Compulsory Lawsuit Procedure

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In German criminal procedure law, the enforcement procedure enables the person violated by a criminal offense to have the decision of the public prosecutor's office to discontinue an investigation after the investigation has been concluded in the absence of sufficient suspicion . On the other hand, the case that the public prosecutor's office either not investigates at all or only inadequately can be checked by means of an investigation enforcement procedure.

The enforcement procedure is regulated by law in Section 172 of the Code of Criminal Procedure . The possibility of Klageerzwingung to the principle of legality strengthen by judicial and prosecution unjustified by the prosecution set permit procedures. This can be of considerable importance to the interests of a joint plaintiff. Successful enforcement proceedings are extremely rare.

Three-stage

The first stage of the enforcement procedure is the criminal complaint or the criminal application of the injured party according to § 158 StPO.

Represents the prosecution the determination method according to § 170. 2 StPO, the second stage is that the injured person against the decision of the prosecutor within two weeks after service complaint inserts, the so-called Vorschaltbeschwerde over which the general public prosecutor's office decides if not after 105 Para. 2 sentence 1 RiStBV, the public prosecutor whose decision to hire was challenged remedies. In addition to the formal preliminary complaint, an administrative complaint can also be filed without notice, on which the General Public Prosecutor's Office decides if the public prosecutor's office does not remedy it. In the case of hiring according to the principle of opportunity ( §§ 153 ff. StPO), the enforcement of a lawsuit is not permitted, § 172 para. 2 sentence 3 StPO.

If this complaint is unsuccessful or if the Public Prosecutor General's Office does not make a decision, a third step can be applied for at the competent Higher Regional Court within one month of receipt of the decision, Section 172 (2) sentence 1 StPO.

Proceedings before the Higher Regional Court

This application must state the facts on which the public charge is to be brought and the evidence . The case law requires that the application for compulsory action must contain all the relevant facts about the act and the previous procedure itself and that it is not sufficient to merely refer to the contents of the file. The applicant must be represented by a lawyer, so there is a lawyer compulsory , § 172 Abs. 3 S. 2 StPO. As a lawyer, you can also represent yourself in enforcement proceedings. Legal aid can be granted for the enforcement proceedings if need be .

However, the requirements for a compulsory action according to § 172 III 1 StPO must not be overstated. They exceed the limit of what is constitutionally permissible from the point of view of Article 19 IV of the Basic Law, for example, when the applicant is supposed to deal with legally irrelevant matters, when he is supposed to gain knowledge of the files, although there is no reason to do so or when he is the public prosecutor's decision or should reproduce the submissions of the accused in their irrelevant sections or even in their entirety, although their essential content is evident from the application.

The Higher Regional Court is responsible for the judicial decision in the context of the enforcement proceedings, which , in the event of sufficient suspicion, decides to bring a public complaint ( indictment ). In this case, the complainant can join the proceedings as a joint plaintiff even if the accused offense does not actually entitle a person to bring a secondary claim ( Section 395 (2) No. 2 StPO). The court determines its procedure at its due discretion within the framework of Section 173 StPO. Thereafter, the court can request the submission of the investigation files.

The public prosecutor's office must be heard in accordance with Section 33 (2) of the Code of Criminal Procedure. The accused can be heard; he must be heard before an unfavorable decision is made. Finally, the court can order gaps in evidence to be taken if they can be expected to result in sufficient suspicion.

Demarcation

There is no legal remedy against the decision of the public prosecutor's office to discontinue the investigation according to the principle of opportunity .

If the public prosecutor's office already denies the initial suspicion in accordance with Section 152 (2) of the Code of Criminal Procedure and therefore does not clarify the facts of the case, the investigation process is analogous to the enforcement procedure . The same applies in the event that the public prosecutor's office had affirmed the initial suspicion and therefore started investigations, but these investigations were inadequate.

In the case of private prosecution offenses ( Section 374 of the Code of Criminal Procedure), the injured party must appear as a prosecutor in court if he wishes to be prosecuted and, if he fails, bears a considerable risk of costs. There is no enforcement procedure here, Section 172 (2) sentence 3 StPO.

The simple supervisory complaint to the public prosecutor's office must also be distinguished from the enforcement procedure .

