Persecution of the innocent

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The prosecution of innocent people is a crime in Germany according to Section 344 of the Criminal Code ( StGB ) , which is punishable by imprisonment from one year to ten years. The act is one of the real official offenses . The criminal liability is related to the principle of legality , according to which the police, public prosecutor's office and courts are obliged to intervene in relation to all criminal offenses that can be prosecuted, provided that there are sufficient factual indications ( Section 152 (2) StPO). Failure to take criminal prosecution measures can be punished as obstruction of punishment in office ( § 258 , § 258a StGB). On the other hand , if the investigations do not provide sufficient cause for public charges to be brought , the investigations must be discontinued without the law enforcement authorities having any discretion ( Section 170 StPO). The enforcement against the innocent is punished ( § 345 of the Criminal Code).

The offense is rare. The law enforcement statistics for 2017 show 19 convictions nationwide.

text

Section 344 of the Criminal Code has the following wording:

(1) Anyone who, as a public official who is called to participate in criminal proceedings, apart from the procedure for ordering a measure that does not deprive her of liberty (Section 11, Paragraph 1, No. 8), intentionally or knowingly is an innocent person or someone who is otherwise after Law may not be prosecuted, prosecuted or work towards such a prosecution is punished with imprisonment of one year to ten years, in less serious cases with imprisonment of three months to five years. Sentence 1 applies mutatis mutandis to an office holder who is called to participate in a procedure for ordering official custody.

(2) Anyone who, as a public official who is called to participate in a procedure for the ordering of a measure that does not deprive her of liberty (Section 11 (1) No. 8), willfully or knowingly prosecute someone who may not be prosecuted under the law or who works towards such persecution is punished with imprisonment from three months to five years. Sentence 1 applies mutatis mutandis to a public official who has to participate

  1. a fine procedure or
  2. a disciplinary or an honorary or professional judicial process

is called. The attempt is punishable.

Threat of punishment

While the act according to Section 344 (1) is threatened at least with imprisonment of one year or more and is therefore an offense that involves less serious cases, Section 344 (2) is an independent offense (see Section 12 of the Criminal Code).

Offense

Officials are the persons named in Section 11 (1) No. 2 of the Criminal Code, in particular police officers, public prosecutors and judges.

The act of Section 344, Paragraph 1 of the Criminal Code is the prosecution of an innocent person in the context of criminal proceedings as well as the participation in a procedure to order official custody ( seizure ). The offender must to participate in one of the processes mentioned called to be. This does not apply, for example, to employees of the Office for the Protection of the Constitution who, according to the requirement to separate the police and intelligence services, are currently not authorized to prosecute ( Section 8 (3 ) BVerfSchG ).

The prosecution or working towards it against an innocent person or someone who otherwise may not be prosecuted according to the law are punished. What is meant is the commencement or continuation of investigative proceedings against innocent persons and against persons whose prosecution is opposed to certain legal reasons, e.g. B. if there is a reason for exclusion from punishment such as the indemnity of members of parliament ( § 36 StGB, Art. 46 GG) or the act is statute-barred .

Section 344, Paragraph 2, Clause 1 of the Criminal Code relates to procedures for the ordering of a non-custodial measure within the meaning of Section 11, Paragraph 1, No. 8 of the StGB. These include the non-custodial measures of improvement and security according to Section 61 No. 5 and No. 6 StGB ( withdrawal of the driver's license , Section 69 StGB and professional ban , Section 70 StGB), as well as confiscation and rendering unusable ( Section 76a StGB). Section 344 (2) sentence 2 StGB covers participation in administrative fines and disciplinary proceedings as well as honorary and professional judicial proceedings.

The victim is the person against whom the illegal prosecution is directed. The term innocent is misleading, however, because the measures of reform and protection included in Section 344 (2) of the Criminal Code are permissible even if the perpetrator is incapable of guilt . The attempt will also be prosecuted .

By omission, § 344 StGB can also be implemented if z. B. a release from custody did not take place.

