Provisional suspension of criminal proceedings
Die provisional suspension of criminal proceedings is a significant procedural concept in German criminal procedure law. It allows the proceedings to be temporarily interrupted under certain conditions, without ending the case conclusively or rendering a judgment. The legal foundations, cases of application, legal consequences, and effects on the parties involved are governed in detail by the Code of Criminal Procedure (StPO) and cover numerous special aspects.
Legal foundations and significance
Statutory provisions
The provisional suspension of criminal proceedings is primarily regulated by §§ 205-207 StPO. Its purpose is to interrupt a case where a continuing temporary impossibility exists, and a definitive conclusion does not appear possible or sensible. The central provision is especially found in § 205 StPO.
Definition of terms
A provisional suspension occurs when the court or prosecution suspends the proceedings temporarily due to a procedural impediment or compelling practical reasons, while explicitly reserving the possibility of resumption at a later date. This is substantially different from a final discontinuation pursuant to §§ 170 para. 2, 153 et seq. StPO, which ends the proceedings completely.
Areas of application for provisional suspension
Incapacity of the accused or defendant to stand trial
A common scenario is the provisional suspension under § 205 StPO in cases of incapacity to stand trial, such as due to severe physical or mental illness. The proceedings may not be continued as long as the incapacity persists.
Whereabouts of the accused unknown
Provisional suspension can also be considered if the whereabouts of the accused cannot be determined. In such cases, the proceedings may be suspended under § 205 StPO to be continued later upon locating and regaining access to the person.
Temporary obstacles of another nature
Other typical reasons for provisional suspension are, for example, the absence of key witnesses, the existence of international mutual legal assistance proceedings, or other ongoing investigations that make concurrent proceedings impossible. It is essential that the obstacle is of a temporary nature.
Legal consequences of provisional suspension
Impact on the proceedings
With the provisional suspension, the criminal proceedings are at a standstill; no further investigations or procedural acts are carried out. The file is treated in such a way that resumption at the existing procedural stage is possible at any time. No final decision on guilt or innocence is made.
Effect for the accused
Provisional suspension does not result in the definitive conclusion of criminal prosecution for the accused. The possibility of resumption exists as soon as the procedural hindrance ceases. Periods of limitation are suspended during the provisional suspension (§ 78b para. 3 StGB).
Possibilities for appeals and legal remedies
No formal legal remedy is generally provided against the order of provisional suspension, as this order does not constitute an independently appealable decision within the meaning of the Code of Criminal Procedure; remedies are only conceivable in exceptional cases, such as in the event of exceeding the statutory limits or violation of fundamental procedural rights.
Duration and resumption of proceedings
Resumption of proceedings
Resumption of the suspended proceedings occurs by operation of law, upon application by the prosecution, or by order of the court as soon as the obstacle has ceased to exist. The principle of legality is decisive, meaning that proceedings must be resumed if continuation is possible and required (§ 205 para. 2 StPO).
Time limits and statute of limitations
In principle, the provisional suspension is not subject to a specific maximum duration. The statute of limitations for prosecution is suspended during the period of provisional suspension (§ 78b para. 3 StGB), so the state does not lose its right to prosecute merely through the passage of time.
Distinction from other forms of discontinuation
Final discontinuation of proceedings
Unlike provisional suspension, final discontinuation—such as under § 170 para. 2 StPO for lack of sufficient suspicion or under §§ 153, 153a StPO for minor offenses or fulfillment of conditions—results in a conclusive closure of the proceedings and allows for revocation of the discontinuation only in exceptional cases (such as new evidence, etc.).
Discontinuation in investigative and trial proceedings
During preliminary investigations, provisional suspension can be ordered by the prosecution or the court. In the intermediate or main proceedings, the decision rests solely with the court. The formal requirements and effects differ accordingly.
Practical significance
In practice, provisional suspension plays a significant role in relieving courts and public prosecutors in cases where meaningful continuation of proceedings is temporarily excluded but may later be possible. It protects the accused from unreasonable delays or burdens of the proceedings, but at the same time preserves the public interest in prosecution.
References and web links
- Code of Criminal Procedure (StPO) – especially §§ 205-207
- Criminal Code (StGB) – § 78b para. 3
- Meyer-Goßner/Schmitt: StPO Commentary, current edition
- Löwe/Rosenberg: StPO Commentary, current edition
The provisional suspension of criminal proceedings is a central instrument of German criminal procedure law, which enables appropriate and flexible responses to practical procedural obstacles. Due to the detailed legal requirements, both the state’s right to prosecution and the rights of the accused are ensured.
