Under German criminal procedure law, petty offenses are of little importance. The legal term petty offense is not legally defined in the law, but is generally used in legal practice for so-called "minor offenses".
The public prosecutor's office is generally obliged by law to initiate criminal prosecution ex officio in the case of absolute complaint offenses and official offenses . However, there are crimes that do not need to be prosecuted because of the low level of guilt of the perpetrator. It is up to the discretion to initiate prosecution for offenses where the guilt is likely to be low; this is an expression of the opportunity principle .
As part of the reform of criminal and criminal procedural law in January 1975, the legislature had already abolished the offense form of transgression and thus abandoned the previous three-way division of offenses into crimes , offenses and transgressions in favor of a dichotomy into crime and offense. Measured against the idea of justice, the facts of the case and the legal consequences must be properly coordinated with one another, also for constitutional reasons; the principle of guilt must coincide with the constitutional principle of the prohibition of excess in its effects which limit the punishment .
Requirements for minor offenses
The only offenses that are considered to be minor offenses are
- it is an offense (not a crime) and
- the guilt of the perpetrator can be regarded as minor and
- there is no public interest in the persecution.
In the event of a misdemeanor, the public prosecutor may (but does not have to) refrain from prosecution with the consent of the court if the guilt of the perpetrator is considered to be minor and there is no public interest in the prosecution. A judicial approval is not required if an offense is not threatened with a minimally increased penalty and the consequences of the offense are minor. If an indictment has already been filed , the court decides with the consent of the public prosecutor and usually also of the accused ( Section 153 StPO ). A low level of guilt on the part of the perpetrator presupposes that his act is classified neither as a commercial act nor as a repeatedly committed act. Repeated thefts are a continuous source of income and are therefore commercial ( Section 243 (1) sentence 3 StGB ). Otherwise, the provisions on a low-value item apply to low-value items .
The Federal Constitutional Court (BVerfG) ruled in the context of petty crime on January 17, 1979 that the easing of the compulsory prosecution introduced by the legislature should relieve the administration of criminal justice. According to this, the public prosecutor's office can, under the conditions of Section 153, Paragraph 1, Clause 1 of the Code of Criminal Procedure, refrain from prosecution in the event of an offense that is directed against third-party assets and is not threatened with a minimum higher penalty, even without the consent of the court, if the by The damage caused by the act is minor ( Section 153 (1) sentence 2 StPO).
A distinction is made between actual and improper petty offenses. The actual minor offenses include those in which the description of the facts assumes minor guilt from the outset, as was the case with the criminal offenses under Section 368 of the old version of the Criminal Code, which have ceased to exist since January 1975 (e.g. walking in an uncut meadow; Section 368 No. 9 of the old version of the Criminal Code) . In the case of improper petty offenses , an act can either be committed in such a way that it represents grave injustice or it belongs to the petty offenses. In the case of improper offenses, the typified wrongdoing is indeed punishable, but fulfills the requirements of the minor cases. The former include typical petty offenses such as shoplifting or the embezzlement of low-value items as stolen goods ( Section 248a of the Criminal Code). Most other offenses against property or assets refer to this provision. This is the theft of electricity according to § 248c para. 3 SCC, favored by § 257 para. 4 sentence 2 SCC, stolen goods according to § 259 , para. 2 SCC, fraud by § 263 , para. 4 StGB, fraudulent acquisition of services by Section 265a (3) of the Criminal Code (“fare dodging”), breach of trust according to Section 266 (2) of the Criminal Code and misuse of check and credit cards according to Section 266b (2) of the StGB.
But not only property and property crimes can occur in petty form, also the coercion , threats , trespassing , property damage , bodily harm or insult belonging to the improper petty offenses .
De minimis limits
Inferiority and public interest are vague legal terms . According to a judgment by the Frankfurt Higher Regional Court, the limit of insignificance is up to € 50. However, if the degree of insignificance is exceeded, the conditions of a minor offense no longer exist. If, for example, the thief assumes an expensive original in the case of a cheap imitation stolen by him, the degree of insignificance is exceeded. For example, requires an insult in the pub as absolute antragsdelikt a private criminal application because the public interest is no and it should therefore be regarded as minor offense. The effect of the insult must go beyond the immediate sphere of life of the injured party or express a special disregard or defamation so that the public interest can be accepted; then the public prosecutor's office must initiate criminal prosecution ex officio.
If all three prerequisites are met, the public prosecutor's office can refrain from prosecuting a criminal offense in accordance with Section 153 of the Code of Criminal Procedure or discontinue existing proceedings . After charge is an appropriate setting possible by the court with the consent of the prosecutor and the accused. The injured party is then referred to the private lawsuit.
In the cited judgment, the BVerfG points out that, in particular, § 153 , § 153a StPO ensure a guilty response by the state to offenses in the area of petty crime. Theft and misappropriation of low-value items are still unrestricted cases of application of § 242 , § 246 StGB; They differ from other thefts within the meaning of Section 242 of the Criminal Code and from embezzlement not in terms of the offense, but only in the nature of their procedural treatment: their prosecution depends on the filing of a criminal complaint or on the fact that the prosecuting authority because of the special public interest in the Prosecution consider ex officio intervention necessary ( Section 248a of the Criminal Code); the procedural powers of the public prosecutor's office when deciding whether to refrain from prosecution or provisionally from filing public charges are expanded here in comparison to other criminal offenses ( Section 153 (1) sentence 2, Section 153a StPO).
In addition, the provisions of the Criminal Code offer the judge further options to take account of the specific injustice and guilt content of petty offenses. Under the legal requirements, he can refrain from punishment ( Section 60 StGB), find the accused guilty and issue a warning subject to the penalty ( Section 59 StGB) or suspend the execution of a custodial sentence on probation ( Section 56 StGB). If the enforcement of such a sentence appears necessary in individual cases, there is the possibility of suspending the remainder of the sentence after partial sentence has been served, according to Section 57 of the Criminal Code.
- ↑ BVerfGE 25, 269 , 286
- ↑ cf. BVerfGE 34, 261 , 266
- ↑ BVerfG, judgment of January 17, 1979, Az. 2 BvL 12/77, full text
- ↑ a b c Eduard Dreher: The treatment of petty crime ; in: Hans Welzel (ed.), Festschrift for Hans Welzel on his 70th birthday , 1974, p. 917 f. Online on GoogleBooks
- ↑ OLG Frankfurt am Main, judgment of May 9, 2008, Az. 1 Ss 67/08, full text