Immunity from prosecution for naturalization
Immunity from prosecution for naturalization
In your application for naturalization, you must state, among other things, whether you have already been convicted of a criminal offense in the past. If you give false information when answering this question, you may be liable to prosecution according to § 42 StAG. It is therefore important that you provide complete information here. In the following article, we explain what counts as a conviction and whether any conviction, even for minor offenses, can result in your being denied naturalization.
What counts as a conviction?
In principle, any criminal judgment against you is relevant for determining your exemption from punishment in the context of naturalization, regardless of whether a fine or a custodial sentence was imposed. Particularly important: Criminal orders that have been issued against you must also be stated. This is because, on the basis of Section 410 (3) of the Code of Criminal Procedure, a penalty order against which an appeal has not been lodged in good time is equivalent to a final judgment.
Measures of improvement and safeguarding, which are imposed when someone has committed a criminal offense but is incapable of committing it, are also relevant for determining exemption from punishment. Likewise, all possible convictions by foreign courts must be stated. However, these only prevent naturalization if the same act is also punishable in Germany, the foreign sentence is proportionate and the sentence was handed down in a constitutional procedure.
If a case against you has been dropped or you have been acquitted, this of course does not stand in the way of naturalization.
What penalties are disregarded for impunity?
Pursuant to Section 12a StAG, convictions for fines of 90 daily rates or less are generally disregarded in the context of naturalization. The same applies to sentences of up to three months' imprisonment which have been suspended and remitted after expiry of the probationary period. Certain sentences under the Juvenile Courts Act, such as educational measures and disciplinary measures, are also generally irrelevant. If one of these punishments has been imposed on you, you are nevertheless considered to be exempt from punishment for the purposes of naturalization.
If there are several convictions of less than 90 daily sentences or three months on probation against you, these are added together, whereby one daily fine corresponds to one day of imprisonment. If the sum of the sentences exceeds the maximum limit of 90 daily sentences or 3 months, naturalization is generally not possible. However, if the sum is only slightly above the limit, the authorities can decide in individual cases whether naturalization should not be possible.
Crimes committed for anti-Semitic, racist, xenophobic or other inhuman motives do not benefit from the just mentioned materiality limits. If one or more of these motives have been established in the verdict, then even sentences of less than 90 daily sentences or 3 months' imprisonment on probation prevent naturalization.
How long do criminal convictions remain relevant to immunity from prosecution?
Convictions that have already been removed from the Federal Central Register or have yet to be expunged are not taken into account when processing an application for naturalization - you are therefore considered to be free of criminal convictions again. When a criminal judgment is to be erased is determined by §§ 45, 46 BZRG. Some sentences that impose lighter penalties are ready for expungement after five years, while some particularly serious offenses are never expunged.
Attention: The certificate of good conduct differs from the Federal Central Register! It is quite possible that convictions no longer appear on the certificate of good conduct or were never entered there, but that you are still considered not to have committed a crime.
For the relevance of a conviction in the context of naturalization, however, it is irrelevant whether you have already indicated this conviction when applying for a residence title and it was treated as irrelevant there. The naturalization authority may decide differently than the foreigners authority, so always indicate such convictions as well.
Outlook
It is not always entirely clear when you are actually exempt from punishment in the sense of naturalization law. Mistakes can easily be made here, which can quickly have fatal consequences, including criminal liability, especially if the information in your application is incomplete. To avoid this and to obtain a reliable prognosis about the chances of success of your application from the very beginning, we recommend that you seek legal assistance. Our experienced attorneys will be at your side as reliable contacts throughout the proceedings and will ensure that your application has the best possible chance of success.
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