Right to prosecute third parties

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The right to prosecute third parties , including the right to effective prosecution , is a term from German criminal procedure law . It describes an individually enforceable right of a person to the prosecution of a criminal offense of a third party by the state. According to the case law of the Federal Constitutional Court, there has been a right to criminal prosecution of third parties in Germany since 2014 in more precisely defined groups of cases.

Derivation

principle

Under German criminal procedure law, the injured party of a criminal offense has no right to have the state prosecuted. This means that the injured party does not have the right to demand from the law enforcement authorities to identify the perpetrator, the circumstances and consequences of the offense, to be charged by the public prosecutor and convicted by a state court and, if necessary, to sue for this right in court. This principle is derived from the criminal monopoly of the state : criminal offenses are not citizens in their own interest ( vigilantism are) but by the state in the interest of the company is pursuing.

Reflex right

Nevertheless, the German criminal law recognizes the Institute of Ermittlungserzwingungsverfahrens and Klageerzwingungsverfahrens . According to this, the victim of a criminal offense can, under certain conditions, namely if the public prosecutor's office wrongly denies the existence of an initial suspicion or a sufficient suspicion , by submitting an application to the court, order the investigation or the filing of a public complaint.

Through these procedures, the injured party can achieve that the crime is prosecuted by the state. At the same time, investigation and enforcement proceedings do not serve to protect the rights of the injured person, but rather to ensure effective control of the law enforcement authorities by the court. From this, jurisprudence concludes that there is a mere reflex right of the injured and not a real right to prosecution.

exception

An exception to the above principle applies in those cases in which the act is committed by a representative of the state, i.e. by a public official : Here the impression can arise that the state is not using its monopoly on criminal prosecution for the benefit of social peace to restore the legal peace that has broken in the relationship between two citizens because he is himself a "party".

In order to maintain the trust of society in effective criminal prosecution by the state, which is necessary to maintain the state's monopoly of punishment, criminal offenses committed by public officials must be subject to special judicial control through a real right to criminal prosecution. The Federal Constitutional Court found in 2015:

“Against this background, there is a right to effective criminal prosecution where the individual is not in a position to ward off serious crimes against his or her very personal legal interests - life, physical integrity, sexual self-determination and freedom of the person - and to renounce the effective prosecution of such Actions can lead to a shattering of confidence in the state's monopoly of force and a general climate of legal uncertainty and violence. In such cases, based on Article 2, Paragraph 2, Clauses 1 and 2 in conjunction with Article 1, Paragraph 1, Clause 2 of the Basic Law, action by the state and its organs can be required "

Eligibility requirements

The jurisprudence postulates three groups of cases in which a constitutional right to prosecution may exist:

  • Serious crimes against life, physical integrity, sexual self-determination and the freedom of the person,
  • Offenses committed by public officials (a public official is suspected of having committed a crime in the exercise of the public office entrusted to him),
  • Offenses in which the victims are in a special custody relationship with the public sector.

The basis for claims can therefore be found in the basic rights to life and physical integrity and the freedom of the person , Article 2, Paragraph 2 of the Basic Law in conjunction with the fundamental rights binding of the state, Article 1, Paragraph 1, sentence 2 of the Basic Law.

Content of the claim

The content of the right to prosecute third parties consists in effective state prosecution in such a way that the public prosecutor's office and the police make use of the means and powers available to them to clarify the facts and secure evidence. However, charges do not necessarily have to be brought. The Federal Constitutional Court explains:

“The (constitutional) obligation to effective criminal prosecution relates to the action of all law enforcement agencies. Its aim must be to ensure the effective application of the penal provisions issued to protect life, physical integrity, sexual self-determination and personal freedom. To this extent, it must be ensured that criminals are actually held responsible for violations of these legal interests for which they are responsible.

This does not mean that the obligation in question can always only be satisfied by bringing an indictment. In many cases, it will be sufficient if the public prosecutor's office, as the master of the investigation, and - according to their instructions - the police actually use the resources available to them, both human and material, as well as their powers in accordance with an appropriate use of resources, in order to clarify the facts and to provide evidence to back up.

Fulfillment of the obligation to effectively prosecute is subject to judicial control (§§ 172 ff. StPO) and requires detailed and complete documentation of the course of the investigation as well as comprehensible reasons for the decision to hire. "

The claim is enforced by way of investigation or enforcement proceedings. In practice, the claim becomes relevant when obvious possibilities for investigation have not been exhausted. Then the injured party can subject a failed enforcement procedure to a follow-up inspection by the Federal Constitutional Court.

