Public Prosecutor's Office (Liechtenstein)

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In the Principality of Liechtenstein, the Public Prosecutor's Office (StA) is an administrative authority " sui generis ", which is responsible for prosecution and enforcement and as such is part of the administration of justice . It is also referred to by the term prosecution .

Historical development

Until 1913, the inquisition procedure was still used in the Principality of Liechtenstein , in which a judge carried out an investigation, indictment and decision in a criminal case . There was no public prosecutor's office. With the Princely Ordinance of May 19, 1914, following the Austrian model ( StPO of 1873), the investigation and prosecution in criminal matters was entrusted to a public prosecutor.

In the period from 1914 to 1978, only one person was employed as a public prosecutor in Liechtenstein, who also worked as a judge at the Princely Regional Court (part-time). The function of a deputy public prosecutor was temporarily also carried out by government officials. In 1978 the first full-time public prosecutor was appointed. In 1980 a second post was created for a public prosecutor and in 1988 a third. The function of head of the public prosecutor's office was only created in August 2000 (Section 19 StPO , Art 5 StAG).

Public Prosecutor Act

Due to international examples, guidelines and recommendations, a public prosecutor's office that is independent of political influences and impartial is increasingly called for. See for example:

  • Resolution of the 8th UN Congress on Crime Prevention on August 27th / 7th. September 1990,
  • Standards of the International Association of Public Prosecutors (IAP) according to the decision of April 29, 1999,
  • Recommendation of the Council of Europe of 6 October 2000,
  • Recommendation of the Council of Europe of April 6, 2004,
  • Opinion No. 4 of the Consultative Council of European Public Prosecutors (CCPE) of 8 December 2009.

The Liechtensteinische legislature on a proposal from the government responded to these international examples, guidelines and recommendations and in 2010 tried by a prosecutor law , which came into force on 1 February 2011 to implement these standards in part.

tasks

The main task of the public prosecutor's office in Liechtenstein is to preserve and protect the interests of the country in the administration of justice, especially in the administration of criminal justice, within the scope of the powers assigned to it by law or state treaty (Art 2 StAG). This also means that the public prosecutor's office also monitors compliance with fundamental rights and the rule of law in criminal proceedings. As a special feature, the Liechtenstein public prosecutor's office has to appear in certain cases at the competent courts in Switzerland in accordance with the customs treaty with Switzerland.

According to Art. 2 StAG, the public prosecutor's office is responsible for leading the preliminary proceedings ("mistress of the preliminary proceedings") , bringing the indictment to the criminal court ( indictment principle) and representing the indictment.

The tasks of the public prosecutor's office in Liechtenstein can be divided into four areas:

  • Detection,
  • accusation
  • Diversion
  • Other tasks

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 for the purpose of deciding whether a public charge should be brought. In doing so, it should also identify aspects that are to be included in the discretion of the court to determine the legal consequences of the offense. The public prosecutor's office is required to research not only burdensome but also exonerating circumstances and to take them into account later. This has led to the often cited designation as "the most objective authority in the world" (after Franz von Liszt , but see the original quote ).

In order to perform this task, the public prosecutor's office has the power to request information from all authorities and also to have investigations carried out by authorities and police officers in some cases. Some of the standard powers of the public prosecutor are specifically regulated in the Code of Criminal Procedure .

The necessary investigative work is usually carried out by order of other law enforcement authorities , in particular the police .

Prosecution

If the public prosecutor's office comes to the conclusion that there is sufficient suspicion on the part of the accused, it submits an indictment or a request for punishment to the competent court ( principle of legality ). Otherwise the public prosecutor will drop the proceedings. The public prosecutor is not a party to the criminal process and does not cooperate with the court or against the accused or his defense lawyer .

Judge-like tasks

On January 1, 2007, diversion was also accepted and standardized in Liechtenstein based on the model from Austria .

Due to the provisions in §§ 22a to 22m StPO, the public prosecutor's office can now also make a final decision on the state's criminal claim within the scope of diversion. Such a decision is a form of the exercise of judicial power.

Other tasks

The participation of the prosecutors is in the

  • Sections 158, 159 and 164c ABGB (procedure to contest the marital status of a child and the determination of paternity) and
  • international treaty as part of the customs treaty with Switzerland as obligations to cooperate in the context of relevant legal proceedings in Switzerland,

intended.

organization

In addition to judges, public prosecutors in Liechtenstein are organs of the administration of justice (but not lawyers or criminal defense attorneys).

The legal basis for the work of the public prosecutor's office is primarily the Public Prosecutor's Office Act (StAG) and the Code of Criminal Procedure (StPO).

Incompatible activities

The public prosecutors are not allowed to carry out any activities outside of their employment relationship (Art 41 para. 1 StAG):

  • which impair the reputation or independence of their office or
  • which hinder them in the performance of their official duties or
  • which could endanger other essential business interests.

You may (Art. 41 Para. 2 and 3 StAG):

  • neither the state parliament, nor
  • belong to the government,
  • no function of a community leader or
  • a municipality council of a Liechtenstein municipality
  • neither as a lawyer nor
  • as a patent attorney, still
  • as a trustee or
  • Asset manager

be active.

