Compulsory Prosecution Proceedings
The compulsory prosecution proceedings is an instrument provided for in German criminal procedural law that serves to oversee prosecutorial decisions to discontinue proceedings. Under certain conditions, it enables private individuals to compel the court to bring charges when the public prosecutor’s office has discontinued the investigative proceedings. The procedure is mainly regulated in Sections 172 to 177 of the Code of Criminal Procedure (StPO).
Legal Basis and Purpose
Compulsory prosecution proceedings constitute a special legal protection instrument aimed at reviewing prosecutorial inaction or refusal to pursue prosecution. The regulation primarily seeks to uphold the principle of legality (obligation of state prosecution authorities to prosecute crimes) and to protect the individual rights of persons in criminal proceedings.
Statutory Regulation
The relevant provisions are found in particular in the following regulations:
- Section 172 StPO: Admissibility and Form of the Compulsory Prosecution Proceedings
- Section 173 StPO: Procedure in Compulsory Prosecution Proceedings
- Sections 174-177 StPO: Jurisdiction and Further Procedural Provisions
These provisions establish the formal and substantive requirements under which the Higher Regional Court may order the bringing of a public charge upon application.
Requirements for Compulsory Prosecution Proceedings
Right to Apply
The sole party entitled to file the application is the so-called injured person according to Section 172 (1) StPO, i.e., whoever is affected in their own rights by the alleged offense. Uninvolved third parties or the general public are not entitled to file the application.
Completion of Investigative Proceedings
An application for compulsory prosecution is only admissible if the public prosecutor’s office has concluded the investigative proceedings by means of a Notice of discontinuation according to Section 170 (2) StPO because it has determined there is insufficient suspicion of a criminal offense. Discontinuation on grounds of minor guilt (Section 153 StPO) or lack of a criminal complaint is, by contrast, not subject to compulsory prosecution.
Prior Review: Application for Judicial Decision (Complaint Procedure)
Another necessary prerequisite is the unsuccessful conduct of the application for judicial decision according to Section 172 (1), 2nd half-sentence StPO. Only after this application (so-called “discontinuation complaint”) has been dismissed by the initially competent court (usually the Regional Court), is the route to the Higher Regional Court available.
Form and Content of the Application for Compulsory Prosecution
Written Form and Reasoning
The application for compulsory prosecution must be in writing and must be personally signed by the entitled person. Additionally, a reasoned statementis required, in which the facts and evidence substantiating suspicion are to be set out completely and comprehensibly (overview pursuant to Section 172 (3) StPO).
Attachment of Documents
The application must document the contested decisions (notice of discontinuation by the public prosecutor’s office, the court’s decision on the complaint), as well as the entire investigative proceedings. Furthermore, all evidence, documents, and other supporting material must be submitted.
Representation by Rechtsanwalt
Although representation by a Rechtsanwalt is not explicitly required, due to the complexity of the requirements, an application is often prepared by one.
Procedure and Decision-Making in Compulsory Prosecution Proceedings
Competent Court
The court competent for the compulsory prosecution proceedings is the respective Higher Regional Court (Section 172 (2) sentence 1 StPO), in whose district the public prosecutor’s office conducted the investigations.
Substantive Review
The Higher Regional Court examines solely whether the decision to discontinue by the public prosecutor as well as the Regional Court’s decision were legally flawed in particular, whether a sufficient suspicion of a criminal offense exists in the sense of a likelihood of conviction. There is no comprehensive investigation of facts; rather, a test of plausibility and reasonableness is undertaken.
Decision and Legal Consequences
If the Higher Regional Court finds that the requirements for bringing a public charge are met, it issues a decree, obliging the public prosecutor’s office to bring charges or to apply for a penalty order (Section 175 StPO). However, it is not required to formulate the indictment in any particular way; the public prosecutor’s office retains a margin of discretion here.
Distinction from Other Legal Remedies
The compulsory prosecution proceedings are to be distinguished from other legal remedies, in particular:
- Private Prosecution (Sections 374 et seq. StPO): This concerns certain offenses subject to application and allows the injured party to prosecute as a private prosecutor.
- Complaint (Section 304 StPO): A simple complaint is directed against certain procedural measures and decisions in criminal proceedings, but not against a final discontinuation.
Grounds for Exclusion and Inadmissibility
The compulsory prosecution proceedings are excluded if:
- the injured party is not entitled to apply,
- the offense is prosecutable only by authorization or upon motion, and this requirement is not met,
- a discontinuation has occurred on grounds of discretionary prosecution (Sections 153, 153a StPO),
- the application period was missed,
- the application does not comply with the formal requirements.
Significance and Criticism of Compulsory Prosecution Proceedings
Compulsory prosecution proceedings are an effective instrument for ensuring enforcement of criminal law and oversight of the activities of law enforcement authorities. However, they also have practical limitations, including a relatively low success rate and strict formal requirements.
Practical Significance
Its practical relevance is primarily found in politically or socially sensitive matters where there is a significant public interest in prosecution.
Points of Criticism
Criticism includes, among other things:
- the high formal requirements and the complexity of the application,
- the limited scope of review by the Higher Regional Court,
- and the still only limited possibility of oversight of prosecutorial discretionary decisions.
