Definition and legal classification of the Public Prosecution
The Public Prosecution is a central instrument in criminal procedure law that initiates the formal process of criminal prosecution. The term refers to the action of a public prosecutor’s office, or in rare exceptional cases, another authorized authority, to commence a criminal proceeding by submitting an indictment or an application for a penal order to the court. In the German Code of Criminal Procedure (StPO), the Public Prosecution is regulated in §§ 151 ff. StPO and constitutes the prerequisite for judicial investigation and decision on a criminal offense.
Statutory foundations
The relevant legal provisions regarding the Public Prosecution are contained in §§ 151 to 207 StPO. According to § 151 StPO, a criminal court investigation may only take place on the basis of an indictment, penal order, or an application for a judicial decision (e.g., in security proceedings). Thus, the Public Prosecution is a mandatory prerequisite for main proceedings in criminal court.
Purpose and function of the Public Prosecution
The Public Prosecution serves to uphold the public interest in criminal justice. It ensures that prosecution is carried out systematically, based on legal principles, and founded on sufficient suspicion. The goal is an objective and appropriate administration of criminal justice, considering the interests of the general public as well as the rights of the individual parties involved in proceedings.
Requirements and course of the Public Prosecution
Preliminary investigation
Before the Public Prosecution is filed, the investigation procedure is usually conducted under the direction of the public prosecutor’s office. Here, facts are clarified by the police and other investigating authorities, evidence is collected, and it is examined whether there are sufficient grounds for suspicion to justify an indictment.
Principle of legality and principle of opportunity
The principle of legality (§ 152 para. 2 StPO) obligates prosecuting authorities to initiate criminal prosecution if there is an initial suspicion. By way of exception, the principle of opportunity (e.g., §§ 153 ff. StPO) allows for the discontinuation of proceedings without filing an indictment, especially in minor cases, if there is no public interest in prosecution.
Decision and filing of the Public Prosecution
If, on the basis of its investigation, the public prosecutor’s office finds sufficient grounds for suspicion (§ 170 para. 1 StPO), it files the Public Prosecution. This is generally done by submitting an indictment to the competent court. As a milder alternative, in suitable cases a penal order application pursuant to § 407 StPO may also be made.
Forms of the Public Prosecution
- Indictment: The rule in the case of medium and serious offenses.
- Penal order: For lesser offenses without a main hearing.
- Extended forms: E.g., security proceedings when criminal incapacity exists.
Judicial review of the Public Prosecution
Following receipt of the indictment, the court examines whether the legal requirements for opening the main proceedings are met (§§ 203-207 StPO). If there are sufficient grounds for suspicion, the court admits the indictment for the main hearing; otherwise, the proceedings are discontinued.
Distinction from other types of action
Private prosecution
The private prosecution pursuant to §§ 374 ff. StPO enables the injured party, in certain offenses, to initiate criminal proceedings without the involvement of the public prosecutor. The Public Prosecution differs in that it is always brought by the public prosecutor, while the private prosecution arises from the direct application right of the aggrieved party.
Joint prosecution
The joint prosecution (§§ 395 ff. StPO) is a form of participation for the injured party in criminal proceedings, but does not alter the fact that prosecution is still carried out by means of the Public Prosecution by the public prosecutor.
Special regulations and exceptions
Compulsory prosecution procedure
If, after completing its investigations, the public prosecutor’s office concludes that there is not sufficient suspicion and discontinues the proceedings in accordance with § 170 para. 2 StPO, the injured party may apply to the Higher Regional Court for a so-called compulsory prosecution procedure (§ 172 StPO). The court examines whether prosecution should have been initiated.
Possibilities for discontinuation prior to the Public Prosecution
The public prosecutor may waive the filing of Public Prosecution for various reasons, for example in cases of minor guilt (§§ 153, 153a StPO), with the consent of the court and the accused. This helps to avoid overloading the courts with trivial cases.
Legal status and significance of the public prosecutor
In connection with Public Prosecution, the public prosecutor assumes a central role. It is the ‘master of the investigation procedure,’ decides on the filing of the indictment, and acts as the prosecution authority throughout the criminal trial. It is obligated to act objectively and impartially (§ 160 para. 2 StPO).
International comparisons
Comparable instruments to the public prosecution also exist in other legal systems. In Anglo-American jurisdictions, for example, ‘indictments’ or ‘informations’ are frequently filed by prosecutors or grand juries, but the underlying function remains similar: the formal initiation of judicial criminal investigations and decision procedures by a state body.
