Criminal record

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In Germany, a person is deemed to have a previous conviction as soon as a penalty has been pronounced against him in a criminal process or a penalty order has been issued , this measure has become final and has not been canceled. A conviction with parole is also considered a criminal record.

Administrative offenses , the cessation of criminal proceedings against fines and convictions for the payment of compensation under civil law do not count as previous convictions.

Entry in the federal central register

All of the above measures, i.e. legally binding penal orders and penalties imposed by criminal courts, are entered in the Federal Central Register. Criminal judges as well as the bodies and authorities named in Section 41 of the Federal Central Register Act (BZRG) are authorized to inspect . This register alone is relevant to assess whether a person has an entry and is therefore considered a criminal record in the legal sense.

Since 2009 the EU has been working on the establishment of a "European Criminal Records Information System" (ECRIS). This system is intended to enable the automated exchange of information from the criminal records of the EU member states in the future. This considerably simplifies and expands the exchange of information within the EU, which was previously regulated in Section 57 BZRG.

Information about entries (certificate of good conduct)

On request, anyone over the age of 14 can receive information about entries in the Federal Central Register. The information, commonly referred to as a certificate of good conduct , contains entries about previous convictions or conditions. Certain entries in the Federal Central Register are excluded from inclusion in the certificate of good conduct, for example youth sentences up to a certain amount, first-time fines of no more than 90  daily rates and first-time convictions of drug addicts offenders under certain conditions.

Obligation of the convicted to disclose

According to Section 53 of the BZRG, convicts may call themselves unpunished if the sentence is not entered in the certificate of good conduct or only in accordance with Section 32 (3) and 4 of the BZRG.

A widespread misconception is that penalties are only entered in the Federal Central Register if the sentence is more than 90 daily rates or 3 months' imprisonment. In fact, a distinction must be made between the register itself (§§ 3 ff. BZRG) and the later information from this register, e.g. the certificate of good conduct (§§ 30ff. BZRG). In fact, all penalties are recorded in the register and remain there until they are repaid (§§ 45ff. BZRG). Existing entries by a defendant are determined in criminal proceedings by reading out an extract from the register.

Entries in the certificate of good conduct must be distinguished from the entries in the Federal Central Register - and fines of up to 90 daily rates are not to be included in the certificate of good conduct ( Section 32 (2) No. 5 a) BZRG). There is one exception to this, however: This only applies “if no further penalty is entered in the register” ( Section 32 (2) No. 5 BZRG, at the end).

Affected persons do not need to disclose the facts on which their conviction is based, even when asked. According to the popular understanding, people who can call themselves unpunished are generally not considered to have a criminal record.

However, there are occasional rights to ask questions about previous convictions. In this way, employers can ask about previous convictions in the interview if the information is relevant to the intended activity. Here, the employer's need for information must regularly be weighed against the applicant's interests in informational self-determination and social rehabilitation.

Witnesses in criminal proceedings can also be asked about their previous convictions if this is necessary in order to assess their credibility (Section 86a of the Code of Criminal Procedure ).

Deletion of entries

The previous conviction will be canceled after a certain period of time if the person concerned has not been convicted again for a defined period of time, i.e. a new conviction has not been reported to the Federal Central Register. The repayment period begins on the day of the first judgment in the criminal case.

In the case of a conviction of a youth or imprisonment of more than one year, the period is generally 15 years, in the case of convictions for a sexual offense 20 years, the period is extended in both cases by the duration of the sentence imposed. If the penalty is less, the time limit is 5 or 10 years, depending on the type and duration. In all cases, a one-year retention period must be added to the repayment period , during which the conviction is still stored in the BZR, but no information is given about it. For example, a conviction for serious robbery of twelve years' imprisonment has a repayment period of 28 years (15 years standard repayment period in addition to the sentence of twelve years and one year grace period).

If a further conviction is entered in the register during the retention period, the earlier entry, which is actually ready for repayment, is retained.

A deleted entry cannot be used against a convicted person in legal dealings or used to his disadvantage (Section 51 (1) BZRG). This prohibition of exploitation also applies if a new act is committed during the repayment period, but the main negotiation does not begin until after the repayment period. This means that deleted entries may not be taken into account when determining the sentence for a new offense. This applies even if a defendant voluntarily communicated such entries.

At the end of this period, a convicted person is officially not considered to have a criminal record and will no longer be referred to as having a criminal record in future extracts from the Federal Central Register. Entries of judgments with a life sentence or placements according to § 63 ( psychiatric clinic ) and § 66 StGB ( preventive detention ) are not deleted .

See also

  • Certificate of good conduct ( certificate of criminal record, extract from criminal record, formerly: certificate of good conduct, certificate of good repute)
  • Criminal files

Web links

Individual evidence

  1. ↑ Decision 2009/316 / JHA of the Council of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in accordance with Article 11 of Framework Decision 2009/315 / JHA, OJ. No. L 93 p. 33.
  2. ↑ Sollmann, Stefan: On the new regulations on the exchange of criminal records information within the European Union and on the need to implement them in German law, NStZ 2012, 253ff.
  3. ↑ Cf. Korstock, in: Nipperdey, Lexikon-Arbeitsrecht, 28th Edition Munich 2016, keyword contesting margin no. 1.
  4. ↑ BAG, judgment of December 5, 1957 - 1 AZR 594/56, BAGE 5, 159; BAG, judgment of May 20, 1999 - 2 AZR 320/98, BAGE 91, 349.
  5. ↑ Joussen, Jacob: The extended certificate of good conduct in the employment relationship, NZA 2012, 776 (777), with further references
  6. ^ LG Mannheim, judgment of March 12, 1981 - (12) 5 Ns 190/80, NJW 1981, 1795; BGH, judgment of 15.03.2001 - 5 StR 591 /, NStZ 2001, 418.
  7. ↑ Bücherl, in: Graf, Jürgen / Volk, Klaus (Ed.) BeckOK StPO (as of June 15, 2009), BZRG § 45, Rn. 1.
  8. ↑ § 36 BZRG
  9. ↑ a b § 46 BZRG paragraph (1) and (2)
  10. ↑ § 46 BZRG paragraph (3)
  11. ↑ § 45 BZRG paragraph (2)
  12. ↑ BGHSt 25, 19 (23); Rebmann / Uhlig BZRG Commentary, Munich 1985, § 45 Rn. 10f with examples.
  13. ↑ BGH, decision of December 22, 2015 - 2 StR 207/15, NStZ-RR 2016, 120.
  14. ↑ BGH, judgment of July 19, 1972 - 3 StR 66/72, NJW 1973, 66 = BGHSt 24, 378; BGH, decision of January 18, 2000 - 1 StR 528/00, NStZ-RR 2001, 203.
  15. ↑ Stree / Kinzig, in: Schönke / Schröder, Criminal Code Comment, 29th edition Munich 2014, § 46 Rn. 31.