complaint
A criminal complaint (in Switzerland : Verzeigung ; in Austria also a description of the facts ) is the notification of a fact to the responsible law enforcement authorities , which in the opinion of the notifying party could constitute a criminal offense . The criminal complaint must be distinguished from the criminal complaint , which can be a prerequisite for the process .
Legal situation in Germany
Complainant
Anyone is entitled to report, not just an injured party. Anonymous complaints are possible. A notification against unknown persons is also permitted. It is also possible to display yourself. The self-disclosure can be used, for example, if the person making the complaint considers himself innocent and would like to see his innocence confirmed by a corresponding dismissal order from the public prosecutor's office .
Certain data, in particular the circumstances of the offense, suspects, victims and damage from each criminal complaint, are included in the nationwide police crime statistics . These are so-called intake statistics. The decisions of the judiciary are not included there at all. The respective statistics keys are entered on the entry vouchers.
In Germany there is no general obligation to notify, except for persons who are appointed to investigate criminal offenses. By law, private individuals only have to report the planning of certain criminal offenses listed in Section 138 of the Criminal Code , see Failure to report planned offenses . There is no legal obligation for private individuals to report crimes that have already been committed.
German police officers are obliged to report any criminal offense that they find out about on the job in accordance with Section 163 of the Code of Criminal Procedure . Every civil servant must also report evidence of tax offenses with official experience, Section 116 AO .
Most criminal complaints are filed by the police on the basis of their own perception or by notification, for example during a police operation during the patrol or at a police station . This is called "office display" or "display on its own initiative called". Once it has been created, it bears the name “formatted report” within the police force and is given a criminological designation , possibly including the relevant criminal provisions.
Form of the criminal complaint
The criminal complaint can be made orally or in writing to the police , a public prosecutor's office or the local courts, Section 158 (1) StPO . The oral notice is to log taken ( "the minutes"). In the case of certain criminal offenses (so-called complaint offenses ), in addition to filing a criminal complaint, the injured party must also submit a complaint within three months of the perpetrator becoming known . In contrast to a criminal complaint ( Section 77d StGB), a criminal complaint can not be "withdrawn" because it is not a procedural law, but an actual act of disclosure to which the prosecution authorities link their own investigations.
Online criminal complaint and anonymous complaint
As part of e-government , it is also possible in 13 German countries to file a criminal complaint online via the Internet. This usually Internet station called Service currently provide the police Baden-Wuerttemberg , police Bavaria , Berlin police , police Brandenburg , Hamburg police , police Hesse , police Mecklenburg-Western Pomerania , Lower Saxony Police , Police North Rhine-Westphalia , Rhineland-Palatinate Police , Police Saxony , police Saxony-Anhalt and the Schleswig-Holstein police . In Baden-Württemberg, an anonymous report can be filed with the State Criminal Police Office .
Procedure
If, based on the facts reported in the criminal complaint, there are actual indications that a criminal offense could have been carried out (so-called initial suspicion ), the law enforcement authorities are obliged to investigate the complaint and clarify the facts as far as possible. Here the principle of legality applies to the investigating authority.
Depending on the classification of the facts, the police will either submit the report to the public prosecutor for further prosecution or (in the case of administrative offenses and general facts that lack the criminological characteristics) to the regulatory authorities . After the investigation is over , the public prosecutor's office will decide whether to bring charges against the accused or to drop the proceedings. In the latter case, the complainant receives a written notification, § 171 StPO
The advertiser can against the setting complaint lodge when he also injured is § 172 , para. 1, sentence 1 Code of Criminal Procedure. About this, the service superior authority, which will decide Attorney General's Office .
The filing of criminal complaints is done in practice by preparing a large number of documents such as fact sheets, interrogations , facts, file notes, declarations, reports, expert opinions, sketches, photo portfolios and evidence objects . A criminal complaint fulfills its actual purpose, the involvement of the judiciary, only when it is received by the criminal prosecution authorities, mainly the public prosecutor's office, usually via the criminal police . In principle, the principle of legality applies ( § 152 StPO ). However, the prosecutor's office, after completion of the investigation in certain cases, the procedure because of lack of public interest or because of insignificance - possibly in connection with a money circulation - set , even if the evidence of the crime and the perpetrator has been furnished in a particular case.
During processing, the authorities involved must observe the guidelines for criminal proceedings and administrative fines (RiStBV).
Further procedural rights of the injured party
If the complainant is also injured , he can - should the public prosecutor's office not uphold his complaint - pursue the so-called enforcement procedure according to Section 172 , Paragraph 2 of the Code of Criminal Procedure. If the public prosecutor's office has not formally initiated the investigation, despite initial suspicion , or if the investigation has not been carried out adequately, the injured party can also initiate investigation proceedings . In some cases, the injured party also has a legal right to prosecution for the effective application of the criminal provisions issued to protect life, physical integrity, sexual self-determination and personal freedom .
Abuse of rights through criminal charges "with method", "for demonstration purposes" and for other inappropriate purposes
According to the jurisprudence of the Bavarian Constitutional Court , a criminal complaint can be assessed as unlawful if the complainant files criminal complaints and requests for rejection “with method” in order to demonstrate his general distrust and his rejection of the judiciary and also try to unsettle public prosecutors and judges.
