Definition and significance of the Aufklärungsbeschluss
The Aufklärungsbeschluss is an important term in German procedural law. In criminal proceedings, it denotes a formal judicial decision that determines the scope of the taking of evidence in the main hearing and sets the subject and purpose of the further taking of evidence. Thus, the Aufklärungsbeschluss marks a structured procedural step in the judicial establishment of facts, providing decisive orientation for both the court and the parties to the proceedings.
Historical development and classification
The legal institution of the Aufklärungsbeschluss developed especially in the context of the Code of Criminal Procedure (StPO) and is closely linked to the principle of material truth (§ 244 section 2 StPO). The introduction and elaboration of the Aufklärungsbeschluss were significantly shaped by the case law of the Federal Court of Justice. Since the 1990s, numerous court decisions have developed and specified the requirements, content, and legal binding effect of the Aufklärungsbeschluss.
Legal foundations
Code of Criminal Procedure (StPO)
The Aufklärungsbeschluss is not explicitly regulated in the Code of Criminal Procedure, but its necessity arises from § 244 section 2 StPO (duty of investigation/investigative obligation of the court) and from the general rules on procedural conduct (§§ 238 ff. StPO). The term itself was coined in case law and academic literature.
§ 244 section 2 StPO – Official duty of investigation
According to § 244 section 2 StPO, the court is obliged ex officio to investigate the truth and to undertake all evidence necessary for establishing the facts. From this arises the necessity to create clarity regarding the subject and scope of the taking of evidence by means of a judicial decision.
Other procedural codes
In civil, administrative, or labor court proceedings, there is no institution comparable to the Aufklärungsbeschluss in criminal procedural law. In these types of proceedings, the scope of evidence is generally determined by the evidentiary motions of the parties and the judicial evaluation of the evidence.
Form and content of the Aufklärungsbeschluss
Formal requirements
An Aufklärungsbeschluss is a formal decision of the court during the main hearing. It may be recorded in the minutes or drafted separately. Documentation ensures traceability and transparency with regard to the judicial taking of evidence.
Substantive requirements
The Aufklärungsbeschluss specifically names:
- The scope and sequence of the taking of evidence
- The individual matters to be proven (e.g. crime scene, time of offense, identification of the perpetrator)
- The means of evidence (e.g. witnesses, experts, documents)
- The rejection or postponement of evidentiary motions by the court, along with justification
- The court’s assessment of which facts can already be regarded as established
The level of detail depends on the individual case and the complexity of the proceedings.
Function and purpose
The Aufklärungsbeschluss serves several procedural and procedural-economy objectives:
- Transparency: The parties to the proceedings gain clarity about the court’s perspective and the anticipated course of the further taking of evidence.
- Right to be heard: The decision gives the opportunity to timely influence the identified matters to be proven and the means of evidence.
- Planning certainty: It facilitates the organization of the main hearing, e.g. by coordinating witness summonses and expert reports.
- Verifiability: For subsequent review in appellate proceedings, the judicial taking of evidence can be traced and verified.
Legal effects
Binding effect
The Aufklärungsbeschluss is generally binding for the court regarding the established scope of evidence. However, expansion or amendment during the proceedings is permissible, provided new evidentiary motions are submitted or new relevant aspects arise. Thus, the court’s freedom of decision in establishing the facts remains intact.
Legal protection and appeal
Because it is a procedural measure, the Aufklärungsbeschluss is generally not independently appealable. Objections to the content or scope of the decision can, however, be raised directly in the ongoing proceedings, particularly through applications pursuant to § 238 section 2 StPO (judicial decision in the event of refusal of applications).
Aufklärungsbeschluss in the context of rights to file evidentiary motions
Right of the parties to file evidentiary motions
In addition to the court’s duty to investigate, the parties have the right to file evidentiary motions pursuant to § 244 sections 3 and following StPO. Accordingly, the Aufklärungsbeschluss is also linked to the right to a fair trial and ensures that all applications relevant to the facts are considered.
Evaluation of evidence
The judicial handling of evidentiary motions becomes practically significant, particularly when the court views a particular motion as irrelevant or unfounded. Rejection of these motions must be presented and justified in the Aufklärungsbeschluss.
Practical relevance in judicial practice
The Aufklärungsbeschluss is used particularly in extensive criminal proceedings, for example in commercial criminal cases or in complex situations with numerous parties and evidence pieces. As a rule, the Aufklärungsbeschluss is announced at the conclusion of the taking of evidence to make it clear that the court considers the facts to be clarified and is ready to deliver its judgment.
