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fdes. Regular conferences are held to discuss individual cases and to prosecutor is "authorized not to prosecute." 68 This is
work out general patterns for structuring prosecutorial discretion. 62 rarely done, however, as most "prosecutors generally
For one group of offenses (e.g., minor crimes of trespass, agree that after a complaint is filed a judge should make
insult, and bodily injury; minor damage to property) the the final decision." 69
prosecutor may only file a charge if it is in the "public in- A-16. The Code of Criminal Procedure (StPO). Ac-
terest." 63 Otherwise, the victim must file a "private com- cording to StPO 4 403, if a prosecutor decides to file a
plaint" in which the process is similar to that followed charge, he should notifj7 the victim, or his heirs, of the
when charges are filed by the prosecutors. 64 In the case of possibility of asserting a claim against the accused for in-
misdemeanors, a prosecutor may decline to prosecute il- demnification. If the victim decides to intervene, the
legal conduct even though sufficient evidence exists to effect is the same as bringing a civil action. 70 Although
convict the offende~, if "the guilt of the perpetrator is this procedure for indemnification exists, apparently little
minor and there is no public interest in prosecuting the of- use is made of it. One author has observed that the
fense." 6s Before taking such action, however, the [clourtcan decide the civil claim only if the decision is for the complain-
prosecutor must obtain the permission of the court which ant. (405) [referring to StPO § 4051 If the case is appealed and the con-
viction reversed, the civil judgment is reversed automatically. (405 A-
would have heard the case. Since misdemeanors in Ger-
III) In addition, there are several practical considerations. At the time
many include many offenses which would be classified as the criminal trial is held, usually the extent of the injury is not clear; a
felonies 66 if they were committed in the United States, it more liberal award is Iikely in a civil court; the civil action is not the main
might appear that by allowing a prosecutor not to pursue concern of the criminal trial judge and the time that may be given to ex-
prosecution when guilt in "minor" or prosecution is not pert testimony concerning the civil claim would be limited. 71
in the "public interest," prosecutors operate with great A-17. The German Court System. When a criminal act
discretionary latitude. Such is not the case. In addition to as defined by the German Penal Code has been commit-
the necessity for judicial approval of a decision not to ted, accusations may be made to the prosecutor, the
prosecute, German prosecutors police, or to a district court (Amtsgericht). The German
regard complusory prosecution and restraint of discretion as over-riding court system, in some respects, is simpler than that in the
principles. They generally agree that they should bereluctant to exercise United States. No municipal courts exist and there are no
their discretionary power, and they abort proceedings only in really trivi-
federal courts on the trial level (except for high treason
al cases.67
and several other political type offenses). The courts are
Effective check on prosecutional discre:icr, i: ;r2vided by controlled by the various states (Laender). The lowest
departmental supervision. Before a prosecutor drops a courts are the district courts (Amtsgerichte) which are col-
case, his decision will be reviewed by a superior. The lected under the intermediate state courts called the Land-
procedure is similar to that involved in reviewing a deci- gerichte, which are then grouped under the highest state
sion not to prosecute for insufficient evidence. courts (the Oberlandesgerichte). Matters tried in the
6. Supervision of Minor Offenses. Another area of Amtsgerichte are appealed to the Landgerichte and then to
prosecutorial discretion involves appeals from fines im- the Oberlandesgerichte. Matters which are tried initially in
posed for administrative and regulatory offenses (e.g., the intermediate state courts (Landgerichte) may be ap-
trafllc violations, health regulations, etc.). Such cases are pealed only once, i.e., to the BundesgerichtshoJ a federal
prosecuted by, and the fines are imposed by, administra- court. Generally, it can be said that misdemeanors are
tive agencies under the Ordnungswidrigkeitengesetz(Petty tried before the Amtsgerichte and felonies before the
Infractions Code) rather than under the StBG. If the de- Landgerichte, except for those reserved for trial before the
fendant files a complaint against the imposition of the ad- BundesgerichtshoJ:
ministrative fine, the agency forwards it to the appropriate The combined effect of the federal codes and the state laws, practically
prosecutor. Before he sends it to a court for resolution, the identical from state to state, is to produce a uniform set of rules govem-
ing the prevention, repression and prosecution of offenses throughout
the Federal Republic. When this structure is combined with German
62. Id. at 478. notions of service of process and venue, the state courts take on a na-
63. SIP0 5 376. tional character. 72
64. In actuality, private prosecutions play a very limited role in the
German criminal system. StPO 55 373-90. It should be noted that StPO A-18. Duties of the Prosecutor. As soon as knowledge
5 377 allows the prosecutor to enter a private prosecution and to partici- of an alleged crime reaches the prosecutor, he must in-
pate, but he is not required to do so, unless ordered by the courts.
When the prosecutor does participate, he assumes control of the case
and the private party is treated as an intervenor. As an intervenor 68. Id. at 481.
(Nebenklaeger),the victim still has the "major rights of a party: to have 69. Id.
witnesses called, to appear by counsel, to put questions at trial, to pro- 70. SIP0 8 404.
pose a judgment to the court, and to appeal against an unfavorable 71. Robinson, supra note 50, at 274.
result." Langbein, supra note 60, at 462. 72. Kaplan, von Mehren, and Schaeffer, Phases of German Civil
65. StPO 8 153 (2). Procedure I, How. L. Rev. 1193, 1443-1461 (1958). See also W.
66. See Hermann, supra note 52, at 484. Heyde, Administration of Justice in the Federal Republic of Germany
67. Id. (1971).