The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
Germany has no special statute on the prosecution service. The Court Organisation Act (Gerichtsverfassungsgesetz, hereinafter COA) of 1877 contains a few fragmentary provisions (Sects. 141-152) on the organisation of agencies involved in prosecution and, in a piecemeal fashion, the operational authority of the public prosecutor is regulated in the CCP.
The prosecution service in Germany, like its court system, is mainly organised on a State (Länder) level. This applies to prosecutions in the lowest courts (Amtsgericht), the district courts (Landgericht) and the State courts of appeal (Oberlandesgericht). Only at the level of the Federal Court of Appeal (Bundesgerichtshof), a Federal prosecution office (Bundesanwaltschaft) does exist.
The State and Federal prosecution agencies are not interrelated, and they have few points at which they interact. The Federal prosecution office’s primary responsibility is to represent the State before the Federal Court of Appeals (Sect. 142 subs. 1 COA). Yet, Federal prosecutors are also charged with investigating certain serious offences against the state, including terrorism, and they can file charges in these cases with the competent State court of appeal (which acts as court of first instance in these cases: Sects. 120, 142a COA). Instances of overlap between the competences of State and Federal prosecutors also arise when a State prosecutor wishes to appeal the judgement of a district court. It is the relevant State prosecutor who files the appeal with the Federal Court of Appeal and supports it by legal brief. However, it is the Federal prosecution office that is solely responsible for representing the state before the Federal Court of Appeal. If the Federal prosecutor deems the appeal without merit, the mutual independence of State and Federal prosecution services nevertheless prevents him from withdrawing the appeal, or from ordering the State prosecutor to withdraw it. The Federal prosecutor can, however, request the Federal Court of Appeal to dismiss the appeal, but the Federal Court of Appeal is not bound by such request.
Both in the States and in the Federation, prosecution services are organised hierarchically (Sect. 147 COA). The (State or Federal) Minister of Justice stands at the top of the hierarchy. On the Federal level, only one prosecution agency, the Bundesanwaltschaft exists, which is headed by the Federal chief prosecutor (Generalbundesanwalt). On State level, there is one prosecutor’s office attached to each of 116 district courts, and to each of 25 State courts of appeal (some of the 16 German States have more than one State court of appeal). The highest prosecuting officers at State level are the chiefs of the prosecutor’s offices (Generalstaatsanwalt) attached to the State courts of appeal. They are, however, responsible to the State Minister of Justice and can receive orders from him. Each prosecutor’s office is headed by a chief prosecuting officer (Leitender Oberstaatsanwalt), who is in turn responsible to the Generalstaatsanwalt. It should be noted that there is no mutual dependence or control between the judiciary and the prosecution service (cf. Sects. 150 and 151 COA).
Federal prosecutors are appointed by the President of the Federal Republic, upon proposal of the Federal Minister of Justice and with the consent of the Federal representative body of the States (Bundesrat). State prosecutors are appointed by the State Minister of Justice. Public prosecutors are civil servants, and they are thus protected from arbitrary dismissal, and can only be removed from office against their will for serious individual wrongdoing on the basis of disciplinary proceedings. In some States, however, the Generalstaatsanwalt is a political civil servant, who serves at the pleasure of the Minister of Justice and can be put in temporary retirement at any time. This personal dependence of the Generalstaatsanwalt has recently been criticised as interfering with the objectivity of his official function, and there is a certain tendency among States toward granting Generalstaatsanwälte full civil service protection.