Distinctions and related terms
Other procedural forms of decision such as evidence order und interlocutory judgment must be distinguished from the Aufklärungsbeschluss. The evidence order concerns individual evidentiary actions, whereas the Aufklärungsbeschluss is regularly more comprehensive and documents the court’s overall strategy for clarifying the facts.
Literature and further references
- Löwe-Rosenberg, StPO, Commentary, § 244 para. 60 ff.
- Meyer-Goßner/Schmitt, StPO, 66th edition, § 244 para. 20 ff.
- BGH, Judgment of 25.02.1998 – 2 StR 626/97
- BVerfG, Decision of 26.05.1981 – 2 BvR 215/81
Note: The Aufklärungsbeschluss is an essential instrument in criminal procedural law. Its significance lies in the systematic structuring and legally secure documentation of judicial fact-finding.
Frequently asked questions
When is an Aufklärungsbeschluss necessary in criminal proceedings?
An Aufklärungsbeschluss becomes necessary in criminal proceedings when, in the opinion of the court, questions relevant to the judgment remain unresolved and have not been clarified by the evidence taken so far. Particularly when the court is not sufficiently certain whether all facts vital to the decision have been clarified, it is obliged to fulfill its duty to investigate ex officio (§ 244 section 2 StPO). A formal Aufklärungsbeschluss documents which evidentiary actions are still to be undertaken and which concrete facts are to be proven thereby. The decision provides transparency for the parties as well as improved verifiability for appellate courts as to whether the court has fulfilled its duty to investigate.
Who can request the implementation of an Aufklärungsbeschluss?
In principle, it is the court’s duty to independently initiate or stipulate further clarification by decision; this is an obligation within the framework of its ex officio investigatory duty. Nevertheless, both the public prosecutor and the defense can submit motions for the taking of specific evidence. If an evidentiary motion is made by a party and denied, the court is still obliged to examine, as part of its discretion in establishing the facts under § 244 section 2 StPO, whether the proposed evidentiary action may not be dispensed with. If the court, after its own legal assessment, comes to the conclusion that further investigation is necessary, it issues a corresponding Aufklärungsbeschluss.
Must an Aufklärungsbeschluss always be issued in writing?
An Aufklärungsbeschluss is generally not subject to any mandatory written form. It may be issued orally in the main hearing or in writing, for example in the minutes of the hearing. Nevertheless, written documentation is especially recommended in complex or extensive evidence proceedings, since it clarifies the reasons for the decision and ensures transparency for the parties and possible later appellate review. In practice, the Aufklärungsbeschluss is usually recorded in the minutes of the main hearing or in a note from the presiding judge.
What significance does an Aufklärungsbeschluss have for further proceedings?
An Aufklärungsbeschluss marks a decisive phase in criminal proceedings by establishing which further investigations are to be conducted. Thus, the decision is binding for the parties and serves as a guideline as to which concrete evidentiary issues still need clarification. It also protects against arbitrary evidentiary actions and structures the proceedings by stating why certain evidence is to be taken or not taken. Moreover, it can serve as a basis in appellate or review proceedings for examining whether the court has fulfilled its duty to investigate to the required extent.
What remedies are available against an Aufklärungsbeschluss?
There is no direct legal remedy against an Aufklärungsbeschluss itself, as it is merely a procedural measure. However, decisions regarding the refusal or ordering of specific evidentiary actions can be reviewed during an appeal by means of a procedural complaint, if it is argued that the court has not, or not adequately, fulfilled its duty to investigate. In particular, failure to conduct evidentiary actions ordered by decision or refusal to consider evidence despite a continuing duty of investigation may be challenged by way of revision.
Can a party object to the content of an Aufklärungsbeschluss?
A formal objection to the content of an Aufklärungsbeschluss is not provided for procedurally. However, the parties can express their views regarding the scope and necessity of the taking of evidence during the main hearing, submit further motions, or draw attention to shortcomings in the investigation. Should the court not heed these indications, the only remaining recourse is, again, to seek review in appellate proceedings (such as by means of an appeal due to breach of the duty to investigate).
What are the consequences of omitting a required Aufklärungsbeschluss?
If a required Aufklärungsbeschluss is omitted in criminal proceedings and as a result, facts relevant to the decision are not further clarified, there is a violation of the legal duty to investigate (§ 244 section 2 StPO). This can result in the annulment of a judgment during appellate proceedings. The court of appeal then examines whether the omitted evidentiary action was relevant to the outcome of the proceedings (whether the decision was ‘based on’ the procedural error). In this respect, the absence of a required Aufklärungsbeschluss constitutes a considerable procedural risk, which in extreme cases can lead to annulment and remittal.
