Obstacle to persecution

Obstacle to prosecution , also obstacle to prosecution or prohibition of prosecution , is a legal term from criminal procedural law and means the absence of a procedural requirement for the prosecution of a criminal offense . Obstacles to persecution are justified by circumstances that exclude the possibility of negotiating a matter in the process with the aim of reaching a substantive decision. The circumstances must be so serious that the admissibility of the entire procedure must be made dependent on their existence or non-existence.

Prohibitions on prosecution ( procedural obstacles ) are to be taken into account ex officio and lead to the termination of the proceedings if they cannot be remedied.

The main obstacles to persecution are

Limitation according to §§ 78 ff. StGB,
opposing legal force of a decision in the same matter according to Article 103, Paragraph 3 of the Basic Law ( ne bis in idem ), Article 54 of the CISA and other cases of criminal charges , e.g. B. § 153a Abs. 1 S. 5, § 174 Abs. 2, § 211 StPO,
Criminal underage of the accused acc. Section 19 StGB,
Death and permanent incapacity of the accused,
diplomatic immunity according to §§ 18–20 GVG ,
Immunity of MPs according to Art. 46 para. 2 GG, § 152a StPO.

Individual evidence

↑ Procedural error - as criminal procedural procedural obstacles December 2, 2016.
^ BGH, judgments of December 9, 1987 - 3 StR 104/87, BGHSt 35, 137, 140; from October 25, 2000 - 2 StR 232/00, BGHSt 46, 159, 168 f. with num. wN; and from August 11, 2016 - 1 StR 196/16 Rn. 6; see also Kudlich in Munich Commentary on StPO, 1st ed., inlet marginal no. 353 and Kühne in Löwe / Rosenberg, StPO , 27th edition, Einl. K. Rn. 37 mwN.
↑ cf. BGH, decision of February 9, 2012 - 1 StR 152/11 no. 10.
^ Obstacles to criminal prosecution Rechtslexikon.de, accessed on August 29, 2020.
↑ cf. BGH, decision of October 25, 2012 - 1 StR 165/12
↑ Tilman Reichling: European dimensions of the “ne bis in idem” principle - problems of interpretation of Art. 54 of the Schengen Implementation Convention StudZR 2006, pp. 447–469.

[1] Procedural error - as criminal procedural procedural obstacles December 2, 2016.

[2] BGH, judgments of December 9, 1987 - 3 StR 104/87, BGHSt 35, 137, 140; from October 25, 2000 - 2 StR 232/00, BGHSt 46, 159, 168 f. with num. wN; and from August 11, 2016 - 1 StR 196/16 Rn. 6; see also Kudlich in Munich Commentary on StPO, 1st ed., inlet marginal no. 353 and Kühne in Löwe / Rosenberg, StPO , 27th edition, Einl. K. Rn. 37 mwN.

[3] . BGH, decision of February 9, 2012 - 1 StR 152/11 no. 10.

[4] Obstacles to criminal prosecution Rechtslexikon.de, accessed on August 29, 2020.

[5] . BGH, decision of October 25, 2012 - 1 StR 165/12

[6] Tilman Reichling: European dimensions of the “ne bis in idem” principle - problems of interpretation of Art. 54 of the Schengen Implementation Convention StudZR 2006, pp. 447–469.