Criminal complaint (Germany)

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A criminal complaint is a person's request that someone be prosecuted for a specific crime . It is to be distinguished from the criminal complaint ( see below ).

The criminal complaint in Germany is regulated in Sections 77 to 77e of the Criminal Code (StGB) and Section 158 of the Code of Criminal Procedure (StPO).

Application offense, official offense

In the case of a complaint , the criminal complaint is a prerequisite for prosecution (e.g. in the case of trespassing and usually also in the case of insult ). The opposite of this is the official offense , which is always prosecuted ex officio .

A distinction is made between absolute and relative claim offenses. In the case of absolute complaint offenses, the public prosecutor's office is dependent on the submission of an application due to the statutory provisions (e.g. § 123 StGB: trespassing ), whereas in the case of relative complaint offenses the criminal prosecution authority may disregard the lack of a criminal complaint if she affirmed a special public interest in prosecution. This is a discretionary decision by the public prosecutor, which, according to prevailing opinion , cannot be reviewed by the court. A relative claim offense is e.g. B. (simple) bodily harm ( § 223 , § 230 StGB).

Some offenses become petition offenses when special circumstances arise. Thus, theft , embezzlement , fraud and breach of trust basically official offenses. However, if they relate to low-value items or low-value pecuniary benefits, they can only be prosecuted as relative offenses against complaints ( Section 248a , Section 263 (4), Section 266 (2) StGB). The restrictions on the offenses mentioned go even further if the offense is committed by a relative of the injured party or if there is a domestic community between the offender and the injured party. Then the offense can only be prosecuted as an absolute application offense, regardless of the amount of damage, in accordance with Section 247 of the Criminal Code on application.

Conversely, the relative application offense § 303b Abs. 2 StGB ( computer sabotage in company or official data processing) becomes an official offense if there is a particularly serious case according to § 303b Abs. 4 StGB, because § 303c StGB only provides for § 303b Abs. 1 bis 3 an application requirement or the special public interest in criminal prosecution.

As a rule, the public prosecutor's office or law enforcement agency only becomes active when an effective criminal complaint has been submitted. Only if there is fear that important evidence could be lost does the investigation begin beforehand. However, the criminal complaint must be submitted at the latest when the charges are brought.

Legal nature

The criminal complaint is not a constituent element or a criminal liability condition, but only a process requirement (criminal prosecution requirement ). The act is therefore unlawful even if no criminal complaint is filed. Without exact complaint is present although a criminal offense, but the method is (add: in any event in absolute request offenses) set . In a practical sense, the public prosecutor's office can only investigate if an application has been submitted and if there are actual indications that a crime has been committed. The prerequisite is the necessary initial suspicion . The authority cannot seek prosecution in a practical sense through the prohibition of evidence , which regularly arises from information in the core area of ​​private life , even if it is not an offense against an application.

An arrest on suspicion of a criminal offense that is absolutely subject to complaint (absolute complaint offense) is possible even if there is no complaint. This applies accordingly if a criminal offense can only be prosecuted with authorization or on request, Section 127 (3) StPO.

Eligibility to apply

As a rule, only those who have been injured by the act are entitled to apply, Section 77 of the Criminal Code. This is the person in whose legal area the act intervenes directly or should intervene when attempting. This is the bearer of the legal interest directly violated by the act . It is therefore a question of the personal scope of protection of the respective violated criminal law. In the case of trespassing according to § 123 StGB, the injured party is the owner of the house rights.

The right to apply is highly personal and usually expires upon death. This is the case, for example, with house and family theft according to Section 247 of the Criminal Code. The right to apply is neither hereditary nor transferable by legal transaction. Only in the cases stipulated by law does the right of application in the event of death pass to the relatives (Section 77 (2) StGB).

In the event of legal incapacity or limited legal capacity of the injured party, the legal representative (parents, guardians , carers ) is entitled to apply (Section 77 (3) StGB). However, a supervisor is only entitled to apply if this results in the same way or expressly from the supervision decree.

In the case of public officials , the supervisor can also apply in certain cases, Section 77a of the Criminal Code. See, for example, on the so-called insult to civil servants, Section 194 (3) sentence 1 of the Criminal Code.

