Geschäftszeichen:	4000/64 - 27 472/2004 (bei Antwort bitte angeben)
The Finnisch Ministry of Justice POB 25
00023-Government

Bundesministerium der Justiz	Berlin, den 17. Dezember 2004
Postanschrift:
Bundesministerium der Justiz, 11015 Berlin Hausanschrift: Mohrenstraf!e 37, 10117 Berlin Lieferanschrift: Kronenstral e 41, 10117 Berlin Telefon:	01888580-0
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Reference: Your Letter dated 15 November 2004 - OM 22/41/2004
OM046:00/2004 -

Annex:
In response to your query, I would like to state the following: Question 1:

Is there a difference in the statute of limitations as regards sex offences or violent crime against children, as compared to the statute of limitation as regards other types of crime, either in terms of starting point or duration? When does the limitation period begin to run in such cases? How long is its duration, or is there a difference based on the type of offence? Please describe also the applicable provisions and their material content to the extent you deem necessary.

Response:

Yes, in Germany, special statutes of limitations apply to sex offences which victimize children. Section 78b (1) no. 1 StGB stipulates that the statute of limitations is tolled until the victim reaches 18 years of age. The statute of limitations does not begin running until the victim of a relevant offence has reached the age of consent, whereas for other offences the commence-

ment of the statute of limitations is fixed to the point in time of the completion of the act (section 78a StGB). These special provisions cover sex offences, possibly also in conjunction with the use of psychological or physical force (cf. e.g. section 176a (2), (5); section 176b, section 177, section 178), but not other cases of a non-sexual nature involving the use of violence.

In German criminal law, the duration of the statute of limitations is primarily aligned to the penalty for the offence (section 78 (3) StGB; "basic statute of limitations"). For the relevant offences, the basic statute of limitations is between five and twenty years (cf. section 78 (3) nos. 2 to 4 StGB); Examples: five years for offences pursuant to section 174 (1), (2), ten years for offences pursuant to section 176 (1), twenty years for offences pursuant to section 176a (1), (2) StGB.

The expiry of the statute of limitations in each specific case is, however, not determined by the basic statute of limitations, but is also influenced by whether there are any interruptions within the meaning of section 78c (1) StGB. Each of the acts listed in nos. 1 to 12 "interrupt" the statute of limitations, i.e., the basic statute of limitations commences anew at the point in time where interruptions have been made (section 78c (3), first sentence, StGB). Hence, if, for instance, a person accused of an offence is heard by a judge on a matter constituting a ten-year basic statute of limitations pursuant to section 176 (1) StGB (cf. section 78c (1) no. 2) or if the person is indicted (cf. section 78c (1) no. 6), then the ten-year limitation commences anew with the hearing or indictment. These possibilities are (only) restricted by the "absolute statute of limitation"; this takes effect pursuant to section 78c (3), second sentence, StGB, if two times the amount of time of the basic statute of limitations has elapsed.

In sum, this rule has the following effect: A perpetrator of an offence pursuant to section 174 (1) StGB could be criminally prosecuted, for instance, up to a maximum of ten years, a perpetrator of an offence pursuant to section 176 (1) StGB up to a maximum of 20 years, a perpetrator of an offence pursuant to section 176a (1) StGB up to a maximum of 40 years after the victim's 18th birthday.

Enclosed is the content of sections 78 — 78c, 174 — 174c, 176 — 179 StGB. Question 2:

Does your country have specific penal legislation on child abductions? If so, what is the material content of said legislation and what kind of penalty may be enforced against perpetrators?

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Response:

Yes. Regarding this, reference is made to the provisions of sections 235, 236 StGB (child stealing and trafficking in children), the content of which I have enclosed. Section 235 StGB refers to a case in which a person under eighteen years of age is taken away or withheld by force, threat of appreciable harm or trickery or a child is taken away by a person, without be-ing its relative, from the parents, one of the parents, the legal or other guardian. According to this provision, a penalty is imposed on whomever takes a child from the persons mentioned in order to take it abroad, or withholds it abroad after it had been taken or had gone there. This offence is punished with a prison sentence of up to five years or a fine; the imposition of severer penalties can apply in cases involving more grave circumstances.

