Backup procedure
The security procedure is a special type of procedure within criminal law , which serves the independent arrangement of measures of reform and protection ( § 61 StGB) and is carried out in place of an indictment .
requirements
According to § 413 StPO, the precondition for the opening of security proceedings is that normal criminal proceedings due to the culprit's incapacity ( § 20 StGB) or permanent incapacity to stand trial cannot be carried out, but instead of being sentenced to imprisonment, his placement in a psychiatric hospital or in a rehab facility in Comes into consideration.
If the main hearing outside of the security proceedings has already been opened in the matter, security proceedings can no longer be opened retrospectively in the absence of a legal basis if the culprit's incapacity or permanent incapacity to negotiate only emerges during the ongoing main hearing. In the latter case, this can mean that the perpetrator cannot be convicted, even if the prerequisites for a measure of protection and improvement are otherwise present.
An adhesion process as part of a security process is not permitted. On the other hand, according to recent case law, it is entirely permissible for the victim to join the security proceedings in the context of the secondary action . Procedural obstacles that prevent criminal proceedings from being carried out (e.g. statute of limitations, lack of the necessary criminal complaint) also prevent security proceedings from being carried out.
Procedural rules
Instead of the indictment , a written application from the public prosecutor is used in the security proceedings . The application must specify the specific measure that the public prosecutor seeks to impose against the offender, without the court being bound by the imposition of the requested measure. ( § 414 StPO)
In the main hearing , an expert (usually psychiatric) must be called in, who will give an opinion on any existing danger to the accused as well as a danger prognosis. A defense lawyer must be appointed for the accused under all circumstances ( Section 140 of the Code of Criminal Procedure). In principle, the accused is also obliged to be present at the main hearing in the security proceedings; However, if this is not possible for his health or if the perpetrator cannot be brought before the court due to his dangerousness, the court can conduct the main hearing in the absence of the accused. In this case a commissioned judge has to question the accused personally in the presence of the expert. It is also possible that the accused leaves the main hearing after being questioned and is not or only temporarily present at the main hearing afterwards. ( § 415 StPO)
If, after the opening of the main hearing, it emerges that the accused is culpable or capable of proceeding, a transition to general criminal proceedings is permissible. The accused must be given the opportunity to adjust to the changed procedural situation and to defend himself appropriately. If the accused claims to have not adequately prepared for this, the main hearing is to be suspended without the court having any discretion. If the main hearing was carried out in whole or in part in the absence of the accused, the main hearing must be repeated. ( § 416 StPO)
literature
- Karl-Heinz Gössel: § 413 . In: Löwe / Rosenberg, The Code of Criminal Procedure and the Courts Constitution Act , 26th edition, Volume 8 (§§ 374–448), Verlag Walter de Gruyter, Berlin 2012, ISBN 3110974371 , p. 475ff
