Cessation of criminal proceedings (Germany)
In Germany's criminal procedure law , the termination of the criminal proceedings means the termination of the proceedings if the question of guilt is kept open . The presumption of innocence therefore continues. There is no entry in the Federal Central Register ( § 4 BZRG ).
A setting of the process comes at every stage of the realization process into consideration.
It can take place during the preliminary investigation by the public prosecutor's office . The proceedings can also be discontinued in interim proceedings ( Section 205 , Section 206b of the Code of Criminal Procedure) as well as in the main proceedings until the judgment is pronounced by court order and also in the judgment ( Section 260 (3) of the Code of Criminal Procedure).
Moreover, one can distinguish between cases where the proceeding terminated absolutely must , and cases where the proceeding terminated can .
If the investigations provide sufficient cause for public charges to be brought, the public prosecutor's office must bring charges, otherwise it will discontinue the proceedings ( Section 170 StPO).
The public prosecutor's office must discontinue the proceedings in accordance with Section 170 (2) StPO if there is no sufficient suspicion . This is related to the requirements for the opening of the main proceedings by the court in accordance with Equated to § 203 StPO. The degree of suspicion of sufficient suspicion is therefore understood to mean that the alleged act can be proven with probability in the main hearing and “conviction can be expected”.
There may be no sufficient suspicion for factual or legal reasons.
The actual reasons for a lack of sufficient suspicion are:
- Lack of evidence or usable evidence, i.e. that which is not subject to any prohibition on the use of evidence .
- The perpetrator cannot be identified .
Legal reasons can also prevent a conviction:
- The alleged behavior is not a fact . The case is relatively rare, since there is usually no initial suspicion and an investigation is not even started.
- The perpetrator's behavior is justified or excused .
- There are unrecoverable procedural obstacles , e.g. B. the required criminal complaint is missing , in the case of real complaint offenses the application period has expired, there is absolute immaturity ( § 19 StGB) or the act is statute-barred . If the accused or defendant dies, the proceedings are to be ended by a formal decision to terminate the contract with a decision on the obligation to pay. If the accused had already been legally convicted at the time of his death, the proceedings may be resumed for the purpose of acquittal ( § 361 , § 371 StPO). If, on the other hand, there is only a temporary procedural obstacle, only a temporary suspension of the proceedings comes into question, for example in the case of temporary incapacity to stand trial ( § 154f StPO).
Hiring for reasons of opportunity
Regulations in the Code of Criminal Procedure
Prosecution in Germany is fundamentally subject to the principle of legality , according to which the public prosecutor is obliged to intervene in relation to all criminal offenses that can be prosecuted, provided that there are sufficient factual indications ( Section 152 (2) StPO). The exception is referred to as the principle of opportunity , according to which the authorities may decide in certain cases at their dutiful discretion whether to prosecute a criminal offense or not. Employment according to the principle of opportunity requires special legal bases. The principle of opportunity makes it possible to concentrate the limited capacities of law enforcement on the core area of crime.
The relevant regulations for the termination of the proceedings for reasons of opportunity are in particular § § 153 ff. StPO , each of which is linked to its own factual requirements. The most important in practice are:
- Refraining from prosecution for minor offenses ( petty offenses ) with the consent of the court or with the consent of the public prosecutor and the accused after the indictment has been brought ( Section 153 StPO)
- Discontinuation of the proceedings due to an offense if conditions and instructions are fulfilled with the approval of the court ( Section 153a StPO). To what extent the suspicion of a crime has to be dispelled beforehand is a matter of dispute between literature and case law.