Section 236 StGB relates to a case where the parents, one of the parents, the legal or other guardian, with gross neglect of their duties of care and upbringing, leaves their child under eighteen years of age or their ward or person entrusted to their care under eighteen years of age with another person indefinitely for compensation, or with the intent of enriching them-selves or a third person. This offence is punishable by a prison sentence of up to five years or a fine. Whoever takes the child, the ward or the person entrusted to their care in indefinitely and gives compensation therefor, shall be similarly punished. Higher penalties apply in cases involving more grave circumstances.

Question 3:

Does your country have specific penal legislation on the use of someone else's identification or similar documentation in order to deceive a private individual? If so, what is the material content of said legislation and what kind of penalty may be enforced against perpetrators?

Response:

Reference is made in this respect to section 281 StGB (Misuse of Identification Papers). Pursuant to this provision, a person is criminally liable, who, for the purpose of deception in legal relations, uses an identification paper which was issued to another, or who, for the purpose of deception in legal relations, gives another an identification paper that was not issued to that person. This offence is punishable by a prison sentence of up to one year or a fine. In addition, criminal liability could possibly be incurred due to fraud (section 263 StGB). These provisions are each enclosed.

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For the Federal Ministry of Justice, (Perdita Kröger)

GERMAN CRIMINAL CODE
Section 78 Period of Limitation
(1) The imposition of punishment and the ordering of measures (Section 11 subsection (1), no. 8) shall be excluded on expiry of the period of the statute of limitations. Section 76a sub-section (2), sent.1, no. 1, shall remain unaffected.
(2)	Serious criminal offenses under Section 211 (murder) are not subject to a statute of limitations.
(3)	To the extent that prosecution is subject to a statute of limitations, the period of limitation shall be:
1.	thirty years in the case of acts punishable by imprisonment for life;
twenty years in the case of acts punishable by a maximum term of imprisonment of more than ten years;
ten years in the case of acts punishable by a maximum term of imprisonment of more than five years but not more than 10 years;
five years in the case of acts punishable by a maximum term of imprisonment of more than one year but not more than five years;
three years in the case of other acts.
(4)	The period shall conform to the punishment threatened by the norm defining the elements of the offense fulfilled by the act, irrespective of aggravating or mitigating circumstances provided for in the provisions of the General Part or for especially serious or less serious cases.

Section 78a Commencement
The statute of limitations shall commence to run as soon as the act is completed. If a result constituting an element of the offense only occurs later, then the statute of limitations shall commence to run at that time.

Section 78b Tolling
(1)	The statute of limitations shall be tolled:
1.	until the victim of crimes under Sections 174 to 174c and 176 to 179 is eighteen years of age;
as long as the prosecution may, according to the law, not be commenced or continued; this shall not apply if the act may not be prosecuted only because complaint, authorization or re-quest for prosecution are lacking.
(2) If prosecution is not possible because the perpetrator is a member of the Bundestag or a legislative body of a Land, then the tolling of the statute of limitations shall commence upon expiration of the day on which:
1. the public prosecutor or a public authority or a police officer acquires knowledge of the act and the identity of the perpetrator; or

2. a criminal information or criminal complaint has been lodged against the perpetrator (section 158 Code of Criminal Procedure).
(3)	If a judgment has been rendered in the proceedings at first instance before the expiration of the period of limitation, then the period of limitation shall not expire before the time the proceedings have been concluded with finality.
If the law provides for imprisonment for more than five years in aggravation in especially serious cases and trial proceedings have been instituted in the Landgericht (Regional Court), then the statute of limitations shall be tolled in cases under Section 78 subsection (3), no. 4, from the opening of proceedings in the trial court, but at most for a period of five years; subsection (3) remains unaffected.