The aim of the claim is to ensure the effective application of the penal provisions issued. The claim is highly personal. and can be asserted especially in the case of capital crimes by close relatives

development

Development through case law

The right to prosecute third parties goes back to a decision of the European Court of Human Rights in 1999. According to this, the member states are obliged to conduct effective official investigations, especially if the suspicion is directed against representatives of the state.

In the Tennessee-Eisenberg decision, the Federal Constitutional Court assumed for the first time a right to prosecute third parties. In the specific case relating to the negligent killing of a schoolboy by a police officer, the public prosecutor's office had fulfilled this claim by initiating the preliminary investigation and clarifying the facts, according to the court. The public prosecutor's office had discontinued the proceedings because there was no sufficient suspicion. The motion to compel the charges had been denied. The Federal Constitutional Court did not accept the constitutional complaint for decision.

In three further chamber decisions (“Gorch Fock” or “ Jenny Böken ”, “Local Derby” and “ Air Raid near Kunduz ”) the Federal Constitutional Court dealt with the right to prosecute third parties in the constellation of the offense by one of the public officials. In each case, however, the constitutional complaint was not accepted for decision because the public prosecutor's office had conducted an investigation and clarified the facts sufficiently.

The first successful constitutional complaint was decided on January 15, 2020. An illegally fixed patient complained successfully against the termination of the investigation against the responsible ward doctor, a public health officer and a nurse. Regarding the judge who was also reported, the complaint was rejected because indications for a perversion of the law (§ 339 StGB) had not been substantiated.

Development through science

Jurisprudence accompanied the development of the claim through case law by calling for more effective rights for those violated by a criminal offense while at the same time strengthening confidence in the state prosecution. In this context, in addition to the constitutional basis, particular reference is made to Art. 2 ECHR as the legal basis.

Examples

In the two cases of the death of Oury Jalloh and the death of Jeremiah Duggan , the bereaved relied on the case law of the Federal Constitutional Court since the decision in the Tennessee Eisenberg case for their entitlement to an investigation of these two deaths .

literature

  • Mehmet Daimagüler : The injured in criminal proceedings , Beck, Munich 2016, ISBN 978-3-406-70220-4 . For Ermittlungserzwingungsverfahren and Klageerzwingungsverfahren rnrn. 589 ff, on the effects of the Tennessee Eisenberg decision marginal no. 639.
  • Albin Dearing, Justice for Victims of Crime: Human Dignity as the Foundation of Criminal Justice in Europe , Springer-Verlag, 2017 online
  • 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) .
  • Robert Esser and Felix Lubrich, claim of the injured person to prosecution of third parties: The Kunduz decision of the Federal Constitutional Court in: StV 2017 Heft 6, 418 - 423.
  • Klaus Ferdinand Gärditz , comment on the Kunduz decision , Juristentung 2015, 896–900
  • Heinz Giehring: The injured person's right to prosecution and its significance for the preliminary investigation .
  • Tatjana Hörnle , comment on the Kunduz decision , Juristentung 2015, 893–896 ISSN  0022-6882
  • Wilfried Holz: Crime victim's right to justice . Duncker & Humblot, Berlin 2007.
  • Stefan Muckel , Fundamental Right to Prosecution of Third Parties , JA 2015, 479
  • Michael Sachs : Fundamental rights: the victim's right to prosecute the perpetrator. JuS 2015, 376–378.
  • Klaus Schroth : The rights of the victim in criminal proceedings , 2nd edition 2016.
  • Jan Sturm, The fundamental right to effective criminal prosecution of third parties, The recent chamber jurisprudence of the BVerfG and its consequences for the setting of opportunities according to §§ 153, 153a StPO in: Goltdammer's Archive for Criminal Law, ISSN  0017-1956 , Vol. 164, No. 7, 2017 , Pp. 398-410
  • Thomas Weigend : "The punishment for the victim"? - On the renaissance of the satisfaction concept in criminal and criminal procedure law, RW 2010, pp. 39–57 (online) .
  • Zeitschrift für die Anwaltspraxis , Heft 8/2015, S. 412 - 413, Grundrechte: Right to prosecute third parties
  • Mark Zöller: Compulsory Lawsuit Procedure; Right to effective criminal prosecution, comment on Bremen Higher Regional Court, decision v. August 18, 2017 - 1 Ws 174/16, defense lawyer (StV) 2018, pp. 268–275.

