A prosecutor represents the prosecution in court . In many countries he is a civil servant . B. an official in the higher judicial service in a public prosecutor's office and thus an organ of the administration of justice .
In the Federal Republic of Germany, you can only become a public prosecutor if you are qualified to hold judicial office .
The public prosecutor has procedural control in the criminal investigation (preliminary proceedings): He is responsible for the legal assessment of the facts, which are usually determined by the police . It decides on the conclusion of the preliminary investigation. The prosecutor may close the case, charges collect or punishment in court apply. If the preliminary results of the investigation do not yet permit a final decision, he can order that the police continue investigating. The police must notify the public prosecutor of all criminal procedural measures.
After the indictment has been brought, the public prosecutor acts as a representative of the public prosecutor's office at the main hearing . He reads out the indictment , participates in the taking of evidence and finally makes a plea. If he does not agree with the decision of the court, he can appeal.
If the accused is convicted, the public prosecutor's office, as the execution authority, takes over the execution of the sentence. However, these tasks are largely delegated to the senior judicial officers working at the public prosecutor's office . As the enforcement officer, the public prosecutor himself decides on particularly important issues. It is his responsibility to apply to the court to revoke the suspended sentence or to suspend the remainder of the sentence .
The actual investigations are mainly carried out by the police , but also by customs or tax investigators , partly in the role of investigator for the public prosecutor's office . Due to their considerably larger workforce and equipment such as forensic technology , radio , files and collections, these authorities have a considerable preponderance of investigation options.
Certain criminal procedural investigative measures such as house searches or blood sampling may only be carried out on the order of a judge . In these cases, the public prosecutor applies to the competent judge for the measure. In the case of “ imminent danger ” (ie the risk of loss of evidence due to the delay that would presumably arise from bringing about a judicial decision), he takes the order himself; it is to be confirmed by the judge. For this purpose, 24-hour standby services are set up at the public prosecutor's offices.
The public prosecutor can also investigate himself, especially questioning the accused or witnesses personally . If the police do not appear, the public prosecutor can summon them himself. In contrast to the police, coercive means are available to him; he can have the witness brought before the police, apply for a fine or the imposition of custody (maximum: six months) by the investigating judge.
After capital crimes and major criminal cases such as bank robberies, a public prosecutor is often present at the scene. The public prosecutor is also often on-site for important searches, especially in white-collar crime cases. He can order and carry out a temporary arrest , including searches or physical examinations if there is imminent danger . Documents that are seized during house searches are generally only allowed to be read by the public prosecutor, but also by the police if ordered to do so.
As civil servants, public prosecutors - unlike judges - are bound by instructions ( Section 146 Courts Constitution Act ) and are subject without restriction to the supervision of their superiors ( Section 144 GVG) ( Section 147 GVG). This gives the public prosecutor and public prosecutors the opportunity to influence, especially since those giving instructions are not bound by the written form. Well-known examples of being bound by instructions and their consequences are the Mollath case . The different views on the scope of the right to issue instructions became clear once again with the dismissal of Attorney General Harald Range . In principle, the same question was raised in April 2019 in the dispute over the admissibility of the investigation against the Center for Political Beauty .
A public prosecutor at the public prosecutor's office in a country has the following superiors:
- the public prosecutor as group leader - in short "Public Prosecutor (Gl.)", earlier and again since January 1, 2011 in Baden-Württemberg : First Public Prosecutor; depending on the country, possibly as a sub-department head or representative of the department head,
- the chief public prosecutor (as head of department ),
- possibly the chief public prosecutor (as head of department)
- the chief public prosecutor (as head of the authority),
- the attorney general (head of the higher authority ),
- the Justice Minister or Justice Senator (Berlin, Bremen and Hamburg) of the respective federal state.
In certain cases, the prosecutor in charge of the case must report to these superiors about the proceedings and the measures taken or planned, for example in proceedings that are directed against politicians or for other reasons that may concern other circles. The right of superiors to give instructions is, however, limited by the principle of legality and the binding of applicable law. In particular, the criminal liability of the prosecution of innocent persons ( Section 344 of the Criminal Code ) and the thwarting of punishments in office ( Section 258a of the Criminal Code) limit the right to issue instructions.