According to Sect. 146 COA, prosecutors are obliged to carry out orders of their superiors. This rule extends to the Minister of Justice, who thus has the authority to give binding orders to the State (or Federal) prosecution service. Whereas general rules and regulations issued by the Ministry of Justice or by Generalstaatsanwälte are frequent, it very rarely happens that Ministers of Justice (openly) interfere with the handling of particular cases. Ministries have, however, more subtle ways of making their wishes known to lower-level prosecutors, and they can take a case out of the hands of an individual prosecutor, and charge another prosecutor with it, at any time in the proceedings. Whereas the hierarchical structure of prosecution service as such is largely uncontested, there has been criticism of the Minister’s authority to give orders concerning individual proceedings. However, a majority of commentators see this authority as a necessary corollary of the Minister’s political responsibility for the prosecution service. The Minister of Justice can be questioned in the respective (Federal or State) parliament both on prosecution policy and on particular cases. The latter possibility does not usually have the effect that Ministers take active part in the prosecution of individual cases, but rather makes them hesitant to interfere with the routine operations of the prosecution, lest they be accused of political meddling. The Minister does, however, sometimes oblige local prosecutors to keep the Ministry informed of progress and proposed decision-making in designated cases (Berichtspflicht), thus creating the possibility of formal or informal involvement of the Ministry.
General rules for the proper conduct of criminal prosecutions have been agreed upon by all Ministers of Justice. These rules are being updated from time to time and the latest version has been published in 1997. More specific prosecution policies are not usually determined at the level of the Ministry of Justice but at that of the Generalstaatsanwalt. The latter's decisions and internal guidelines are generally not published. Such guidelines can apply to prosecution priorities, but only within the limits set by the principle of mandatory prosecution. For example, the Generalstaatsanwalt can advise prosecutors to refrain from prosecuting minor cases of first-time shoplifting (up to a certain maximum value of the goods stolen) and to deal with such matters through conditional dismissal (Sect. 153a CCP) if the offender pays a certain sum of money to the state or to a charity. Guidelines of this kind can be regarded as permissible limitations to the scope of discretion left by the legal provisions in question, e.g. Sect. 153a CCP. But the Generalstaatsanwalt would be precluded from, e.g., generally advising local prosecutors not to prosecute shoplifters, because this would violate the prosecution service’s general duty to take action when a criminal offence has been committed (Sect. 152 subs. 2 CCP). Implementation of policies and guidelines is supervised by the office of the Generalstaatsanwalt.
Duties and Functions of the Prosecutor
The main duties of the prosecution service are fourfold: to investigate criminal offences; to file criminal charges when there is a sufficient degree of suspicion; to represent the state at the trial; and to execute the criminal court’s judgement. The public prosecutor has a monopoly over prosecution for the great majority of offences. Only with respect to a small number of less serious offences the private victim can file charges directly with the criminal court and represent the prosecution (Sect. 374 CCP). Private prosecution is possible, e.g., for destruction of property, trespass, slander, simple assault, business corruption and various patent and trademark violations. The public prosecutor can, however, take over a privately initiated prosecution at any time (Sect. 377 subs. 2 CCP). Private prosecutions have become extremely rare in German courts.
The prosecutor is obliged by statute to take action whenever suspicion of a crime has been brought to his attention (Sect. 152 subs. 2 CCP). This section reads: ‘unless the law provides otherwise, the prosecutor’s office is obliged to take action with respect to all prosecutable offences if sufficient factual indications exist’. Prosecutors do not automatically open an investigation whenever someone files a complaint of criminal conduct. If the evidence submitted by the complainant is weak, or it is legally doubtful whether the conduct in question violates criminal law, prosecutors conduct an informal enquiry into whether there exits sufficient indications in the sense of Sect. 152 subs. 2 CCP, the so-called initial suspicion (Anfangsverdacht).
As a general rule, the prosecutor must file charges if there is sufficient individualised suspicion to hold a trial, i.e., when conviction of the suspect at trial is likely (Sect. 170 subs. 1 CCP). Only when there is no known suspect, or there is no sufficient expectation that the suspect will eventually be convicted, must the prosecutor dismiss the case (Sect. 170 subs. 2 CCP). Expectation of an acquittal can be based on legal (no crime has been committed, or the suspect’s act was justified or excused) as well as on evidentiary grounds. Lack of possibility to convict can also follow from the fact that crucial evidence is inadmissible in court, or that a statute of limitation has run.
Although the prognosis of the potential outcome of a trial necessarily involves a subjective element, there is no legal discretion under Sect. 170 CCP not to file a formal accusation when the court is likely to convict.
