SECTION IV - Parties To The Proceedings

Author:K. Neumann
  1. As already mentioned, the public prosecutor is called upon and bound to institute investigations where there is sufficient reason to assume that an oflence has been committed. For that purpose a public prosecutor's office (Staatsanwaltschaft) is attached to every court of law, though the actual title of the office varies with the title of the court. The office of the public prosecutor is held (section 1428) viz.: (a) at the Bundesgerichtshof by the Oberbundesanwalt and Bundesanwdlte, (b) at the Oberlandesgericht and Landgericht by one or several Staatsanwilte, (c) by the Amtsgericht by one or several Staatsanwdlte or Amtsanwdlte. The prosecutor's office is purely administrative, so that, unlike a judge, a public prosecutor is subject to the orders and directives of his superiors, these being the public prosecutors of any court superior to the one to which he is himself attached. The Minister of Justice of the Land is the head of the service. The functions of public prosecutors are considered to be political in character, and are therefore subjected to judicial supervision in order that their proper exercise may be guaranteed. Under sections 171 and 172, StPO, any victim of an offence has the right to make formal protest to the Oberlandesgericht resp. the Bundesgerichtshof where the prosecutor does not comply with an application to initiate prosecution. Certain important exceptions to the 'legality principle ' have however been introduced in recent times, so that the ' opportunity principle ' applies quite apart from Privatklage proceedings, which are discussed separately (see para. 54 below) in relation to all offences for which proceedings are initiated only on application (Antragsvergehen) (i.e. not by the public prosecutor ex officio), provided that no public interest in the prosecution exists. It applies also to petty offences.

  2. The defendant in his capacity as opponent of the prosecutor is a ' subject' of the proceedings and as such endowed with the right of a party to veto; on the other hand, however, it is in the very nature of all criminal proceedings that he is also their 'object' and as such labours under certain disabilities. The defendant's main rights are to be present and to be heard at his trial, the former now being expressly guaranteed by article 103 of the Basic Law for the Federal Republic, whereunder no trial may be carried on in the absence of the defendant, except in cases where no severer punishment than...

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