Mandatory Prosecution
Definition and Explanation of Terms
The term Mandatory Prosecution refers to a legal principle in German criminal procedure law, according to which law enforcement authorities – especially the public prosecutor’s office – are obliged to initiate preliminary investigations and clarify the facts of the case if there is an initial suspicion of a criminal offense. Mandatory prosecution is distinguished from the principle of discretion, which is applied, for example, in regulatory offense law. The basis for this obligation in Germany is, in particular, Section 152 (2) of the German Code of Criminal Procedure (StPO).
Legal Foundations
Provisions of Criminal Procedure Law
Mandatory prosecution is primarily regulated in the Code of Criminal Procedure (StPO). According to Section 152 (2) StPO, the public prosecutor’s office must take action as soon as there are sufficient factual indications of a prosecutable criminal offense. This results in an obligation to act for law enforcement authorities, in contrast to pure discretion (principle of discretion).
Distinction from the Principle of Legality
Mandatory prosecution is closely connected to the principle of legality which requires that criminal investigations must be initiated obligatorily, while the principle of discretion grants law enforcement authorities discretion. Mandatory prosecution concretizes the principle of legality and fundamentally excludes irrelevant considerations in prosecution.
Scope of Application and Significance
Binding Effect on Law Enforcement Authorities
Mandatory prosecution obliges in particular the public prosecutor’s office to carry out all investigations necessary for clarifying the offense upon initial suspicion and, if appropriate, to bring a public charge. The police are also bound by the mandatory prosecution requirement when conducting criminal investigations (Section 163 (1) StPO).
Exceptions to Mandatory Prosecution
Under German criminal procedure law, exceptions to mandatory prosecution are provided in rare cases. These include, in particular, Discontinuation of Proceedings pursuant to §§ 153 et seq. StPO as well as criminal complaints in the case of absolute application offenses. In such cases, the principle of discretion partially replaces mandatory prosecution. Reasons for discontinuation include triviality (Section 153 StPO) or restitution (Section 153a StPO).
Effects of Mandatory Prosecution
Function in a Constitutional State
Mandatory prosecution serves to ensure uniform and just state intervention in legal violations. It protects the principle of equality before the law (Art. 3 Basic Law) by preventing arbitrariness and selective prosecution. Thus, it constitutes an important pillar of legal certainty and adherence to the law.
Practical Consequences
For affected individuals, mandatory prosecution guarantees a reliable reaction by law enforcement authorities to criminal offenses. For the authorities, this means that they may not refrain from or discontinue investigations at their own discretion if there is an initial suspicion, unless a statutorily regulated exception applies.
Distinction from Related Terms
Difference to the Principle of Discretion
The principle of discretion applies in Germany to proceedings for regulatory offenses (Section 47 OWiG) and partially in juvenile criminal law. It allows, under certain conditions, the possibility to refrain from prosecution. As a rule, mandatory prosecution excludes this possibility and obliges the authorities to investigate and, if necessary, to take criminal procedural measures.
Reference to Other Areas of Law
In civil and administrative law, there is no mandatory prosecution in the sense of criminal procedure law. There, parties are generally responsible for enforcing their own claims.
Criticism and Discussion
Overburdening of Law Enforcement Authorities
In practice, mandatory prosecution is sometimes viewed critically, since it is associated with a high workload for the police and public prosecutor’s office. Even in minor offenses or cases of minor guilt, there is generally an obligation to prosecute, which ties up resources. The legally stipulated options for discontinuation therefore serve as a pragmatic balance.
Development in Case Law
The courts have further specified the principles of mandatory prosecution. In particular, it has been decided for initial suspicion that even vague indications may trigger an obligation to investigate, provided they do not appear to be ruled out from the outset. At the same time, the extent of investigations is limited by considerations of proportionality and efficiency.
International Comparisons
In the international context, the principle of mandatory prosecution is found predominantly in continental European legal systems. In many common law countries, prosecutorial discretion generally prevails, whereas mandatory prosecution entails a binding obligation to investigate and prosecute.
