Concept and Fundamentals of the Principle of Opportunity
Das Principle of Opportunity is a central principle of procedural law, particularly in criminal law and administrative offences law. It describes the discretion of the public prosecutor’s office or a competent authority in the prosecution of crimes or administrative offences. In contrast to the principle of legality, which prescribes an obligatory duty to prosecute every crime or administrative offence, the principle of opportunity allows for dispensing with prosecution in favor of considerations of expediency. The principle is found in various regulatory contexts and is significant both nationally and internationally.
Areas of Application of the Principle of Opportunity
Criminal Procedure Law
In criminal procedure law, the principle of opportunity contrasts with the principle of legality (§ 152 (2) StPO). While the principle of legality generally requires the public prosecutor’s office to pursue every initial suspicion of a crime (so-called prosecutorial obligation), the principle of opportunity provides a scope of discretion.
Examples of opportunity-guided decisions in German criminal proceedings include:
- Termination of proceedings for insignificance (§ 153 StPO): The public prosecutor’s office may refrain from prosecuting minor offences if there is no overriding public interest.
- Termination with conditions and instructions (§ 153a StPO): Here, the proceedings may, inter alia, be provisionally terminated upon payment of a monetary condition and, upon fulfillment, prosecution is finally waived.
- Dispensing with prosecution in juvenile criminal law (see §§ 45 and 47 JGG): In cases of minor guilt or when educational measures are considered for the juvenile, the public prosecutor’s office may terminate the proceedings.
Through the principle of opportunity, the state’s claim to prosecution is made more flexible and adapted to practical considerations such as judicial economy and offender-victim reconciliation.
Law on Administrative Offences
In the law on administrative offences, the principle of opportunity generally prevails (§§ 46, 47 OWiG). The administrative authorities have significant discretion as to whether and to what extent they pursue or sanction an administrative offence:
- Termination of the proceedings (§ 47 OWiG): The authority decides whether to terminate or continue the proceedings, for example in cases of minor traffic offences or trivial matters.
- Waiver of imposing a fine (§ 56 OWiG)
Here, the principle of expediency is particularly evident, as it aims to prevent authorities from being overburdened with trivial cases.
Civil Law Areas of Application
In civil procedure law, the principle of opportunity plays only a subordinate role, as the principle of party disposition generally prevails, meaning the parties determine the course of the proceedings.
Historical Development of the Principle of Opportunity
The principle of opportunity developed as an alternative to the strict principle of legality. Its historical roots are found especially in the Anglo-Saxon legal system, where prosecution authorities traditionally have greater discretion. In continental European legal systems, the principle of legality became the rule only in the 19th century and was later relaxed in certain areas by the principle of opportunity. In the Federal Republic of Germany, the first codified forms of the principle of opportunity were introduced into law with the StPO reforms of the 1970s.
Distinction: Principle of Opportunity vs. Principle of Legality
The principle of legality requires the prosecution of all crimes and is reflected in § 152(2) StPO: “The public prosecutor’s office is obliged to act in response to all prosecutable crimes…”. In contrast, the principle of opportunity allows for a discretionary decision. In practice, the distinction is often fluid, but the respective areas of application are clearly regulated by law.
Legal Consequences and Significance
The principle of opportunity ensures proportionality and judicial economy. By allowing proceedings to be discontinued, the judicial system is not overburdened with minor cases. At the same time, it permits flexible responses to particular circumstances, such as offender-victim mediation, restitution, or special preventive considerations. The principle also has a relieving effect for suspects whose conduct surpasses the threshold of criminal liability but does not amount to significant wrongdoing.
There is constitutional oversight to the extent that the prohibition on arbitrariness (Art. 3 (1) GG) and the principle of equality must be observed. The discretionary powers of authorities are therefore subject to judicial review.
Criticism and Controversies
The principle of opportunity is not without controversy. Critics fear a risk of inconsistency and arbitrariness in the decisions of authorities, especially in comparable situations. Proponents, on the other hand, emphasize improved efficiency, the relief of the judicial system, and flexibility in the application of the law. Academics additionally discuss the limits of the principle of opportunity, especially whether too broad an application could lead to an erosion of the rule of law.
Principle of Opportunity in International Legal Comparison
In the international context, the principles of legality and opportunity vary greatly. While in the Anglo-Saxon world the principle of opportunity predominates and, for example, in the USA the “discretion” of prosecution is the norm, in many continental European countries the principle of legality is the guiding model, supplemented by internal exceptions for opportunity. The European trend shows a gradual move towards a more flexible approach to trivial and mass proceedings.