This rule of mandatory prosecution (Legalitätsprinzip) has however been limited or even eroded by a growing number of exceptions. Today, prosecution is in effect mandatory only with respect to most felonies (Verbrechen), i.e., offences with a statutory minimum of one year imprisonment (cf. Sect. 12 subs. 1 CC). Even for specified felonies directed against the interests of the state, e.g., high treason or participation in a terrorist organisation (Sects. 153d, 153e CCP), the Federal prosecutor can dismiss the case, if there exists a countervailing public interest, or if the offender has subsequently helped to combat the danger for the state created by the offence. With respect to less serious offences (Vergehen), the CCP provides various grounds for non-prosecution. The most frequently used provisions are those authorising dismissal without consequences (Sect. 153 CCP) and conditional dismissal, i.e., dismissal in exchange for a payment or other positive activity furnished by the suspect (Sect. 153a CCP).
Dismissal without consequences is possible when the offender’s guilt is minor and there is no public interest in prosecution. The court needs to give its consent to dismissal by the prosecution only when the offence concerns a legal norm providing for a mandatory minimum sentence beyond the legal minimum of five day fines, or the damage is significant (Sect. 153 subs. 1, CCP). Otherwise, the individual prosecutor determines unilaterally whether the requirements of the provision are met. The definitions of minor guilt and lack of public interest are fluid and imprecise; they leave much to the appreciation of the prosecutor applying the norm. There are no general guidelines interpreting these requirements of Sect. 153 CCP with respect to individual case situations. According to the wording of Sect. 153 subs. 1 CCP, the prosecutor has discretion to continue with the prosecution even if there is no public interest, but most commentators argue that there is a duty to dismiss the case when there is minor guilt and no public interest. The question is a theoretical one, however, because a suspect has no legal recourse against a prosecutor’s decision not to dismiss his case in accordance with Sect. 153 CCP. Since the prosecutor’s decision to dismiss in accordance with Sect. 153 CCP cannot be challenged by anyone, interpretation of these conditions is in effect left to the prosecutor’s office.
A similar situation exists with respect to conditional dismissal. According to Sect. 153a CCP, the prosecutor can provisionally terminate criminal proceedings in a Vergehen case and at the same time impose upon the suspect certain obligations, e.g., to make a payment to the victim, the state or a charitable organisation, to perform community service, or to undergo victim/offender mediation. The suspect must consent to this disposition and when he has fulfilled the obligation the prosecutor dismisses the case. In practice, fulfilling the obligation is often taken as sufficient expression of consent. The court’s consent to the procedure is necessary under the same conditions as with Sect. 153 CCP. Application of Sect. 153a CCP, which is discretionary with the prosecutor, has two substantive requirements: the obligations imposed upon the suspect must be sufficient to remove any public interest in prosecution, and the gravity of the suspect’s guilt must not be an impediment to a disposition without trial. These requirements are even more vague than those for unconditional dismissal under Sect. 153 CCP, and again there are no published nation-wide regulations guiding prosecutors in their interpretation. It is hence not surprising that large differences exist among local prosecutor’s offices with respect to the frequency with which this norm is applied. There exist unpublished guidelines of various Generalstaatsanwälte on the application of Sect. 153a CCP; these guidelines have of course only regional effect.
It should be noted that conditional dismissal, although it should not be employed when the suspect’s guilt is in serious doubt, does not require a confession or a finding of guilt. Acceptance of this disposition by the suspect, and the fulfilment of the obligation imposed on him, leaves the presumption of innocence intact. Conditional dismissals are recorded in a nation-wide procedural register (Sect. 492 subs. 1 no. 5 CCP) so that prosecutors can find out about prior applications of Sect. 153a CCP against a suspect. After the suspect has fulfilled the obligations, the prosecution can be resumed only if it appears that the offence was not a less serious offence (Vergehen) but a felony (Verbrechen).
