Public Prosecutor's Office (Germany)

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The Prosecutor's Office (GSA) in Germany is an instruction-bound authority responsible for the prosecution and punishment of the requested jurisdiction and as such a part of the executive branch is. In the hierarchy of authorities and ministries, it is ultimately dependent on instructions from the Minister of Justice and is also referred to as the prosecution authority .

tasks

The public prosecutor's office is responsible for leading the investigation (“mistress of the investigation”) , bringing the indictment to the criminal court , representing the indictment and, after a judgment in adult criminal law, executing the sentence. (Exceptions here are convictions under youth criminal law, for which the district court is the enforcement authority.)

Investigative authority

As soon as the public prosecutor's office becomes aware of the suspicion of a criminal offense by reporting or by other means , it has the task of investigating the facts of the case for the purpose of resolving whether a public charge should be brought ( Section 160 StPO , preliminary investigation ). In doing so, it should identify aspects that are important for the court's discretion to determine the legal consequences of the offense. According to paragraph 2, the public prosecutor's office "has to determine not only the inconvenient, but also the exonerating circumstances and to ensure that the evidence is collected", and to subject these circumstances and evidence to an assessment later. That is why the later attorney general at the Supreme Court , Hugo Isenbiel, described it in December 1900 as the “most objective authority in the world” in a criminal trial . The criminal law teacher Franz von Liszt introduced this term into the specialist literature in 1901, albeit in the negative by countering that the public prosecutor's office was bound by instructions, see the original quote . It is still used today, although it usually takes on an ironic tone, like Liszt's.

To perform this task, the public prosecutor's office has the power to request information from all authorities and to carry out investigations of any kind itself or to have them carried out by authorities and police officers . Some of the standard powers of the public prosecutor are specifically regulated in the Code of Criminal Procedure . For many measures, however, an authorization to intervene , an (investigative) judicial decision is required. This applies in particular to investigative measures that restrict fundamental rights , such as house searches , the issuing of an arrest warrant or the surveillance of telecommunications . As part of the investigation, the amount of security to be provided to the police is determined upon request or order . In special cases, the public prosecutor's office also works in the field, e. B. in the case of searches of a larger extent or of greater importance or in serious criminal cases.

Since the public prosecutor's office has practically no organs of its own to carry out investigative measures, it is sometimes referred to as a “head without hands”. The necessary “manual work” is carried out by officials from other law enforcement authorities , in particular the police , as investigators for the public prosecutor's office ( Section 152 Courts Constitution Act ). In practice, in the case of small and medium-sized crime, the police conduct investigations within a period of around ten weeks and then submit the files to the public prosecutor's office in a more or less fully established state. This then decides whether further investigations are necessary or whether they are concluded and the matter is discontinued or charges are brought. In an investigation that is carried out by investigators , she has the authority to lead the case (“mistress of the proceedings”).

In criminal tax proceedings , the task of the public prosecutor's office is less clear, because the tax office , main customs office , family benefits office or the Federal Central Tax Office perform criminal prosecution tasks.

Duty to investigate in the event of initial suspicion

According to the principle of legality , the public prosecutor's office is responsible for an initial suspicion in accordance with Article 152, Paragraph 2 of the Code of Criminal Procedure obliged to formally initiate an investigation. The public prosecutor's office must clarify the matter brought to the notice ex officio.

Right to effective law enforcement

In the case of significant crimes against highly personal legal interests, there is an exceptional right to prosecution by third parties .

Prosecution

If the public prosecutor's office comes to the conclusion that there is sufficient suspicion against the accused, it submits an indictment to the competent court ( principle of legality ). Otherwise the public prosecutor will drop the proceedings. The public prosecutor's office can, however, in some cases only with the consent of the court, refrain from filing a public complaint, even if the investigation would provide sufficient cause for an indictment, if various aspects explained in more detail in the Code of Criminal Procedure outweigh the public interest in prosecution (principle of opportunity ) .

Contrary to popular belief, the public prosecutor is not obliged to try to convict the accused under any circumstances . Rather, it has to investigate in favor of the accused or defendant. It is not a party to criminal proceedings and does not cooperate with the court or against the accused or his defense counsel .

