Term and Definition: Demand for Prosecution
Das Demand for Prosecution is a legal term that is particularly significant in criminal law. It describes the formal request by an authorized person to initiate or conduct prosecution for a specific offense. The demand for prosecution is substantially and functionally distinct from the criminal complaint and the formal criminal application, and is of central relevance, particularly in Swiss criminal law.
Distinction from Related Terms
Das Demand for Prosecution is to be distinguished from the criminal application . While the criminal application is the express request to prosecute a specific person for a specific act, the demand for prosecution refers to the general request for prosecution without necessarily providing specific information about a person. Legally, the demand for prosecution is particularly relevant in the context of offenses prosecuted only upon request.
Legal Basis of the Demand for Prosecution
Statutory Regulations
Under Swiss law
In Swiss criminal law, the demand for prosecution is regulated in Art. 30 to Art. 33 of the Criminal Code (StGB). Here, a distinction is made between offenses prosecuted ex officio and those for which a demand for prosecution is required. Typical offenses requiring such a demand include defamation offenses or certain private offenses.
Demand for Prosecution in the International Context
In some jurisdictions outside Switzerland, a comparable institution to the demand for prosecution does not exist, or it is referred to under different terms. In German criminal law, the criminal application is analogous, whereas the classic demand for prosecution in the strict sense is not expressly provided for.
Material Prerequisites
A demand for prosecution can generally only be filed by the directly injured party or their authorized representative. Legal provisions narrowly define the group of eligible applicants. The effective filing of a demand for prosecution is regularly subject to formal and time requirements.
Deadline and Form
The demand for prosecution must be filed within a legally specified period—usually within three months from knowledge of the perpetrator and the act. It may be made in writing or orally to the competent authority, with the precise requirements varying by offense.
Legal Consequences and Effects of the Demand for Prosecution
Prosecution of Offenses upon Request
By the effective filing of the demand for prosecution, the basis for initiating a preliminary investigation is created for offenses requiring a request. Without such a demand, the prosecuting authority generally remains inactive. The absence of a valid demand for prosecution leads to procedural termination by the prosecuting authorities.
Withdrawal and Waiver
The demand for prosecution can be withdrawn in certain circumstances. Waiving the demand for prosecution is provided for by law in some cases and acts as a legal obstacle to further proceedings.
Binding Effect
Once a judgment becomes final, the demand for prosecution is exhausted and no longer has any effect. Subsequent withdrawal is then precluded.
Special Scenarios and Case Constellations
Multiple Eligible Parties
If several persons are injured, a demand for prosecution by a single eligible party or, depending on the offense, by all injured parties may be required. In the event of death, relatives may be authorized to file a demand for prosecution.
Minors and Incapacitated Persons
Minors or persons under guardianship may have a demand for prosecution filed by their legal representatives. Special provisions under civil and criminal procedural law apply.
Collective Offenses and Corporate Offenses
For offenses against legal entities, it must be examined whether the demand for prosecution must be submitted by the governing body or another authorized person.
Difference Between Demand for Prosecution, Criminal Complaint, and Criminal Application
| Term | Content | Effect on Proceedings | Authorized Persons |
|———————-|———————————————|—————————-|——————————————-|
| Demand for prosecution | General request for prosecution | Requirement for certain offenses | Injured person or representative |
| Criminal complaint | Notification of facts to the authorities | Initiates investigation | Anyone |
| Criminal application | Request to prosecute a specific person | Requirement for certain offenses | Injured person or representative |
Conclusion and Practical Significance
Das Demand for Prosecution is a central mechanism for the injured party’s active participation in the prosecution process. It ensures that, for certain offenses prosecuted only upon request, no prosecution occurs without the interest of the injured party. Its precise distinction from the criminal application and the criminal complaint is essential for the proper initiation of proceedings. In Swiss criminal law and in related legal systems, the demand for prosecution plays a significant role in balancing the interests involved in prosecution.
