Introduction
Introduction
In Germany, the office of the public prosecutor (Staatsanwaltschaft) developed in the course of the 19th century. Its rise was due to a movement away from the inquisitorial criminal process of the ancien régime in the wake of the French revolution. The prosecutor was introduced as a safeguard for judicial independence and objectivity. The function of representing the state’s interest in bringing criminals to justice was spun off the originally all-encompassing role of the inquisitorial judge, and the public prosecutor inherited many of the broad powers of the inquisitorial judge. Being relieved of its dual role of prosecutor and judge, the judiciary could subsequently adjudicate cases in a more detached and impartial fashion. Nevertheless, the separation between judge and prosecutor remained incomplete throughout the 19th and the greater part of the 20th century. In that period, the public prosecutor shared dominance of the pre-trial process with the German version of the juge d’instruction (Untersuchungsrichter). However, gradually the investigating judge lost more and more of his practical relevance until the office was eventually abolished altogether in 1975. Since then, the public prosecutor has been the undisputed master of the pre-trial process in accordance with the law. It is the prosecutor's sole responsibility to collect, and evaluate, evidence with a view towards deciding whether to file formal charges against a suspect or not. The law conceives of the public prosecutor as an objective, impartial official. The German Code of Criminal Procedure (CCP) originates from 1877. It has since been amended numerous times, but its main structure has been left unchanged. The Code has been officially re-promulgated in 1987 (Bundesgesetzblatt 1987 I, p. 1074). The Code requires the public prosecutor to investigate incriminating as well as exonerating circumstances and to secure evidence (Sect. 160 subs. 2, CCP). The prosecutor’s objective role as an officer of the law continues even through the trial and beyond. The prosecutor can move for acquittal at the end of the trial, and he can even file an appeal in favour of the accused (Sect. 296 subs. 2 CCP). In practice he often turns into an advocate seeking conviction after he has filed a formal accusation.
The CCP does not usually speak of the public prosecutor (Staatsanwalt) as an individual but of the public prosecutor’s office (Staatsanwaltschaft). In this text, I will nevertheless speak of the prosecutor, signifying the prosecutor’s office represented by its individual agents. Individual prosecutors are thus viewed as agents of an impersonal, hierarchically organised agency, and it is this agency that makes decisions and performs official acts in the criminal process. The public prosecutor’s office employs individual lawyers (in addition to clerical and other necessary staff). These lawyers are often hired when they are 27-30 years old and have successfully graduated from Germany’s two-step system of legal education, involving an academic and a two-year practical stage. Young prosecutors obtain most of their practical experience and professional socialisation on the job, and many of them remain in the prosecutor’s office until retirement. German prosecutor’s offices thus tend to have highly professional, experienced and homogeneous staff dedicated to its cause.
In Germany, the office of the public prosecutor (Staatsanwaltschaft) developed in the course of the 19th century. Its rise was due to a movement away from the inquisitorial criminal process of the ancien régime in the wake of the French revolution. The prosecutor was introduced as a safeguard for judicial independence and objectivity. The function of representing the state’s interest in bringing criminals to justice was spun off the originally all-encompassing role of the inquisitorial judge, and the public prosecutor inherited many of the broad powers of the inquisitorial judge. Being relieved of its dual role of prosecutor and judge, the judiciary could subsequently adjudicate cases in a more detached and impartial fashion. Nevertheless, the separation between judge and prosecutor remained incomplete throughout the 19th and the greater part of the 20th century. In that period, the public prosecutor shared dominance of the pre-trial process with the German version of the juge d’instruction (Untersuchungsrichter). However, gradually the investigating judge lost more and more of his practical relevance until the office was eventually abolished altogether in 1975. Since then, the public prosecutor has been the undisputed master of the pre-trial process in accordance with the law. It is the prosecutor's sole responsibility to collect, and evaluate, evidence with a view towards deciding whether to file formal charges against a suspect or not. The law conceives of the public prosecutor as an objective, impartial official. The German Code of Criminal Procedure (CCP) originates from 1877. It has since been amended numerous times, but its main structure has been left unchanged. The Code has been officially re-promulgated in 1987 (Bundesgesetzblatt 1987 I, p. 1074). The Code requires the public prosecutor to investigate incriminating as well as exonerating circumstances and to secure evidence (Sect. 160 subs. 2, CCP). The prosecutor’s objective role as an officer of the law continues even through the trial and beyond. The prosecutor can move for acquittal at the end of the trial, and he can even file an appeal in favour of the accused (Sect. 296 subs. 2 CCP). In practice he often turns into an advocate seeking conviction after he has filed a formal accusation.
The CCP does not usually speak of the public prosecutor (Staatsanwalt) as an individual but of the public prosecutor’s office (Staatsanwaltschaft). In this text, I will nevertheless speak of the prosecutor, signifying the prosecutor’s office represented by its individual agents. Individual prosecutors are thus viewed as agents of an impersonal, hierarchically organised agency, and it is this agency that makes decisions and performs official acts in the criminal process. The public prosecutor’s office employs individual lawyers (in addition to clerical and other necessary staff). These lawyers are often hired when they are 27-30 years old and have successfully graduated from Germany’s two-step system of legal education, involving an academic and a two-year practical stage. Young prosecutors obtain most of their practical experience and professional socialisation on the job, and many of them remain in the prosecutor’s office until retirement. German prosecutor’s offices thus tend to have highly professional, experienced and homogeneous staff dedicated to its cause.
