Principle of legality

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The principle of legality in Germany is the obligation of the prosecution authorities ( public prosecutor's office , police , customs and tax investigators ) to open an investigation if they have acquired sufficient knowledge of a (possible) criminal offense to justify the initial suspicion ( Section 152 (2), Section 160 , Section 163 StPO ; Section 386 AO ).


According to the legal situation in Germany, the discretion of the police in the event of a report, which can also be made anonymously, is reduced to zero. She is also obliged to report the matter if the matter in question also partly relates to criminal complaints or if the suspect is manifestly incompetent . With the start of the investigation , criminal proceedings against the accused are initiated. The suspect thus becomes conceptually the accused. If a conviction of the accused is predominantly likely, charges must be brought. The principle " In dubio pro duriore " (in case of doubt for the harder) prevents the public prosecutor from deciding on legal disputes and obliges them to prosecute according to the harder (durior) interpretation. When the indictment is brought, the accused becomes conceptually the accused . After the court has admitted the indictment, the accused becomes conceptually the accused . The principle of legality is constitutionally prescribed by the principle of equality according to Article 3, Paragraph 1 of the Basic Law .

Procedural rights of the complainant

According to German law, the principle of legality is legally supported by the criminal offense of obstruction of punishment in office ( § 258a StGB ) and the possibility of enforcement proceedings ( § 172 StPO). The complainant can also, if he is also the injured party , conduct investigative proceedings . In some cases, for example in the case of criminal offenses by public officials , he also has a legal right to prosecution . This is based on the Tennessee-Eisenberg decision of the Federal Constitutional Court of June 26, 2014, which in certain groups of cases provides for a right to formal initiation of preliminary proceedings against the accused by the responsible public prosecutor's office .


The principle of legality is broken by the principle of opportunity . Sections 153 ff of the Code of Criminal Procedure contain a large number of reasons for discontinuing the procedure based on the principle of opportunity . If, for example, there is only a minor guilt (insignificance of the guilt, § 153a StPO) or further more serious criminal offenses are to be prosecuted ( § 154 StPO), the public prosecutor's office can, if necessary, discontinue the proceedings . However, since the police are not entitled to this principle of opportunity, they are obliged to initiate investigative proceedings if they suspect a criminal offense. Even the knowledge that this procedure will be discontinued at a later date that borders on certainty (for example an offense under the Narcotics Act for personal consumption) does not mean that the notification may be dispensed with. In addition, criminal complaints are usually only prosecuted if the person entitled to file a criminal complaint§ 77 ff StGB).

Implementation in practice

Jürgen Roth complains that some public prosecutor's offices are so overburdened and underfunded that at least "minor" crimes are often no longer investigated or the effort is limited to finding reasons to discontinue the proceedings. As a result, the principle of legality is a mere farce and almost completely sacrificed to the principle of opportunity.

Tax law

Due to the principle of equality, the tax authorities are also obliged to act according to the principle of legality. The taxes are to be set uniformly in accordance with § 85 AO and all circumstances to determine the correct tax amount are to be compiled. The opportunity principle according to § 191 AO only applies to a limited extent.

Principle of legality in Austria and Switzerland

The term legality principle has a second, more fundamental meaning in the Austrian and Swiss legal language alongside the obligation of the investigating authorities to prosecute. The principle of legality is part of the basic rule of law of the Federal Constitution and states according to Art. 18 Para. 1 B-VG (Austria) and Art. 5 Para. 1 BV (Switzerland) that the entire state administration is only exercised on the basis of laws may - it roughly corresponds to the German term of the reservation of the law . Every administrative act that is taken must be covered by a law passed by the legislature. The principle of legality is intended to make the actions of the administration predictable and calculable for the citizen and thus prevent arbitrariness (in Germany: Article 3, Paragraph 1 of the Basic Law). The principle of legality experiences a breach in the context of the discretionary decisions of authorities.

Web links


Individual evidence

  1. Dirk Diehm, The subjective claim to effective criminal prosecution in: Fabian Scheffczyk and Kathleen Wolter: Lines of Jurisprudence of the Federal Constitutional Court, Volume 4, ISBN 978-3-11-042644-1 , pp. 223–246 ( online)
  2. Meyer-Goßner / Schmitt, Commentary on the Code of Criminal Procedure , 60th edition 2017, Rn. 1a to § 172 StPO.
  3. ^ Tennessee Eisenberg decision of the Federal Constitutional Court of June 26, 2014, Az. 2 BvR 2699/10 ( full text online ).
  4. Jürgen Roth : Investigation prohibited! Why the police gave up fighting crime. Eichborn, Frankfurt am Main 2004, ISBN 3-8218-5588-6 .