Certificates of conduct, the Federal Central Criminal Register, removal of entries and disclosure duties

For many people, a certificate of conduct with no entries is the most important evidence that an earlier criminal matter is over. That conclusion is not sufficient for naturalisation. The authority may obtain more extensive register information, and certain convictions never appear in an ordinary certificate of conduct in the first place. On the other hand, the law places clear limits on the use of old convictions. Anyone preparing an application must therefore distinguish between the certificate of conduct, the contents of the register, removal of entries and the duties to disclose earlier decisions.

The Federal Central Criminal Register contains criminal decisions specified by law and other entries. A certificate of conduct is an extract produced from it, with its own rules about what is included. It is therefore not a complete printout of all the information held in the register.

Under § 32 BZRG, certain convictions are not included in the certificate of conduct if specified conditions are met. An important example is a criminal fine of no more than 90 daily units where no other sentence is entered in the register. There are further exceptions and special rules, particularly for certain sexual offences. The simplified statement “Anything below 90 daily units never appears in a certificate of conduct” is therefore incorrect.

Where there are several convictions, the result may change. Even a sanction that is otherwise minor cannot be considered independently of the other entries. The rules for ordinary certificates, certificates for authorities and enhanced certificates of conduct also differ in some respects. Before a document is obtained or submitted, we therefore clarify which type of information is actually needed.

§ 41 paragraph 1 number 6 BZRG expressly lists naturalisation authorities among the bodies entitled to receive unrestricted register information for naturalisation proceedings. This information can include entries that do not appear in the certificate of conduct. The purpose must be stated, and the information may be used only for that purpose.

“Unrestricted” does not mean that no statutory limits apply. The law contains specific restrictions on disclosure and prohibitions on using information. The naturalisation requirements must also still be assessed separately. The information gives the authority knowledge; it does not replace the legal assessment of that knowledge.

In addition to register information, details lawfully transmitted by other authorities may be relevant. § 32 StAG regulates the necessary exchange of data in particular. Subject to the statutory requirements, this includes information on the initiation and conclusion of criminal proceedings. An ordinary certificate of conduct is therefore not complete evidence of whether an investigation is still ongoing somewhere either.

The authority must not turn every piece of information transmitted into a conviction that prevents naturalisation. A police notification, a discontinuance and a final judgment have different meanings. Where old or unclear data is used, it must be established what decision was actually issued and whether the information is still current.

§ 46 BZRG sets different periods depending on the type and severity of the sentence and further conditions. For a criminal fine of no more than 90 daily units, the period in the case specified by law is five years, provided that no custodial sentence, military detention sentence or youth custodial sentence is entered in the register. Particular groups of offences may be subject to different, longer periods.

There is therefore no universal rule that “every sentence is deleted after five years”. Longer periods apply to other decisions; for certain particularly serious convictions or measures, ordinary removal after expiry of a period is excluded. Extensions may also need to be taken into account for custodial sentences and youth custodial sentences.

For calculating the period, § 47 refers to further provisions. The starting point is generally the date of the first judgment, not simply the date of the last payment or release. However, that starting point does not yet establish when the period actually expires. Further decisions and statutory provisions preventing expiry may also apply.

For our assessment, we record at least the judgment date, exact sanction, other convictions and enforcement status. For aggregate sentences or subsequent decisions, their effect must also be considered. Otherwise, a period calculated personally using a single date may give a misleading impression.

Under § 47 paragraph 3 BZRG, where several convictions are entered, removal is generally permissible only once the requirements are met for all convictions. A subsequent conviction can therefore prevent an older one from being removed when the period calculated for it in isolation expires.

This must be distinguished from adding sentences together for naturalisation purposes. When sentences are added together, the question is whether several sanctions together exceed the minor-offence threshold. Removal concerns how long the decisions may be used at all. Both assessments may concern the same register entries, but serve different purposes.

A hypothetical example: an older serious conviction would soon become eligible for removal if there were no further entries. Before that point is reached, a new minor criminal fine is added. The older conviction may then remain part of the legally relevant register record for longer. The new sentence is therefore not irrelevant merely because, viewed on its own, it falls below a minor-offence threshold.