Service law

The service law of non-public prosecutor employees is based on the provisions of the State Personnel Act, unless otherwise provided in the StAG (Art 25 StAG).

Seat and management of the authority

The Liechtenstein public prosecutor's office is located in Vaduz . The head of the public prosecutor's office in Liechtenstein is currently StA Dr. Robert Wallner.

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 not absolutely independent, but rather hierarchically structured and only functionally independent. At its head is the head of the public prosecutor's office. Within this hierarchy, there are reporting obligations from bottom to top and authority to issue instructions from top to bottom.

In order to do justice to the special situation and tasks of the public prosecutors, they have to be in part independent (Art 4 Para. 2 StAG). So independence is not absolute, as is the case with judges . According to Art 8 and 9 StAG, the following instructions can be issued, which must also be followed (Art 37 StAG):

  • general instructions to the entire public prosecutor's office;
  • internal instructions from the head of the public prosecutor's office;
  • External instruction Instructions to the head of the public prosecutor's office by the government.

In principle, orders (Art 8 StAG - see below " Criticism ") are excluded from such instructions :

  • to withdraw the advertisement,
  • to terminate the proceedings,
  • to withdraw from the pursuit as a result of diversion,
  • to withdraw the charges and
  • to refrain from bringing an appeal to the detriment of the accused.

Every instruction must be justified. Internal instructions are to be issued in writing on request or must be made up for in writing.

Inner organization

The Liechtenstein public prosecutor's office is led by a head of the public prosecutor's office (Art 5 StAG). This is supported by a deputy and the other public prosecutors as well as an office for the office and paperwork. In principle, the public prosecutors work independently within the scope of the division of business (Art 4 StAG; Art 10 StAG) in the departments assigned to them (Art 6 StAG).

By the pre-determined business distribution should

  • the workload of all public prosecutors is as even as possible and
  • According to the principle of the legal judge applicable to jurisdiction, it is clear in advance which public prosecutor is responsible for which criminal case.

The division of responsibilities is determined annually by the head of the public prosecutor's office and is to be brought to the public's attention in a suitable manner (Art. 10 para. 4 StAG).

The Liechtenstein government exercises official supervision over the public prosecutor's office and therefore has a fundamental right to inspect all documents and reports (fundamentally Art 17 StAG).

Service supervision

Supervision within the agency is primarily the responsibility of the head of the public prosecutor's office. The government is responsible for supervising the head of the public prosecutor's office. (Art 20 StAG). The head of the public prosecutor's office is the responsible supervisory body and has to initiate the necessary steps ex officio or on the basis of a supervisory complaint (Art 21 StAG) if problems can be identified.

The head of the public prosecutor's office has the right to issue instructions and can order reporting obligations (Art. 21 Para. 2 StAG).

Revision

Important public prosecutor's decisions could be subjected to a review (revision). According to the four-eyes principle, this decision is checked and countersigned by another public prosecutor. In particular, a public prosecutor should not make a final declaration to the court on his own in certain serious criminal cases.

In principle, the revision is carried out by the head of the public prosecutor's office. He can, however, delegate this task to another public prosecutor (Art 11 StAG).

Reporting requirement

It will be in

  • Obligation of public prosecutors to report to the head of the public prosecutor's office,
  • Spontaneous reports to the government and
  • Annual reports,

distinguished.

The public prosecutor's obligation to report to the head of the public prosecutor's office in accordance with Art. 21 (2) StAG can be ordered, for example, because of complaints about improper conduct in the performance of official acts or because of refusal or delay in the administration of justice.

The public prosecutor's office has to submit spontaneous reports ex officio to the responsible member of government as well as to the head of government if this is of particular public interest (Art 13 para. 1 StAG). There is also an obligation to report on criminal matters if the members of the state parliament, the government, the community leader or a community council are investigated and a connection with political activity cannot be ruled out from the outset (Art 13 para. 2 StAG).

The Liechtenstein public prosecutor's office has to submit a summary report (annual report) to the government for the attention of the state assembly within the specified period (Art 14 StAG). This should include an overview of the activities and the burden of the public prosecutor's office with statistics on the business case. Proposals for changes could also be included in this annual report (Art 13 Paragraphs 2 and 3 StAG).

diary

The public prosecutor's files (rulings, declarations, applications, executions) are made visible in the public prosecutor's diary (Art 15 StAG). Among other things, it also serves to determine the status of the proceedings, the course of the proceedings and the content of the proceedings (Art 15 Paragraphs 2 to 6 StAG). The diary can also be used as a basis for administrative complaints. Therefore, those institutions that have to judge any criminal or disciplinary behavior of a public prosecutor or an official liability request have the right to inspect the diaries to the extent necessary (Art 17 Para. 1 StAG).