References
- Meyer-Goßner/Schmitt: Code of Criminal Procedure, Commentary, current edition
- Beulke/Bosch: Criminal Procedure Law, Textbook
- Göhler: Law on Administrative Offences, Commentary
Summary
The principle of opportunity is a fundamental tenet in criminal and administrative offences law, granting authorities discretionary powers in the prosecution of criminal behavior. It ensures a flexible, expedient application of the law and thus contributes to relieving the judicial system. At the same time, its limits and the handling thereof are the subject of professional and constitutional debate. The principle stands in tension with the principle of legality and reflects both the dynamics of current legal policy discussions and the practical needs of justice administration.
Frequently Asked Questions
Can the public prosecutor terminate proceedings under the principle of opportunity even though there is initial suspicion?
The principle of opportunity allows the public prosecutor, in certain statutory cases, to refrain from prosecuting even if there is initial suspicion of a crime. Unlike the principle of legality, which generally requires the prosecution of all prosecutable offences, the principle of opportunity, especially in so-called minor cases (§ 153 StPO) or where restitution is made or certain conditions and instructions are fulfilled (§ 153a StPO), allows for discretion. However, the public prosecutor must always review the statutory requirements and weigh whether the public interest in prosecution is outweighed. It should also be noted that judicial approval may be required and in some cases, victims can object to or appeal a discontinuance. Thus, discontinuance despite initial suspicion is not an injustice, but a pragmatic response permitted by law to certain, mostly minor, offences.
Are there offences to which the principle of opportunity may not be applied?
The principle of opportunity does not generally apply to so-called official offences of considerable seriousness and is largely excluded in the case of felonies, that is, crimes punishable by a minimum term of one year’s imprisonment. This is laid down by law, in particular in §§ 153 ff. StPO, which explicitly regulate exceptions and restrictions. For capital crimes such as murder, manslaughter, or serious sexual offences, there is always a duty to prosecute, so discontinuance for reasons of expediency is not permitted. Similarly, for offences where there is a particular public interest or a risk of recidivism, the principle of opportunity is generally not applied.
What role does the public interest play in the principle of opportunity?
The public interest is a central criterion for the prosecutor’s decision based on the principle of opportunity. The assessment depends on the significance of the offence, the need for punishment, the consequences of the act, and the specific conduct of the offender before and after the act. If the public interest is considered low, for example in first-time, minor, and harmless offences, a discontinuance may take place even without conditions. If, however, there is significant public interest in prosecution, such as due to the seriousness of the crime, risk of repetition, or need for prevention, the principle of opportunity is applied restrictively.
How is the procedure structured when the principle of opportunity applies?
Procedurally, the public prosecutor must first determine whether the requirements for a discontinuance on grounds of opportunity are met. The proceedings may be discontinued either without judicial involvement or, when prescribed by law (e.g. under § 153a StPO), only with the court’s approval, and in some cases with the accused’s consent. The decision to discontinue is communicated in writing or orally, with both the victim and the accused being informed in specific situations. As a rule, there is no public announcement to avoid stigmatizing the accused. If proceedings are discontinued under § 153a StPO, the court checks the conditions, and if these are not met, the proceedings are resumed.
What legal remedies are available against the discontinuance of proceedings under the principle of opportunity?
The victim has certain remedies against the discontinuance of criminal proceedings under the principle of opportunity: They can pursue what is known as a compulsory prosecution motion under § 172 StPO, but only if it concerns a discontinuance described in § 170(2) StPO. For discontinuances under §§ 153, 153a StPO, there is no formal compulsory prosecution, but the victim can file a complaint with the Chief Public Prosecutor according to § 172(2) StPO. The accused, as a rule, cannot appeal a discontinuance under the principle of opportunity, unless it is a discontinuance with conditions to their detriment, against which they may lodge a complaint.
Are there differences in the principle of opportunity between adult and juvenile criminal law?
In juvenile criminal law, the principle of opportunity is traditionally interpreted more broadly. Under §§ 45, 47 JGG, the juvenile prosecutor has greater discretion and can discontinue proceedings in the interest of the juvenile’s education even in cases of moderate seriousness, particularly if an educational approach or youth welfare measures benefit the offender. In adult criminal law, the prerequisites are more restrictive; here, the protection of legal interests and prevention are more central. The flexibility in juvenile law serves early intervention and the avoidance of unnecessary stigmatization of young people.
How does the principle of opportunity relate to the principle of legality?
The principle of legality obliges authorities to prosecute all known criminal offences. The principle of opportunity is a statutory exception to this principle and allows for a case-by-case balancing of interests, in particular to conserve resources, deal with trivial cases, and reach solutions tailored to individual circumstances. The conditions under which the principle of legality is set aside are, however, legally defined (e.g. §§ 153, 153a StPO) and are intended as exceptions. The decision is therefore at the discretion of the public prosecutor’s office and is subject to statutory, judicial, and, where applicable, victim-related control mechanisms.