In the indictment , the public prosecutor defines the subject of the criminal proceedings ( Section 200 StPO) on which the judicial assessment should be based ( principle of immutability ).

In the judicial proceedings that follow the filing of charges (interim and main proceedings), the public prosecutor is a mandatory party to the proceedings.

Law enforcement agency

The prosecution in accordance with § 451 CCP and § 4 sentence execution order ( StVollstrO ) also executing authority. In this function, she monitors the enforcement of final criminal judgments. This includes monitoring the payment of fines and payment requirements. It invites people who have been sentenced to imprisonment but are still at large to begin imprisonment in accordance with Section 27 of the StVollstrO. It checks whether this summons has been complied with and, if necessary, issues a presentation or arrest warrant in accordance with Section 33 of the StVollstrO. According to § 36 StVollstrO, it monitors that the type and duration of the criminal detention correspond to the judgment. In accordance with Sections 60 ff of the StVollstrO, it takes care of the confiscation and recovery or destruction of weapons, stolen property and the like.

Tasks outside of criminal law

In administrative offense proceedings according to § 115 of the law on administrative offenses (traffic with prisoners) and § 20 Legal Services Act (illegal legal services and the like), the public prosecutor is the competent administrative authority according to § 36 OWiG.

In civil matters, the public prosecutor's office participates in the procedures for declaring death in accordance with Sections  16 (2), 22 , 30 (1) Absence Act within the framework of voluntary jurisdiction ( file number : Hs). In addition, the (General) represents prosecutor partly federal and state governments in civil lawsuits against the Justice treasury . Participation in matrimonial matters ceased to exist on July 1, 1998.

organization

The legal basis for the work of the public prosecutor's office is primarily the StPO and the Courts Constitution Act (GVG). These equip the public prosecutor's office with far-reaching powers to carry out its tasks. The civil servants who exercise these special tasks and powers are the Federal Public Prosecutor , Federal Prosecutors, Public Prosecutors, Public Prosecutors and, if applicable, legal trainees .

Local jurisdiction

The public prosecutor's offices have their seat where the regional courts , the higher regional courts (there called the General Public Prosecutor's Office ) and the Federal Court of Justice (there called the Federal Prosecutor's Office ) exist. Usually, every public prosecutor's office is responsible for prosecuting all criminal offenses in accordance with Section 143 (1) of the GVG that have been committed "in the district of the court [...] for which they are appointed". The local jurisdiction of the respective public prosecutor's office is identical to the jurisdiction of the respective regional court. The area of ​​jurisdiction of a public prosecutor's office is identical to the area of ​​the respective higher regional court. Deviating from this, the local area of ​​jurisdiction of the main public prosecutor's offices (see below) for the corresponding type of offense extends over several regional court districts, in exceptional cases even across several federal states.

Right of instruction

As an executive organ, the public prosecutor is independent of the courts and is neither superordinate nor subordinate to the judges . In contrast to the courts, it is staffed with civil servants and structured hierarchically . It is headed by a senior public prosecutor at the regional courts at the state level . The leading senior public prosecutors in the individual public prosecutors report to a general public prosecutor at the higher regional courts . The respective State Minister of Justice is responsible for the supervision and all administrative matters in the area of ​​the public prosecutor's offices . Within this hierarchy, there are reporting obligations from bottom to top and authority to issue instructions from top to bottom . The issuer is not bound to the written form.

The different views on the scope of the right to issue instructions became clear once again with the dismissal of Attorney General Harald Range . The Federal Prosecutor's Office exists at the federal level. The federal attorneys report to the federal attorney general . This in turn is subordinate to the Federal Ministry of Justice . The right to issue instructions only exists at the federal or state level, so that the state level is not dependent on the federal level.

Facilities

According to § 141 GVG, each court should have its own public prosecutor's office. In fact, the public prosecutor's offices have been established almost exclusively at the regional courts . There you are responsible for the regional court itself as well as for the local courts of this regional court district. Exceptions can be found in Berlin and Frankfurt am Main , where special public prosecutor's offices have been set up at the local courts.