Constitutional law

In 1979 the second Senate of the Federal Constitutional Court ruled that there was basically no constitutional right to prosecute another person by the state. In 2002 the Federal Constitutional Court confirmed this case law in a chamber decision and stated:

"The Federal Constitutional Court has consistently ruled that there is no constitutionally guaranteed right of an individual to prosecute a third party by the state (cf. BVerfGE 51, 176 (187). Article 1, Paragraph 1 of the Basic Law also gives rise to such a claim Claim not. The person injured by a criminal offense who wants to force the prosecution of a third party with the help of an application in accordance with Section 172 (2) sentence 1 StPO is constitutionally only entitled to demand that his or her request is subject to the judicial procedure applicable requirements of the Basic Law is decided. He can demand that the form and content of his application are not subjected to excessive (explanatory) burdens, that his arguments are noted and considered, and that his statements are not arbitrarily assessed. "

In a ruling dated February 4, 2010, the Federal Constitutional Court ruled that, in general , there is no fundamental right to criminal prosecution by the state even if there is a violation of fundamental rights protected legal interests by private individuals. The indication that such a claim does not generally exist is seen as a first softening of the previous case law. On June 26, 2014, the Federal Constitutional Court passed the Tennessee-Eisenberg decision on a non-acceptance decision. The court ruled:

“In principle, no right to prosecute third parties can be derived from the Basic Law (a). Something different can be the case for serious crimes against life, physical integrity, sexual self-determination and personal freedom (b), for offenses committed by public officials (c) or for crimes in which the victims are in special custody of the public sector. "

The reasons given include:

"The effective prosecution of violent crimes and comparable criminal offenses represents a concretization of the state duty to protect from Article 2, Paragraph 2, Clauses 1 and 2 in conjunction with Article 1, Paragraph 1, Clause 2 of the Basic Law (see BVerfGK 17, 1 [5]) . Against this background, there is a right to effective criminal prosecution where the individual is not in a position to defend against serious criminal offenses against his or her very personal legal interests - life, physical integrity, sexual self-determination and freedom of the person - and to renounce the effective prosecution of such offenses can lead to a shattering of confidence in the state's monopoly of force and a general climate of legal uncertainty and violence. In such cases, based on Article 2, Paragraph 2, Clause 1 and 2 in conjunction with Article 1, Paragraph 1, Clause 2 of the Basic Law, action by the state and its organs can be required. "

This decision was adopted almost verbatim in the Gorch-Fock decision. This case law has been confirmed by two further decisions by the Federal Constitutional Court. In one case it was about a police operation in a local soccer derby and in the other case about the termination of the investigation against Colonel Klein because of the air attack near Kunduz . According to this, the injured party still only has a mere so-called reflex right in principle , but in exceptional cases he has to effectively apply the criminal provisions issued to protect life, physical integrity, sexual self-determination and the freedom of the person, e.g. B. in the case of criminal offenses by public officials, a legal right to prosecution .

Examples

A lawsuit enforcement procedure was carried out in the Oury Jalloh case before the OLG Naumburg . By decision of October 22, 2019, the Higher Regional Court considered the Naumburg Public Prosecutor's Office's grounds for discontinuation to be lawful. On November 25, 2019, a constitutional complaint was lodged with the Federal Constitutional Court against this final decision by the Naumburg Higher Regional Court, albeit without a prior hearing notice.

Legal situation in Austria

The Subsidiaranklage in Austria under the requirements of § 48 Code of Criminal Procedure possible public consultation and conducting the prosecution instead by a private participants of the prosecutor. This applies if the public prosecutor wants to stop the preliminary inquiries or withdraws from the prosecution. The subsidiar charge serves as a corrective against the prosecutor's monopoly of indictment and thus has a function corresponding to the German enforcement procedure.

literature

  • Detlef Burhoff: The enforcement procedure. In: Zeitschrift für die Anwaltspraxis , issue 17/2003 ( online ).
  • Mehmet Daimagüler : The injured in criminal proceedings . Beck, Munich 2016, ISBN 978-3-406-70220-4 , Rnrn. 589 ff.
  • Matthias Jahn, Christoph Krehl, Markus Löffelmann, Georg-Friedrich Güntge: The constitutional complaint in criminal matters. 2nd Edition. Verlag CF Müller, 2017, part 7, no. 824 ff.
  • Carsten Krumm: “It's pretty difficult!” The application for compulsory action in practice . In: Neue Justiz , 2016, 241 ( PDF ).
  • Claus Roxin , Bernd Schünemann : Section § 41 The Compulsory Action Procedure in the Textbook on Criminal Procedure Law. 29th edition. Beck, Munich 2017, ISBN 978-3-406-70680-6 .
  • Mark Zöller: Compulsory Lawsuit Procedure; Right to effective criminal prosecution, comment on Bremen Higher Regional Court, decision of August 18, 2017 - 1 Ws 174/16, criminal defense lawyer (StV) 2018, pp. 268–275.