Individual evidence

  1. ↑ BVerfG, decision of January 15, 2020, Az. 2 BvR 1763/16, no. 32 ff.
  2. ↑ BVerfG, decision of October 25, 2019, Az. 2 BvR 498/15
  3. ↑ Heidelberg Commentary on the Code of Criminal Procedure, 6th edition 2019, author Mark Zöller, Rn. 1 to § 172 StPO
  4. ↑ Johannes Wessels / Werner Beulke / Helmut Satzger , Criminal Law General Part, 47th edition 2017, Rn. 10 with reference to four non-acceptance decisions of the Federal Constitutional Court:

    2 BvR 2699/10 (1st Chamber of the 2nd Senate) of June 26, 2014 Tennessee Eisenberg ; bverfg.de , hrr-strafrecht.de
    2 BvR 1568/12 (3rd Chamber of the 2nd Senate) of October 6, 2014 Jenny Böken (Gorch Fock) ; bverfg.de , hrr-strafrecht.de
    2 BvR 1304/12 (3rd Chamber of the 2nd Senate) of March 23, 2015 Munich Local Derby ; bverfg.de , hrr-strafrecht.de
    2 BvR 987/11 (3rd Chamber of the 2nd Senate) of May 19, 2015 Air attack near Kundus : bverfg.de , hrr-strafrecht.de

  5. ↑ Werner Beulke , Criminal Procedure Law, 13th edition 2016, p. 24 Rn. 17th
  6. ↑ BVerfGE 51, 176, 187.
  7. ↑ BVerfG NJW 2002, 2861 ( full text online ).
  8. ↑ a b c d “Constitutional right to conduct criminal proceedings”, NJW-Spezial 2015, 57.
  9. ↑ a b BVerfG NStZ-RR 2015, 117 ( full text online ).
  10. ^ Michael Sachs: Basic rights: Victims' right to prosecute the perpetrator. JuS 2015, 376–378.
  11. ↑ BVerfG, decision of May 29, 2019 - 2 BvR 2630/18 para. 14 . ( bverfg.de ).
  12. ↑ BVerfG, decision of April 1, 2019 - 2 BvR 1224/17 . ( bundesverfassungsgericht.de ).
  13. ↑ BVerfG, decision of May 19, 2015 - 2 BvR 987/11 ("Kundus"), no. 20 . ( bundesverfassungsgericht.de ).
  14. ↑ ECHR, judgment of May 20, 1999, Az. 21554/93, NJW 2001, 1991 ( guidelines online ).
  15. ↑ BVerfG, decision of June 26, 2014, Az. 2 BvR 2699/10 - Tennessee Eisenberg ( full text online ).
  16. ↑ Lawsuit enforcement proceedings in the event of fatal use of firearms by the police
  17. ↑ a b Meyer-Goßner / Schmitt, Commentary on StPO, 60th edition 2017, Rn. 1a to § 172 StPO: "Constitutional legal entitlement of the injured party to effective criminal prosecution against third parties"
  18. ↑ BVerfG, decision of June 26, 2014, Az. 2 BvR 2699/10 - Tennessee Eisenberg ( full text online ).
  19. ↑ BVerfG, decision of October 6, 2014, Az. 2 BvR 1568/12, NJW 2015, 150 - Gorch Forck ( full text online ).
  20. ↑ On the Gorch Fock decision also Karl Kröpil, Entitlement to Prosecution , JURA 2015, 1282
  21. ↑ Right magnifying glass: The right to criminal proceedings .
  22. ↑ BVerfG, decision of March 23, 2015, Az. 2 BvR 1304/12 - Local Derby ( full text online ).
  23. ↑ BVerfG NJW 2015, 3500 - Kunduz ( full text online ).
  24. ↑ OLG Stuttgart , decision of December 21, 2016, Az. 4 Ws 284/16, Rn. 12 ( online ).
  25. ↑ On the Kunduz decision also Christoph Safferling , right to effective criminal prosecution of third parties, chamber decision of the BVerfG from May 19, 2015 - 2 BvR 987/11 ( online ).
  26. ↑ Decision of the Bremen Higher Regional Court of August 18, 2017, Az. 1 Ws 174/16, pp. 5–7 ( online , no criminal proceedings against doctors at the clinic after the suicide of a patient).
  27. ↑ Decision of the BVerfG from January 15, 2020, Az. 2 BvR 1763/16, online at: bundesverfassungsgericht.de / ...
  28. ↑ Reporting at Zeit Online [1]
  29. ↑ Reporting at Ärzteblatt online [2]
  30. ↑ Reporting at the Tagesschau [3]
  31. ↑ Heinz Schöch : The legal position of the injured party in criminal proceedings. NStZ 1984, 385, 389.
  32. ^ Karl Haller, Karl Conzen, Das Strafverfahren, 6th edition 2011, Rn. 158