criticism

  • The system of authority to issue directives to the public prosecutors in Liechtenstein basically assumes that the government, which is bound by the principle of legality, will not issue any unlawful instructions in a single criminal case against the public prosecutor's intention to recruit.
  • The Reigning Prince can exercise the right to pardon according to Article 12 of the State Constitution in conjunction with Article 8, Paragraph 5 of the StAG to influence public prosecution activities (e.g. for reasons of state reason).
  • The government can terminate the employment of a public prosecutor in accordance with Art. 28 Para. 3 StAG because of “unsatisfactory work results” or “improper conduct” in or outside of the service.
  • The head of the public prosecutor's office must be heard with regard to the suitability of the applicants and can also make a well-founded suggestion for appointments if there are several applicants (Art. 32 para. 2 StAG). However, the government appoints the public prosecutors without being bound by the appointment proposal of the head of the public prosecutor's office (Article 32, Paragraph 3 StAG).
  • There are various options for testing public prosecutors (or candidates) for a longer period of time: for example, the public prosecutor's preparatory service is automatically terminated after three years at the end of the training period (Art. 28 (1) StAG) without further employment being guaranteed. The employment contracts with public prosecutors in accordance with Art. 34 Para. 2 StAG can be limited in time for a period of three years with the possibility of extension for another two years.
  • According to Art. 50 Para. 1 StAG, the government can dismiss public prosecutors for "operational or economic reasons". With regard to such a termination, according to Art. 50 (2) StAG, the public prosecutor concerned and the head of the public prosecutor's office must only be heard before the termination.
  • The provision in Article 33 para. 3 of the Nationality Act, may be set as prosecutors for the next Liechtenstein nationals exclusively Austrian or Swiss citizen, is in terms of Article 4 of the EEA Agreement a direct discrimination (on grounds of nationality) and is therefore not justifiable. If citizens other than Liechtenstein citizens are admitted to sovereign activities in Liechtenstein, there may be no restriction to Austrian and Swiss citizens in this regard, but all EEA citizens qualified for this task (see Art 26 ff StAG) must be admitted.

Individual evidence

  1. ↑ Consultation report of the government regarding the creation of a law on the public prosecutor's office ( Public Prosecutor's Office Act ; StAG) of March 9, 2010, RA 2010 / 238-1622, p. 17. Compared to the general administration, the public prosecutor's office has mainly a judicial function and in some cases a judge-like function . The public prosecutor's procedure is therefore predominantly a judicial procedure and not an administrative procedure. Orders of the public prosecutor can therefore also be challenged in court as judicial acts and are not administrative acts in the narrower sense. From an organizational point of view, however, the public prosecutor's office is part of the administration.
  2. ↑ LGBl 4/1914. Repealed according to Art 53 StAG on February 1, 2011.
  3. ↑ Public Prosecutor's Office Act (StAG) of December 15, 2010.
  4. ↑ According to Art 100 Para. 1 of the Liechtenstein national constitution .
  5. ↑ Amendment of the Criminal Procedure Code by LGBl 99/2006. Diversion see §§ 22a to 22m StPO. See also Section 21 Paragraphs 2 and 3 StPO, Section 42 StGB, Sections 6a and 6b JGG.
  6. ↑ This position of the public prosecutors is seen in practice, but is not constitutionally guaranteed - see Art 90a in the Austrian Federal Constitution , whereby the public prosecutors in Austria are now organs of jurisdiction.
  7. ↑ In Liechtenstein, Austrian and Swiss citizens can, in principle, exercise their sovereign activities as public prosecutors, provided they meet the general admission criteria according to Art. 26 ff StAG. However, this provision is incompatible with Article 4 of the EEA Agreement because it is directly discriminatory .
  8. ↑ According to Art. 3 Para. 1 lit. a) StAG are non-public prosecutor employees: the employees of the office, the prosecutor's trainees and the public prosecutor's trainees.
  9. ↑ Such an instruction can only be given to the head of the public prosecutor's office, but not directly to the individual public prosecutor (Art 8 (3) StAG).
  10. ↑ In principle, the government exercises supervision over the public prosecutor's office.
  11. ↑ As the supreme control body of the Liechtenstein administration.
  12. ↑ Consultation report by the government regarding the creation of a law on the public prosecutor's office (Public Prosecutor's Office Act; StAG) of March 9, 2010, RA 2010 / 238-1622, p. 39.
  13. ↑ Consultation report of the government regarding the creation of a law on the public prosecutor's office (Public Prosecutor's Office; StAG) of March 9, 2010, RA 2010 / 238-1622, p. 40. Article 8, Paragraph 5 of the StAG reads: that " the constitutional right of repression of initiated Investigations by the sovereign "remains unaffected. Article 2, Paragraph 6 of the Code of Criminal Procedure stipulates: " The public indictment expires as soon as the Reigning Prince orders that no criminal proceedings should be initiated or that the initiated proceedings should be discontinued because of a criminal act ." See also GRECO's criticism in the evaluation report on Liechtenstein, adopted by GRECO at its 52nd General Assembly (Strasbourg, October 17-21, 2011), Greco Eval I / II Rep (2011) 1E, point 26.

See also

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