Definition and legal classification of public prosecution offences
A public prosecution offence is a concept from criminal procedural law and refers to an offence that, regardless of the victim’s wishes, is prosecuted ex officio by the law enforcement authorities. The principle of official prosecution ensures that the state takes action independently and compulsorily as soon as there are indications of the commission of a criminal offence. The public prosecution offence thus stands in contrast to the complaint offence, where prosecution depends on the explicit request of the injured party.
Legal foundations
Procedural foundations
The obligation to prosecute public prosecution offences arises under German law in particular from Section 152 (2) of the Code of Criminal Procedure (StPO). Accordingly, public prosecutors are required to take action ex officio as soon as there is initial suspicion (principle of legality). Additionally, Section 160 StPO regulates the investigative duties of the public prosecutor. The police, under Section 163 StPO, are responsible for investigating offences classified as public prosecution offences.
Distinction from other types of offences
Not all offences are subject to the principle of official prosecution. Other types include, for example:
- Complaint offences: An explicit criminal complaint or application by the injured party is required here (e.g., for trespassing, Section 123 StGB).
- Authorization offences: Prosecution requires governmental authorization (e.g., in certain cases of political crime).
A key task in criminal law is the correct classification in order to determine the subsequent actions of the law enforcement authorities.
Doctrinal significance of public prosecution offences
Principle of legality and principle of opportunity
The public prosecution offence is directly linked to the principle of legality. Law enforcement authorities have no discretion as to whether or not to prosecute the offence once there is reasonable suspicion. In contrast stands the principle of opportunity, which allows for termination of proceedings at the authorities’ discretion in certain cases (§§ 153 et seq. StPO).
Significance for victims and accused
The principle of official prosecution reduces the victim’s influence on the initiation and conduct of the investigation procedure and ensures that prosecution takes place even if the victim cannot or does not want to file a complaint. This is particularly ensured in the case of serious offences of societal importance (e.g. homicide, grievous bodily harm, robbery). For the accused, the principle means that they must expect a comprehensive and objective criminal investigation once suspicion arises—regardless of the victim’s wishes.
Issues in classification and special types
Relative and absolute complaint offences
A special case concerns so-called “relative complaint offences,” which are generally prosecuted only upon complaint, but in exceptional cases can be prosecuted as a public prosecution offence. The prerequisite is a special public interest in prosecution, such as in cases like insult (Section 194 StGB) or simple bodily harm (Section 230 StGB).
Examples of public prosecution offences
Classic examples of public prosecution offences are:
- Murder (Section 211 StGB)
- Manslaughter (Section 212 StGB)
- Aggravated robbery (Section 250 StGB)
- Extortion (Section 253 StGB)
- Rape (Section 177 StGB)
- Dangerous bodily harm (Section 224 StGB)
For these offences, authorities are required to take action.
Practical impact and significance in criminal proceedings
Initiation and course of prosecution
As soon as the investigative authorities become aware of a public prosecution offence, they are legally obliged to start an investigation. This can occur by means of a criminal complaint, observations by authorities, media reports, or other indications. Investigations are carried out independently of the victim’s involvement and may continue even against the victim’s expressed wishes.
Procedural rights of the parties involved
In proceedings concerning a public prosecution offence, the accused is entitled to all rights arising from the investigative and main proceedings, in particular the right to be heard, the right to remain silent, and the right to defence. Injured parties are granted extensive rights to information, regardless of whether they have filed a complaint themselves.
International classification
The concept of public prosecution offences is also known in many other legal systems, although there are international differences in the details and scope. In continental European countries such as Austria or Switzerland, the classification largely follows the German system. In Anglo-American law, a comparable concept exists but with different procedural emphases since the principle of legality is less strictly applied there.
Criticism and reform debates
The comprehensive application of the principle of official prosecution is sometimes questioned, especially with regard to offences within a social or private context (e.g. simple bodily harm in relationship offences), where case-by-case discretion in prosecution may be considered appropriate. Nevertheless, public prosecution offences are seen as an indispensable pillar of a functioning rule of law due to the guarantee of objective and mandatory prosecution.
Summary
The public prosecution offence is a central category in criminal law, reflecting the state’s obligation to prosecute particularly serious offences or those affecting the general public. Through the principle of official prosecution, it is ensured that such offences are necessarily prosecuted by the authorities, regardless of the victim’s wishes. Public prosecution offences thus have overriding importance for the functionality, justice, and effectiveness of criminal justice.