- Refraining from prosecuting an insignificant secondary offense as a whole ( Section 154 StPO); Resumption only with a court order ( § 154 Abs. 5 StPO)
- Refrain from prosecuting separable parts of the procedural act or individual of several violations of the law that are committed by the same act (restriction of criminal prosecution) ( § 154a StPO)
In addition, there is the non-filing of public charges in case of waiver of punishment according to § 153b StPO, the non-prosecution of offenses abroad according to. § 153c StPO as well as the refusal to prosecute criminal offenses according to the International Criminal Code ( § 153f StPO) with limited discretion in relation to the non- prosecution of offenses abroad, the refusal to prosecute political crimes ( § 153d StPO) and active repentance ( § 153e StPO), the Discontinuation in the event of extradition and expulsion from the country ( Section 154b StPO), refraining from prosecution in favor of the victim of coercion , extortion or trafficking in human beings ( Section 154c StPO), discontinuation due to failure to decide on a preliminary civil or administrative issue ( Section 154d StPO) and temporary suspension while criminal or disciplinary proceedings are pending due to false suspicion or insult ( Section 154e StPO).
The guidelines for criminal proceedings and fine proceedings (RiStBV) generally contain discretionary provisions, in particular for the public prosecutor's offices, who are bound by instructions, for the practical application of §§ 153 ff. StPO. In a general department , around 75–80% of all proceedings are closed.
The proceedings can also be discontinued during the main hearing according to §§ 153 ff. StPO.
Regulations in other laws
Administrative Offenses Act
Like criminal proceedings, fine proceedings can be discontinued in the absence of sufficient suspicion (Section 46 OWiG in conjunction with Section 170 (2) StPO).
The prosecution of administrative offenses is at the discretion of the regulatory authorities ( Section 47 (1) sentence 1 OWiG). Therefore, if the punishment with a fine does not appear necessary, the setting takes place according to. Section 47 (1) OWiG. After objection by the person concerned, the public prosecutor's office and court can initiate the procedure according to Discontinue Section 69 (4) or Section 72 (3) OWiG for reasons of opportunity.
A hiring against payment of a sum of money in favor of a non-profit organization or the state treasury (cf. § 153a StPO) comes according to. Section 47 (3) OWiG, on the other hand, cannot be considered, since no one should be able to "buy their way out", especially in the event of a traffic offense.
In connection with traffic accidents in particular, the public prosecutor's office can discontinue criminal proceedings and submit them to the administrative authority if there are indications that the offense can be prosecuted as an administrative offense ( Section 43 OWiG).
The public prosecutor's office and court can refrain from prosecuting an offense in accordance with Section 29 BtMG and discontinue the proceedings if the culprit's guilt is considered to be minor, there is no public interest in prosecuting and the unauthorized use of narcotics does not exceed personal consumption in small quantities ( § 31a BtMG).
The public prosecutor's office regularly points out that the perpetrator has committed a criminal offense. This plays a role for further proceedings insofar as a repeated suspension according to § 31 a BtMG is out of the question.
The tax authorities can initiate criminal proceedings for tax evasion in accordance with Section 398 AO due to insignificance.
If there is a reason for blocking a self - disclosure exempting the penalty , the procedure according to Section 398a AO can also be discontinued in the event of more serious offenses if the perpetrator pays the evaded taxes including interest and a certain amount of money to the state treasury. In contrast to Section 153a of the Code of Criminal Procedure, no approval by the court or the exercise of discretion is required for the termination.
Juvenile Justice Act
In addition to the setting options in the Code of Criminal Procedure, there are other options in juvenile criminal law to terminate proceedings without a court judgment if the educational influence is ensured within the scope of a diversion in accordance with §§ 45, 47 JGG . In these cases, however, an entry is made in the education register ( Section 60, Paragraph 1, No. 7 BZRG) and can be negatively taken into account in the case of further offenses, even though no guilt is currently being determined.
The public prosecutor's office can initiate proceedings due to insignificance in accordance with § 45 Abs. 1 JGG discontinue. If educational measures take priority , the procedure according to § 45 Abs. 2 JGG set, against confessed perpetrators and with the participation of the court according to § 45 Abs. 3 JGG.