In practice, conditional dismissal is frequently the result of negotiations between the prosecutor’s office and the defense. Many suspects appreciate the lack of publicity involved in this procedure as well as the absence of a finding of guilt and of a criminal record, and therefore offer large sums of money in order to obtain conditional dismissal (there is no statutory maximum for monetary obligations under Sect. 153a CCP). Scholarly criticism of conditional dismissal has pointed out that the norm enables rich suspects to buy their way out of criminal prosecution, and have also cited the utter lack of statutory or other guidance as providing too wide discretion for prosecutors, who are under no obligation to offer similar ‘deals’ to suspects in similar circumstances. Section 153a CCP in effect confers upon the prosecutor broad informal sanctioning power combined with the power to terminate formal prosecution of possibly guilty suspects without even having to give a reasoned decision. In spite of these theoretical flaws, German practice has embraced conditional dismissal as a welcome tool for dealing with crimes of lesser and medium seriousness without the effort and expense of court proceedings. In 2001, more than 258,000 cases were resolved by a prosecutor’s conditional dismissal. It should be noted that, according to Sect. 153a subs. 2 CCP, conditional dismissal is also possible when charges have been filed and the case has reached the court. In that situation, conditional dismissal lies with the court, but still, the case cannot be dismissed without the consent of the prosecutor.
The prosecutor does not need to give substantive reasons for dismissing a case because of a lack of public interest (Sect. 153 CCP) or for conditional dismissal (Sect. 153a CCP). Only when a case has been dismissed for lack of suspicion (Sect. 170 subs. 2 CCP) and the victim has initially made a complaint does the prosecutor have to inform the victim of the reasons for his decision. The victim then has the right to submit the case to the General- staatsanwalt, and if he backs the local prosecutor's dismissal of the case, the victim can then file an appeal with the State court of appeal (Sect. 172 CCP). The court reviews the prosecutor’s files and can order the prosecutor to resume the investigation or to bring charges against the suspect (Sect. 175 CCP). This happens only very rarely, however. If a case is controversial, the Generalstaatsanwalt will closely review the local prosecutor’s decision to make sure that all avenues of investigation have been explored.
Leaving the option of conditional dismissal aside, the prosecutor has no authority to settle the case with a suspect or defendant out of court. The prosecutor is nevertheless frequently involved in negotiations designed to dispose of a criminal case by consent. Such negotiations with the defense can occur in the context of preparing a penal order (Strafbefehl), i.e., a written judgment drafted by the prosecutor and issued by the court without a hearing (Sect. 407 CCP). Penal orders can be used for adjudicating Vergehen when the sanction consists of a fine, the suspension of a driver’s licence, and/or a suspended prison sentence of not more than one year. The defendant’s prior consent is not required, but he can make the penal order ineffective by filing an appeal and demanding a trial. It is therefore useful, at least in non-routine cases, for the prosecution and the defense to discuss the possible sanction in advance and to make sure that the defendant will accept the penal order. Many defendants are strongly interested in having their cases resolved without a public trial, and defense lawyers then approach the prosecutor in charge of the case and raise the possibility of a penal order. Especially in cases of white-collar defendants, there can be extensive negotiations before a penal order acceptable to all sides involved is drafted and submitted to the court. Courts have the authority to reject a proposed penal order and order a trial but very rarely do so.
Prosecutors are also involved in negotiating consensual judgements before, or during, trial. Since the 1980s, a German version of plea bargaining has developed and proliferated fast although there is no legal basis for it. The Federal Court of Appeal in 1997 has effectively approved of the practice if certain conditions are met (Entscheidungen des Bundesgerichtshofes in Strafsachen, Band 43, p. 195). In many cases, defense counsel and the court engage in negotiations either in advance of a contested trial, or when the trial has progressed to some extent, with a view toward finding an amicable settlement, the defendant offering a (partial) confession and the court indicating its willingness to impose a lenient sentence. Although these negotiations are conducted mainly between the defense and the professional judge(s), the prosecutor usually takes part and in effect has a veto power. If he decides to file an appeal against a negotiated judgement he can negate most of the efficiency benefits associated with the proposed ‘deal’. This kind of negotiated justice has been heavily criticised by scholars but has been embraced by practitioners. ‘Deals’ occur in all kinds of cases, most frequently in drug and white-collar cases.