Section 78c Interruption
(1)	The running of the statute of limitations shall be interrupted by:
1.	the first interrogation of the accused, notice that investigative proceedings have been initiated against him, or the order for such interrogation or notice;
any judicial interrogation of the accused or the order thereof;
any commissioning of an expert by the judge or public prosecutor if the accused has previously been interrogated or he has been given notice of the initiation of investigative proceedings;
any judicial seizure or search order and judicial decisions which uphold them;
an arrest warrant, placement order, order to be brought before a judge for interrogation and judicial decisions which uphold them;
the preferment of a public indictment;
the institution of proceedings in the trial court;
any setting of a trial date;
a penal order or another decision equivalent to a judgment;
the provisional judicial dismissal of the proceedings due, to the absence of the indicted accused as well as any order of the judge or public prosecutor which issues after such a dismissal of the proceedings or in proceedings in absentia to ascertain the whereabouts of the indicted accused or to secure evidence;
the provisional judicial dismissal of the proceedings due to the lack of capacity of the indicted accused to stand trial as well as any order of the judge or public prosecutor which is-sues after such a dismissal of the proceedings to review the fitness of the indicted accused to stand trial; or
any judicial request to undertake an investigative act abroad.
In a preventive detention proceeding and in an independent proceeding, the running of the statute of limitations shall be interrupted by acts in the conduct of a preventive detention proceeding or an independent proceeding which correspond to those in sentence 1.
(2)	The running of the statute of limitations shall be interrupted by a written order or decision at the time at which the order or decision is signed. If the document is not immediately processed after signing, then the time it is actually submitted for processing shall be decisive.

(3)	After each interruption the statute of limitations shall commence to run anew. Prosecution shall be barred at the latest by the statute of limitations, however, when twice the statutory period of limitation has elapsed since the time indicated in Section 78a, or three years, if the period of limitation is shorter than three years. Section 78b shall remain unaffected.
The interruption shall have effect only in relation to the person to whom the act relates.

(5)	If a norm which applies at the time the act is completed is amended before the decision and the period of limitation is thereby shortened, then acts triggering an interruption, which have been undertaken before the entry into force of the new law, shall maintain their effect, even if at the time of the interruption the prosecution would already have been barred by the statute of limitations under the new law.
Section 174 Sexual Abuse of Wards
(1)	Whoever commits sexual acts:
1.	on a person under sixteen years of age who is entrusted to him for upbringing, education or care in leading his life;
on a person under eighteen years of age who is entrusted to him for upbringing, education or care in leading his life or who is a subordinate within the framework of an employment or a work relationship, by abusing the dependence associated with the upbringing, educational, ca-re, employment or work relationship; or
on his natural or adopted child who is not yet eighteen years of age,
or allows them to be committed on himself by the ward, shall be punished with imprisonment from three months to five years.
(2)	Whoever, under the prerequisites of subsection (1), numbers 1 to 3:
1.	commits sexual acts in front of the ward; or
induces the ward to commit sexual acts in front of him,
in order to thereby sexually arouse himself or the ward, shall be punished with imprisonment for not more than three years or a fine.
(3)	An attempt shall be punishable.
(4)	In cases under subsection (1), number 1 or subsection (2) in conjunction with subsection (1), number 1, the court may dispense with punishment pursuant to this provision, if, taking into consideration the conduct of the ward, the wrongfulness of the act is slight.

Section 174a Sexual Abuse of Prisoners, Persons in the Custody of a Public Authority, and Persons in Institutions Who are III or in Need of Assistance
(1)	Whoever commits sexual acts on a prisoner or a person in custody upon order of a public authority, who is entrusted to him for upbringing, education, supervision or care, by abusing

