Criminal liability for non-disclosure of planned crimes despite ongoing suspicion of participation in the underlying offense

The Federal Court of Justice (BGH) issued a decision indicating that it would not adhere to any potentially conflicting prior case law and endorsed the conclusions of the referring appellate court, specifically accepting that a conviction for failing to report planned crimes under § 138 of the German Criminal Code is tenable even where the accused remains under suspicion of participating in the underlying scheduled offense. The core dispute concerned the legal relationship between the crime of non-disclosure of planned crimes and the substantive planned offense when the accused is suspected of direct involvement, challenging whether the specific requirement of non-disclosure can be independently punished or if it is subsumed by the participation charge. The court held that the basis for a definitive conviction for non-disclosure rests on either a normative hierarchy of laws or considerations of concurrence of offenses, leaving the precise doctrinal foundation open while affirming the result, thereby resolving the reference procedure in favor of upholding the lower court's reasoning.