The Relation between the Public Prosecutor and the Minister of Justice
Germany has no special statute on the prosecution service. The Court Organisation Act (Gerichtsverfassungsgesetz, hereinafter COA) of 1877 contains a few fragmentary provisions (Sects. 141-152) on the organisation of agencies involved in prosecution and, in a piecemeal fashion, the operational authority of the public prosecutor is regulated in the CCP.
The prosecution service in Germany, like its court system, is mainly organised on a State (Länder) level. This applies to prosecutions in the lowest courts (Amtsgericht), the district courts (Landgericht) and the State courts of appeal (Oberlandesgericht). Only at the level of the Federal Court of Appeal (Bundesgerichtshof), a Federal prosecution office (Bundesanwaltschaft) does exist.
The State and Federal prosecution agencies are not interrelated, and they have few points at which they interact. The Federal prosecution office’s primary responsibility is to represent the State before the Federal Court of Appeals (Sect. 142 subs. 1 COA). Yet, Federal prosecutors are also charged with investigating certain serious offences against the state, including terrorism, and they can file charges in these cases with the competent State court of appeal (which acts as court of first instance in these cases: Sects. 120, 142a COA). Instances of overlap between the competences of State and Federal prosecutors also arise when a State prosecutor wishes to appeal the judgement of a district court. It is the relevant State prosecutor who files the appeal with the Federal Court of Appeal and supports it by legal brief. However, it is the Federal prosecution office that is solely responsible for representing the state before the Federal Court of Appeal. If the Federal prosecutor deems the appeal without merit, the mutual independence of State and Federal prosecution services nevertheless prevents him from withdrawing the appeal, or from ordering the State prosecutor to withdraw it. The Federal prosecutor can, however, request the Federal Court of Appeal to dismiss the appeal, but the Federal Court of Appeal is not bound by such request.
Both in the States and in the Federation, prosecution services are organised hierarchically (Sect. 147 COA). The (State or Federal) Minister of Justice stands at the top of the hierarchy. On the Federal level, only one prosecution agency, the Bundesanwaltschaft exists, which is headed by the Federal chief prosecutor (Generalbundesanwalt). On State level, there is one prosecutor’s office attached to each of 116 district courts, and to each of 25 State courts of appeal (some of the 16 German States have more than one State court of appeal). The highest prosecuting officers at State level are the chiefs of the prosecutor’s offices (Generalstaatsanwalt) attached to the State courts of appeal. They are, however, responsible to the State Minister of Justice and can receive orders from him. Each prosecutor’s office is headed by a chief prosecuting officer (Leitender Oberstaatsanwalt), who is in turn responsible to the Generalstaatsanwalt. It should be noted that there is no mutual dependence or control between the judiciary and the prosecution service (cf. Sects. 150 and 151 COA).
Federal prosecutors are appointed by the President of the Federal Republic, upon proposal of the Federal Minister of Justice and with the consent of the Federal representative body of the States (Bundesrat). State prosecutors are appointed by the State Minister of Justice. Public prosecutors are civil servants, and they are thus protected from arbitrary dismissal, and can only be removed from office against their will for serious individual wrongdoing on the basis of disciplinary proceedings. In some States, however, the Generalstaatsanwalt is a political civil servant, who serves at the pleasure of the Minister of Justice and can be put in temporary retirement at any time. This personal dependence of the Generalstaatsanwalt has recently been criticised as interfering with the objectivity of his official function, and there is a certain tendency among States toward granting Generalstaatsanwälte full civil service protection.