References
- Meyer-Goßner/Schmitt, Code of Criminal Procedure, Commentary on Sections 172 et seq. StPO
- Kühne, Criminal Procedure Law, Chapter on Compulsory Prosecution Proceedings
- Löwe-Rosenberg, StPO Commentary, Sections 172-177
Summary
The compulsory prosecution proceedings according to Sections 172 et seq. StPO is an important rule-of-law instrument serving to oversee prosecutorial investigative and discontinuation decisions in criminal proceedings. Under strict conditions, it gives injured persons the right to compel the initiation of public charges if the prosecuting authorities refrain from doing so. The procedure is strictly regulated in form and reserved for exceptional cases. Its significance lies in enforcing the principle of legality and safeguarding individual rights protection.
Frequently Asked Questions
Who is entitled to apply in compulsory prosecution proceedings?
In compulsory prosecution proceedings, only those persons who are directly affected, that is, injured by the alleged offense (“injured” within the meaning of Section 172 (1) sentence 1 StPO), are generally entitled to apply. This includes both natural and legal persons, provided their rights have been affected by the failure to prosecute. As a rule, applicants must have already filed a criminal complaint and lodged a complaint against the discontinuation decision within the time limit, which must have been unsuccessful. Witnesses, relatives, or other third parties are not entitled to apply as long as they are not themselves direct holders of the protected right. Special statutory provisions, such as for joint plaintiffs (§ 395 StPO), remain unaffected.
In which cases are compulsory prosecution proceedings excluded?
Compulsory prosecution proceedings are excluded by law in certain instances. In particular, they are excluded for discontinuations due to minor guilt under Section 153 StPO as well as discontinuations under Sections 154, 154a StPO (termination of proceedings due to prosecution elsewhere or priority of other proceedings). Compulsory prosecution proceedings are also inadmissible for private prosecution offenses under Section 374 StPO, as prosecution in these cases is conducted through private prosecution. Finally, compulsory prosecution proceedings are not applicable if the authority has discontinued investigations because there was no initial suspicion of a criminal offense or such suspicion could not be proven, unless this was due to erroneous or incomplete fact-finding.
What deadlines apply to compulsory prosecution proceedings?
There is a one-month deadline for initiating compulsory prosecution proceedings after service of the rejecting notice regarding the complaint against the discontinuation decision by the General Public Prosecutor’s Office (Section 172 (2) sentence 1 StPO). Within this one-month period, the application for judicial decision must be submitted to the competent Higher Regional Court. Observing the deadline is essential, as the application is inadmissible after expiration. If the applicant misses the deadline through no fault of their own, reinstatement may be possible in exceptional cases (Section 44 StPO).
What formal requirements does the law set for the application?
The law requires strict formal requirements for the application for compulsory prosecution. According to Section 172 (3) StPO, it must be submitted and signed in writing by a Rechtsanwalt. The application must set out the facts that are to justify the bringing of public charges and specify the evidence. It must also demonstrate that the applicant is familiar with the progress of the previous investigative proceedings, in particular the final decisions and the objections raised. The full contents of the file must be presented and discussed. The applicant is also obliged to attach all documents related to the matter. If these requirements are not met, the application must be rejected as inadmissible.
How does the Higher Regional Court conduct the substantive review?
The Higher Regional Court first examines the formal requirements for admissibility of the application. If the application is admissible, it conducts a substantive review, limited to whether the evidence, assessed as in public charging proceedings, is likely to result in a conviction (so-called “sufficient suspicion of crime”). The review follows the same standard that applies to the filing of charges by the public prosecutor (Section 170 (1) StPO). The court is not limited to the case file and can also instigate further investigations itself. If the General Public Prosecutor’s Office (or the public prosecutor at the Higher Regional Court) has not found sufficient suspicion, the Higher Regional Court independently examines whether the initiation of the main proceedings is warranted.
What is the effect of the decision of the Higher Regional Court in compulsory prosecution proceedings?
If, after its review, the Higher Regional Court finds that there is sufficient suspicion of crime, it grants the application and obliges the public prosecutor to either bring charges or file for the issuance of a penal order at the District Court (Section 175 StPO). The public prosecutor is thus bound by the court’s decision and must act accordingly in the subsequent proceedings. However, the court cannot oblige the bringing of charges for a more serious offense than was requested, and it is bound by the facts stated in the application. If the application is rejected, there is no further legal remedy.
What costs arise in compulsory prosecution proceedings?
Compulsory prosecution proceedings are in principle subject to court fees. The applicant generally bears the court and lawyer’s fees, unless the Higher Regional Court grants the application (§ 177 StPO in conjunction with § 464 StPO). In that case, necessary expenses, including the costs of engaging a Rechtsanwalt, may be reimbursed. If the application is rejected as inadmissible or unfounded, the costs remain with the applicant. There is no entitlement to legal aid for compulsory prosecution proceedings.
What is the significance of compulsory prosecution proceedings for the rule of law?
The compulsory prosecution proceedings serve as a key corrective in German criminal procedure law, aiming to prevent matters relevant to criminal law from escaping judicial review as a result of decisions by prosecuting authorities. It serves to protect the interests of affected parties and strengthens trust in the functionality of law enforcement agencies. Nevertheless, the procedure is an exception in practice due to its strict formalities and high substantive thresholds, thereby underscoring the position of the public prosecutor’s office as the “master of the investigative proceedings.” Its significance primarily lies in ensuring rule-of-law oversight and transparency in the face of administrative discretion.