his position, or allows them to be committed on himself by the prisoner or person in custody, shall be punished with imprisonment from three months to five years.
(2)	Whoever abuses a person who has been admitted to an institution for persons who are ill or in need of assistance and entrusted to him for supervision or care, in that he commits sexual acts on the person by exploiting the person's illness or need of assistance, or allows them to be committed on himself by the person, shall be similarly punished.
(3)	An attempt shall be punishable.
Section 174b Sexual Abuse By Exploiting a Position in a Public Office
(1)	Whoever, as a public official who is charged with participation in a criminal proceeding or a proceeding to order a measure of reform and prevention involving deprivation of liberty or custody imposed by a public authority, and by abusing the dependency caused by the proceedings, commits sexual acts on the person against whom the proceedings are directed, or allows them to be committed on himself by the person, shall be punished with imprisonment from three months to five years.
(2)	An attempt shall be punishable.
Section 174c Sexual Abuse By Exploiting a Counseling, Treatment or Care Relationship
(1)	Whoever commits sexual acts on a person who is entrusted to him for counseling, treatment or care due to a mental or an emotional illness or disability including an addiction or due to a physical illness or disability, by abusing the counseling, treatment or care relationship, or allows them to be committed on himself by the person, shall be punished with imprisonment from three months to five years.
Whoever commits sexual acts on a person entrusted to him for psychotherapeutic treatment by abusing the treatment relationship, or allows them to be committed on himself by the person, shall be similarly punished.
(3)	An attempt shall be punishable.
Section 176 Sexual Abuse of Children
(1)	Whoever commits sexual acts on a person under fourteen years of age (a child), or allows them to be committed on himself by the child, shall be punished with imprisonment from six months to ten years.
(2)	Whoever induces a child to commit sexual acts on a third person, or to have them committed on the child by a third person, shall be similarly punished.
(3)	In especially serious cases imprisonment of not less than one year shall be impo‑
sed.
(4)	Whoever:
1.	commits sexual acts in front of a child;
2.	induces the child to commit sexual acts on his own body;

3.	exerts influence on a child by writings (Section 11 subsection 3) to induce him to commit sexual acts on or in front of the perpetrator or a third person or by the perpetrator or a third person on the child, or
exerts influence on a child by showing him pornographic illustrations or images, by playing him audio recording media with pornographic content or by corresponding speech, shall be punished with imprisonment from three months to five years.
(5)	Whoever offers or is shown to have promised a child for an act under subsections (1) to (4) or who arranges with another to commit such an act, shall be punished with imprisonment from three months to five years.
An attempt shall be punishable; this shall not apply for acts under subsection (4), numbers 3 and 4 and subsection (5).

Section 176a Serious Sexual Abuse of Children
(1) The sexual abuse of children shall be punished with imprisonment for no less than one year in cases under Section 176 subsections (1) and (2), if the perpetrator has been convicted in a final judgment of such a crime within the previous five years.
(2)	The sexual abuse of children shall be punished with imprisonment for no less than two years in cases under Section 176 subsections (1) and (2), if:
1.	a person over eighteen years of age completes an act of sexual intercourse or similar sexual acts with the child, which are combined with a penetration of the body, or allows them to be committed on himself by the child;
the act is committed jointly by more than one person; or
the perpetrator by the act places the child in danger of serious health damage or substantial impairment of his physical or emotional development.
(3)	Whoever, in cases under Section 176 subsections (1) to (3), (4) nos. 1 or 2, or Section 176 subsection 6, acts as a perpetrator or other participant with the intent of making the act the object of a pornographic writing (Section 11 subsection (3)), which is to be disseminated pursuant to Section 184b subsections (1) to (3), shall be punished with imprisonment for not less than two years.
(4)	In less serious cases under subsection (1), imprisonment from three months to five years shall be imposed, in less serious cases under subsection (2), imprisonment from one year to ten years.
(5)	Whoever, in cases under Section 176 subsections (1) to (3), seriously physically abuses the child or places the child in danger of death, shall be punished with imprisonment for not less than five years.
(6)	The time in which the perpetrator is in custody in an institution pursuant to order of a public authority shall not be credited to the term indicated in subsection (1). An act as to which judgment was rendered abroad shall be deemed equivalent in cases under subsection (1), to an act as to which judgment was rendered domestically, if under German criminal law it would have been such an act under Section 176 subsections (1) or (2).