Content, form, deadline, withdrawal

A criminal complaint is a declaration by an injured person that he wants to be prosecuted. In principle, it is irrelevant whether the person entitled to file a complaint explicitly uses the word “criminal complaint” as long as it is clear from his submission that he is demanding criminal prosecution of a particular offense (so-called will to prosecute). The criminal complaint is unconditional .

According to § 158 para. 2 Code of Criminal Procedure, the application may in writing at the public prosecutor's office , the police asked or a court or to the prosecutor or the court for a transcript be given.

An act that can only be prosecuted upon application will not be prosecuted if the person entitled to apply fails to file the application within a period of three months. The period begins at the end of the day on which the person entitled to apply becomes aware of the act and the person of the perpetrator ( Section 77b of the Criminal Code).

The criminal complaint can be withdrawn until the criminal proceedings have been finalized, Section 77d (1) sentence 1 StGB. After that, however, it cannot be filed again, Section 77d Paragraph 1 Sentence 3 StGB. A withdrawal can result in costs for the notifying party ( § 470 StPO).

Demarcation

A criminal complaint is just a notification to a law enforcement body that one is aware of an issue that may constitute a criminal offense.

The application within the meaning of § 171 StPO is not a criminal complaint in this sense, as it can also be submitted by third parties who are not entitled to apply according to § 77 StGB. Section 171 of the Code of Criminal Procedure states that the person who has filed an application for public charges must be notified if the persecution is stopped . One speaks of the “criminal application in the broader sense”.

Individual evidence

  1. ^ Rainer Griesbaum in: Karlsruhe Commentary on the Code of Criminal Procedure, 8th edition 2019, § 158 Rn. 33.
  2. ↑ a b Nikolaus Bosch in: Schönke / Schröder, Criminal Code, 30th edition 2019, § 77 Rn. 6-8.
  3. ^ Federal Court of Justice, judgment of April 8, 1954, file number 3 StR 836/53 = NJW 1954, 1413, beck-online.
  4. ↑ Federal Court of Justice, judgment of January 25, 1994, file number: 1 StR 770/93 = NStZ 1994, 281, beck-online.
  5. ↑ Nikolaus Bosch in: Schönke / Schröder, Criminal Code, 30th edition 2019, § 77 Rn. 10.
  6. ↑ Federal Court of Justice , judgment of January 18, 1983, file number: 1 StR 490/82
  7. ↑ a b Jens Dallmeyer in: BeckOK StGB, v. Heintschel-Heinegg, 46th edition, as of May 1, 2020, § 77 Rn. 14th
  8. ↑ Nikolaus Bosch in: Schönke / Schröder, Criminal Code, 30th edition 2019, § 77 Rn. 10.
  9. ↑ Federal Court of Justice, decision of December 21, 2016, file number 3 StR 453/16 = NStZ-RR 2017, 211, beck-online.
  10. ↑ Wolfgang Mitsch in: Munich Commentary on the Criminal Code, 3rd edition 2016, § 77 Rn. 12.
  11. ↑ Federal Court of Justice, judgment of July 29, 2014, file number 5 StR 46/14 Rn. 11 ff.
  12. ↑ OLG Karlsruhe , decision of December 12, 2012, file number 3 Ws 397/12 = NStZ-RR 2014, 143, beck-online.
  13. ↑ Jens Dallmeyer in: BeckOK StGB, v. Heintschel-Heinegg, 46th edition, as of May 1, 2020, § 77 Rn. 18th
  14. ↑ Matthias Goers in: BeckOK StPO with RiStBV and MiStra, Graf, 37th Edition, as of July 1, 2020, § 158 Rn. 1.
  15. ^ Federal Court of Justice, judgment of January 16, 1951, file number 3 StR 45/50 = NJW 1951, 368, beck-online.
  16. ↑ Federal Court of Justice, judgment of January 18, 1995, file number 2 StR 462/94 = NStZ 1995, 353, beck-online.
  17. ↑ OLG Hamm , decision of May 7, 2007, file number 2 Ss 171/07 .
  18. ↑ Jens Dallmeyer in: BeckOK StGB, v. Heintschel-Heinegg, 46th edition, as of May 1, 2020, § 77 Rn. 10.