In contrast to judges, there is no “right to a public prosecutor” in Germany. It is the rule that after the indictment has been admitted to the criminal court during the main hearing, the public prosecutor's office is represented by an official or public prosecutor or legal referendar who has not been involved in the proceedings . Public prosecutors - usually also trainee lawyers - only appear in proceedings that are also under the jurisdiction of the public prosecutors, i.e. they are not involved in serious crime ( see below ). In individual cases, trainee lawyers can also be assigned the tasks of a public prosecutor (Section 142 (3) GVG).
As in the case of courts, the responsibilities are determined by the annual business allocation plan, which defines the general divisions and the special departments and departments (e.g. economic and corruption crime, juvenile crime, BtM and organized crime, sexual offenses, etc.) and assigns them to individual public prosecutors .
Anyone who pretends to be a public prosecutor is liable to prosecution in accordance with Section 132a (1) No. 1 StGB .
The ECJ ruled in May 2019 that German public prosecutors did not meet the requirements for independence from the government in order to apply for an EU arrest warrant.
Federal Prosecutor's Office
At the federal level, public prosecutors are appointed to the Federal Court of Justice by the Federal Prosecutor's Office.
Requirement for employment
The prerequisite for employment for public prosecutors is the ability to hold the office of judge and thus successful participation in the two state legal examinations . In many federal states they have to serve as probationary judges . Then the same career path applies to public prosecutors and judges, although a change between the offices is possible and desirable.
Public prosecutors, like judges, are paid according to the salary regulation R.
In addition to the public prosecutors, (senior) public prosecutors deal with the processing of criminal cases. These are not lawyers with a university degree, but former judicial officers with a technical college degree who have completed a year of additional training in criminal law . The public prosecutors should prosecute light to medium crime, e.g. B. Theft , fraud and embezzlement up to a damage amount of (mostly) € 1,000, furthermore traffic offenses of a simpler nature etc. In some federal states public prosecutors are also allowed to deal with coercion cases, in others this is reserved for the public prosecutor.
In court, public prosecutors wear a robe that corresponds to that of the judge (black wool with a velvet border of 12 cm width, red for the federal prosecutor's office). Public attorney's and trainee attorney's robes, on the other hand, only have an 8 cm wide velvet finish.
In the Republic of Austria , only judges or former judges may be appointed public prosecutors. The appointment is always preceded by a public advertisement for a vacant position.
The organization of the public prosecutor's office is the responsibility of the cantons. In addition to the term public prosecutor, the term procurator also occurs (for example in the cantons of Geneva and Bern ). Employment or election as well as remuneration are regulated by the respective cantons. The prerequisite is a completed legal degree, and a license to practice law and experience in criminal justice are often required. The career path of judges resp. Public prosecutors are mostly separate from each other.
The tasks of the public prosecutor are defined uniformly for the whole of Switzerland by the Swiss Code of Criminal Procedure . The public prosecutor leads the entire investigative process, which ends with an indictment issued by the public prosecutor, a dismissal order or a penalty order (in smaller cases with a maximum imprisonment of 6 months). In the investigation process, the police investigate under the supervision and / or on behalf of the public prosecutor's office. After the indictment has been brought, the public prosecutor will represent the indictment before the criminal court and decide whether or not to proceed to the next higher instance. Depending on the canton, the public prosecutor's office may be entrusted with the execution of sentences (especially fines and fines).
In contrast to German criminal procedural law, the majority of the evidence (including the interrogation of witnesses) is collected exclusively in the investigation procedure (and thus by the public prosecutor's office); the process before the criminal court is usually based on the files. Also in contrast to Germany, the public prosecutor's office in Switzerland has the comprehensive right to issue coercive measures (e.g. presentation, provisional arrest, physical examination, house search, seizure, account blocking, monitoring of telephone traffic, observation, etc.). Only a few coercive measures require the approval or the order by a judge, such as secret coercive measures or, in particular, the order of pre-trial detention. Confirmation of detention after 96 hours of imprisonment at the latest. Those affected have the right to appeal to a judge against most of the actions of the public prosecutor's office in the investigation process.