Significance of the Public Prosecution in the rule of law
The Public Prosecution is an essential component of due process in criminal proceedings. It ensures that the court process is bound to statutory requirements, protects against arbitrary or extraneous prosecutions, and enables control by both the court and through appeals and complaint mechanisms.
Literature and further sources
- Code of Criminal Procedure (StPO)
- Meyer-Goßner/Schmitt, Strafprozessordnung, commentary, current edition
- Kudlich/Hilgendorf, Criminal Law and Criminal Procedure Law, Fundamentals
This legal lexicon article provides a comprehensive legal explanation of the Public Prosecution and serves to guide and improve understanding of criminal procedure practice.
Frequently asked questions
Who is authorized to file a public prosecution?
The authority to initiate a public prosecution in Germany lies primarily with the public prosecutor’s office. According to § 151 of the Code of Criminal Procedure (StPO), court proceedings in criminal cases begin with the initiation of the public prosecution. The public prosecutor, as ‘master of the investigation procedure,’ checks whether, based on the investigation results, there is sufficient suspicion of an offense (§ 170 para. 1 StPO). Only if this is the case does it file the public prosecution with the competent court. In a few exceptional cases, other authorities, such as customs or tax authorities, may take on this role within their specific jurisdiction, for example in tax offenses.
In which cases is public prosecution dispensed with?
According to § 153 ff. StPO, the public prosecutor can refrain from filing a public prosecution if the offense is minor and there is no public interest in prosecution. In cases of discretionary offenses (Opportunitätsdelikte), the public prosecutor thus has discretion as to whether to file an indictment. Additionally, it may discontinue proceedings subject to conditions and instructions (§ 153a StPO). However, serious offenses remain unaffected by this, where public interest in prosecution is presumed. The decision not to prosecute must always be justified in a discontinuance order and communicated to the accused and, if applicable, the complainant.
Can a private prosecutor compel a public prosecution?
A private prosecutor cannot personally file a public prosecution, as this is the exclusive prerogative of the public prosecutor. However, the injured party in a criminal offense is entitled to the so-called compulsory prosecution procedure under § 172 StPO. If the public prosecution is not initiated and the proceedings are discontinued pursuant to § 170 para. 2 StPO, the applicant can have the refusal to prosecute reviewed by the Higher Regional Court. The requirement is that a complaint against the discontinuation has previously failed.
What is the procedure after filing the public prosecution?
Following the filing of the public prosecution, the public prosecutor forwards the indictment along with the investigation files to the competent court. In the so-called intermediate proceedings, the court examines the admission of the indictment according to § 203 StPO. As part of this review, the court determines whether the alleged facts constitute a criminal offense and if there is sufficient suspicion. If the court reaches a positive conclusion, it admits the indictment for the main hearing and opens the main proceedings. Otherwise, it denies the opening of the main proceedings.
What legal remedies are available against the filing of a public prosecution?
Generally, no direct legal remedies are available against the filing of the public prosecution itself. Should the court admit the indictment, the accused remains entitled to raise objections in the main proceedings, particularly through an appropriate defense during the main hearing. Against the court’s decision to admit the indictment or to open the main proceedings (§ 203 StPO), a complaint is only admissible if the main proceedings are opened before the Regional Court and the decision is made by the court panel which will later render the verdict (§ 210 para. 1 StPO). Immediate complaints against admission decisions of the Local Courts are excluded.
How does public prosecution differ from private prosecution?
The public prosecution is the standard case in German criminal law and is instituted by the public prosecutor in the public interest. Private prosecution, by contrast, is only possible in a few cases expressly defined by law (§ 374 StPO), usually with minor offenses such as insult, trespass, or property damage, where the public prosecutor sees no public interest in prosecution. While the public prosecution is the right of the public prosecutor, the private prosecution represents a right of action for the injured party.
What does the principle of legality mean in the context of public prosecution?
The principle of legality (§ 152 para. 2 StPO) obliges the public prosecutor to initiate investigations if there is initial suspicion and, after these investigations, to file a public prosecution if there is sufficient suspicion. The principle of legality stands in contrast to the principle of opportunity, which in certain cases (e.g., minor offenses) allows for discretion. In essence, the principle of legality is intended to ensure that all criminal offenses are prosecuted regardless of the identity or status of the perpetrator, and that the state’s interest in prosecution is maintained.
