Unjustified prosecution
Die unjustified prosecution describes the initiation or continuation of criminal procedural measures against a person without legal basis or despite a lack of suspicion. This term covers situations in which actions by state law enforcement authorities—such as the police, public prosecutors, or, where applicable, courts—result in a person being prosecuted for an alleged criminal act, even though such prosecution is not permissible or is unfounded according to applicable law. Unjustified prosecution constitutes a serious infringement of the fundamental rights of the affected person and is the subject of various legal assessments and consequences.
Conceptual Classification
Definition and Distinction
Unjustified prosecution is understood as the unwarranted initiation or continuation of criminal investigations against an innocent person, in particular when there is an absence of sufficient factual indications of a criminal offense (§ 152 para. 2 German Code of Criminal Procedure (StPO)). It differs from proper prosecution in that the latter is based on an initial suspicion and, where applicable, sufficient suspicion, whereas in the former these prerequisites are either absent from the outset or lapse during the proceedings, yet the measure is not terminated.
Distinction from Other Terms
Unjustified prosecution is to be distinguished from:
- Erroneous prosecution (e.g., due to investigative errors which do not necessarily relate to the presence of suspicion),
- Excessive prosecution (e.g., where coercive measures used are disproportionate),
- Obstruction of justice in office (§ 258a German Criminal Code), in which required prosecution is omitted.
Legal Basis
Constitutional Framework
The Basic Law guarantees special safeguards for persons in criminal proceedings through Article 2 paragraph 2 sentence 1 GG (protection of personal freedom), Article 1 GG (human dignity), as well as the presumption of innocence (Art. 6 para. 2 ECHR). The state is obligated to respect the fundamental rights of individuals in any form of prosecution and to provide procedural protection.
Criminal Procedure Provisions
Criminal procedure law, particularly the German Code of Criminal Procedure (StPO), provides various mechanisms to prevent or end unjustified prosecution:
- Initial suspicion (§ 152 para. 2 StPO): Initiating criminal proceedings requires that there are sufficient factual indications of a crime.
- Possibilities for termination (§§ 153 et seq. StPO): If suspicion lapses, the proceedings must be discontinued.
- Complaint procedure (§ 304 StPO): Affected individuals have the opportunity to seek legal protection against investigative measures.
State liability and Restoration
The constitutional order provides for compensation claims in the event of unjustified prosecution, including:
- Criminal Compensation Act (StrEG): According to §§ 1 et seq. StrEG, compensation can be claimed for disadvantages suffered in criminal proceedings (e.g., deprivation of liberty, confiscation) if these were not justified.
- Official liability (§ 839 BGB in conjunction with Art. 34 GG): State liability claims in the event of culpable misconduct by public officials.
Practical Manifestations
Cases of unjustified prosecution
- Lack of factual indications of a crime, yet the person is still prosecuted
- Continuation of an investigation after suspicion has lapsed, without discontinuation of proceedings
- Measures against persons who are clearly not suspects (e.g., searches, pre-trial detention)
- Mistaken identity of the alleged suspect with uninvolved persons
Possible Causes
- Misinterpretation of evidence
- Inadequate clarification of the facts
- Procedural errors or disregard of legal requirements
- Media and political influence
Legal Consequences and Legal Protection
Material and non-material damages
Unjustified prosecution may cause both material damages (e.g., loss of earnings, legal costs, financial losses) and non-material damages (e.g., reputational damage, psychological stress).
Legal Remedies
- Discontinuation of proceedings: Review and termination of the proceedings in the absence of suspicion.
- Complaints and other legal remedies: Filing appeals against investigative measures.
- Assertion of compensation and damage claims: Evidence and enforcement of potential claims in accordance with StrEG or BGB.
Preventive Mechanisms and Current Developments
Institutional Safeguards
The monitoring of law enforcement agencies by independent courts and the statutory requirements for documentation and reasoning serve to prevent unjustified measures.
Reform Efforts and Discussions
There are increasing calls for effective instruments and greater transparency in investigative measures, such as mandatory audio or video recordings, strengthening the position of the accused in the investigation process, and optimizing legal remedies. The digitization of law enforcement and the international harmonization of procedural standards are also relevant developments in the context of preventing unjustified prosecution.
Literature and Sources
- Code of Criminal Procedure (StPO)
- Criminal Compensation Act (StrEG)
- Basic Law (GG)
- European Convention on Human Rights (ECHR)
- Federal Court of Justice, decisions on state liability for errors in prosecution
This treatise on unjustified prosecution provides a comprehensive overview of the concept, legal basis, and procedural protection mechanisms. In particular, state obligations, preventive measures, and the claims of those affected are highlighted.