Literature and Further Information
- Code of Criminal Procedure (StPO), in particular Section 152 (2) StPO
- Maus, Michael: “Das Legalitätsprinzip in der Strafverfolgung”, 2019
- Roxin, Claus: “Strafverfahrensrecht”, 30th edition, 2022
- Schmidt, Eberhard: “Strafprozess”, Commentary, 21st edition, 2023
See also:
- principle of legality
- Principle of Discretion
- Initial Suspicion
- Discontinuation of Proceedings
The term Mandatory Prosecution thus constitutes a central element of German criminal procedure law, laying down the duties of law enforcement authorities and thereby protecting individual rights as well as the interests of the general public.
Frequently Asked Questions
When does the so-called mandatory prosecution apply to the public prosecutor’s office?
Mandatory prosecution, also known as the principle of legality, generally obliges the public prosecutor’s office to initiate criminal investigations and prosecute an offense when there is an initial suspicion of a criminal act (Section 152 (2) StPO). This applies regardless of discretion or considerations of expediency and therefore differs significantly from the principle of discretion, which applies in particular to regulatory offenses. As soon as the public prosecutor’s office becomes aware of sufficient factual indications for a prosecutable offense, it must act ex officio. However, there are also exceptions to this, for example in the area of private prosecution offenses or when criminal prosecution authorizations or applications are required.
Are there exceptions to mandatory prosecution under German criminal procedural law?
Yes, German criminal procedure law does recognize exceptions to mandatory prosecution. In particular, in the case of minor offenses, prosecution may be waived under Section 153 StPO if there is no public interest in prosecution. Other exceptional cases arise in the area of private prosecution offenses (Section 374 StPO), in which the public prosecutor’s office is required to prosecute only under certain conditions. Similarly, for crimes requiring a criminal complaint, authorization, or leave to prosecute, investigative authorities are only obliged to act if these specific prerequisites are present.
What are the consequences of a violation of mandatory prosecution?
A violation of mandatory prosecution can result in a breach of the principle of legality in criminal prosecution, which may lead to significant legal consequences. Affected parties have the option to seek judicial review through the so-called ‘action to compel prosecution’ according to Section 172 StPO if the public prosecutor’s office fails to adequately pursue the initial suspicion. For public prosecutors responsible, disciplinary measures may be imposed if they culpably neglect their statutory duties.
To what extent does the principle of discretion limit mandatory prosecution in criminal procedure law?
The principle of discretion applies subsidiarily to the principle of legality in criminal procedure law and allows the public prosecutor’s office, in certain cases and notwithstanding the existence of an initial suspicion, to refrain from prosecution. This is possible, for example, in cases of minor offenses according to Sections 153, 153a StPO. However, application of the principle of discretion generally requires the offense to be of minor legal significance and that there is no public interest in prosecution. In cases of serious crimes, mandatory prosecution remains in effect and the principle of discretion does not apply.
How does mandatory prosecution relate to decisions to discontinue proceedings under Section 170 (2) StPO?
Mandatory prosecution obliges the public prosecutor’s office to initiate an investigation upon initial suspicion. However, if during the course of the investigations, the public prosecutor’s office finds that there is no sufficient suspicion, it may discontinue the proceedings under Section 170 (2) StPO. In such cases, there is no violation of mandatory prosecution, as the obligation only requires investigations in the event of initial suspicion, not to bring charges in every case.
What is the significance of mandatory prosecution in international mutual legal assistance?
In the area of international mutual assistance in criminal matters, the principle of dual criminality and observance of the principle of legality by the requested authority generally apply. If a request is made from another state and the offense is also punishable under German law, the German public prosecutor’s office is bound by the principle of legality and must initiate or support investigations as long as there are no grounds for exclusion such as political offenses or procedural obstacles.
Do the same obligations regarding mandatory prosecution apply to the police as to the public prosecutor’s office?
Yes, police authorities are also generally subject to the principle of legality in the course of criminal prosecution and are required, upon becoming aware of sufficient factual indications of a criminal act, to commence investigations and inform the public prosecutor’s office (Section 163 StPO). However, they act as auxiliary officers of the public prosecutor’s office and do not make autonomous decisions regarding prosecution, but rather support prosecutorial investigations. The police thus do not have an independent principle of discretion.
