Initial suspicion

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Initial suspicion is one of the levels of suspicion in criminal prosecution in Germany . If there is an initial suspicion, the law enforcement authorities are obliged to start investigations . The initial suspicion must be differentiated from the sufficient ( § 170 , § 203 StPO) and the urgent suspicion (cf., for example, § 112 Paragraph 1 StPO).

requirements

An initial suspicion that gives cause to intervene and obliges to investigate the facts presupposes that there are sufficient factual indications for a prosecutable (without recognizable obstacles to persecution, such as obvious reasons to exclude children in the case of children) criminal offense (see. § 152 para. 2 in connection with Section 160 (1) StPO ). The reason for examining investigations arises, for example, from criminal charges , officially obtained knowledge (bankruptcy files, reports in the media), also exceptionally from privately obtained knowledge with a high impact under public law ( special public interest ).

With the initial suspicion, a hurdle is set up for the start of investigative measures by the public prosecutor and the police. Investigative measures may only be initiated if there are “sufficient factual indications for the existence of a prosecutable criminal offense”, Section 152 (2) of the Code of Criminal Procedure. The initial suspicion protects the person concerned from investigations based on mere assumptions. It must consist of concrete facts, although the threshold for this is sometimes low. So-called initiative investigations according to No. 6.2 of Annex E of the guidelines for criminal and administrative fine proceedings are already permissible if "according to criminal experience the probability, albeit low, that a prosecutable crime has been committed".

The delayed initiation of investigative proceedings can constitute a breach of duty by the investigating authorities. The principle of fair trial according to Art. 6 Para. 1 Clause 1 ECHR is violated if, despite the existence of sufficient factual indications for an attempted criminal offense, the initiation of preliminary proceedings is not initiated in order to achieve prosecution for an accomplished criminal act by waiting. In addition, if there is an initial suspicion in certain groups of cases , the injured party has the right to prosecute third parties and thus a right to formal investigation proceedings against the accused by the responsible public prosecutor's office . The injured person may, where appropriate by way of its claim Klageerzwingungsverfahrens or Ermittlungserzwingungsverfahrens enforce court.

literature

  • Werner Beulke , Criminal Procedure Law , 13th edition 2016, No. 232 ff, ISBN 3811494155 ( online )
  • Günter Haas, preliminary investigations and initial suspicion , Duncker & Humblot publishing house , 2003, ISBN 978-3-428-11009-4
  • Elisa Hoven , The Limits of Initial Suspicion - Thoughts on the Edathy Case, NStZ 2014, 361
  • Nicole Lange, preliminary investigations by the public prosecutor - without a legal basis? , in: DRiZ 2002, 264
  • Meyer-Goßner / Schmitt, Commentary on the Code of Criminal Procedure , 60th edition 2017, para. 4 ff. On § 152 StPO
  • Jörg Scheinfeld, Sarah Willenbacher: Initial suspicion when reported against unknown persons, NJW 2019, 1357

Web links

Individual evidence

  1. ↑ BVerfG, Az. 2 BvR 389/13, decision of October 29, 2013
  2. ↑ BGH 5 StR 191/04 - decision of January 12, 2005
  3. ↑ Dirk Diehm, The subjective claim to effective criminal prosecution in: Fabian Scheffczyk and Kathleen Wolter: Lines of Jurisprudence of the Federal Constitutional Court , Volume 4, ISBN 978-3-11-042644-1 , pp. 223–246 ( online)
  4. ^ Tennessee Eisenberg decision of the Federal Constitutional Court of June 26, 2014, Az. 2 BvR 2699/10 ( full text online ).
  5. ↑ Mehmet Daimagüler , The injured in criminal proceedings , Beck, Munich 2016, ISBN 978-3-406-70220-4 , no. 589 ff.