Accusation principle
The accusatorial ( lat . Accusare , accuse, and principium , beginning), also charges principle called, is a process maxim of German criminal proceedings . It means that prosecution and judgment must be carried out by different organs ( public prosecutor and court ). The indictment principle can be found in § 151 StPO .
Prosecution may bring only the prosecutor's office . Exceptions apply to private criminal offenses and penal orders from the tax offices . If the established facts are sufficient, the public prosecutor's office is obliged to bring charges (see principle of legality ). This only experiences breakthrough in cases of opportunity .
The accumulation principle is part of the official maxim .
history
The ex officio fight against crime only became established (in Germany) in the early modern period.
The prosecution of crimes by state organs was alien to older legal systems such as Roman or Germanic law . Instead, there was so-called private criminal law. Private criminal law is characterized by the fact that (as in today's civil law) the injured person appears as the plaintiff. However, he can not only demand compensation for his damage (as in civil law), but a fine to be paid to him that goes beyond the damage. In Roman law there was next in certain cases the popular action that could be filed by any person.
The private lawsuit system with what is known as the accusation process in legal history ended when the state extended its monopoly of force to the protection of private rights and initiated the prosecution of crimes ex officio. This state criminal prosecution took place (in Germany) since the late Middle Ages under the rule of the inquisition principle . In the inquisition process, the judge himself determined the facts on the basis of which he later made his decision. The accumulation principle should prevent the dangers caused by this.
The accumulation principle was introduced in Germany in 1770 in what was then the Electorate of Saxony ; The pioneer was the criminal law reformer Karl Ferdinand Hommel . It was not until the influence of the French Code d'instruction criminelle from 1808 that it was introduced into the procedural rules of the other countries in the second half of the 19th century.
function
The accumulation principle has an important protective function in two respects:
- The suspect of a criminal offense should be spared the burden of (public) court proceedings if possible. The indictment requirement therefore includes a preliminary examination of the suspicion and a filtering out of insufficient allegations.
- However, the principle of the indictment only acquires its real significance because someone other than the court is charged with bringing the indictment . This is another important protective function. Because in the inquisition process , in which the judge could take the matter to himself, he was biased and tried to justify the opening of the proceedings by conviction. This was particularly unfortunate when the state authorities influenced the course of the criminal proceedings and the judge only acted as an extension of the government. The transfer of criminal prosecution to two independent instances, namely the public prosecutor's office as the prosecuting authority on the one hand and to the court ultimately making the decision on the other hand, is therefore one of the most important achievements of the liberal criminal process, which was only able to assert itself in Germany from 1848 on, following the French model.
The court cannot open criminal proceedings on its own initiative. The principle of indictment applies to every single offense, so that the court cannot of its own accord include further criminal offenses in ongoing proceedings. This also applies to criminal offenses in the session.
The exact definition of the material in the process that has been accused results from the indictment , which must specify in particular the accused, the offense which he is charged with, the time and place of its commission, the legal features of the offense and the applicable criminal provisions ( so-called indictment, see § 200 StPO ).
Accused act in the procedural sense
If further criminal offenses of the accused are addressed in the main hearing, the question arises whether an unqualified conviction of these criminal offenses is possible (according to a legal notice of the court according to § 265 StPO ) or whether a supplementary charge according to § 266 StPO must be brought. The decisive factor is whether it is an accused act in the procedural sense . This term is to be distinguished from the concept of the substantive unity of offenses ( Section 52 StGB ) or majority of offenses ( Section 53 StGB ). An act in the procedural sense is not understood to mean the individual substantive criminal offenses , but rather the entire behavior of the accused, insofar as the historical occurrence identified by the prosecuting authorities (e.g. in the prosecution) is considered to be a uniform process forms. Only the act alleged in the indictment or supplementary indictment is the subject of the judgment ( immutability principle , § 264 StPO).
supporting documents
- ↑ Volker Krey , German Criminal Procedure Law, Vol. 1, 2006, ISBN 978-3-17-018408-4 , Rn. 385.
- ↑ Uwe Wesel , History of Law, 3rd ed. 2006, passim.
- ↑ Uwe Wesel , History of Law, 3rd ed. 2006, passim ,. in particular Rn. 135.
- ↑ Volker Krey , German Criminal Procedure Law, Vol. 1, 2006, ISBN 978-3-17-018408-4 , Rn. 385.
- ↑ See Schroeder, Friedrich-Christian, Criminal Procedure Law, 4th edition, CH Beck, Munich 2007, Rn 58.
- ↑ See Beulke, Werner, Criminal Procedure Law, 9th edition, CF Müller, Heidelberg 2006, Rn 18.
- ↑ BGHSt 45, 211, 212.
