Investigation enforcement procedure

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Under German criminal procedure law, an investigation procedure enables the person violated by a criminal act to legally oblige the public prosecutor to initiate or continue investigative proceedings . In contrast, the decision of the public prosecutor's office not to bring charges against the accused after the investigation has been fully concluded can be judged by enforcement proceedings.

use cases

introduction

A compulsory investigation procedure is appropriate, on the one hand, if the public prosecutor's office denies the initial suspicion of the existence of a criminal offense after a criminal complaint and therefore does not conduct any investigations at all. In this case, the enforcement procedure is aimed at initiating the investigation.

completion

On the other hand, an investigation enforcement procedure is also appropriate if the public prosecutor's office had already carried out investigations but these were inadequate. In this case, the enforcement procedure is aimed at completing the investigation.

Justification

The investigation enforcement procedure is accordingly successful if the public prosecutor's office has either not investigated the facts at all or only inadequately. After a successful application to force an investigation, the competent higher regional court obliges the public prosecutor to carry out the necessary investigations.

Admissibility

The possibility of enforcement proceedings is not standardized in the Code of Criminal Procedure. Instead, the provisions on the enforcement procedure in Section 172 of the Code of Criminal Procedure (StPO) are applied analogously. This is justified by the fact that Section 172 of the Code of Criminal Procedure was created when the so-called preliminary judicial investigation was regulated and included in the law. The admissibility of the compulsory investigation procedure was first affirmed in 1980 and is recognized in the case law. The European Court of Human Rights confirms the admissibility with the words: “In addition, based on its case law and the provisions of the BVerfGG , the BVerfG seems in principle to be able to revoke a decision to discontinue criminal investigations and to initiate or reopen such proceedings to order from investigations. "

Procedure

The investigation enforcement procedure is analogous to the enforcement procedure according to Section 172 StPO. The request document is in accordance with § 172, paragraph 1, p. 1 CCP within one month after receipt of the inquiry refusal communication from the general public prosecutor submitted to the relevant under § 172, para. 4 CCP Oberlandesgericht. The injured party is entitled to apply .

Order further investigations

Further investigations are ordered by the public prosecutor's office if the latter has either not investigated at all or only incompletely. The public prosecutor's office is then obliged to commence the refused investigation, to continue it until it is ready for a decision and then to decide again whether to terminate the case or to bring an indictment.

Constitutional law

In some cases, for example crimes committed by public officials , the injured party also has a legal right to prosecution . According to this, the injured person has a right against the law enforcement authorities for a serious and complete investigation into his matter. It is a highly personal claim.

Examples

In the case of the murdered Siegfried Buback , Attorney General at the Federal Court of Justice , Michael Buback and the murdered man's brother applied for compulsory investigation against former RAF member Siegfried Haag and another person, whose name was changed against Siegfried Haag on a read copy of the handwritten original, which failed but because of the high formal admissibility hurdles for this type of procedure. The compulsory investigation procedure can also be considered for criminal offenses in connection with new technologies if the public prosecutor's office does not recognize the criminality of an issue due to a lack of appropriate expertise. In the case of an unaccompanied exit of a psychiatric patient who committed suicide, the Federal Constitutional Court ordered further investigations against the responsible doctor for negligent homicide.

literature

Individual evidence

  1. ↑ a b c Mirko Laudon: Investigation enforcement proceedings. In: strafakte.de. Retrieved December 9, 2019 .
  2. ↑ Higher Regional Court Brandenburg , decision of October 18, 2018, Az. 1 Ws 109/18 .
  3. ↑ a b Mark Zöller (arr.); Björn Gercke (Ed.): Code of Criminal Procedure. 6th edition. 2019, ISBN 978-3-8114-3974-0 , Rn. 27 to § 172 StPO
  4. ↑ Lutz Meyer-Goßner , Bertram Schmitt : Code of Criminal Procedure. 62nd edition. 2019, ISBN 978-3-406-73584-4 , Rn. 1b to § 172 StPO .
  5. ↑ Werner Beulke : Criminal Procedure Law. 13th edition. 2016, ISBN 978-3-8114-9415-2 , Rn. 244.
  6. ^ Higher Regional Court Nuremberg , decision of June 28, 2016, Az. 1 Ws 231/16
  7. ↑ Gerwin Moldenhauer (edit.): Karlsruhe Commentary on the Code of Criminal Procedure. 7th edition. 2013, ISBN 978-3-406-63672-1 , Rn. 3 to § 172 StPO
  8. ↑ a b c Munich Higher Regional Court , decision of June 27, 2007, Az. 2 Ws 494/06 Kl NJW 2007, 3734.
  9. ↑ OLG Zweibrücken , decision of February 5, 1980, Az. 1 Ws 424/79, GA 1981, 96.
  10. ↑ OLG Bremen , decision of September 21, 2017, Az. 1 Ws 55/17 with extensive quotations from the case law since 1980 on the enforcement procedure
  11. ↑ ECHR , decision of November 9, 2017 in the "Münchner Lokalderby" case, NJW 2018, 3763, Rn. 102
  12. ↑ Meyer-Goßner / Schmitt, 62nd edition 2019, Rn. 8 on § 172 StPO , marginal no. 2 on § 175 StPO
  13. ↑ Higher Regional Court Brandenburg , decision of October 18, 2018, Az. 1 Ws 109/17
  14. ↑ Meyer-Goßner / Schmitt, 62nd edition 2019, marginal note 25 on § 172 StPO
  15. ↑ Michael Sachs , JuS 2015, 376
  16. ↑ BVerfG , decision of April 1, 2019, Az. 2 BvR 1224/17
  17. ↑ OLG Stuttgart , press release on the decision of July 6, 2015, Az. 6 Ws 2/15
  18. ↑ Andreas Leupold, Silke Glossner (Ed.): Munich Lawyers' Handbook IT Law. 3. Edition. 2013, ISBN 978-3-406-64845-8 , Rn. 512.
  19. ↑ BVerfG , decision of the 2nd Chamber of the Second Senate of January 23, 2020, AZ. 2 BvR 859/17