Frequently asked questions
What legal requirements must be met for a provisional suspension of criminal proceedings?
Certain statutory requirements must be met for the provisional suspension of criminal proceedings. Fundamentally, the Code of Criminal Procedure (StPO) allows for provisional suspension in particular where, at the current time, there is a procedural impediment (for example, lack of capacity to stand trial by the accused under § 205 StPO, absence of the defendant in cases of serious crime, or because the necessary consent of an authority or another court is still pending) or other circumstances that make a conclusive decision on the proceedings impossible for the time being. A classic case is serious health reasons on the part of the accused, which prevent holding the main hearing. Concurrent proceedings whose outcome is significant for the pending case may also justify provisional suspension. The decision is at the discretion of the court or prosecution and must be made by application or ex officio, with reasons for the suspension required.
What are the legal consequences of the provisional suspension of criminal proceedings for the accused?
For the accused, provisional suspension constitutes a temporary interruption of the proceedings in legal terms. This means that the case is not closed but merely “rests” until the reason for suspension has been removed. The accused is therefore neither acquitted nor finally convicted, but continues to face the risk of prosecution once the obstacles are removed. The provisional suspension may be revoked at any time. Until that point, measures such as an arrest warrant or other coercive measures basically remain in force, unless they are specifically lifted. The court file remains; file inspection remains possible, though procedural efficiency may be affected and uncertainty for the accused may persist.
Who is authorized to order the provisional suspension of criminal proceedings?
Depending on the procedural stage and the grounds for suspension, the authority to order provisional suspension of criminal proceedings lies either with the prosecution or the court. In the investigative phase, the authority regularly lies with the prosecution due to its control of the proceedings. After filing public charges—that is, from the intermediate stage—or in the main proceedings, the court dealing with the case (for example, the local or regional court) is responsible for ordering the suspension. The order is made either ex officio or on the application of one of the parties—usually the defense or prosecution—provided that serious grounds are put forward and asserted.
What participatory rights do the parties have in the event of a provisional suspension?
The parties involved, especially the accused and their defense counsel, have the right to be heard before a decision is made on the provisional suspension (§ 33 StPO). They can submit their own application for provisional suspension and also make statements in writing or orally regarding any other party’s application for suspension. In addition, both the accused and the prosecution, as well as private prosecutors if applicable, have the right to lodge a complaint against the order of provisional suspension if they believe their rights have been affected by the decision. The right to participate also extends to filing an application for continuation after the provisional obstacles have been removed.
How and when can continuation of proceedings after provisional suspension be requested?
After provisional suspension of proceedings, continuation may be suggested or applied for at any time once the grounds for suspension cease to exist. To do this, a notification of cessation by the parties involved or the authority responsible for monitoring the obstacle is required. The court or prosecution then reviews whether the conditions for resumption and continuation are actually met. Continuation is ordered by decision or order; the parties must be notified accordingly. There are no specific deadlines, but with prolonged suspension, especially in relation to limitation periods or the passage of time, discontinuation of proceedings for factual reasons may be appropriate.
What is the significance of provisional suspension in relation to the statute of limitations?
Provisional suspension of criminal proceedings generally results in the suspension of the limitation period for the relevant criminal offense during the period of suspension. According to § 78b StGB, the limitation period is stopped during certain interruptions, so that the proceedings are not statute-barred after continuation, as if the period of suspension had not elapsed. This is particularly relevant if longer time periods need to be bridged due to procedural obstacles. The exact calculation of suspension periods must be assessed on a case-by-case basis and depends on the type and extent of the specific obstacle.
Can an appeal be lodged against the decision for provisional suspension?
The parties to the proceedings are generally entitled to file an immediate complaint (sofortige Beschwerde) against the decision on provisional suspension, provided they could be adversely affected by the decision (§ 304 StPO). The complaint must be lodged within a week of the notification of the decision and has suspensive effect. The appellate court then examines the legality and appropriateness of the decision and may either confirm or annul or amend the original decision if the proceedings should continue—for example, because the requirements for suspension no longer exist. This option serves legal certainty and the protection of the procedural rights of all parties involved.