According to Sect. 146 COA, prosecutors are obliged to carry out orders of their superiors. This rule extends to the Minister of Justice, who thus has the authority to give binding orders to the State (or Federal) prosecution service. Whereas general rules and regulations issued by the Ministry of Justice or by Generalstaatsanwälte are frequent, it very rarely happens that Ministers of Justice (openly) interfere with the handling of particular cases. Ministries have, however, more subtle ways of making their wishes known to lower-level prosecutors, and they can take a case out of the hands of an individual prosecutor, and charge another prosecutor with it, at any time in the proceedings. Whereas the hierarchical structure of prosecution service as such is largely uncontested, there has been criticism of the Minister’s authority to give orders concerning individual proceedings. However, a majority of commentators see this authority as a necessary corollary of the Minister’s political responsibility for the prosecution service. The Minister of Justice can be questioned in the respective (Federal or State) parliament both on prosecution policy and on particular cases. The latter possibility does not usually have the effect that Ministers take active part in the prosecution of individual cases, but rather makes them hesitant to interfere with the routine operations of the prosecution, lest they be accused of political meddling. The Minister does, however, sometimes oblige local prosecutors to keep the Ministry informed of progress and proposed decision-making in designated cases (Berichtspflicht), thus creating the possibility of formal or informal involvement of the Ministry.
General rules for the proper conduct of criminal prosecutions have been agreed upon by all Ministers of Justice. These rules are being updated from time to time and the latest version has been published in 1997. More specific prosecution policies are not usually determined at the level of the Ministry of Justice but at that of the Generalstaatsanwalt. The latter's decisions and internal guidelines are generally not published. Such guidelines can apply to prosecution priorities, but only within the limits set by the principle of mandatory prosecution. For example, the Generalstaatsanwalt can advise prosecutors to refrain from prosecuting minor cases of first-time shoplifting (up to a certain maximum value of the goods stolen) and to deal with such matters through conditional dismissal (Sect. 153a CCP) if the offender pays a certain sum of money to the state or to a charity. Guidelines of this kind can be regarded as permissible limitations to the scope of discretion left by the legal provisions in question, e.g. Sect. 153a CCP. But the Generalstaatsanwalt would be precluded from, e.g., generally advising local prosecutors not to prosecute shoplifters, because this would violate the prosecution service’s general duty to take action when a criminal offence has been committed (Sect. 152 subs. 2 CCP). Implementation of policies and guidelines is supervised by the office of the Generalstaatsanwalt.
Duties and Functions of the Prosecutor
The main duties of the prosecution service are fourfold: to investigate criminal offences; to file criminal charges when there is a sufficient degree of suspicion; to represent the state at the trial; and to execute the criminal court’s judgement. The public prosecutor has a monopoly over prosecution for the great majority of offences. Only with respect to a small number of less serious offences the private victim can file charges directly with the criminal court and represent the prosecution (Sect. 374 CCP). Private prosecution is possible, e.g., for destruction of property, trespass, slander, simple assault, business corruption and various patent and trademark violations. The public prosecutor can, however, take over a privately initiated prosecution at any time (Sect. 377 subs. 2 CCP). Private prosecutions have become extremely rare in German courts.
The prosecutor is obliged by statute to take action whenever suspicion of a crime has been brought to his attention (Sect. 152 subs. 2 CCP). This section reads: ‘unless the law provides otherwise, the prosecutor’s office is obliged to take action with respect to all prosecutable offences if sufficient factual indications exist’. Prosecutors do not automatically open an investigation whenever someone files a complaint of criminal conduct. If the evidence submitted by the complainant is weak, or it is legally doubtful whether the conduct in question violates criminal law, prosecutors conduct an informal enquiry into whether there exits sufficient indications in the sense of Sect. 152 subs. 2 CCP, the so-called initial suspicion (Anfangsverdacht).
As a general rule, the prosecutor must file charges if there is sufficient individualised suspicion to hold a trial, i.e., when conviction of the suspect at trial is likely (Sect. 170 subs. 1 CCP). Only when there is no known suspect, or there is no sufficient expectation that the suspect will eventually be convicted, must the prosecutor dismiss the case (Sect. 170 subs. 2 CCP). Expectation of an acquittal can be based on legal (no crime has been committed, or the suspect’s act was justified or excused) as well as on evidentiary grounds. Lack of possibility to convict can also follow from the fact that crucial evidence is inadmissible in court, or that a statute of limitation has run.
Although the prognosis of the potential outcome of a trial necessarily involves a subjective element, there is no legal discretion under Sect. 170 CCP not to file a formal accusation when the court is likely to convict.