Frequently Asked Questions
Who is entitled to file a demand for prosecution?
Basically, the demand for prosecution is an important element in so-called request-based offenses, where prosecution does not proceed ex officio but requires the initiative of an authorized person. Those primarily entitled include the persons directly harmed by the offense, such as the victim or their legal representative if the victim is incapacitated or a minor. In special scenarios, such as offenses against a legal entity, its organ may also be entitled to file a demand for prosecution. It is important that the demand be filed personally and within the statutory period (usually three months from knowledge of the act and the perpetrator). Furthermore, transferring the right to file a demand for prosecution to third parties is generally not permitted, unless this is explicitly provided by law.
What happens if no demand for prosecution is filed?
Without a timely and validly filed demand for prosecution, it is not permissible to initiate criminal proceedings for offenses prosecuted only upon request. In such cases, the prosecuting authorities are bound by the absence of a demand and must either not initiate proceedings or, if already aware of the facts, discontinue them. This means that even with clear evidence and obvious guilt, no criminal proceedings can be conducted. This results from the principle that, in certain cases, the decision to prosecute is left to those involved (generally the victim) in order to strengthen their autonomy and to consider the state’s interest in prosecution as less significant.
Can a once filed demand for prosecution be withdrawn?
The demand for prosecution, as an expression of the right to file an application for prosecution, can be withdrawn until a certain point, which is legally referred to as a waiver (withdrawal) of the demand for prosecution. This option generally ends when the first-instance judgment becomes final. The withdrawal must be made explicitly and unequivocally; an implied waiver is not sufficient. If the demand for prosecution is lawfully withdrawn, this necessarily leads to the termination of the criminal proceedings, and a renewed demand for the same offense is generally excluded (principle of irrevocability after withdrawal). A withdrawal of the demand also has effect on co-participants, insofar as provided by law.
Are there specific formal requirements for a demand for prosecution?
As a general rule, no specific form is required for a demand for prosecution—it can be filed orally or in writing; however, some procedural codes may require written submission or confirmation. The demand must clearly indicate that criminal prosecution is genuinely desired and the person(s) it is directed against. It is advisable to document the demand and describe all relevant circumstances (time, conduct, perpetrator) as precisely as possible. It must also be ensured that the request is made personally and within the deadline to the competent body (police, prosecutor’s office). Incorrect or incomplete requests can result in inadmissibility of the demand and, consequently, the termination of proceedings.
What is the deadline for filing a demand for prosecution?
The law generally sets a deadline of three months from the moment the entitled person becomes aware of the offense and the perpetrator for filing a demand for prosecution. This time limit is statutory and exclusive, commencing on an objective basis rather than subjective perception. Late assertion is excluded, meaning that a demand for prosecution can no longer be validly filed after the period expires. Calculation of deadlines and determining the time of knowledge often require legal clarification in individual cases, especially when minors or legal entities are involved.
Are there special rules for minors or legally incapacitated persons regarding the demand for prosecution?
In cases of minors or legally incapacitated injured parties, the right to file a demand for prosecution generally lies with their legal representatives, that is, usually parents or guardians. If the person has limited legal capacity, they may, depending on the specific legal provisions and their capacity for judgment in certain matters, be able to file a demand themselves. In instances of conflicting interests between legal representatives and the minor, special statutory protection mechanisms—such as the appointment of a guardian—are provided to ensure both decision-making and effective protection of the injured party’s interests.
Can legal entities or companies also file a demand for prosecution?
Yes, legal entities, associations, or companies can independently file a demand for prosecution in certain cases if they have been directly injured in their rights by an enumerated offense and the relevant offense requires a request. The entity authorized by law to represent the organization, such as the board of directors, managing director, or a specially authorized person, is legitimized to do so. The requirements for proof of representative authority and compliance with the above-mentioned deadlines apply analogously as for individuals. In cases of doubt, it is advisable to attach proof of representation to expedite the proceedings.
