Special public interest
The Criminal Code (Germany) shows offenses that can be prosecuted in the event of a special public interest , except upon request . The special public interest regularly replaces the application requirement for numerous minor offenses (such as negligent bodily harm , theft of low-value items, etc.).
The prevailing view is that the particular public interest is a matter of assessment at the discretion of the public prosecutor . This discretionary decision should then be beyond review by the court. It is countered that the public prosecutor's office is then the master of the procedure , because it could either affirm or deny the special public interest in the revision instance, which would lead to a conflict with § 156 StPO . According to another opinion, the public prosecutor's discretionary decision on the particular public interest can therefore be checked for errors of judgment; either by the court dealing with the criminal proceedings or, for example, in accordance with the provisions of Section 23 et seq. EGGVG .
In any case, provided that the decision of the public prosecutor's office is free from arbitrariness, the restriction on the review of the decision after a decision of the Federal Constitutional Court of 1979 is constitutional.
The (simple) public interest in criminal prosecution must be distinguished from the special public interest . According to Section 153a of the Code of Criminal Procedure, the public interest can be exercised through the fulfillment of a payment obligation, through a victim-offender settlement , through reparation, through an advanced seminar, etc. Ä. Eliminated so that the procedure is finally discontinued .
Types of offenses concerned in the Criminal Code (Germany)
Paragraphs of the Criminal Code, which contain provisions to determine the special public interest :
- Section 182 (5) StGB Sexual Abuse of Young People
- § 183 of the Criminal Code Indecent exposure
- § 184i of the Criminal Code Sexual Harassment
- Section 201 StGB - Section 205 StGB Violation of personal life and confidentiality
- § 230 Criminal Code criminal charges for intentional ( § 223 StGB) or negligent ( § 229 StGB) bodily harm
- § 235 of the Criminal Code abduction of minors
- Section 238, Paragraph 1 of the Criminal Code Enactment
- § 248a StGB theft and embezzlement of low value items
- Section 301 criminal application (in the case of Section 299 StGB, bribery and bribery in business dealings)
- Section 303c Criminal Code (Criminal Code) criminal complaint (in the case of Section 303 StGB damage to property , Section 303a StGB data modification and Section 303b StGB computer sabotage )
See also
Individual evidence
- ↑ Federal Court of Justice , decision of May 26, 1961, file number 2 StR 40/61 = NJW 1961, 2120, beck-online.
- ^ Bavarian Supreme Regional Court , judgment of November 29, 1990, file number RReg. 3 St 168/90 = NJW 1991, 1765, beck-online.
- ↑ Kristian Kühl in: Lackner / Kühl, StGB, 29th edition 2018, § 230 Rn. 5
- ↑ Detlev Sternberg-Lieben in: Schönke / Schröder Criminal Code, 30th edition 2019, § 230 Rn. 3.
- ^ Bernhard Hardtung in: Munich Commentary on the Criminal Code, 3rd edition 2017, § 230 Rn. 51-52.
- ↑ Federal Constitutional Court, decision of May 8, 1979, file number 2 BvR 782/78 = NJW 1979, 1591, beck-online, quote: “Whether the assumption of a particular public interest by the prosecuting authority is exceptionally subject to judicial control if it is in view of the special circumstances of the individual case proves to be objectively arbitrary, no decision is required here. ".
