Statute of limitations in criminal law: when an offence can no longer be prosecuted

Limitation means that after a certain period has expired an offence may no longer be prosecuted, or a sentence already imposed may no longer be enforced. Criminal law distinguishes two fundamentally different types.

Limitation for prosecution. It concerns the question of whether the offence may still be prosecuted at all. Once it has occurred, criminal liability is lifted and any proceedings must be discontinued. It is governed by Sections 57 and 58 StGB and is the focus of this article.

Limitation of enforcement. It concerns only the phase after a final conviction and the question of whether the sentence imposed may still be enforced (Section 59 StGB).

Limitation must be observed of the court’s own motion. It does not depend on the accused person invoking it. Nevertheless the precise calculation is often demanding in the individual case, because it depends on the correct legal classification of the offence and on possible grounds of suspension.

The length of the limitation period depends solely on the maximum penalty threatened by law. The more serious the offence, the longer the period. What is decisive is the abstract sentencing range of the respective offence including any qualifications, not the penalty to be expected in the concrete case.

This very point of reference shows why the legal classification is so important. If, for example, a bodily harm is qualified as serious bodily harm, the threatened maximum penalty changes and with it, in some circumstances, the limitation period. From a legal perspective the question of the period can therefore never be answered in isolation from the question of the correct subsumption.

For administrative penal matters and for fiscal criminal law, separate limitation rules apply outside the Criminal Code. This article deals with the offences prosecuted by the courts under the Criminal Code.

Start. The limitation period begins as soon as the criminal activity is concluded or the criminal conduct ceases (Section 57 para 2 StGB). With continuing offences the period therefore only runs from the end of the unlawful state.

Suspension on a later result. Where a result that occurs only later belongs to the definition of the offence, the period does not end before a certain time after the result occurs (Section 58 para 1 StGB). This prevents an offence from becoming time-barred before its consequences have even been established.

Extension by a further offence. If during the limitation period the offender commits a further punishable act based on the same harmful inclination, limitation does not occur before the period for that offence has also expired (Section 58 para 2 StGB).

Suspension of the start for young victims. For certain offences against life and limb, against liberty and against sexual integrity, the time until the victim reaches the age of 28 is not counted towards the limitation period (Section 58 para 3 no 3 StGB). In addition, certain periods, such as those of pending proceedings, are not counted.

Not every offence becomes time-barred. Punishable acts threatened with life imprisonment or with imprisonment of ten to twenty years do not become time-barred (Section 57 para 1 StGB). This includes, for example, murder under Section 75 StGB. For such offences there is no time limit on prosecutability.

This non-limitability of the most serious offences expresses a legislative value judgment: for acts of the highest degree of wrongdoing, the mere passage of time should not exclude prosecution. For the remaining offences the period staggered by sentencing range continues to apply.

Limitation of enforcement (Section 59 StGB) must be strictly distinguished from limitation for prosecution. It no longer concerns the question of whether the offence may be prosecuted, but the question of whether a sentence already imposed with final effect may still be enforced.

While limitation for prosecution thus operates before the final conviction, limitation of enforcement only comes into play afterwards. It too has its own periods staggered by the sentence imposed. Anyone with questions about enforcement following a final conviction should therefore have that period reviewed specifically and not confuse it with limitation for prosecution.

It should additionally be noted that the expungement of a conviction from the criminal record is yet another question. It concerns the later deletion of a final conviction from the criminal record and is the subject of a separate article.