As the Federal Public Prosecutor's Office at the Federal Court of Justice , the Federal Public Prosecutor's Office is under the direction of the Federal Public Prosecutor General .

Inner organization

This article or the following section is not adequately provided with supporting documents ( e.g. individual evidence ). Information without sufficient evidence could be removed soon. Please help Wikipedia by researching the information and including good evidence.

The internal organization of the public prosecutor's offices in the federal states is based on the respective "regulations on the organization and operations of the public prosecutor's offices" (OrgStA), which have similarities but also country-specific features. According to this, the public prosecutor's offices at the regional courts are divided into different departments; very large authorities have main departments the size of small authorities. Each department has a senior public prosecutor as head of department, if necessary one or more group leaders and, depending on the size of the area of ​​responsibility, a different number of public prosecutors.

The responsibilities of the departments are mostly determined by the groups of offenses to be dealt with there. There are special departments such as a department for capital offenses , a department for the prosecution of white-collar crime , a department that deals exclusively with the prosecution of crimes of young people and adolescents and one or more departments for the prosecution of so-called "general criminal matters", i.e. all offenses that are not fall under the responsibility of one of the special departments.

Each public prosecutor has his own department within the departments. The procedures are assigned to the department heads according to a business distribution plan by the department head and then processed in principle on their own responsibility, but subject to instructions. In addition, judicial officers , clerks, typists and constables work in a public prosecutor's office.

In Germany, prosecutors and meeting representatives appear in robes and with a white tie or bow tie. The background for the tie color is a custom from the 18th century, where the white tie was supposed to symbolize particularly courageous public prosecutors who dared to witness an often bloody execution at close range with a clear conscience.

Specialized public prosecutor's offices

For certain types of offenses, the jurisdiction according to § 143 Abs. 4 GVG can be transferred beyond the district of a regional or higher regional court to a so-called crime-specific public prosecutor's office. The purpose of the establishment of specialty public prosecutor's offices is, among other things, to specialize in the prosecution of types of offenses that require special expertise, such as white-collar crime, SED injustice, the health sector or, as required in 2013, for internationally organized betting manipulation or computer crime.

After reunification at the beginning of the 1990s, the five new federal states set up public prosecutor's offices to deal with SED injustice, but they were unable to clear up the thousands of cases due to a drastic shortage of personnel. In Saxony the judicial authorities stopped their work in 2001, in Brandenburg, Mecklenburg-Western Pomerania and Saxony-Anhalt in 2002, Thuringia in 2003 and the last SED unjust trial was decided on June 14, 2005 by the Federal Court of Justice. There are priority public prosecutor's offices in the following countries: Baden-Württemberg , Bavaria , Brandenburg , Hesse , Mecklenburg-Western Pomerania , Lower Saxony , North Rhine-Westphalia , Rhineland-Palatinate , Saxony-Anhalt , Schleswig-Holstein , Thuringia .

