Waiver of Prosecution (Criminal): Legal Significance and Areas of Application
The waiver of prosecution in criminal law refers to a formal decision by the prosecution authorities to refrain from pursuing a known criminal act or from initiating an investigation. This process is based on statutory regulations that, under certain circumstances, enable the termination of or abstention from criminal prosecution. The underlying provisions are found particularly in the German Code of Criminal Procedure (StPO).
General Principles
The criminal procedure generally serves to establish the facts and sanction criminal acts. The principle of legality obliges prosecuting authorities to pursue criminal offenses. Nevertheless, the law provides for scenarios in which prosecution may or must be waived in the interests of proportionality, public interest, or for the relief of the judiciary.
Legal Basis for Waiver of Prosecution in German Criminal Law
§§ 153 ff. StPO – Waiver of Prosecution in Preliminary Proceedings
The Code of Criminal Procedure sets out in several provisions the possibility to waive prosecution:
- § 153 StPO: Minor Offenses
Preliminary proceedings can be discontinued if the offender’s guilt is deemed minor and there is no public interest in prosecution. This provision primarily covers petty offenses. The decision is usually made by the public prosecutor’s office.
- § 153a StPO: Discontinuance Subject to Conditions and Directions
Preliminary proceedings in the case of misdemeanors may be temporarily discontinued with the approval of the competent court, subject to the fulfillment of certain conditions and directions. Upon complete fulfillment of these conditions, the discontinuance becomes final.
- § 153b StPO: Proceedings for Crimes Committed Abroad
For offenses committed wholly or partly abroad, prosecution may be waived, for example if the perpetrator has already been prosecuted and punished abroad for the same act.
- § 154 StPO: Waiver Due to Other Offenses
Prosecution may be deferred or entirely discontinued if proceedings are already ongoing for other offenses and additional prosecution would have no significant effect.
- § 154b StPO: Waiver of Remainder of Sentence
Under certain conditions, such as when extradition proceedings abroad are envisaged, the criminal proceedings may be discontinued.
- § 376 StPO in conjunction with § 74d GVG: Waiver in Relation to Statute of Limitations
Discontinuance is also possible if the statute of limitations for prosecution has expired or is about to expire.
Principle of Disposition and Principle of Legality
Waiver is generally only possible for misdemeanors with a low degree of culpability; major offenses (felonies) are usually excluded from waiver. The decision-making authority primarily lies with the public prosecutor’s office; for certain types of proceedings, the court’s approval is required.
The tension between the principle of legality and the principle of opportunity is reflected in these norms: while the principle of legality obliges prosecuting authorities to sanction all prosecutable crimes, the law allows, through the principle of opportunity, flexible handling in individual cases in the interest of justice and procedural economy.
Practical Significance
Waiver of criminal prosecution serves several purposes:
- Relief of the Judiciary
Discontinuance due to minor guilt or lack of public interest prevents the courts from being excessively burdened with trivial matters.
- Proportionality and Preservation of Peace
In individual cases, it may not be appropriate to continue prosecution, for example if adequate reparation has already taken place outside criminal penalties.
- Victim–Offender Mediation
Through conditions and directions, a mutually agreeable solution between victim and accused can be promoted prior to the main proceedings by waiving prosecution.
Procedure and Processes
Decision-Making Authority and Procedure
The decision on waiving prosecution is initially made by the public prosecutor’s office. For certain discontinuances, such as under § 153a StPO, the approval of the competent court is required. The decision is communicated to the accused; in some cases, the victim must also be informed.
Consequences of Discontinuance
If a final discontinuance is granted without conditions, the proceedings are concluded for the accused and do not count as a conviction. Discontinuances subject to conditions become effective only when the accused has fully performed the agreed requirements. As a rule, the decision cannot be challenged by legal remedies.
Special Case Groups and Distinctions
Waiver of Prosecution for Juveniles
In juvenile criminal law (§ 45 JGG), waiver of prosecution is specifically regulated. Here, discontinuances for educational reasons are more common and serve the purpose of rapid reintegration rather than sanction.
Waiver of Prosecution for Foreign Offenses
According to § 153b StPO, prosecution may also be omitted if punishment has already been imposed abroad, in order to prevent double prosecution.
Distinction: Discontinuance of Proceedings under §§ 170(2), 206a StPO
The waiver of prosecution must not be confused with discontinuance due to insufficient suspicion or procedural reasons such as procedural obstacles (e.g., statute of limitations).
References and Links
- Legal texts (Code of Criminal Procedure, Juvenile Court Act)
- Commentaries and handbooks on the above-mentioned provisions
- Judicial statistics and publications by public authorities
Conclusion: Waiver of criminal prosecution is an important component of procedural criminal law that enables careful balancing of interests and allows judicial resources to be focused on serious cases. The associated rule-of-law oversight ensures that lenient responses to minor or already sanctioned offenses are clearly regulated and remain transparent.