Section 176b Sexual Abuse of Children Resulting in Death
If by the sexual abuse (Sections 176 and 176a) the perpetrator at least recklessly causes the death of the child, then the punishment shall be imprisonment for life or for not less than ten years.
Section 177 Sexual Coercion; Rape
(1)	Whoever coerces another person:
1.	with force;
by a threat of imminent danger to life or limb; or
by exploiting a situation in which the victim is unprotected and at the mercy of the perpetrator's influence,
to suffer the commission of sexual acts of the perpetrator or a third person on himself or to commit them on the perpetrator or a third person, shall be punished with imprisonment for not less than one
year.
(2)	In especially serious cases the punishment shall be imprisonment for not less than two years. An especially serious case exists, as a rule, if:
1.	the perpetrator completes an act of sexual intercourse with the victim or commits similar sexual acts on the victim, or allows them to be committed on himself by the victim, which especially degrade the latter, especially if they are combined with penetration of the body (rape); or
the act is committed jointly by more than one person.
(3)	Imprisonment for not less than three years shall be imposed, if the perpetrator:
1.	carries a weapon or another dangerous tool;
otherwise carries a tool or means in order to prevent or overcome the resistance of another person through force or threat of force; or
places the victim by the act in danger of serious health damage.
(4)	Imprisonment for not less than five years shall be imposed, if:
1.	the perpetrator uses a weapon or another dangerous tool during the act; or
the perpetrator:
a)	seriously physically maltreats the victim through the act; or
places the victim in danger of death through the act.
(5)	In less serious cases under subsection (1), imprisonment from six months to five years shall be imposed, in less serious cases under subsections (3) and (4), imprisonment from one year to ten years.

Section 178 Sexual Coercion and Rape Resulting in Death
If the perpetrator through sexual coercion or rape (Section 177) at least recklessly causes the death of the victim, then the punishment shall be imprisonment for life or for not less than ten
years.

Section 179 Sexual Abuse of Persons Incapable of Resisting
(1)	Whoever abuses another person who is incapable of resisting:

1.	because of a mental or emotional illness or disability, including an addiction or because of a profound consciousness disorder; or
physically,
in that he, by exploiting the incapability of resisting, commits sexual acts on the person, or allows them to be committed on himself by the person, shall be punished with imprisonment from six months to ten years.
(2)	Whoever abuses a person incapable of resisting (subsection (1)), in that he induces the person, by exploiting the incapability of resisting, to commit sexual acts on a third person, or to allow them to be committed on the person by a third person, shall be similarly punished.
In especially serious cases imprisonment for no less than one year shall be impo‑
sed.
(4)	An attempt shall be punishable.
(5)	Imprisonment for no less than two years shall be imposed, if:
1.	the perpetrator completes an act of sexual intercourse or similar sexual acts with the victim, which are combined with a penetration of the body, or allows them to be committed on himself by the victim;
the act is committed jointly by more than one person; or
by the act the perpetrator places the victim in danger of serious health damage or substantial impairment of his physical or emotional development.
(5)	In less serious cases under subsections (5), imprisonment from one year to ten years shall be imposed.
(6)	Sections 177 subsection (4) no. 2 and 178 shall apply correspondingly.
Section 235 Child Stealing
(1)	Whoever takes away or withholds from the parents, one of the parents, the legal or other guardian:
1.	a person under eighteen years of age by force, threat of appreciable harm or trickery; or
a child, without being its relative,
shall be punished with imprisonment for not more than five years or a fine.
(2)	Whoever:
1.	takes a child away from the parents, one of the parents, or the legal or other guardian, in order to take it abroad; or
withholds it abroad after it had been taken or had gone there,
shall be similarly punished.
(3)	In cases under subsection (1), number 2 and subsection (2), number 1, an at-tempt shall be punishable.
(4)	Imprisonment from one year to ten years shall be imposed, if the perpetrator: 1. by the act places the victim in danger of death or serious health damage or a substantial impairment of his physical or emotional development; or

2. commits the act for compensation or with the intent of enriching himself or a third person.
(5)	If by the act the perpetrator causes the death of the victim, then the punishment shall be imprisonment for not less than three years.
In less serious cases under subsection (4), imprisonment from six months to five years shall be imposed, in less serious cases under subsection (5), imprisonment from one year to ten years.
Child stealing shall only be prosecuted upon complaint in cases under subsections (1) to (3), unless the prosecuting authority considers ex officio that it is required to enter the case because of the special public interest therein.