  • In 2009 Bavaria founded the first public prosecutor for doping offenses in Munich. The Munich I public prosecutor's office is also a specialty public prosecutor's office for prosecuting white-collar crime. Since 2010, the Kempten Public Prosecutor's Office has been responsible for prosecuting all crimes committed by soldiers residing in Bavaria while on deployment abroad . Since 2012, Kempten has even been responsible for all relevant cases in all 16 federal states. In Würzburg and Regensburg there is also a public prosecutor specializing in tax and economic offenses.
  • In Baden-Württemberg there are public prosecutor's offices for white-collar crime in Stuttgart and Mannheim. The second national public prosecutor to prosecute doping offenses is located in Freiburg.
  • Since December 11, 2000, Brandenburg has had a public prosecutor specializing in the prosecution of corruption offenses in Neuruppin. In addition, the Cottbus public prosecutor's office specializes in computer crime , the Frankfurt (Oder) public prosecutor's office specializes in border crime , organized crime and money laundering, and the Potsdam public prosecutor's office specializes in white- collar crime .
  • In Hesse, Frankfurt am Main has had a “focus public prosecutor for the environment and white-collar crime” with 83 employees since August 19, 2010.
  • Lower Saxony has had a central office for agricultural criminal matters (food, animal welfare and animal feed) in Oldenburg since 2002, a public prosecutor specializing in white-collar crime in Stade and, since January 1, 2012, three public prosecutor's offices specializing in cybercrime in Göttingen, Osnabrück and Verden. The public prosecutor's office specializing in child pornography is located in Hanover, and there are others in Verden, Osnabrück, Hanover and Braunschweig to combat corruption. As of January 1, 2012, the Aurich public prosecutor's office was designated as the main public prosecutor's office for narcotics criminal matters.
  • In North Rhine-Westphalia there have been four public prosecutors specializing in economic and medical crime in Bielefeld, Bochum, Düsseldorf and Cologne since 1968, and then also in Wuppertal. The Dortmund Public Prosecutor's Office is a public prosecutor specializing in crimes during the Nazi era.
  • Rhineland-Palatinate has two "central offices for commercial criminal matters" within the meaning of § 74c GVG in Koblenz and Zweibrücken , as well as the so-called "state central office for wine and food criminal matters " in Bad Kreuznach , in which a senior public prosecutor, four public prosecutors, an economic specialist and two office staff are active.
  • Saxony-Anhalt has a public prosecutor specializing in organized crime and Internet crime in Halle.
  • Schleswig-Holstein has set up a public prosecutor's office to prosecute corruption offenses in Kiel. There are also public prosecutors specializing in white-collar crime in Kiel and Lübeck.
  • In Thuringia, there are public prosecutor's offices to combat property crimes in the health sector. The public prosecutor in Mühlhausen is also a public prosecutor specializing in computer crime.

Attorney General

Take precedence over the prosecution as a means authority, the Attorneys General , which are set up at the Higher Regional Courts. The public prosecutor's offices, among other things, exercise official and technical supervision over the public prosecutor's offices in their district ( Section 147 No. 3 GVG). For example, in response to a complaint, they check the notices of employment from the public prosecutor's offices ( enforcement proceedings , Section 172 StPO). In addition, they perform the tasks of the public prosecutor's office before the higher regional court ( Section 142 (1) No. 2 GVG), which is why they are also referred to as “public prosecutor's offices at the higher regional court”. They give their opinions on decisions on appeals against criminal judgments of the local and regional courts or on legal complaints against decisions on fines by the local courts as well as on complaints against decisions of the regional courts and the ex officio after six months of pre-trial detention according to § § 121  et seq. StPO from. In some German states you also represent the state in civil law matters in the judicial sector (fiscal matters). The public prosecutor's offices are subordinate to the State Ministry of Justice.

history

In Germany, criminal proceedings were organized as an inquisition process until the end of the HRR , and the judge was also the investigative authority. During the French era , the Cinq codes were introduced in the French-occupied territories and parts of the Rhine Confederation . The code of criminal procedure contained therein led to the introduction of public prosecutor's offices. The public prosecutors were referred to as general procurator , chief procurator or state procurator. Even after the end of the French era, the French legal system remained in force in many areas on the left bank of the Rhine , including the Prussian Rhine Province . The old system remained in the rest of Prussia. This was discussed controversially: the number of criminal proceedings in Prussia rose from around 64,000 to around 252,000 between 1822 and 1840. It was therefore necessary to discharge the courts. At the same time, the state wanted to influence the preliminary investigation. When Friedrich Carl von Savigny took office in 1842 as the Prussian "Minister for the Revision of Legislation", a judicial reform was started. The Prussian State Council received Savigny's proposal positively. With the law of July 17, 1846, the reorganization was implemented for the district of the Berlin Court of Appeal and, with the law of January 3, 1849, it was extended to all of Prussia. Thus, on April 1, 1849, public prosecutors were established throughout Prussia. With the Reich Justice Acts of 1877, a uniform public prosecutor's office was introduced throughout the German Empire.

criticism

Bound by instructions

In contrast to judges, who are not bound by the instructions of their superiors when performing their duties, public prosecutors in Germany are subject to the hierarchy of authorities and ministries. This means that they are bound by the instructions of their respective superiors. Their authority includes both instructions in individual cases (such as refraining from criminal prosecution measures against a specific person) and general instructions, such as refraining from criminal prosecution measures in the case of so-called small quantities in narcotics law.