Enforcement that has not yet been completed or an outstanding remission of sentence may also affect expiry of the period. Anyone simply counting calendar years since the judgment may overlook these circumstances. Before applying, it is therefore worth distinguishing precisely between the calculated period, a bar to its expiry and final eligibility for removal.

§ 51 paragraph 1 BZRG generally prohibits using a conviction that has been removed or is due for removal, and the underlying offence, to the disadvantage of the person concerned. This is therefore not merely a question of whether register information may still be disclosed. Knowledge already held by the naturalisation authority is also generally subject to this protection.

A copy of the old judgment in an administrative file does not remove the prohibition on using the information. Nor may the authority simply use the earlier offence instead of the removed conviction as the same adverse circumstance. By law, the protection covers both levels.

There are, however, statutory exceptions under § 52 BZRG. For nationality law, an exception that is strictly necessary to protect the security of the Federation or a federal state may be particularly relevant. This does not create a general power to continue using all old convictions whenever there is a supposedly special interest. An exception requires its own sound legal basis.

The prohibition on using information does not overturn every other decision already made either. § 51 paragraph 2 BZRG leaves unaffected, among other things, statutory legal consequences and judicial and administrative decisions connected with the offence or conviction. An independent bar on naturalisation under § 35a StAG, for example, must therefore be assessed separately. Removal from the criminal register and the end of such a bar are different legal events; a cleared register does not automatically revoke the decision imposing the bar.

Particular motives for an offence do not in themselves lead to unlimited retention or use of information either. The exception to the minor-offence thresholds for naturalisation and the register-law rules on removal must be applied separately. The detailed article on antisemitic, racist and other motives showing contempt for humanity explains the connections.

Removal of the penal stigma attached to a youth custodial sentence is not the same as removal under the BZRG. Under § 41 paragraph 2 BZRG, youth custodial sentences whose penal stigma has been removed may generally be disclosed only to criminal courts and public prosecutor's offices for criminal proceedings against the person concerned; however, this restriction does not apply to the groups of offences expressly specified there. These special limits on transmission must be distinguished from a substantive prohibition on using the information.

Accordingly, such a youth custodial sentence may still be taken into account if the authority learned of it through another lawful route and no relevant prohibition on using the information applies. We therefore examine the precise effect of a notification removing the penal stigma before drawing conclusions for your naturalisation.

Here too, the sanction must be identified precisely. A youth custodial sentence must be distinguished from educational measures and disciplinary measures. Non-inclusion in a particular type of information may have different reasons with very different consequences. A complete juvenile court decision is therefore more informative than a brief recollection given orally.

Anyone who is unsure can use the right to information for the person concerned under § 42 BZRG. Its purpose is to allow you to learn what entries are held about you. The procedure must be distinguished from ordering an ordinary certificate of conduct. If inspection does not take place directly at the register authority, the information may be sent to a designated local court for personal inspection. For people living abroad, an official German diplomatic or consular mission is also an option. The information inspected there is then destroyed; the law prohibits handing it over or providing a copy. Personal inspection of the register is therefore not a way to order a complete extract to pass on to any third party.

We then compare the register position with your court decisions. Are the personal details, sanctions and subsequent amendments correct? Has a remission of sentence been taken into account? Are there other entries relevant to removal of the convictions together? If there are discrepancies, we identify the precise difference and clarify it using the available documents.

If conduct is subsequently fully decriminalised, § 48 BZRG may also apply. This provision concerns removal of an entry on application where the conviction relates exclusively to an act for which the later law no longer provides a criminal penalty, or provides only an administrative fine, and the requirements can be established from the register data. Merely reducing the sentencing range is not enough. Special statutory rules on removal may also apply alongside it. We therefore examine the precise content of a change in criminal law rather than relying solely on the age of the judgment.

§ 49 BZRG permits early removal under special conditions. This does not establish a general entitlement to have an entry removed merely because a naturalisation application is planned. Equally, special non-inclusion in a certificate of conduct under § 39 is legally different from removal from the register. The appropriate measure therefore depends on the specific problem.

The parent overview on criminal offences and ongoing investigations explains how examination of the register relates to the other criminal-law requirements.