Frequently Asked Questions
What rights does a person accused have in the case of unjustified prosecution?
Persons accused in the context of criminal proceedings, which subsequently turn out to be unjustified, enjoy a variety of rights. This includes the right to be heard, which ensures that the accused is informed in a timely manner of the accusations made against them and the status of the proceedings, and may respond fully. There is also the right to defense, meaning a defense counsel can be brought in at any time, who has access to the files and represents the interests of the defense. Additional rights include the right to access the file, the right to submit evidence applications, and the right to question witnesses or present counterevidence. In the event of arrest or pre-trial detention, accused persons are also entitled to be immediately informed of their rights, especially the right to legal counsel. If it is ultimately determined that the prosecution was unjustified, there are also claims for compensation, particularly for financial and non-financial losses as regulated by the Criminal Compensation Act (StrEG).
What claims for compensation exist in cases of unjustified prosecution?
If a prosecution measure—such as an investigation, pre-trial detention, or temporary arrest—subsequently turns out to be unjustified, the affected person is entitled to comprehensive compensation claims under the Criminal Compensation Act (§§ 1 et seq. StrEG). Compensation covers both actual financial losses (e.g., loss of earnings, lawyer’s fees, defense and expert costs), as well as non-material damages for deprivation of liberty suffered. The daily rate for pre-trial detention is prescribed by law, but a higher amount can be claimed if the damage can be proven to be greater. Damages resulting from reputational harm or psychological stress (compensation for pain and suffering) may also be claimed under certain conditions. As a rule, a requirement for compensation is that the affected person is not themselves at fault for the prosecution.
What specific steps can an affected person take after the termination of an unjustified procedure?
After termination of unjustified criminal proceedings, the affected person should first carefully retain the order of discontinuation as well as all relevant documents. The next step is to submit a written compensation claim under the StrEG to the regional court responsible for the proceedings. This application must be filed within six months of the final discontinuation or acquittal. It is also advisable to document all damages arising from the prosecution—for example, evidence of loss of earnings, expert costs, or lawyers’ invoices—and attach these to the application. Where applicable, legal advice should be sought to carefully assess the prospects of success for any further rehabilitation or compensation proceedings, for example regarding liability claims against the authorities.
What rules of evidence apply in cases of unjustified prosecution?
Specific rules of evidence apply in the context of unjustified prosecution. As a general rule, the public prosecutor or law enforcement authority must establish suspicion on the basis of reliable evidence. However, when it comes to compensation for unjustified prosecutorial measures, the affected person must prove that they suffered damages as a result of the criminal proceedings. For financial losses, corresponding proof must be provided. In the case of non-material damage (e.g., psychological stress, loss of liberty), compensation is generally standardized; however, a higher damage amount may be claimed if proven. If the authority rejects compensation on the grounds that the person at least grossly negligently caused the prosecutorial measure, the authority bears the burden of proof on this point.
What are the legal differences between an unjustified criminal complaint and unjustified prosecution?
An unjustified criminal complaint occurs when someone reports a matter even though there is in fact no criminal behavior, or even knowingly makes false allegations. In such cases, the complainant may be criminally liable under § 164 of the German Criminal Code (false accusation). Unjustified prosecution, on the other hand, refers to the actions of authorities where, due to an erroneous assessment or insufficient evidence, a prosecution measure is undertaken but the accused is later found to be innocent. Legally, claims against the complainant are asserted against private persons (as applicable, through a civil action for damages due to false accusation), while claims for unjustified prosecution are directed against the state under the StrEG and, where applicable, for official liability.
Are there deadlines to be observed when claiming compensation due to unjustified prosecution?
Yes, for claims under the Criminal Compensation Act, an exclusion period must be observed: The compensation application must be submitted within six months of the last official notification of the termination of proceedings or the final acquittal. If this deadline is not met, compensation claims generally lapse. For further claims for damages, such as official liability, the general civil statute of limitations applies, usually three years from knowledge of the damage and the injuring party (§ 195 German Civil Code).
What role does the behavior of the accused person play in assessing the unjustified nature of a prosecution?
The personal conduct of the accused is legally relevant in determining whether and to what extent compensation claims exist. According to § 5 StrEG, compensation is excluded if the accused at least grossly negligently contributed to a prosecutorial measure being taken against them, for example by making misleading statements, withholding exonerating information, or any other behavior suited to causing deception. Only the exercise of the right to remain silent may not be counted against the person concerned. Compensation is also excluded if reasons for prosecution continue to exist despite an acquittal or discontinuation, for example, if prosecution is not carried out solely for procedural reasons.
