Germany: Does a two-year statute of limitations exist that would prevent an escaped criminal from completing his prison sentence for drug trafficking if caught, as well as prevent the authorities from prosecuting him for escaping

The Martindale-Hubbell Lawyers.com Website provides the following legal definition of the statute of limitations:

1 a : a statute establishing a period of time from the accrual of a cause of action (as upon the occurrence or discovery of an injury) within which a right of action must be exercised

b : a criminal statute establishing the period of time within which an offense can be punished after its commission

2 : a period of time established by a statute of limitations for commencing an action or prosecution (n.d.).

Specific information on the existence of a two-year statute of limitations that would prevent the German authorities from prosecuting an escaped criminal for escaping could not be found among the sources consulted.

Please find attached a copy of Chapter Five, Statutes of Limitations (Title One, Statute of Limitations for Prosecution – Section 78, and Title Two, Statute of Limitations for Execution – Section 79) of the German Penal Code, as of 15 August 1998.

For information on criminal offences related to drug trafficking, please consult Chapter VI (Criminal offences and regulatory offences) of the Act to Regulate the traffic in Narcotics, as amended up to 1996, which is available on the Website of the United Nations Office for Drug Control and Crime Prevention (UNDCP) at .

The "Country Profile: Germany" of the European Legal Database on Drugs (ELDD), which provides detailed information and explanations on criminal offences under the Narcotics Act, states that

Drug use and possession

Under German law the consumption of narcotic drugs is not as such defined as a criminal offence. However, anyone who possesses narcotic drugs for his private consumption and does not have a written permission for their acquisition, shall be considered to commit an offence pursuant to Section 29 para 1 of the Narcotics Act (so-called personal consumption offence) just as anyone who cultivates, produces and trades with narcotics or otherwise brings them into traffic without any official authorization. There is a scope of administrative discretion for the prosecution of personal consumption offences, that has been further extended since 1992. Since then, on the basis of Section 31a of the Narcotics Act, the public prosecutor may refrain from prosecution even without consent by the court if he considers the offender's guilt to be minor, if there is no public interest in the offence and the narcotics used only served the purpose of the offender's own consumption in small quantities.

. . .

Trafficking and drug-related crime

Sections 29 to 34 of the Narcotics Act comprise a catalogue of "criminal offences" and additional provisions. They include all criminal offences which have to be established as such pursuant to Article 3 of the 1988 Vienna Convention. Basically the Narcotics Act contains the following 4 categories of drug-related criminal offences.:

– ordinary criminal offences, which are punishable up to five years imprisonment or fine; Section 29 para 1 Nos. 1 to 14;

– serious cases of criminal offences which are punishable by a minimum of 1 year up to 15 years imprisonment, Section 29 para 3 and Section 29a; and

– crimes which are punishable by a minimum of 2 years (in special cases: 3 or 5 years) up to 15 years of imprisonment, Sections 30 to 30b.

– regulatory offences (violating administrative provisions) which are sanctioned by (an administrative) fine only, Section 32.

The illicit trafficking, cultivation and manufacture of narcotic drugs rank among the most serious drug-related offences. The classification into one of the aforesaid three categories particularly depends on the set of factual circumstances, which are explicitly mentioned in the Act. What is aggravating in the first place are not insignificant quantities of narcotic drugs, e.g. in connection with illicit trafficking.

Further aggravating circumstances are, inter alia, an adult supplying narcotics to a person under the age of 18 years (Section 29a), someone trafficking narcotics "professionally" or as a member of a gang (Sections 30, 30a) or, when committing a serious drug-related offence, carrying a firearm or other articles which by their nature are likely and intended to cause bodily harm (Section 30a).

Moreover, the statutory range of punishment is the same for all kinds of narcotic drugs, i.e. the type and classification of the narcotic does not influence the statutory range of punishment. However, in his final sentence the judge may, shall and will always take into account the kind and the different risks of an individual narcotic drug used when committing an offence. Sentences related to cannabis, especially small quantities, are usually less severe than those related to particularly dangerous narcotic drugs. A significant difference is made by law and by jurisdiction between offences of trafficking and of smuggling (see above) and those which essentially concern a punishable possession of narcotics, particularly for the purpose of personal consumption.

Prosecution and judicial practice

Along with the general provisions of the Penal Code and the Code of Criminal Procedure, the penal provisions of the Narcotics Act constitute the legal basis required for all drug-related investigations and measures of criminal prosecution by the police, customs authorities and the public prosecutors' offices as well as for court decisions on drug-related offences. Moreover, the Code of Criminal Procedure regulates the rights and duties of the defendant and the defence attorney during the entire criminal proceedings.

The police are obliged to report any offence to the public prosecutor's office (compare Section 163 of the Code of Criminal Procedure, StPO). As a rule, the criminal prosecution is mandatory for the public prosecutor as well. This corresponds to the German "principle of mandatory prosecution" (Sections 152, 160 of the Code of Criminal Procedure). However, the penal law provides for special provisions which allow the public prosecutor, as a special exception, to refrain from criminal prosecution ("principle of discretionary prosecution"). Provisions relating to this principle of discretionary prosecution in the Narcotics Act are Sections 29 paras 5 and 31a, in the Code of Criminal Procedure particularly the Sections 153, 153a to 153e as well as Section 154.

Germany is a Federal State where the Federal Laender have a high level of autonomy also in many aspects of narcotic drugs policy. According to Article 83 of the German Basic Law, they shall execute the Federal statutes, unless otherwise provided by the Basic Law. The jurisdiction in criminal proceedings related to narcotic drugs (except for decisions of last instance by the supreme Federal Courts) and the supervision of narcotic drugs trade at doctors' practices, pharmacies and hospitals is the task of the Federal Laender (n.d.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

European Legal Database on Drugs (ELDD). n.d. "Country Profile: Germany." [Accessed 6 Nov. 2002]

Martindale-Hubbell Lawyers.com. n.d. "Statute of Limitations." [Accessed 8 Nov. 2002]

Attachment

Germany. 15 August 1998. German Penal Code. Unofficial translation provided on the Website of the German Ministry of Justice, pp. 45-49. [Accessed 23 Oct. 2002]

Additional Sources Consulted

Germany. Federal Ministry of the Interior.

United Nations Office for Drug Control and Crime Prevention

Electronic Databases: IRB, NEXIS, UNHCR.

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