conducted (§ 469 Abs. 1 Satz 1 StPO).

That is not a reason to stay silent but a reason not to draft a correction without advice.