This rule of mandatory prosecution (Legalitätsprinzip) has however been limited or even eroded by a growing number of exceptions. Today, prosecution is in effect mandatory only with respect to most felonies (Verbrechen), i.e., offences with a statutory minimum of one year imprisonment (cf. Sect. 12 subs. 1 CC). Even for specified felonies directed against the interests of the state, e.g., high treason or participation in a terrorist organisation (Sects. 153d, 153e CCP), the Federal prosecutor can dismiss the case, if there exists a countervailing public interest, or if the offender has subsequently helped to combat the danger for the state created by the offence. With respect to less serious offences (Vergehen), the CCP provides various grounds for non-prosecution. The most frequently used provisions are those authorising dismissal without consequences (Sect. 153 CCP) and conditional dismissal, i.e., dismissal in exchange for a payment or other positive activity furnished by the suspect (Sect. 153a CCP).
Dismissal without consequences is possible when the offender’s guilt is minor and there is no public interest in prosecution. The court needs to give its consent to dismissal by the prosecution only when the offence concerns a legal norm providing for a mandatory minimum sentence beyond the legal minimum of five day fines, or the damage is significant (Sect. 153 subs. 1, CCP). Otherwise, the individual prosecutor determines unilaterally whether the requirements of the provision are met. The definitions of minor guilt and lack of public interest are fluid and imprecise; they leave much to the appreciation of the prosecutor applying the norm. There are no general guidelines interpreting these requirements of Sect. 153 CCP with respect to individual case situations. According to the wording of Sect. 153 subs. 1 CCP, the prosecutor has discretion to continue with the prosecution even if there is no public interest, but most commentators argue that there is a duty to dismiss the case when there is minor guilt and no public interest. The question is a theoretical one, however, because a suspect has no legal recourse against a prosecutor’s decision not to dismiss his case in accordance with Sect. 153 CCP. Since the prosecutor’s decision to dismiss in accordance with Sect. 153 CCP cannot be challenged by anyone, interpretation of these conditions is in effect left to the prosecutor’s office.
A similar situation exists with respect to conditional dismissal. According to Sect. 153a CCP, the prosecutor can provisionally terminate criminal proceedings in a Vergehen case and at the same time impose upon the suspect certain obligations, e.g., to make a payment to the victim, the state or a charitable organisation, to perform community service, or to undergo victim/offender mediation. The suspect must consent to this disposition and when he has fulfilled the obligation the prosecutor dismisses the case. In practice, fulfilling the obligation is often taken as sufficient expression of consent. The court’s consent to the procedure is necessary under the same conditions as with Sect. 153 CCP. Application of Sect. 153a CCP, which is discretionary with the prosecutor, has two substantive requirements: the obligations imposed upon the suspect must be sufficient to remove any public interest in prosecution, and the gravity of the suspect’s guilt must not be an impediment to a disposition without trial. These requirements are even more vague than those for unconditional dismissal under Sect. 153 CCP, and again there are no published nation-wide regulations guiding prosecutors in their interpretation. It is hence not surprising that large differences exist among local prosecutor’s offices with respect to the frequency with which this norm is applied. There exist unpublished guidelines of various Generalstaatsanwälte on the application of Sect. 153a CCP; these guidelines have of course only regional effect.
It should be noted that conditional dismissal, although it should not be employed when the suspect’s guilt is in serious doubt, does not require a confession or a finding of guilt. Acceptance of this disposition by the suspect, and the fulfilment of the obligation imposed on him, leaves the presumption of innocence intact. Conditional dismissals are recorded in a nation-wide procedural register (Sect. 492 subs. 1 no. 5 CCP) so that prosecutors can find out about prior applications of Sect. 153a CCP against a suspect. After the suspect has fulfilled the obligations, the prosecution can be resumed only if it appears that the offence was not a less serious offence (Vergehen) but a felony (Verbrechen).