Frequently asked questions
Who decides whether a public prosecution offence is prosecuted?
The decision on the prosecution of a public prosecution offence rests exclusively with the law enforcement authorities, in particular the public prosecutor’s office. Once the authority becomes aware of a possible public prosecution offence—whether through a report, its own investigation or otherwise—it is legally obliged to initiate an investigation. It does not matter whether a victim files a report or expressly waives prosecution. Law enforcement authorities act according to the so-called principle of legality, which states that an investigation is mandatory where there is sufficient initial suspicion. There is generally no room for discretion, as may exist for complaint or private offences. The initiative for prosecution thus solely lies with state authorities and cannot be independently controlled or prevented by private individuals.
Can a public prosecution offence be terminated through an out-of-court settlement?
As a rule, an out-of-court settlement between perpetrator and victim has no legal effect on prosecution in public prosecution offences. Even if the victim waives prosecution or reaches an agreement with the perpetrator (e.g. compensation or apology), the public prosecutor is still obliged to pursue the facts of the case. However, compensation already rendered can be taken into account during sentencing and, depending on the offence and circumstances, may lead to the termination of proceedings under certain provisions of the Code of Criminal Procedure, such as §§ 153 et seq. StPO under the principle of opportunity in minor cases. However, there is no direct “legal remedy” to terminate the criminal proceedings.
What is the significance of the principle of legality in public prosecution offences?
The principle of legality is the governing principle in the treatment of public prosecution offences. It requires law enforcement authorities to take action and initiate investigations whenever they become aware of relevant facts. This is intended to guarantee the equal and fair application of criminal law and to prevent prosecution from being arbitrary or dependent on subjective interests. Only in rare exceptional cases, such as ‘triviality’ (§ 153 StPO), may prosecution be dispensed with. In contrast, the principle of opportunity grants law enforcement a degree of discretion for certain types of offences (for example, complaint offences).
How do public prosecution offences differ from complaint offences in terms of prosecution?
For public prosecution offences, prosecution is initiated as soon as an authority becomes aware of the suspicion of an offence—a complaint by the injured party is not required. By contrast, prosecution of complaint offences generally requires an explicit application from the victim (§ 77 StGB). Without such a complaint, the offence remains unpunished, unless specific exceptions apply (e.g. special public interest). Furthermore, the victim of a public prosecution offence cannot prevent the initiation or continuation of criminal proceedings, whereas for complaint offences the complaint can be withdrawn.
Can companies or legal entities also be affected by public prosecution offences?
Yes, public prosecution offences can in principle be committed by or affect both natural and legal persons (e.g., companies, associations, foundations). For example, crimes such as corruption, fraud, or bribery are common in the business context and, if constituting a public prosecution offence, must likewise be prosecuted. For legal entities, separate criminal or administrative offence regulations apply, such as the Act on Regulatory Offences (OWiG), which provides for corporate fines, confiscation of assets, or other sanctions. Here, too, the public prosecutor’s office is obliged to investigate and, if necessary, file charges.
Are there exceptions to the obligation to prosecute public prosecution offences?
As a general rule, the obligation to prosecute public prosecution offences is compulsory, but German criminal law provides limited exceptions. These include, in particular, discontinuance of the proceedings for triviality (§ 153 StPO) or in the interest of the victim under § 154c StPO. In such cases, the prosecutor may terminate proceedings if, for example, the public interest in prosecution is not significant or perpetrator and victim have come to a comparative understanding. However, these exceptions must be interpreted restrictively and require careful examination by the investigating authorities in each case.
What options does a victim have in the case of a public prosecution offence?
The victim can initiate the investigation process by filing a report, but does not control the proceedings and cannot initiate or terminate them independently. Victims of a public prosecution offence have the right to testify as witnesses in criminal proceedings, to be represented by a lawyer, and under certain conditions to participate as joint plaintiffs (§§ 395 et seq. StPO). They are to be informed about the course of the proceedings and, within the scope of their rights as joint plaintiffs, may assert their own rights, such as applying for evidence to be taken or remedies. Nevertheless, the decision on prosecution fundamentally lies with the public prosecutor’s office.