Subjective fact

The subjective fact requires intention or knowledge. A conditional resolution is not enough. A criminal liability presupposes that a public official intentionally or knowingly prosecutes an “innocent person” who is not materially guilty of the illegal act. The perpetrator must be aware of his position as an organ of persecution. In addition, the perpetrator must either (positively) know that he is pursuing someone with his official act who must not be persecuted or it must be important to him, in the sense of an intention, to persecute someone innocent in this sense, even if he is not sure Has knowledge of its innocence. This can be the case with “absurd and partly lies” allegations by a public prosecutor.

Competitions

Depending on the case, unity or majority of offenses are possible with further offenses in office, but also with deprivation of liberty , coercion or threat .

Consequences under service law

The prosecution of innocent people according to Section 344 of the Criminal Code is such a serious criminal offense that it basically justifies removal from service.

literature

  • Il-Tae Hoh: The persecution of innocent people (§ 344 StGB). Würzburg, Univ.-Diss. 1984
  • Rolf D. Herzberg : willful intent and permitted risk - especially when prosecuting innocent people (§ 344 StGB) . JR 1986, pp. 6-10
  • Gerd Geilen : Perversion of the law through persecution - § 344 StGB in the mirror of a wrong judgment. In: Thomas Weigend (Ed.): Festschrift for Hans-Joachim Hirsch on his 70th birthday, de Gruyter 1999, p. 507 ff., ISBN 3-11-015586-9
  • Sarah Beatrice Thelen: The persecution of innocent people: A critical appraisal of § 344 StGB. Bonn, Univ.-Diss. 2017. LIT Verlag, ISBN 978-3-643-13494-3

Web links

Individual evidence

  1. ↑ Prosecution of Innocent Legal Lexicon.de, accessed on January 19, 2020
  2. ↑ BGH, judgment of September 23, 1960 - 3 StR 28/60
  3. ↑ Public Prosecutor's Office Justizportal Nordrhein-Westfalen, accessed on January 19, 2020
  4. ↑ Federal Statistical Office : Administration of Justice, Prosecution, Series 10 Series 3, 2017, p. 44
  5. ↑ cf. Late revenge marked by success: Critical police officer Thomas Wüppesahl convicted of persecuting innocent people in the third attempt. The verdict includes removal from the police service taz , May 28, 2004
  6. ↑ Kerstin Herrnkind: Judicial scandal in Schleswig-Holstein: Did a public prosecutor blow to hunt animal owners ? Stern , July 1, 2019
  7. ^ Dresden Regional Court - "Sachsensumpf": Main charges against scouts dropped MDR , May 8, 2018
  8. ↑ Stephan Handel: Trial: LKA official receives compensation from the Free State of Süddeutsche Zeitung , July 25, 2018
  9. ↑ cf. Uwe Schmidt: Administrative fine notice on March 5, 2015
  10. ^ Friedrich Geerds : persecution of innocent people. In: Festschrift for Günter Spendel on his 70th birthday on July 11, 1992 , p. 503 ff., De Gruyter, 1992, ISBN 3110128896
  11. ↑ Thomas Fischer: Criminal Code , § 344 StGB margin no. 3, 57th edition, CH Beck, ISBN 978-3-406-59422-9
  12. ↑ Harro Otto: Grundkurs Strafrecht , p. 549 ff., 7th edition, de Gruyter, ISBN 3-89949-228-5
  13. ↑ OLG Hamm, decision of May 19, 2015 - III-5 Ws 117/15
  14. ↑ Ex-policeman acquitted. Neuruppin public prosecutor's office is threatened with investigations rbb , November 18, 2019
  15. ^ AG Eisenach, penalty order of June 17, 2010 - Cs 464 Js 20782/09 (prosecution of innocent people, fraud, bodily harm in office and threats)
  16. ^ VGH Baden-Württemberg, judgment of October 29, 2009 - DL 16 S 3361/08
  17. ↑ Thuringian Higher Administrative Court, judgment of November 12, 2013 - 8 DO 537/13
  18. ↑ Dietmar Christians: The removal of civil servants from the service January 21, 2018