Questionnaire Germany
II.7 Which law empowers the executive to give an instruction not to prosecute?
Sect. 146 of the Court Organisation Act (Gerichtsverfassungsgesetz) generally declares
that officers of the prosecution service have to carry out orders of their
superiors. Instructions not to prosecute can be given but are binding only
insofar as they are within the bounds of procedural law; even the Minister of
Justice cannot stop a prosecution when it is demanded by the principle of
mandatory prosecution, e.g., in cases of felonies (Verbrechen). It should be noted that the authority of the Minister
of Justice extends only to orders to refrain from prosecution, not from investigation;
if there is a suspicion of criminal conduct, the prosecutor’s duty to
investigate is absolute (sects. 152, 160 CCP) and cannot (legally) be abrogated
by ministerial orders.
The German text of the statute can be found in http://bundesrecht.juris.de/bundesrecht/gvg/index.html
The German text of the statute can be found in http://bundesrecht.juris.de/bundesrecht/gvg/index.html