Section 236 Trafficking in Children
(1)	Whoever, in gross neglect of his duties of care and upbringing, leaves his child, ward, or foster childunder eighteen years of age with another indefinitely for compensation or with the intent of enriching himself or a third person, shall be punished with imprisonment for not more than five years or a fine. Whoever, in cases under sentence 1, takes the child, ward, or foster child in indefinitely and gives compensation therefor, shall be similarly punished.
(2)	Whoever, without authorization:
1.procures the adoption of a person under eighteen years of age; or
2. engages in procurement activity which has as its goal that a third person takes in a person under eighteen years of age indefinitely,
and thereby acts for compensation or with the intent of enriching himself or a third person, shall be punished with imprisonment for not more than three years or a fine. If the perpetrator in cases under sentence 1 causes the procured person to be brought into Germany or abroad, then the punishment shall be imprisonment for not more than five years or a fine.
(3)	An attempt shall be punishable.
(4)	Imprisonment from six months to ten years shall be imposed, if the perpetrator:
1.	acts for profit, on a commercial basis or as a member of a gang, which has combined for the continued commission of trafficking in children; or
by the act places the child or the procured person in danger of a substantial impairment of his physical or emotional development.
(5)	The court may in its discretion mitigate the punishment (Section 49 subsection (2)) in cases under subsections (1) and (3) and in cases under subsections (2) and (3) or dispense with punishment under subsections (1) to (3) for participants whose guilt, taking into consideration the physical or emotional welfare of the child or the procured person, is slight.
Section 263 Fraud
(1)	Whoever, with the intent of obtaining for himself or a third person an unlawful material benefit, damages the assets of another, by provoking or affirming a mistake by pretending

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that false facts exist or by distorting or suppressing true facts, shall be punished with imprisonment for not more than five years or a fine.
(2)	An attempt shall be punishable.
(3)	In especially serious cases the punishment shall be imprisonment from six months to ten years. An especially serious case exists, as a rule, if the perpetrator:
1.	acts on a commercial basis or as a member of a gang which has combined for the continued commission of falsification of documents or fraud;
causes an asset loss of great magnitude or by the continued commission of fraud acts with the intent of placing a large number of human beings in danger of loss of assets;
places another person in financial need;
abuses his powers or his position as a public official; or
feigns an insured event after he or another have, to this end, set fire to a thing of significant value or destroyed it, in whole or in part, through the setting of a fire or caused the sinking or wrecking of a ship.
(4)	Section 243 subsection (2), as well as Sections 247 and 248a shall apply accor‑
dingly.
(5) Whoever on a commercial basis commits fraud as a member of a gang, which has combined for the continued commission of crimes under Sections 263 to264 or 267 to 269, shall be punished with imprisonment from one year to ten years, in less serious cases with imprisonment from six months to five years.
The court may order supervision of conduct (Section 68 subsection (1)). Sections 43a, 73d shall be applicable if the perpetrator acted as a member of a gang which has combined for the continued commission of crimes under Sections 263 to 264 or 267 to 269. Section 73d shall also be applicable if the perpetrator acted on a commercial basis.
Section 281 Misuse of Identification Papers
(1)	Whoever, for the purpose of deception in legal relations, uses an identification paper which was issued to another, or whoever, for the purpose of deception in legal relations, gives another an identification paper that was not issued to that person, shall be punished with imprison-ment for not more than one year or a fine. An attempt shall be punishable.
(2)	Certificates and other documents which are used as identification documents in transactions shall be equivalent to an identification paper.