Definition and significance of the opening order
Der Opening order is a central concept in criminal procedure law and refers to the formal decision of a court to open the main proceedings against an accused person. This order marks an important stage in German criminal proceedings, since it determines that, based on the investigations carried out so far, there is sufficient suspicion to justify a possible later conviction according to the court’s opinion. The opening order thus serves as a filter between the investigation proceedings and the main proceedings and protects suspects from unjustified main proceedings.
Legal basis of the opening order
Statutory foundation
The legal basis of the opening order can primarily be found in the Code of Criminal Procedure (StPO), particularly in §§ 203 to 211 StPO. The most important provisions are:
- Section 203 StPO: Examination of the indictment and prerequisites for opening proceedings.
- Section 204 StPO: Decision on the opening of the main proceedings (opening order) or rejection of the opening.
- Section 207 StPO: Content and scope of the opening order.
Prerequisites for the opening order
The central prerequisite for issuing an opening order is the existence of sufficient suspicion (Section 203 StPO). This means that, based on the file records, a conviction of the accused person in the main hearing is likely. Insufficient indication of a crime or suspicion already refuted leads to rejection of the opening of proceedings.
Content and effect of the opening order
Content requirements
According to Section 207 (2) StPO, the opening order must in particular contain the following information:
- The alleged offence, including time, place, and other relevant circumstances.
- The statutory elements of the offence that are said to have been met by the act.
- The provisions of the Criminal Code or other relevant statutes to be applied.
- The designation of the court conducting the main hearing.
Legal consequences of the opening order
With the opening order, the proceedings move from the investigation stage to the main proceedings. The competent court is then obliged to hold a main hearing and to conclude the proceedings by means of a judgment, termination, or other conclusion. The order further establishes that the indictment forms the basis for the main hearing.
Procedure for opening proceedings
Scope of review by the court
Before issuing an opening order, the court examines whether the indictment meets formal requirements and whether the facts justify sufficient suspicion of a criminal offense. This examination is conducted solely on the basis of the investigation files; evidence is not taken at this stage.
Possible actions by the court
The court has the following procedural options:
- Opening of the main proceedings by opening order: If sufficient suspicion exists, the main proceedings will be opened.
- Rejection of opening: If there are insufficient grounds for suspicion, the court rejects the opening (§ 204 StPO).
- Request for further investigations: The court may, where necessary, order further investigations before reaching a decision on opening (§ 202 StPO).
Binding effect and influence on the proceedings
The opening order binds the court to the procedural subject as determined, i.e., to the offence specified in the order. Extensions or modifications are permitted under the conditions of §§ 264 et seq. StPO.
Legal remedies and possibilities for review
There is generally no direct legal remedy against the opening order itself. However, affected persons may complain about procedural errors in the further proceedings. In contrast, the rejection of the opening of proceedings may be challenged by an immediate complaint (§ 210 (2) StPO).
Special constellations and procedural peculiarities
Special types of proceedings
- Juvenile criminal matters: Partly different regulations apply here, for example with regard to the involvement of youth courts.
- Cases before jury chambers and special jurisdictions: The court opening the proceedings also decides on jurisdiction for the main proceedings (§ 209 StPO).
- Limitation of indictment: The court may open the main proceedings only for part of the offences contained in the indictment (§ 207 (1) StPO).
Significance in international law
Comparable foreign legal systems often have similar filtering mechanisms, though these may be structured differently. In Germany, judicial control and securing the transition from the investigation stage to the main proceedings is ensured particularly by the judicial opening order.
Practical relevance and legal protection
The opening order plays an important role in practice for safeguarding proceedings and as a protective mechanism against unfounded criminal prosecution. It ensures that only those proceedings reach the main hearing in which a conviction appears likely, and prevents those affected from being unnecessarily exposed to the pressure of public criminal proceedings.
Literature and further references
For an in-depth examination of the legal institution of the opening order in German criminal procedure law, the relevant commentaries on the Code of Criminal Procedure as well as the current case-law-related literature are recommended. In addition, statutory texts and decisions of higher courts are also available on the information websites of the judiciary and the Federal Ministry of Justice.
Frequently Asked Questions
What legal effects does the opening order have?