The public prosecutor's office is subject to objectivity and fairness, since when an indictment is brought they always keep an eye on what has been proven and what is exonerating. However, being bound by instructions contradicts this noble theory: especially in spectacular cases, prosecutors cannot act over the heads of their superiors. The indictment for a main hearing does not have to be written by the respective representative of the prosecutor's office. Your superiors may decide what is presented. This can sometimes lead to the absurd situation that a public prosecutor - as in the Harry Wörz case - at the end of a trial still has to denote the accused as the perpetrator and file a corresponding criminal complaint, although the once allegedly incriminating evidence is devalued bit by bit in the course of the main hearing were.

This opens up opportunities for abuse, as the Minister of Justice, as a member of the executive branch, influences the preparation of the decisions of the judiciary . That is why the commission of the German Association of Judges (DRB) , which is responsible for the affairs of public prosecutors, demanded in 2015 that this right to issue instructions be abolished in individual cases (in contrast to general ministerial instructions), because if decisions by the public prosecutor are suspected of being politically influenced, the rehabilitative effect disappears the termination of investigations against persons who are close to politics; conversely, there is a risk that the initiation of investigations against unpopular people will be countered by arguing that it is not based on legal considerations, but is controlled by politics.

For the former General Public Prosecutor of the State of Brandenburg, Erardo Cristoforo Rautenberg , the public prosecutor's claim to act objectively and impartially in criminal proceedings (see Section 160, Paragraph 2 of the Code of Criminal Procedure) is not compatible with its dependency on instructions from the Minister of Justice and thus from pursuing political interests Government, which he justifies in detail with numerous sources.

Principle of legality

Critics also criticize the abolition of the principle of legality , as some public prosecutor's offices are now so overburdened and underfunded that at least in the case of supposedly minor offenses, investigations at all are often no longer carried out or the effort is limited to finding reasons for discontinuing 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. The practice, alleged by some public prosecutors, of suspending proceedings for alleged minor offenses by default, creates long-term problems. On the other hand, it follows from the principle of the rule of law that criminal offenses are generally prosecuted if there is sufficient suspicion. The active termination of procedures in order to save work through understaffing would invalidate the rule of law ( in dubio pro duriore ).

