SECTION II - Basic Principles

Author:K. Neumann
  1. Accusatory form (Anklageform).

    As mentioned above, criminal proceedings may be conducted either in inquisitorial or in accusatory fashion. In the former case the judge investigates the facts ex officio and pronounces judgment; in the latter case the judge has no functions until a charge has been brought by the public prosecutor, when he must decide on the merits of.the charge. Under the inquisitorial system only two persons are concerned, viz. the judge and the accused, whereas in accusatory proceedings there are three: the judge, the prosecutor, and the accused. In German criminal procedure as it is to-day, the accusatory system prevails, as in England it has superseded the inquisitorial form, because any inquisitorial activity on the part of the judge would seem to conflict with his obligation to observe impartiality. But, again as in England, unlike the claimant in a civil case, the prosecutor may show no bias; he cannot abandon proceedings in his own discretion, nor is the court bound by his applications. On the other hand, some of his powers exceed by far the latitude allowed to the parties in a civil cause; he can order the police to assist him or to undertake investigations on his behalf;

    he can arrest suspected persons and carry out searches. His adversarythe accused-has far less freedom than a party to a civil suit: he can be brought to the court by force and can be subjected to physical and mental examinations. Prosecutor and accused therefore are only ' parties to a trial ' in the sense that they have equal rights to be heard, to produce evidence and to appeal against a judgment.

  2. The principle of ' Legality ' (Legalittitsprinzip) as opposed to the principle of ' Opportunity' (Opportunitdtsprinzip).

    In the Middle Ages as has been seen, the wrongdoer was prosecuted by the victim of his crime; there was no prosecution ex officio. Gradually however the idea took root that the prosecution of criminals was a matter for the state, and finally this conviction was embodied in sections 151 and 152 of the StPO, which provide that criminal proceedings cannot be opened until a charge has been filed, and that it is the duty of the prosecutor to file such public charge (6ffentliche Anklage). This gives the prosecutor a monopoly, for he, and only he is empowered to file charges. In order however to rule out the possibility of an arbitrary use of these powers for example, dropping a charge for political reasons, the StPO introduced the...

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