In the words of the Bavarian Constitutional Court: "The fact that the complainant [...] has filed a large number of criminal charges and requests for rejection, which are usually based essentially on the allegation of an incorrect application of the law, and the constantly recurring allegation of perversion of the law that the complainant is filing criminal charges and requests for rejection `` with method '' in order to demonstratively express his general distrust and his rejection of the judiciary and, moreover, to try to unsettle the public prosecutors and judges in order to ultimately arrive at a more favorable decision for him (cf. . on this e.g. Higher Regional Court Koblenz from 3.1.1977 - 1 AR 44/76 Str - juris Rn. 2). Such pure 'demonstration purposes' are, however, to be viewed as illegal (cf. also BT-Drs. IV / 178 p. 35). "
Legal situation in Switzerland
Complainant
The notification right and the procedural position of the notifying person are regulated in Art. 301 StPO . According to Article 301, Paragraph 1 of the Code of Criminal Procedure, every person is entitled to report criminal offenses to a prosecuting authority in writing or orally. The person reporting the criminal offense does not have to have been injured or harmed by the crime. However, those persons who are subject to a statutory obligation of confidentiality do not have the right to notify unless there is a related justification .
Form and content of the criminal complaint
According to Article 301, Paragraph 1 of the Code of Criminal Procedure, the criminal complaint can be made verbally or in writing, whereby it must be submitted to a criminal prosecution authority. According to Art. 12 StPO Police, public prosecutor and criminal offense authorities.
In terms of content, a criminal complaint must relate to a specific allegedly criminal act, which in particular excludes the general allocation of blame without reference to a specific issue. It can be directed against a specific person or against unknown people. A voluntary disclosure is also permissible.
Procedure
The criminal complaint is not absolutely necessary for the conduct of criminal proceedings. In accordance with the principle of legality, law enforcement authorities are also obliged to prosecute if they become aware of criminal offenses based on their own perception (cf. Art. 7 StPO). Based on the principle of investigation and the obligation to prosecute (cf. Art. 6 et seq. StPO), the competent authorities are also obliged to receive criminal complaints submitted and to process them in accordance with the applicable regulations. However, the criminal complaint does not confer any entitlement to the opening of an investigation and criminal proceedings, since there is always the possibility that the public prosecutor will not deal with it (cf. Art. 310 StPO).
Reporting a report does not constitute an abuse of law. The criminal authorities may not refuse to accept reports on the grounds that the person making the report is abusive. However, the state has a right of recourse against the complainant if he intentionally or grossly negligently initiates proceedings (cf. Art. 420 lit. a StPO). If someone files a criminal complaint against their better judgment, they can make themselves liable to prosecution ( Art. 303 et seq. StPO).
According to Art. 301, Paragraph 2 of the Code of Criminal Procedure, the criminal prosecution authorities inform the person making the complaint whether a criminal procedure has been initiated and how it has been carried out. However, there is no entitlement to disclosure of details, reasons or inspection of files. Neither the request nor the information is tied to any form.
If the reporting person is neither a victim within the meaning of Art. 115 StPO nor a private plaintiff (cf. Art. 105 StPO), he or she has no further procedural rights (Art. 301 Para. 3 StPO).
If the criminal complaint is not dealt with further by the prosecuting authority, however, a complaint may be made because of denial of rights ( Art. 393 Paragraph 1 lit. a StPO in conjunction with Art. 393 Paragraph 2 lit. a StPO). In the event of a refusal to provide information, the reporting person can also appeal (Art. 393 (1) lit. a StPO).
See also
Web links
Individual evidence
- ↑ Duden | Presentation of facts | Spelling, meaning, definition, origin. Retrieved June 2, 2020 .
- ^ Salzburger Nachrichten: SPÖ reports Strache and Gudenus to the public prosecutor. Retrieved June 2, 2020 .
- ^ State Criminal Police Office Baden-Württemberg. Retrieved September 1, 2018 .
- ↑ Meyer-Goßner / Schmitt, Commentary on the Code of Criminal Procedure, 60th edition 2017, Rn. 1a to § 172 StPO.
- ↑ Mehmet Daimagüler , The injured in criminal proceedings , Beck, Munich 2016, ISBN 978-3-406-70220-4 , no. 589 ff.
- ↑ Bavarian Constitutional Court, decision of January 28, 2020, Vf. 56-VI-18, Rn. 23 and the OLG Koblenz
- ↑ a b c Landshut, Bosshard: Art. 301 . In: Donatsch, Hansjakob, Lieber (Ed.): Commentary on the Swiss Code of Criminal Procedure (StPO) . 2nd Edition. Zurich 2014, ISBN 978-3-7255-6938-0 .
- ↑ Riedo, Boner: Art. 301 . In: Niggli, Heer, Wiprächtiger (ed.): Basler Commentary, Swiss Code of Criminal Procedure / Code of Youth Criminal Procedure (StPO / JStPO) . 2nd Edition. Basel 2014, ISBN 978-3-7190-3395-8 .