See also

Individual evidence

  1. ↑ Carsten / Rautenberg (2015), p. 144; Kaul (1965) From the Stadtvogtei to Moabit p. 230
  2. ↑ § 146 GVG The officials of the public prosecutor's office have to follow the official instructions of their superiors
  3. ^ The state, the justice system and a Prussian relic , General-Anzeiger Bonn, March 6, 2017, p. 10
  4. ↑ The public prosecutor between being bound by instructions and personal responsibility in communications from the Hamburg Judges' Association No. 3/2011
  5. ↑ Erardo Cristoforo Rautenberg (2016)
  6. ↑ Carsten / Rautenberg (2015), 448 f .; Heghmanns (2010), 3 ff.
  7. ^ Rautenberg, Erardo C .: The history of the public prosecutor's office in Germany up to the present: A contribution to the elimination of their dependency on instructions from the government in criminal proceedings. 3rd ed. Nomos Verlagsgesellschaft mbH & Co. KG, 2015, ISBN 3-8487-2659-9 .
  8. ↑ Schoreit in: Karlsruhe Commentary on the Code of Criminal Procedure / Courts Constitution Act, 6th edition 2008, § 143 GVG Rn. 6ff.
  9. ↑ Klaus Marxen , Gerhard Werle , Petra Schäfter, The prosecution of GDR injustice: facts and figures. Federal Foundation for the Processing of the SED Dictatorship , Berlin 2007, ISBN 978-3-00-021699-2 , pp. 7, 9, ( PDF ; 945 kB, accessed on September 2, 2015).
  10. ↑ Uwe Müller, Grit Hartmann: Processing of the SED dictatorship failed. May 2, 2013, accessed on February 2, 2014 (excerpt from Uwe Müller, Grit Hartmann: "Forward and forget! Cadres, informers and accomplices: The dangerous legacy of the SED dictatorship" , Rowohlt Berlin).
  11. ↑ Press releases. Ministry of Justice of Bavaria, January 31, 2014, accessed on February 2, 2014 .
  12. ↑ Foreign deployments of the Bundeswehr - Public Prosecutor's Office Kempten (Allgäu) new priority public prosecutor's office for soldiers of the Bundeswehr on foreign deployments. In: Justiz.Bayern.de. Kempten public prosecutor's office, February 25, 2010, accessed March 3, 2015 .
  13. ↑ Thomas Wiegold: Now officially: Kempten Public Prosecutor's Office responsible for missions abroad. In: eyes straight ahead! (Blog). March 28, 2012, accessed on March 3, 2015 : “The public prosecutor's investigations into possible criminal offenses by German soldiers on deployment abroad are now bundled at a central public prosecutor's office. The federal cabinet passed the draft law today, which - as expected - assigns this task to the public prosecutor's office in Kempten im Allgäu. "
  14. ↑ One year the public prosecutor's office focused on the prosecution of doping offenses in Freiburg. In: Ministry of Justice Baden-Württemberg. May 2, 2013, accessed February 2, 2014 .
  15. ↑ Special information on the Neuruppin public prosecutor's office. Neuruppin public prosecutor's office, January 17, 2013, accessed February 2, 2014 .
  16. ↑ I. No. 2 of the General Administrative Regulation Priority Public Prosecutor's Offices for Processing White-collar Criminal Matters of April 13, 1993 - III A 321 / 3262-17 -, Official Gazette. MV 1993, p. 937 .
  17. ↑ Silke Looden: Infidelity on a grand scale? In: Weser Courier . October 4, 2013, accessed February 2, 2014 .
  18. ↑ Main public prosecutor's offices for the fight against crime in connection with information and communication technology (ICT crime). In: Law and Law in Lower Saxony. January 17, 2013, accessed February 2, 2014 .
  19. ^ Announcement by the Lower Saxony Ministry of Justice of December 9, 2006
  20. ^ Public prosecutor Aurich new focus public prosecutor for narcotics offenses ( Memento from April 2, 2015 in the Internet Archive ) Press release of the Lower Saxony Ministry of Justice of January 14, 2012
  21. ↑ Judicial Administration Regulations-Online. Ministry of Justice of North Rhine-Westphalia, Düsseldorf, 2014, accessed on February 2, 2014 .
  22. ↑ General administrative regulation of the Ministry of Justice, Labor and Europe for the establishment of specialized public prosecutor's offices to combat economic crime
  23. ↑ Andreas Mihm: Cheating in billing: Cheating doctors can be dangerous for patients. In: Frankfurter Allgemeine Zeitung . January 17, 2013, accessed February 2, 2014 .
  24. ↑ Mühlhausen becomes a center for the fight against computer crime ; in: Thüringer Allgemeine from January 3, 2011
  25. ^ History of the Cologne Public Prosecutor's Office
  26. ↑ Peter Collin, The Birth of the Public Prosecutor's Office in Prussia (March 12, 2001), in forum historiae iuris, digitized
  27. ^ Acquittal after retrial
  28. ↑ Examples listed in: Recommendation from the Minister . In: Der Spiegel . No. 33 , 2003 ( online ).
  29. ^ Draft of a law to change the 10th title of the GVG (GVGÄndG), to change the second book of the StPO (StPOÄndG) and to change the 5th section of the BBG (BBGÄndG). Retrieved December 12, 2018 .
  30. ^ Court of Justice of the European Union No. 68/2019, May 27, 2019. Retrieved July 11, 2019 .
  31. ↑ Carsten / Rautenberg (2015), p. 503 ff .; see also Rautenberg (2016).
  32. ↑ See e.g. B. Jürgen Roth, Investigation prohibited! , Eichborn Verlag, Frankfurt a. M. 2004.

literature

Web links

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