According to German criminal law or administrative offense law, the preliminary investigation (EV) or preliminary proceedings are the starting point of all administrative fines and criminal proceedings . The investigation procedure is regulated by law in Section Two of Book Two of the Code of Criminal Procedure ( Sections to Code of Criminal Procedure) or in the Law on Administrative Offenses (OWiG).
Initiation of the preliminary investigation
In accordance with the principle of legality, investigations must always be started on the basis of reports or sufficient references to a criminal offense (except in the case of unconstitutional use of evidence that is intended to justify an initial suspicion; so-called initial suspicion according to (2) StPO in conjunction with (1) StPO). The prosecutor's office in this context has the right and the duty to initiate investigations. The exception are so-called relative application offenses , in which the public prosecutor's office in Germany is only allowed to investigate on its own initiative in the event of a particular public interest in prosecution. Pure application offenses, on the other hand, require an application from the injured party.
On the other hand, if the initial suspicion is not confirmed or if bans on evidence become apparent, for which no conviction would be expected, the StA can also discontinue the proceedings according to the Code of Criminal Procedure .
As the mistress of the investigation , the locally responsible public prosecutor's office with the support of their so-called investigators usually conducts investigations into ( alleged ) administrative offenses and criminal offenses . In regulatory offense law, this is usually the competent administrative authority ( OWiG). In practice, the majority of the investigations are carried out by the police . Commissions are regularly formed in Germany in the event of murder. Special commissions can also be formed for other complex offenses .
The investigative authorities in Germany must also research all exonerating facts ( (2) StPO). When researching the incriminating and exonerating facts, you are bound by the free evidence procedure . In the case of supra-local and mass commission of criminal offenses, the preliminary investigation is carried out in a centralized manner by a public prosecutor's office (so-called collective proceedings ).
Completion of the preliminary investigation
Once the preliminary investigation has been concluded, it is the sole responsibility of the public prosecutor to decide whether to file charges , apply for a penalty order , or terminate the proceedings .
If there is sufficient suspicion according to Section 170 (1) of the Code of Criminal Procedure - after the accused had the opportunity to exercise their right to be heard at the latest before the investigation was concluded - an indictment is brought or the penalty order is applied for, and the criminal proceedings enter the interim proceedings with the respective party Court a. If there is no sufficient suspicion, the prosecution will discontinue the proceedings in accordance with Section 170 (2) of the Code of Criminal Procedure and the accused will be informed, unless the accused has not been questioned beforehand. If an indictment is brought, the court then decides in the interim proceedings whether the accused becomes the accused; According to Code of Criminal Procedure, the chairman of the court grants the accused the opportunity to raise objections to the opening of the main proceedings and to submit their own requests for evidence after a period to be determined. Many preliminary proceedings also end with a suspension of proceedings due to insignificance (§§ 153, 153a StPO).
Investigation enforcement procedure
If investigations are either not initiated at all or only inadequately carried out, a so-called investigation enforcement procedure can also be considered for the injured party , which is aimed at commencing or completing the investigation.
Independent preliminary investigations without the authority of a public prosecutor's office are carried out by the Federal Criminal Police Office , Customs and Tax Investigations , as well as the Federal Office for the Protection of the Constitution , the State Authorities for the Protection of the Constitution and the Federal Intelligence Service below the threshold of initial suspicion.
- at www.buzer.de
- The main principles of the preliminary investigation
- Guido Kirchhoff, The right to confrontational questioning in the preliminary investigation