Individual evidence

  1. BVerfG decision of May 29, 2019, Az. 2 BvR 2630/18
  2. Mirko Laudon, Ermittlungserzwingungsverfahren
  3. Karlsruhe Commentary / Moldenhauer , 7th edition 2013, § 172 Rn. 1.
  4. a b Meyer-Goßner / Schmitt , 57th edition 2014, § 172 Rn. 1.
  5. Meyer-Goßner / Schmitt , 57th edition 2014, § 172 StPO margin no. 18th
  6. Meyer-Goßner / Schmitt , 57th edition 2014, § 172 StPO margin no. 3.
  7. Federal Constitutional Court, decision of 22 May 2017 not to accept, Az. 2 BvR 1453/16 .
  8. Decision of the OLG Frankfurt dated November 7, 2018, Az. 1 Ws 46/18, Anwaltsblatt 2019, 42
  9. Meyer-Goßner / Schmitt , 57th edition 2014, § 172 Rn. 32 f.
  10. BVerfG, decision of July 2, 2018 - 2 BvR 1550/17
  11. Detlef Burhoff: Once again BVerfG to enforce lawsuits, or: Once again too high requirements August 16, 2018
  12. BVerfG, decision of October 21, 2015, 2 BvR 912/15, NJW 2016, 44 with comment Neelmeier.
  13. Karlsruher Commentary / Moldenhauer , 7th edition 2013, § 173 Rn. 1.
  14. BVerfG, decision of March 28, 2002, Az. 2 BvR 2104/01, NJW 2002, 2859 = openJur 2011, 25115 .
  15. BVerfG, decision of 10 August 2006 - 2 BvR 2324/04, no. 14th
  16. Meyer-Goßner / Schmitt , 57th edition 2014, § 173 StPO Rn 1.
  17. BVerfGE 42, 172.
  18. Meyer-Goßner / Schmitt , 57th edition 2014, § 173 StPO margin no. 3.
  19. ^ Mirko Laudon : Ermittlungserzwingungsverfahren , Strafakte.de, May 15, 2013.
  20. Meyer-Goßner / Schmitt , 57th edition 2014, § 172 StPO margin no. 2.
  21. Meyer-Goßner / Schmitt , 57th edition 2014, § 172 StPO margin no. 18th
  22. Decision of May 8, 1979, Az. 2 BvR 782/78, BVerfGE 51, 176 = NJW 1979, 1591 = DRsp III (328) 92 = EuGRZ 1979, 408 = MDR 1979, 907.
  23. ^ Decision of April 9, 2002, Az. 2 BvR 710/01 , NJW 2002, 2861.
  24. Decision of February 4, 2010, Az. 2 BvR 2307/06 .
  25. ^ A b c Michael Sachs : Basic rights: Victims' right to prosecute the perpetrator. JuS 2015, p. 376.
  26. a b c BVerfG: Decision of June 26, 2014, [Az.] 2 BvR 2699/10 , No. 1-23.
  27. This decision was discussed and approved in NJW Spezial 2015, 57
  28. ↑ Lawsuit enforcement proceedings in the event of fatal use of firearms by the police
  29. BVerfG, decision of October 6, 2014, Az. 2 BvR 1568/12 - Gorch Fock , NJW 2015, 150 = HRRS 2014 No. 1063 (with the guiding principles of the processor)
  30. a b Decision of March 23, 2015, 2 BvR 1304/12
  31. Decision of May 19, 2015, Az. 2 BvR 987/11
  32. ^ Decision of May 19, 2015, 2 BvR 987/11
  33. BVerfG decision of 29 May 2019, Az. 2 BvR 2630/18 No. 14th
  34. Sachs, JuS 2015, 376
  35. OLG Naumburg, decision of October 22, 2019, Az. 1 Ws (gE) 1/19
  36. The von Oury Jalloh family files a complaint with the Federal Constitutional Court
  37. Universal Lexicon 2012