Frequently Asked Questions
In which cases can prosecution be waived according to § 153 StPO?
According to § 153 of the Code of Criminal Procedure (StPO), the public prosecutor’s office may waive prosecution in the case of misdemeanors whose effects are minor and for which there is no public interest in prosecution. The prerequisite is that the offense is classified as minor in its impact and that there is no overriding public interest in judicial sanctions. In practice, this generally applies to first-time or less serious offenses such as minor thefts, insults, or property damage. In addition, an individual assessment must be carried out, with particular consideration of the offender’s personality, previous conduct, the course of the act, and the extent of the damage. Waiver of prosecution by the public prosecutor is, however, excluded if the victim objects to discontinuance, provided such a right of objection exists in the specific case.
What is the significance of the principle of opportunity for the waiver of criminal prosecution?
In German criminal procedure, the principle of legality is generally paramount, meaning that prosecuting authorities are obliged to initiate investigations when there is an initial suspicion. The principle of opportunity is an exception to this, allowing authorities—in particular in the case of minor offenses or under certain statutory circumstances—to refrain from prosecution or discontinue proceedings. The principle of opportunity serves, among other things, to relieve the judiciary and allows targeted allocation of resources by focusing on serious offenses. Examples can be found in § 153 StPO (waiver for triviality), § 153a StPO (discontinuance subject to conditions and directions), as well as in the provisions on petty offenses.
What role does the victim’s interest play in the waiver of prosecution?
The interest of the victim is a significant criterion that the public prosecutor must take into account as part of its discretionary considerations. According to § 153(1) sentence 2 StPO, discontinuance is generally not possible if there is a special public interest in prosecution, or if the victim demonstrates a legitimate interest in criminal prosecution and, where applicable, also makes use of a right of objection. For offenses subject to private prosecution, the victim’s interest is of particular importance. In such cases, discontinuance may only take place with the victim’s consent (§ 374 StPO), so that the victim’s interests are a decisive factor in the decision.
To what extent can prosecution be waived in the case of juvenile offenses?
According to the Juvenile Court Act (JGG), there are special provisions that facilitate the waiver of prosecution for offenses committed by young people. For example, § 45 JGG provides for the possibility of refraining from formal proceedings if educational measures or other interventions are considered sufficient to influence the juvenile. This serves the principle of education in juvenile criminal law, which focuses primarily on prevention and reintegration rather than punishment. Furthermore, § 47 JGG permits discontinuance even after indictment if there is no public interest in prosecution and the court concurs. The decision is made by the public prosecutor or the juvenile court after careful consideration of all circumstances, including the juvenile’s developmental status and the nature of the offense.
What procedural consequences does the waiver of (criminal) prosecution have?
The waiver of prosecution usually results in the termination of the investigation or criminal proceedings. Termination is effected either by court order, a decision from the public prosecutor’s office, or the court. Consequently, no further investigations will be conducted and the party concerned will not be considered to have a criminal record, provided the termination is not subject to a criminal reservation (such as under § 153a StPO). In certain cases, the discontinuance can be revoked, particularly if conditions or directions are not fulfilled. Once the proceedings are discontinued, no coercive measures may generally be imposed against the accused and he or she can reclaim their property (e.g., seized items).
Are there ways to challenge the waiver of prosecution?
The waiver of prosecution by the public prosecutor’s office is generally a discretionary decision against which the accused regularly has no legal remedy. However, there is a right of complaint for the victim in certain situations pursuant to § 172 StPO (so-called ‘compulsory prosecution proceeding’). This allows the victim, in particular for serious offenses, to request judicial review of the prosecutorial decision to discontinue the proceedings. Otherwise, the decision is legally binding unless new facts or evidence justify further action.
How does waiver of prosecution differ from discontinuance of proceedings under § 170(2) StPO?
Waiver of prosecution under §§ 153 ff. StPO occurs despite established suspicion of an offense, whereas discontinuance pursuant to § 170(2) StPO pertains to cases where there is no sufficient suspicion against the accused. The key difference is that, in the case of § 153 StPO, an initial suspicion exists in principle, but prosecution is waived for reasons of expediency—such as due to insignificance. By contrast, under § 170(2) StPO, sufficient suspicion is lacking so the authority terminates the proceedings for lack of evidence. The legal and practical implications differ in both cases: discontinuance for lack of suspicion signals unproven or unprovable misconduct, whereas waiver of prosecution under § 153 ff. StPO follows from proven but minor wrongdoing without public interest in prosecution.
