Concept and Basic Structure of the Official Procedure
Das Official Procedure is a central procedural principle in German as well as international law, which is applied in particular in public law and criminal procedure law. It is characterized by the fact that the initiation, course, and termination of a procedure do not depend solely on the applications or the will of the parties involved, but are primarily managed by the competent court or administrative authority. The determination of the facts as well as the conduct of the procedure is carried out “ex officio” (ex officio).
Distinction from Application Procedure
In contrast to the principle of official procedure is the application or disposition principle. While the official procedure emphasizes state interests and ensures objective truth-finding, the application procedure is primarily based on the interest and applications of the parties involved. In the official procedure, the parties are therefore not able to unilaterally control or terminate the process by withdrawing applications or by giving consent.
Legal Basis of the Official Procedure
Criminal Procedure Law
The official procedure is an indispensable principle in criminal procedure law. According to Section 152(2) of the Code of Criminal Procedure (StPO), the public prosecutor’s office in Germany is obliged to intervene ex officio if there is an initial suspicion. The court, in turn, is required by the official maxim to fully clarify the facts of the case. The investigation process and the public indictment are conducted regardless of an application by the injured party.
Principle of Legality and Principle of Official Procedure
The principle of official procedure in criminal law is closely connected with the principle of legality (§ 152 StPO). While the principle of legality formulates the obligation of authorities to prosecute crimes, the principle of official procedure describes the conduct of proceedings and investigations that occur ex officio.
Administrative Proceedings
The official procedure is also frequently applied in administrative law, especially when it concerns measures for averting danger or interventions in significant public interests. According to Section 24 of the Administrative Procedure Act (VwVfG), administrative authorities are obliged to conduct the administrative procedure ex officio and to comprehensively investigate the facts relevant to the decision (principle of investigation).
Family and Child Law
In family law, the official principle applies for example in matters of custody and in cases where the welfare of the child is endangered (§ 1696 BGB, § 1666 BGB). Here, courts are obliged to take action ex officio as soon as there are indications of a threat to the child’s welfare.
Procedural Design of the Official Procedure
Official Investigation and Determination of Facts
The core of the official procedure is what is known as official investigation. The court or authority is obliged to investigate the facts relevant to the decision independently and regardless of the submissions of the parties. The judicial duty to clarify takes precedence over the control of the parties and enables the court to collect evidence even against the will of the parties involved.
Rights and Duties to Cooperate of the Parties
Despite the centrally managed procedure, the rights of the parties are preserved. The parties are obliged to cooperate in determining the facts (§ 138 ZPO, § 26 SGB X), especially by submitting evidence and answering questions from the court or authority. However, their duty to cooperate does not replace the obligation to conduct official investigations, but rather supplements it.
Right to be Heard
Even in official procedures, the right to a fair hearing and to be heard pursuant to Article 103(1) of the Basic Law must be ensured. The parties must be given the opportunity to express their views on all relevant aspects and to participate in the proceedings.
Areas of Application of the Official Procedure
Criminal Proceedings
In criminal proceedings, the official principle is consistently formative. The initiation, conduct, and termination of criminal proceedings do not depend on the consent of the injured party. Even a withdrawal by the victim usually cannot stop the proceedings as long as there is a public interest in prosecution.
Public Law
In the domains of public law, especially police law and regulatory offences law, the official principle predominates. Authorities initiate proceedings, conduct investigations, and make decisions independently of an application or pursuit by the parties concerned.
Civil Proceedings
In civil law, the official procedure is only applied in a few exceptional cases. Typical areas of application are, for example, family court proceedings such as divorces without joint application, or in special circumstances in guardianship law.
Social Administrative Procedure
Social administrative procedures are regularly based on the official principle, which requires thorough examination of the eligibility requirements by the authority. Benefits are examined and, if necessary, granted even if the person concerned provides no or only incomplete information (§ 21 SGB X).
Legal Policy Classification and Significance
The official procedure serves to protect overriding community interests and to discover the truth in proceedings. The state assumes responsibility for the objective and proper conduct of the proceedings. This contributes to the rule-of-law oversight, the clarification of criminal offenses, and the protection of vulnerable individuals.
At the same time, by combining the official principle with the right to be heard—enshrined in almost all codes of procedure—individuals are protected from arbitrary state action and their interests are adequately taken into account.
