Opportunity principle
The opportunity principle (also the principle of resolution ) is the legal freedom of action within a set legal framework.
It is a sub-case of the discretionary decision and applies in principle, as long as a legal regulation does not state otherwise (for example in criminal law, see below). The opportunity principle describes the action of a regulatory authority in the event of a threat to public safety or order . The regulatory authority can but does not have to intervene. The principle of proportionality applies here .
Police law (Germany)
In the area of intervention management (e.g. police), the question arises whether (resolution fairs) and against whom (selection fairs or troublemaker selection) should be taken. The principle of opportunity applies not only to the resolution fair, but also especially to the selection fair.
However, the freedom to decide whether to act can be reduced to an obligation to act (so-called reduction of discretion to zero), for example if significant legal interests are endangered or if non- action would be disproportionate.
The opportunity principle is regulated in the relevant state laws ( e.g. § 3 PolG-BaWü, § 14 Paragraph 1 SOG MV, Art. 5 Paragraph 1 PAG (Bavaria), see also § 3 Paragraph 1 draft of a uniform police law ).
Fine proceedings (Germany)
The principle of opportunity ( Section 47 OWiG) prevails in proceedings under the law on administrative offenses (administrative fines ).
Criminal proceedings (Germany)
In criminal law , the principle of legality, which is contrary to the principle of opportunity, applies . The opportunity principle, which is only applicable in exceptional cases, offers the possibility, under certain conditions, of discontinuing criminal proceedings if the guilt of the perpetrator appears to be minor ( Section 153 StPO ), the fulfillment of conditions to eliminate the interest in prosecution is sufficient ( Section 153a StPO) or the expected punishment in addition to the Punishment for other offenses of the suspect is not significant ( § 154 , § 154a StPO). Corresponding regulations are contained in the Youth Courts Act ( § 45 , § 47 JGG).
In the case of a hiring subject to conditions pursuant to Section 153a of the Code of Criminal Procedure (StPO) - the procedure will initially be temporarily discontinued, and if the fulfillment of the condition has been proven, it will be finally discontinued - different types of conditions can be made. Above all, the perpetrator can be obliged to perform charitable work or to pay a sum of money or to make amends. Monetary requirements can be imposed in favor of the state treasury or a non-profit organization. In the case of payments for compensation for damages, it should be noted that these are to be offset against the damage claim of the injured party, in particular a possible claim for pain and suffering, even if the criminal judge had declared when imposing the condition that such offset should not be made.
In criminal proceedings against adults as well as in juvenile criminal law, the decision to discontinue proceedings can only be made by the public prosecutor's office (or, in the case of tax offenses, the penal and criminal offense department of the tax office or the main customs office ) and - in the case of an indictment - by the competent court . However, it is not possible for the police authorities to stop proceedings. If there is an initial suspicion of a criminal offense, they are obliged to commence the investigation and forward the files to the public prosecutor's office.
Critics complain that some public prosecutor's offices are now 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 opportunity is changed from exception to rule, while the principle of legality becomes a mere farce and almost completely sacrificed to the principle of opportunity - with fatal consequences for legal peace and the justice system in general.
Criminal law (Switzerland)
According to Swiss law, the principle of opportunity always applies where the law enforcement authorities have the discretion to decide whether or not to prosecute a criminal offense. The Swiss Criminal Code (StGB) stipulates that the competent authority can refrain from prosecution, referral to the court or punishment:
- If the guilt and the consequences of the offense are minor (Art. 52 StGB);
- If the perpetrator covered the damage or made all reasonable efforts to compensate for the injustice caused by him, meets the requirements for a conditional sentence and the interest of the public and the injured party in criminal prosecution is low (Art. 53 StGB);
- If the offender is so seriously affected by the direct consequences of his act that a punishment would be inappropriate (Art. 54 StGB).
In the case of political offenses, the Federal Council also decides whether criminal prosecution should take place (Art. 105 BStP, SR 312.0). In terms of procedure, the principle of opportunity is specified in the Code of Criminal Procedure (SR 312.0), where Art. 8 StPO stipulates that the public prosecutor's office and courts can refrain from prosecuting in the cases of Art. 52 to 54 StGB. If there are no overriding interests of private prosecutors, they can also refrain from prosecution if a criminal offense is not of major importance in addition to the other offenses committed by the offender, if the additional penalty to be expected for the offense would be negligible or if a penalty pronounced abroad would be offset . Prosecution can also be waived if the offense is already being prosecuted by a foreign authority. In these cases, the public prosecutor's office issues a non-handling order (Art. 310 Para. 1 lit. c StPO).
Individual evidence
- ↑ So OLG Düsseldorf , judgment of July 12, 1996, 22 U 31/96, NJW 1997, 1643f.
- ↑ See e.g. B. Jürgen Roth: Investigation prohibited! Eichborn Verlag, Frankfurt am Main 2004