Within the context of criminal procedure, the opening order is a formal act by the court with which the main proceedings are opened (§ 203 StPO). With the opening order, it is established that there is sufficient suspicion against the accused and that the main proceedings are to be conducted before the competent criminal chamber. The legal effects are multi-layered: on the one hand, the accused is thus formally transformed into a defendant. Furthermore, procedural control passes from the investigating judge or the public prosecutor’s office to the trial court, with the consequence that from then only the court can organize the main hearing and decide on measures such as continuation of pre-trial detention (§ 207 (4) StPO). Moreover, pursuant to § 78c (1) no. 6 StGB, the opening order suspends the statute of limitations for the duration of the proceedings, so that prosecution can no longer be frustrated by lapse of time. Finally, the opening order is binding for the parties involved, meaning that new charges would have to be dealt with in separate proceedings unless a supplementary indictment is brought in accordance with legal requirements.
What legal remedies are available against the opening order?
There is no direct legal remedy against the opening order itself, as the law expressly excludes such an option in order to ensure the expeditiousness and efficiency of the proceedings. A review by way of complaint under § 304 StPO is not allowed, as the opening order is excluded from remedies pursuant to § 305 sentence 1 StPO. However, there are certain exceptions in which incidental review may be permitted, for example in the context of a complaint against pre-trial detention (§ 117 StPO), if the material lawfulness of the opening order is affected in connection with pre-trial detention. In addition, a review can ultimately be conducted under § 337 StPO in the course of an appeal on points of law, i.e., after conclusion of the main proceedings, if an opening order was made unlawfully.
What is the significance of the opening order for the court’s jurisdiction?
With the opening order, the court issuing it becomes responsible for the subsequent main hearing. Jurisdiction is primarily determined by the provisions of the Courts Constitution Act (GVG) and the Code of Criminal Procedure (StPO), particularly §§ 209 and 209a StPO. The opening order binds the court to the findings made therein regarding the charges and the legally designated judge (Art. 101 (1) sentence 2 GG). A court once declared to have jurisdiction generally remains competent, even if new circumstances arise later. Should doubt about the factual or local jurisdiction arise during the proceedings, the corresponding provisions regarding transfer to the competent court must be observed. Violation of these jurisdictional provisions can indeed constitute grounds for appeal.
What examinations must the court undertake in the context of the opening order?
Before issuing the opening order, the court is obliged to conduct an independent, comprehensive examination of the public prosecutor’s indictment. First, the court must determine whether there is sufficient suspicion (§ 203 StPO), which involves a forecast as to the likelihood of conviction; this means that, according to the files, sufficient evidence must be available for a later conviction. The court must also examine whether there are procedural obstacles, such as double jeopardy (ne bis in idem), statute of limitations, missing procedural requirements, or immunity of the accused. The formal correctness of the indictment and the jurisdiction of the court must also be checked. If doubts exist as to particular points of the indictment, the court may open the proceedings only in part or reject certain points by order according to § 207 (2) StPO.
Can the scope of the proceedings be limited by the opening order?
Yes, the opening order determines the material scope of the proceedings by either admitting the indictment in full or opening the main proceedings only in relation to certain distinct parts of the indictment (§ 207 (2) StPO). Matters for which sufficient suspicion cannot be established are generally excluded from the opening. As a result, the main hearing may only be conducted regarding the acts mentioned in the opening order. Extension of the subject matter of the proceedings is permissible only by way of a supplementary indictment (§ 266 StPO) or through a separate new opening order, which protects the rights of the defendant and ensures a fair trial.
What formal requirements must an opening order meet?
The opening order must be issued in writing as a judicial order and must in particular accurately specify the court opening the proceedings, the personal details of the accused, as well as the alleged facts (time of offence, location, essential course of events). In addition, the order contains a reference to the statutory provisions believed to have been fulfilled, as well as the specification of before which chamber or criminal judge the proceedings should take place (§§ 207, 213 StPO). The order must be reasoned, specifying in particular the factual and legal considerations underlying the indictment or any restriction of the proceedings. The reasoning may generally be dispensed with if the indictment is fully admitted; if the opening is only partial or certain charges are rejected, reasons are mandatory. The order must be served and communicated together with information on available legal remedies, insofar as provided under general provisions.