Further Reading and Applicable Laws
- Code of Criminal Procedure (StPO), especially §§ 152, 155, 160, 244 StPO
- Administrative Procedure Act (VwVfG), especially § 24
- Civil Code (BGB), especially §§ 1666, 1696
- Social Code (SGB), especially §§ 21, 26 SGB X
- Basic Law (GG), Article 103(1)
Summary: The official procedure represents a fundamental principle of procedural conduct in German law. It ensures an objective, ex officio-led investigation of facts and design of the procedure in the fields of criminal law, administrative law, family law, and social law. The aim is the effective realization of the public interest and the protection of especially vulnerable groups, while ensuring that the rights of the parties and the right to be heard are fully preserved.
Frequently Asked Questions
When is the official procedure applied in criminal law?
The official procedure is generally applied in criminal law whenever official offenses are involved. This means that if there is suspicion of a criminal offense, law enforcement authorities—namely, the police and the public prosecutor’s office—are obliged to initiate an investigation and prosecute the offense irrespective of the will of the injured party. This is based on the so-called principle of legality according to § 152(2) of the Code of Criminal Procedure (StPO), which requires the public prosecutor’s office to act ex officio when it becomes aware of a prosecutable offense. In this context, it does not matter whether there is a formal complaint by the injured party. This type of proceeding particularly applies to offenses of significant public interest, such as bodily injury, theft, robbery, fraud, or murder, and is intended to ensure that the public interest in prosecution takes precedence over the individual interest of the victim.
How does the official procedure differ from the application procedure?
The official procedure differs fundamentally from the application procedure in that criminal prosecution in the official procedure is conducted ex officio, whereas in the application procedure an explicit criminal complaint by the injured party is required for an investigation to be initiated at all. Certain offenses, known as application offenses (e.g. trespassing, insult, or simple bodily harm), are generally prosecuted only upon application by the injured party, unless the public prosecutor’s office determines a special public interest in prosecution (§ 77a StGB). Thus, in the official procedure, the discovery and prosecution interest is vested solely with the state, whereas in the application procedure, the individual’s interest is initially taken into account.
What role does the principle of legality play in the official procedure?
The principle of legality is the fundamental principle of the official procedure. In German criminal law, the public prosecutor’s office is required by § 152(2) StPO to prosecute all criminal offenses that come to its attention ex officio. This obligation extends not only to obvious but also to merely suspected or reported offenses. The public prosecutor does not have general discretion in this matter (in contrast to the principle of opportunity). This principle serves the general public’s interest in uniform and fair prosecution, regardless of the person of the victim or offender, and thus also protects against arbitrary and selective prosecution.
What exceptions exist to the official procedure?
Although the official procedure is the rule, there are various exceptions. These include the aforementioned application offenses, where prosecution only commences upon submission of a criminal complaint. Additionally, juvenile criminal law (§§ 45, 47 JGG) allows for certain possibilities for discontinuing proceedings in the interest of the juvenile’s education. In adult criminal law, the public prosecutor’s office can also discontinue proceedings in specific cases under § 153 StPO due to insignificance, even if an official offense exists. Furthermore, in certain private prosecution offenses (such as insult or criminal damage), the authorities are not required to prosecute ex officio.
What significance does the official procedure have for victim protection?
The official procedure can have both advantages and disadvantages for victim protection. An advantage is that the victim does not have to take action to initiate prosecution; the state automatically takes the initiative and ensures that the crime is investigated and prosecuted independently of the injured party’s wishes. Moreover, the victim does not need to possess legal knowledge or resources to protect their interests. A disadvantage, however, may be that the victim has no influence over whether and how the prosecution is conducted, which can be problematic in sensitive cases (e.g., after sexual offenses) if a report is filed against the victim’s wishes and the authorities are obliged to prosecute.
Can an official procedure be initiated even without a complaint?
Yes, in the official procedure, a criminal complaint is an important source of information for law enforcement authorities, but it is not a mandatory prerequisite for initiating an investigation. The public prosecutor’s office and the police are obliged to commence investigations even if they become aware of a criminal offense by other means—for example, through their own investigations, witness tips, media reports, or informal notifications (§ 152(2) StPO). This ensures that potentially criminal conduct is prosecuted even if no one has formally filed a complaint.