After the indictment has been brought, the court can discontinue the proceedings in accordance with Section 45 of the JGG with the consent of the public prosecutor, also if the accused is not criminally responsible due to insufficient maturity ( Section 47 (1) No. 4 JGG).
The regulations on diversion according to Sections 45, 47 JGG replace the provisions of Section 153 , Section 153a StPO for youth criminal proceedings. These are therefore - according to hM - not applicable side by side.
Hiring due to insufficient suspicion
Against a notice of employment according to In accordance with Section 171 of the Code of Criminal Procedure, the victim of a criminal offense can proceed in the enforcement proceedings. For this he must first acc. Submit a preliminary complaint to the General Public Prosecutor's Office in accordance with Section 172 (1) StPO . Then the injured party can, against a negative decision of the Public Prosecutor's Office (this decides by " notification "), a court decision of the acc. § 172 IV StPO apply to the competent higher regional court to bring the public action. If the public prosecutor's office had either not investigated at all or only insufficiently, he can also initiate a compulsory investigation .
Since the discontinuation has no legal force due to a lack of sufficient suspicion, no criminal action is used . The proceedings could therefore be restarted at any time. However, such cases are practically rare.
Setting for lack of public interest in persecution
If the prosecution of a private criminal offense is discontinued due to a lack of public interest in prosecution ( Section 376 , Section 374 of the Code of Criminal Procedure) and the injured party is referred to a private lawsuit, neither a complaint nor an enforcement procedure is available against this decision. He can only the private lawsuit according to §§ 374 ff. StPO operate.
Hiring for the sake of opportunity
Refraining from prosecution due to insignificance cannot be formally challenged (Section 153 (2) sentence 4 StPO). However, an informal counter-presentation or an administrative complaint due to incorrect use of discretion by the public prosecutor is possible.
When fulfilling the gem. § 153a StPO imposed conditions and instructions, the act can no longer be prosecuted as an offense (§ 153a Paragraph 1 Sentence 5 StPO). The provisional setting according to Section 153a (1) sentence 1 of the Code of Criminal Procedure cannot be challenged.
Also an attitude according to. Sections 154, 154a StPO cannot be challenged by the injured party. The preliminary partial suspension by the court requires a court order to resume criminal prosecution (Section 154 (5) StPO). According to Section 154a of the Code of Criminal Procedure exempted from prosecution or violations of the law can be included in the pending proceedings at any time (Section 154a (3) of the Code of Criminal Procedure).
If the court rejects the opening of the main proceedings or, contrary to the application by the public prosecutor, refers the proceedings to a lower-level court, the public prosecutor's office can lodge an immediate appeal against the court order ( Section 210 (2) StPO).
If the opening of main proceedings is refused or the proceedings are discontinued, the expenses incurred by the state treasury and the necessary expenses of the accused or person concerned are generally charged to the state treasury ( Section 467 (1) StPO, Section 46 OWiG). A different decision on costs, for example according to § 467 Paragraph 2 StPO, requires an express justification by the court.
In 2015, a total of 4,989,559 proceedings were carried out in Germany
- 1 421 570 Procedure without condition
- 1 343 531 procedure according to. Section 170 (2) StPO
- 174 956 Proceedings with condition discontinued
- 428 871 proceedings indicted and
- 542 643 Proceedings settled by application for a penalty order .
- 194,412 cases were referred to private prosecution.
The recruitment options according to § § 153 ff. StPO are exceptions to the principle of legality, which obliges the criminal prosecution authorities to initiate investigative proceedings if they become aware of a criminal offense and to bring charges if there is sufficient suspicion. In contrast, they serve the principle of opportunity, which is also one of the general principles of German criminal proceedings. It is intended to allow prosecutors to focus on acts of heavier guilt and public prosecution interest. It is criticized, however, that the hiring for reasons of opportunity can lead to a threat to equality before the criminal law ( Article 3, Paragraph 1 of the Basic Law). If the public prosecutors do not have precise guidelines for exercising their discretion, comparable acts could be hired once and prosecuted in another case. Essentially the same issues would be treated differently.
