Litigation act
The procedural act is a term used in German criminal procedural law . In jurisprudence, it is defined as a uniform historical process that differs from other similar processes. As part of the criminal proceedings, it must be checked whether the accused has committed a criminal offense in the context of this fact to be determined by the court . The entire behavior of the perpetrator belongs to the procedural act, insofar as it naturally represents a unified life process.
This procedural term is regulated by law, in Section 264 of the Code of Criminal Procedure (StPO): This norm states that the subject of the judgment is the act described in the indictment as it appears after the result of the hearing. The legal regulation does not define the concept of offense, but presupposes it. The term 'offense' in the Code of Criminal Procedure is identical to that in Article 103 (3) of the Basic Law, which prohibits someone from being punished several times for the same offense ( ne bis in idem ). The assessment of the extent of the procedural act on which a proceeding is based also determines the extent of the legal force of a decision on this act, including the question of the extent to which the decision has resulted in the use of criminal proceedings .
In addition, the procedural act, as reflected in the decision to open the main proceedings, determines the subject matter of the judicial proceedings. The exchange of one procedural act by another is not possible, rather a supplementary charge is required in which the other procedural act is described. In contrast, factual changes in the same procedural act can be taken into account in the process if the accused is given appropriate legal information .
The demarcation is not always easy in individual cases: the same procedural act is given if it turns out in the main hearing that the attack did not take place on October 4th, but on October 6th. On the other hand, one would have to assume a different procedural act if the perpetrator did not attack the furniture store of A on October 4th, but rather the petrol station of B on October 6th.
The procedural act thus serves the purpose of legal clarity by delimiting the negotiating material and thus the effective criminal defense of the accused, the protection of the accused from multiple convictions, but also the concentration of the proceedings. Despite the meaning of the term 'offense' running through the entire StPO, jurisprudence and specialist legal literature have not yet succeeded in giving the procedural offense in a factual direction fixed and predictable contours.
Confirmed knowledge should only be that the term 'offense' is a factual situation that is independent of the specific level of knowledge of the investigating authorities and their legal qualifications. It is therefore not decisive how the public prosecutor's office and court legally qualify the behavior of the accused and also not whether they were or could have known all the modalities of the action when the indictment was brought.
The scope of the accused is determined solely on the basis of objective criteria. The Federal Court has therefore consistently held defines the procedural act as a historical event which simulates the view of life a uniform process that would split unnatural for separate evaluation and judgment and thereby proven time and again that an abstract generalized approach is not possible . The definition of the offense can only be determined from case to case, whereby it depends on the factual rather than the temporal context.
To determine whether certain criminally relevant behavior constitutes a procedural act, one can first orientate oneself on the material term of the offense. In the case of unity of action, there is also a procedural act in most cases . On the other hand, acts in the ratio of the majority of acts can still represent a unified life process and thus a procedural act.
Individual evidence
- ↑ a b BGHSt 23, 141 (145).
- ↑ a b BGHSt 35, 60 (62).
- ↑ Urs Kindhäuser, Kay Schumann: Criminal Procedure Law . 5th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-3865-6 , § 25 marginal no. 5-11.
