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to include conduct not regarded as criminal. Strict construction of Penal Except as otherwise provided by law, the prosecutor is obliged to take
statutes was never accepted in Germany. . ..The doctrine of extensive action in the case of all acts which may be legally punished and
judicial construction is also used to broaden the definition of an offense prosecuted, provided there is sU!licient factual evidence, 57
if the interests of justice so require. 52
What the Legalitaetsprinrip requires is that all nonpetty
In Germany, several levels of offenses are defmed in the cases 58 the prosecutor must prosecute if evidence exists
StGB. The most serious offenses, similar to what might be to prove the occurrence of the offense by the accused. No
termed felonies in the U.S., are called Verbrechenand are plea bargaining is permitted and charges are not to be
defined as "illegal acts punishable as a minimum by a withdrawn after the trial begins. However, the
penalty of imprisonment for one year or more." 53 Other Legalitaetsprinzip is a two-sided sword; it also prevents
offenses are called Vergehen (misdemeanors) and are undue pressure on the prosecutor not to take a case to
defrned as "illegal acts which are punishable as a trial. In practice, when doubt exists a prosecutor normally
minimum by a lesser penalty of imprisonment [i.e., less will send the matter to trial and force the judge to make
than one year] or by a fme." 54 The concept of an illegal the final decision. 59 Since the German prosecutor oper-
act under German law has been succinctly stated: ates in a hierarchical system (i.e., one in which the Minis-
According to the established method of analysis of the criminal act try of Justice may control his discretion), such protection
(Handlungslehre),an offense under the Criminal Code [StGB] has three is necessary to maintain the integrity of process. If a Ger-
necessary constituent characteristics: the combination of elements con- man prosecutor was ordered by a superior not to
stituting a particular crime according to a smc title of the criminal
code (Tatbestand),illegality (Rechtswidrigkeit),and guilt (Schuld).This prosecute a case which fell within the Legalitaetsprinzip,
analysis is not defined in the Code (StGB), but has become established he would be obligated, under penalty of criminal sanction,
in a body of German criminal law concepts. The "General Part" of the to disregard the order and bring the case to trial. 60
Code defmes the lits of the respective parts of this analysis. c. Closing a Case. If, after reviewing the evidence
The Tatbestandis what would correspond in Anglo-American law to which has been gathered, a prosecutor believes there is in-
the offense described under a particular Title of the Code. Given such
evidence to convict the accused, the case may be
an offense (Tatbestand),illegality (Rechtswidrigkeit)may be assumed if ~~cient
not excluded by reason of a justification (Rechdertigungsgmnd)such as: closed. However, to close a case he must have the ap-
self-defense, consent, etc. Guilt (Schuld), in this system, means per- proval of his superior. 61 If a case is closed, both the ac-
sonal responsibility. Thus guilt mot be established for an otherwise il- cused and the party reporting the crime are to be notified.
legal act or the omission of a legally required act, where personal respon- If the reporting party is also the victim, he will be advised
sibility is precluded by: lack of intent, error, mental incapacity, or where
the fulfillment of a required act would mean the assumption of an action of his right to appeal the prosecutor's decision not to
prosecute.
above and beyond that which may be reasonably expected. 55
A-14. Rights of a Victim. The victim in such cases has
A-13. The Prosecutor. a. Generally. In Germany the two options: he can file a formal complaint which is
Prosecutor has no staff to investigate and must rely upon decided by the Attorney General of the state (Land);or
the Police to collect the information required for prosecu- he can file a departmental complaint objecting to the deci-
tion. For this reason, prosecutors in Germany have been sion of the prosecutor. If the formal complaint to the At-
described as being "a body without a head. They don't torney General is unsuccessful the victim may seek
even have feet. They have to borrow the feet of the
police." 56 Unlike their counterparts in the United States, judicial review and request that the prosecutor be com-
German prosecutors are appointed and are organized as pelled to file the charge. Complaints to the prosecutor's
civil servants on the state level (Land) under the state departmental superiors are quite numerous, but the great
Mitries of Justice. Within a particular Land a hierarchi- majority are unsuccessful unless the victim can produce
cal system is created under the Ministry of Justice and new evidence. If, however, the victim is successful in the
court action, it is provided that he may participate in the
each prosecutor must give way to those higher in the
heirarchy in discretionary matters. As civil servants, ensuing trial as an "accusing litigant" (Nebenklaeger) to
prosecutors often are appointed to the bench and judges protect his case against the accused.
A-15. Supervision of the Prosecutorial Func-
occasionally are used to fapositions in the hierarchy of
the Ministry of Justice. tion. a. General. Integrity in the prosecutorial process is
b. Prosecutorial Discretion. Germany attempts to con- maintained by
Close supervision and cooperation in the local prosecution office. The
trol prosecutorial discretion through what has come to be
head of the local office and the supervisors of its various sections control
called the Legalitaetsprinzip (legality principle) or more
the work of their subordinates by personal contacts and review of the
descriptively, "the rule of complusory prosecution."
57. German Code of Criminal Procedure $1 52 (2) [hereinafter refer-
52. Hem, The Rule of Compukoty Prosecution and the Scope red to as StPa].
of Prosecutorial Dircretion in Germany, 41 U.Chi. L. Rev. 468, 472 58. CJ, id. $ 153.
(1974) [hereinafter referred to as Hem]. 59. See Cox, Discretion-A Twentieth Centuty Mutation, 28 Okla.
53. SlBG $ 12(1). L. Rev. 311 (1975); see also Hermann, supra note 52, at 472.
54. Id. at $ 12(2). 60. Langbein, Controlling Prosecutorial Discretion in Germany, 41
55. Lee & Robertson, supra note 51, at 187-88. U.Chi. L. Rev. 439, at 450 bereinafter cited as Langbeii].
56. Robin, supra note 50, at 297. 61. Hermann, supra note 52, at 477.