In August 2014, the proceedings against Bernie Ecclestone for bribery and breach of trust in a particularly serious case against payment of a monetary deposit in favor of the Bavarian state treasury in the amount of 100 million US dollars (about 75 million euros) in the main hearing under Section 153a StPO was discontinued. The second Mannesmann trial for infidelity also ended for Josef Ackermann with a suspension according to § 153a StPO, as did the main hearing after the ICE accident in Eschede . The investigation against Helmut Kohl in the CDU donation affair ended in February 2001 with the termination of the proceedings against payment of a fine of 300,000 DM due to minor guilt. The proceedings against Sebastian Edathy because of the possession of child pornographic films and pictures in 2015 were discontinued by the Verden district court according to § 153a StPO against payment of 5000 € in favor of the child protection association. Christian Wulff, on the other hand, refused an offer from the public prosecutor to stop the investigation because of taking advantage. He was acquitted at the main hearing in February 2014. The public prosecutor successfully filed a complaint against the decision of the Duisburg Regional Court not to open any main proceedings because of the accident at the Love Parade 2010 . On May 4, 2020, it became known that the case against the last three defendants (all Lopavent employees) will be discontinued. The regional court justified this with the expected restrictions due to the COVID-19 pandemic and the upcoming statute of limitations at the end of July. The proceedings against employees of the city of Duisburg and another Lopavent employee had already been discontinued at the beginning of 2019 without any conditions.
- Knud-Christian Hein: The termination of the criminal proceedings for reasons of opportunity. Legal training ( JuS ) 2013, p. 899.
- ↑ BVerfG, decision of January 16, 1991 - 1 BvR 1326/90
- ↑ Detlef Burhoff: investigation. Discontinuation of the proceedings: prerequisites, advantages and disadvantages Practice Tax Criminal Law (PStR) 2002, p. 19 ff.
- ^ Veit Strittmatter: Termination of the criminal proceedings 2016
- ↑ BGH , judgment of September 23, 1960, Az. 3 StR 28/60, NJW 1960, 2346-2348 (2346), 2nd principle: "According to the facts of the case , orders sufficient evidence that the suspect has fulfilled a statutory criminal offense and will be convicted in accordance with established supreme court rulings, the police must intervene and bring charges to the prosecuting authority in accordance with the principle of legality, unless an exception is expressly permitted by law. In this respect, there is no room for the law enforcement authorities to judge ” (guiding principle in the original in bold).
- ↑ a b c d e f Johanna Schulenburg: Principle of legality and opportunity in criminal proceedings . JuS 2004, pp. 765-770 (765).
- ↑ a b OLG Rostock , decision of March 29, 1996, Az. 1 Ws 242/95, NStZ-RR 1996, 272 (272), quote: “According to this provision, an accused is sufficiently suspicious of a criminal offense only if his conviction is to be expected with probability when the main hearing is held. Probability of conviction means that, based on the results of the investigation, there is sufficient evidence that the accused acted in accordance with the facts, unlawfully and culpably and, based on the assessment of the presumed outcome of the evidence in the main hearing, speaks more in favor of a conviction than an acquittal. ".
- ↑ a b Gerd Pfeiffer , Code of Criminal Procedure, 5th edition 2005, § 170 Rn. 1.
- ↑ BGH, judgment of September 23, 1960, Az. 3 StR 28/60, NJW 1960, 2346–2348 (2347) [= BGHSt 15, 158].
- ↑ Claudia Gorf in: Beck'scher Online Comment StPO, Ed .: Graf (BeckOK StPO), as of: September 8, 2014 Edition: 19, § 170 Rn. 13.
