CONTROLLING PROSECUTORIAL DISCRETION IN GERMANY

• NCJ Number: 14503
• Journal: University of Chicago Law Review Volume: 41 Issue: 3 Dated: (SPRING 1974) Pages: 439-467
• Author(s): J H Langbein
• Date Published: 1974
• Length: 29 pages
• Corporate Author: University of Chicago
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

ANALYSIS OF GERMAN STATUTORY METHOD OF CONTROLLING THE PROSECUTOR'S DISCRETION IN FELONIES, MISDEMEANORS, AND PETTY OFFENSES.

Abstract

MAJOR DIFFERENCES DISTINGUISH WEST GERMAN AND AMERICAN CRIMINAL PROCEDURE. IN BOTH SYSTEMS, HOWEVER, THE POWER TO INSTITUTE CRIMINAL PROCEEDINGS IS VESTED IN THE PROSECUTOR. IN THE UNITED STATES, THE PROSECUTOR IS GRANTED THE UNREVIEWABLE DISCRETION TO DECLINE PROSECUTION IN CASES OF PROVABLE CRIMINAL GUILT. IN CONTRAST, THE GERMANS HAVE DEVISED STATUTORY MEANS TO STRUCTURE AND REGULATE THE PROSECUTOR'S CHARGING FUNCTION. TO INTRODUCE THE GERMAN METHOD OF CONTROLLING PROSECUTORIAL DISCRETION, THE STUDY REVIEWS THE HISTORICAL DEVELOPMENT OF THE OFFICE OF THE PROSECUTOR IN GERMANY AND OUTLINES GERMAN CRIMINAL PROCEDURE, NOTING DIVERGENCES BETWEEN THE AMERICAN AND GERMAN SYSTEMS. THE FOCUS OF THE AUTHOR'S ANALYSIS IS 'LEGALITATSPRINZIP,' THE GERMAN RULE OF COMPULSORY PROSECUTION. UNDER THIS CONCEPT, THE PROSECUTOR IS FORBIDDEN TO REFUSE TO PROSECUTE IN FELONIES AND MISDEMEANORS WHERE THERE EXISTS SUFFICIENT FACTUAL BASIS OR 'PROBABLE CAUSE' TO PROCEED. A VICTIM CAN APPEAL THE PROSECUTOR'S FINDINGS ON PROBABLE CAUSE TO HIS SUPERIORS AND ULTIMATELY LITIGATE THE ISSUE IN THE COURTS. THIS SYSTEM PROTECTS THE CITIZEN FROM AN ALL-POWERFUL PROSECUTOR AND, EQUALLY IMPORTANT, PROTECTS THE PROSECUTOR FROM POLITICAL INTERVENTION AND PRESSURES RELATING TO ANY CHARGING DECISION. IN INSTANCES WHERE PROSECUTORS DECLINE TO PROSECUTE MISDEMEANORS, CITIZENS CAN DEMAND DEPARTMENTAL REVIEW AND APPEAL TO THE STATE MINISTER OF JUSTICE. THE MORE RAPID AND EFFICIENT TRIAL PROCEDURE OF THE GERMAN SYSTEM, AND LOWER CRIME RATES, PRECLUDE ANY DIRECT COMPARISON OF CHARGING DECISION CONTROLS. THE MANNER IN WHICH GERMANY HAS EMPHASIZED RULEMAKING AND CRITERIA FOR SELECTION SHOULD BE OF INTEREST TO ANY STUDENT OF THE PROSECUTION FUNCTION. (SNI ABSTRACT)