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. Section 57 para 4 StGB also provides that forfeiture and preventive measures become impermissible once limitation has occurred.

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.

Later result. Where a result that occurs only later belongs to the definition of the offence, the period does not end before it has either also elapsed from the occurrence of the result or one and a half times the original period, and at least three years, have elapsed from the original starting point (Section 58 para 1 StGB). The statutory minimum must be included in the calculation.

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).

Procedural suspension. Section 58 para 3 no 2 StGB excludes, among other periods, the time between a first suspect interview or certain coercive measures, the first prosecutorial investigative measure, a search, an arrest, an application for pre-trial detention or an indictment and the final conclusion of the proceedings. This is often more important in practice than the offence date alone.

Minor victims and diversion. 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 where the victim was a minor when the offence was committed (Section 58 para 3 no 3 StGB). Probationary periods and certain periods for diversionary measures are also excluded (Section 58 para 3 no 4 StGB).

Not every offence becomes time-barred. Punishable acts threatened with life imprisonment or with imprisonment of ten to twenty years generally do not become time-barred (Section 57 para 1 StGB). This includes, for example, murder under Section 75 StGB. After twenty years, however, a threatened life sentence is replaced for the limitation rule by imprisonment of ten to twenty years.

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, based on the precise offence and its qualifications.

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.

The period begins when the decision imposing the sentence becomes final (Section 59 para 2 StGB). It is fifteen years for imprisonment of more than one year up to ten years, ten years for imprisonment of more than three months up to one year or a fine with substitute imprisonment of more than three months, and five years in all other cases (Section 59 para 3 StGB). Life imprisonment, imprisonment of more than ten years and certain preventive measures do not become time-barred. If several sanctions were imposed at the same time, the longest applicable period governs (Section 59 para 4 StGB).

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.