Casting complaint
The recruitment complaint and the associated recruitment objection are special legal remedies in German criminal proceedings that allow the court to be asserted in ongoing proceedings or the violation of the obligation to notify the appointment. The recruitment complaint was created by the Criminal Procedure Amendment Act 1978 (StVÄG) in order to remedy violations of the right to a legal judge (according to Art. 101 Paragraph 1 Clause 2 of the Basic Law ) within one proceeding. Before that, it was necessary to first exhaust the legal process in order to then lodge a constitutional complaint.
Occupation objection
If the main hearing takes place in the first instance before the regional court or higher regional court, the appointment of the court must be notified in accordance with Section 222a StPO .
The occupation objection can only be raised in the main hearing until the first defendant is questioned ( Section 222b ) of the Code of Criminal Procedure. With him a violation of the right to the legal judge according to Art. 101 sentence 2 GG can be reprimanded.
The objection represents a preclusion for the absolute reason for revision according to § 338 number 1 sentence 1 StPO. If it is not raised until the first defendant is questioned, it can no longer be considered afterwards.
The court decides on an objection to occupation in the manner prescribed for the appointment outside of the main hearing, i.e. without lay judges ( Section 222b (2) StPO).
If the notification of the composition of the court or a change in composition is made later than one week before the main hearing, the defendant or his defense counsel can request an interruption of the main hearing to examine the composition until the first defendant is questioned on the matter ( Section 222a (2) StPO).
Only defense counsel or a lawyer may inspect the relevant documents for the occupation ( Section 222a (3) StPO).
Casting complaint
With the revision , the procedural complaint can be raised in the form of a cast complaint. Errors in the court composition are an absolute reason for revision according to § 338 number 1 sentence 1 StPO.
The cast complaint can include:
- that the notification of the occupation according to § 222a StPO was not made in accordance with the regulations (absolute reason for revision according to § 338 number 1 letter a StPO)
- that the decision according to § 222b StPO has been passed over or rejected (absolute reason for revision according to § 338 number 1 letter b StPO)
- that after an objection was raised, the hearing was not interrupted according to § 222a paragraph 2 StPO (absolute reason for revision according to § 338 number 1 letter c StPO)
- that the court decided in a cast which it found to be unlawful (absolute reason for appeal according to § 338 number 1 letter d StPO)
- that a judge or lay judge was involved who was legally excluded (absolute reason for revision according to § 338 number 2 StPO)
- that a judge or lay judge participated after he was rejected because of concerns about bias and the rejection request was either declared to be well founded or was wrongly rejected (absolute reason for appeal according to § 338 number 3 StPO)
The court must examine the appointment ex officio. If no appointment notification has been made, there is also a reason for revision according to § 338 StPO number 1 letter a, if no appointment objection has been made.
Web links
- Federal Law Gazette 1978 I p. 1645 Section 3 Criminal Procedure Amendment Act 1979
Individual evidence
- ↑ Meyer-Großner / Schmitt, StPO, § 222b StPO Rn. 3
