All activities of the state to prosecute criminal offenses are referred to as criminal prosecution . The prosecution is carried out beforehand by the law enforcement authorities, such as the public prosecutor's office and their investigators, during the investigation . Finally, the criminal prosecution is assessed by the courts and is concluded in the legal process .
These institutions have the monopoly of initially restricting a suspect's basic rights on the basis of a suspicion . There is no prejudgment based on speculation. Thus, the presumption of innocence applies until the final conviction . The rule of law and applicable law must be applied here. Persecution of individuals or social groups by state organs who abide by the rules mentioned is neither political nor religious persecution .
With the rule of law bid also creates an obligation to conduct the investigation reasonably brief, either it adjust or charges to rise (see. Proportionality principle ). Violation of these principles may result in U. punishable as persecution of innocent people .
Law enforcement consists mainly of investigations . The criminal claim of the State is not the special Everyman justifications of emergency ( of the Criminal Code ) or the Everyman arrest right ( limited para. 1 StPO). Emergency aid in favor of the state may only be used if the state is impaired in its functionality and aid cannot be obtained in any other way. The right to arrest everyone is only applicable to objectively given crimes and requires the immediate use of state support.
After the indictment has been brought, criminal prosecution is reserved solely for the courts through judgment , setting against fines or imposing conditions or through acquittal . The execution of the sentence begins with the conviction .
The law enforcement agency acts according to the principle of legality . The responsible public prosecutor's office is in charge of the prosecution process. The police also belong to the law enforcement authorities (execution of the task from StPO) in connection with the corresponding police task laws of the federal states. Both are bound by instructions. The public prosecutor's office acts according to the instructions of the employer. The police act as a law enforcement authority in accordance with the instructions of the lead public prosecutor's office, provided that the public prosecutor's office is an authority of a federal state.
In the preliminary investigation, the state's claim to punishment is the maxim for legally standardized measures against the suspect, accused or accused. From this follows the principle that the complainant generally only has a mere reflex right . However, there are exceptions to this principle, for example in the case of criminal offenses by public officials . In such an exceptional case, the complainant has a legal right to prosecution .
There is an actual restriction of prosecution in the case of perversion of the law ( StGB). The Federal Court of Justice has in fact developed a number of principles that limit criminal prosecution in cases of perversion of justice. On this basis, it acquitted all NS judges of the charge of perversion of the law with repercussions in the present, cf. Egon Schneider in the Zeitschrift für die Anwaltspraxis (ZAP) 2006, page 305 ( ). Günther Bemmann , Manfred Seebode and Günter Spendel submitted the proposal for a necessary legal reform of the perversion of the law as early as 1997, cf. Zeitschrift für Rechtssppolitik (ZRP) 1997, page 307. The legislature did not go into this.
- Meyer-Goßner / Schmitt, Commentary on the Code of Criminal Procedure, 60th edition 2017, Rn. 1a to § 172 StPO.
- BVerfG NJW-Spezial 2015, 57 - Tennessee Eisenberg .