- ↑ a b c Claudia Gorf in: Beck'scher Online Comment StPO, Ed .: Graf (BeckOK StPO), as of: September 8, 2014 Edition: 19, § 170 Rn. 15th
- ↑ a b Claudia Gorf in: Beck'scher Online Comment StPO, Ed .: Graf (BeckOK StPO), as of: September 8, 2014 Edition: 19, § 170 Rn. 4.1.
- ↑ BGH, decision of June 8, 1999 - 4 StR 595/97 = BGH NJW 1999, 364
- ↑ Bernd Heinrich, Tobias Reinbacher: Discontinuation of the proceedings for reasons of opportunity - §§ 153 ff. StPO worksheet No. 34, as of April 1, 2016
- ↑ Janique Brüning : The attitude according to § 153a StPO: Modern indulgence trade or the lifeline of justice? ZIS 2015, pp. 586-592
- ↑ Ingo Fromm: Risks of the termination of the criminal proceedings according to § 153 a StPO for traffic offenses - Pyrrhus victory or special merit of the defense attorney? First published in NZV 2007, pp. 552–555
- ↑ Mark Deiters, Anna Helena Albrecht: § 153a Abs. 2 StPO with further suspicion of a crime? Considerations on the occasion of the provisional suspension of the Bremen emetic procedure ZIS 2013, pp. 483–487
- ↑ BGH 4 StR 339/13 - decision of October 8, 2013 para. 5
- ↑ BVerfG, decision of March 1, 2011 - 2 BvR 1/11 para. 7 f.
- ↑ Item 16 / Discontinuation of the criminal proceedings, No. 93 ff.
- ↑ The discontinuation of the procedure Saarbrücken University, accessed on August 10, 2017
- ↑ Hans-Magnus Lück: The administrative offense procedure in the simplified overview as of: 02/2005
- ^ Mathias Klose: Discontinuation of the proceedings , accessed on August 11, 2017.
- ↑ Application of Section 31a, Paragraph 1 of the BtMG and processing of preliminary investigations in criminal cases against narcotics consumers Joint circular of the Lower Saxony Ministry of Justice and the Ministry of the Interior of December 7, 2012 - 4208-401.83 (Nds.MBl. No. 46/2012 p. 1253) - VORIS 33210
- ↑ Thomas C. Pohl, Jan Marx: Discontinuation of the proceedings on the allegation of BtMG violation, accessed on August 11, 2017
- ↑ Daniel Hunsmann: Refraining from prosecution (§ 398a AO) versus discontinuation (§ 153a StPO) - a more favorable examination of the practice of criminal tax law PStR, September 30, 2011
- ^ LG Itzehoe StV 1993, 537 - discontinuation (relationship between § 45 JGG and § 153 StPO)
- ^ Mirko Laudon, Ermittlungserzwingungsverfahren , Strafakte.de, May 15, 2013.
- ↑ Albrecht Popken: Criminal proceedings: discontinuation according to § 170 Abs. 2 StPO September 11, 2012
- ↑ Albrecht Popken: What does “referred to private legal action” mean for the accused? January 31, 2014
- ↑ Albrecht Popken: Appeal against the termination of the preliminary investigation on October 17, 2012
- ↑ BVerfG, decision of October 13, 2015 - 2 BvR 2436/14
- ↑ Federal Statistical Office (ed.): Rechtspflege / Public Prosecutor's Office, Series 10, Series 2.6, Wiesbaden 2016, p. 26
- ^ Hans-Heiner Kühne: Criminal Procedure Law. A systematic presentation of German and European criminal procedural law. 8th edition, CF Müller, Heidelberg 2010, para. 309-310 (p. 201).
- ↑ Martin Reulecke: Equality and criminal law in German natural law of the 18th and 19th centuries. Fundamentals of Law 9. Mohr Siebeck , 2007. ISBN 978-3-16-149354-6
- ^ Kühne: Criminal Procedure Law. 2010, para. 584 (p. 362).
- ↑ tagesschau.de: The court closes the trial of the misfortune at Loveparade. Retrieved May 4, 2020 .