In practice, conditional dismissal is frequently the result of negotiations between the prosecutor’s office and the defense. Many suspects appreciate the lack of publicity involved in this procedure as well as the absence of a finding of guilt and of a criminal record, and therefore offer large sums of money in order to obtain conditional dismissal (there is no statutory maximum for monetary obligations under Sect. 153a CCP). Scholarly criticism of conditional dismissal has pointed out that the norm enables rich suspects to buy their way out of criminal prosecution, and have also cited the utter lack of statutory or other guidance as providing too wide discretion for prosecutors, who are under no obligation to offer similar ‘deals’ to suspects in similar circumstances. Section 153a CCP in effect confers upon the prosecutor broad informal sanctioning power combined with the power to terminate formal prosecution of possibly guilty suspects without even having to give a reasoned decision. In spite of these theoretical flaws, German practice has embraced conditional dismissal as a welcome tool for dealing with crimes of lesser and medium seriousness without the effort and expense of court proceedings. In 2001, more than 258,000 cases were resolved by a prosecutor’s conditional dismissal. It should be noted that, according to Sect. 153a subs. 2 CCP, conditional dismissal is also possible when charges have been filed and the case has reached the court. In that situation, conditional dismissal lies with the court, but still, the case cannot be dismissed without the consent of the prosecutor.
The prosecutor does not need to give substantive reasons for dismissing a case because of a lack of public interest (Sect. 153 CCP) or for conditional dismissal (Sect. 153a CCP). Only when a case has been dismissed for lack of suspicion (Sect. 170 subs. 2 CCP) and the victim has initially made a complaint does the prosecutor have to inform the victim of the reasons for his decision. The victim then has the right to submit the case to the General- staatsanwalt, and if he backs the local prosecutor's dismissal of the case, the victim can then file an appeal with the State court of appeal (Sect. 172 CCP). The court reviews the prosecutor’s files and can order the prosecutor to resume the investigation or to bring charges against the suspect (Sect. 175 CCP). This happens only very rarely, however. If a case is controversial, the Generalstaatsanwalt will closely review the local prosecutor’s decision to make sure that all avenues of investigation have been explored.
Leaving the option of conditional dismissal aside, the prosecutor has no authority to settle the case with a suspect or defendant out of court. The prosecutor is nevertheless frequently involved in negotiations designed to dispose of a criminal case by consent. Such negotiations with the defense can occur in the context of preparing a penal order (Strafbefehl), i.e., a written judgment drafted by the prosecutor and issued by the court without a hearing (Sect. 407 CCP). Penal orders can be used for adjudicating Vergehen when the sanction consists of a fine, the suspension of a driver’s licence, and/or a suspended prison sentence of not more than one year. The defendant’s prior consent is not required, but he can make the penal order ineffective by filing an appeal and demanding a trial. It is therefore useful, at least in non-routine cases, for the prosecution and the defense to discuss the possible sanction in advance and to make sure that the defendant will accept the penal order. Many defendants are strongly interested in having their cases resolved without a public trial, and defense lawyers then approach the prosecutor in charge of the case and raise the possibility of a penal order. Especially in cases of white-collar defendants, there can be extensive negotiations before a penal order acceptable to all sides involved is drafted and submitted to the court. Courts have the authority to reject a proposed penal order and order a trial but very rarely do so.
Prosecutors are also involved in negotiating consensual judgements before, or during, trial. Since the 1980s, a German version of plea bargaining has developed and proliferated fast although there is no legal basis for it. The Federal Court of Appeal in 1997 has effectively approved of the practice if certain conditions are met (Entscheidungen des Bundesgerichtshofes in Strafsachen, Band 43, p. 195). In many cases, defense counsel and the court engage in negotiations either in advance of a contested trial, or when the trial has progressed to some extent, with a view toward finding an amicable settlement, the defendant offering a (partial) confession and the court indicating its willingness to impose a lenient sentence. Although these negotiations are conducted mainly between the defense and the professional judge(s), the prosecutor usually takes part and in effect has a veto power. If he decides to file an appeal against a negotiated judgement he can negate most of the efficiency benefits associated with the proposed ‘deal’. This kind of negotiated justice has been heavily criticised by scholars but has been embraced by practitioners. ‘Deals’ occur in all kinds of cases, most frequently in drug and white-collar cases.