Military criminal process, juvenile criminal proceedings
In military criminal law, public prosecutors are called auditors (abbreviation: Aud). They are responsible, for example, the representation of the charges before the military court or the issuing of parking fines or dismissal orders . The auditors are appointed by the senior auditor (Art. 4 Paragraph 2 MStP).
The youth attorney's office is responsible for investigating and conducting criminal proceedings against people between the ages of ten and eighteen .
The public prosecutors in Liechtenstein are responsible within the authority, the Liechtenstein Public Prosecutor's Office pursuant to Art. 2 Public Prosecutor's Office Act (StAG), the management of the investigation (“mistress of the investigation”), the bringing of the indictment to the criminal court (indictment principle) and the representation of the indictment.
In the United States of America , a distinction is made between United States Attorneys and District Attorneys :
Federal Prosecutor's Office
The United States Attorneys investigate and represent the United States in criminal proceedings for violations of federal law (federal misdemeanors). The US attorneys are appointed by the US President with the approval of the United States Congress for a term of four years, and re-appointment is possible. After their term of office they remain in office until a successor is appointed. Due to the USA PATRIOT Act , the US President was able to appoint a transitional representative without hearing the Congress. This regulation has been repealed.
The district attorney (depending on the State as State's Attorney, County Attorney, County Prosecutor and some other way called) are responsible in their respective District (District) for the prosecution of crimes that do not fall within the jurisdiction of the United States Attorney Office and other federal agencies . Because criminal justice in the United States is a matter of principle in the United States, the District Attorneys prosecute most criminal cases. In most states, the district attorney is elected, but there is also the option of appointment.
- Raoul Muhm, Gian Carlo Caselli (ed.): The role of the public prosecutor. Experience in Europe. Vecchiarelli Editore Manziana, Rome 2005, ISBN 88-8247-156-X (partly in German, English, French, Italian and Spanish)
- Information on the profession of judge and public prosecutor on the website of the Bavarian State Ministry of Justice
- Information about the profession of judge and public prosecutor in Austria (PDF; 756 kB)
- Eurojustice Report on Germany (English)
- Eurojustice Report on Austria (English)
- ↑ Dr. Erardo Cristoforo Rautenberg, General Public Prosecutor of the State of Brandenburg: “[…] It is misinformation […] that the fact that the public prosecutor's office in Germany is bound by instructions is not associated with any impermissible political or otherwise improper influence. Rather, the abuse of the public prosecutor's office in Germany as an "organ of the state government" can be traced back to its [...] beginnings ... "in The Dependency of the German Public Prosecutor's Office ( - ( Memento of the original from September 1, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this note. ).
- ↑ Sebastian Beining, The instruction to the public prosecutor
- ^ Public prosecutor's office (Germany) Abuse and consequences of being bound by instructions
- ↑ Public prosecutors bound by instructions , FAZ.
- ^ Criticism by N. Schlepp, judge at the Lower Saxony finance court (PDF; 60 kB)
- ↑ The Regensburg public prosecutor's office applied for the Mollath case, which had been legally concluded, to be reopened on the instructions of Bavaria's Justice Minister Beate Merk (CSU). See Süddeutsche Zeitung , accessed on February 21, 2013.
- ^ The state, the justice system and a Prussian relic , General-Anzeiger Bonn, March 6, 2017, p. 10
- ↑ The public prosecutor between being bound by instructions and personal responsibility in communications from the Hamburg Judges' Association No. 3/2011
- ↑ Henning Ernst Müller , Investigations by the Gera public prosecutor against the "Center for Political Beauty" (ZPS) - are public prosecutors independent? , published on April 6, 2019 on Beck-Blog
- ↑ Press release: State Parliament adopts service law reform website of the Ministry of Justice Baden-Württemberg. Retrieved August 22, 2011.
- ↑ - ( Memento of the original from June 21, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ^ LTO: EU arrest warrant: German prosecutors not independent. Retrieved July 12, 2019 .
- ↑ 28 United States Code § 541
- ↑ Torsten Krauel: Public prosecutors are not dismissed. Die Welt , March 14, 2007, accessed December 7, 2014 .