SECTION V - Preliminary Proceedings

The ordinary procedure of courts of first insance is dealt with in the second book of the StPO and is divided into 'Preliminary Proceedings ' and 'Definitive Proceedings ', the latter beginning when the holding of the trial has been decided upon. Preliminary proceedings may consist in either:

a preliminary investigation by the public prosecutor (vorbereitendes Verfahren), or in an enquiry before a magistrate (gerichtliche Voruntersuchung). In contrast to English procedural practice, both kinds of preliminary investigation take place in camera.

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When the public prosecutor conducts a preliminary investigation, he does so either on his own initiative or on ' information received ', i.e. a denunciation. The aim of such investigation is the framing of the charge and the collection of evidence which may be no longer available at the date of a subsequent trial. Having examined the information at his disposal, the prosecutor decides whether or not a preliminary investigation is likely to lead to any positive result. If he comes to a negative conclusion, he stops the proceedings; if he decides to continue, two ways are open to him: he may conduct the investigation himself, or he may authorize the police to undertake it for him. In some cases it may be necessary for a judge to intervene, because only a judge is entitled to take certain measures possibly included in the preliminaries. Judicial intervention is for example required where compulsive measures are applied to the accused; where witnesses are interrogated under oath, or where a post mortem is ordered. But even here, the prosecutor remains in charge of the preliminary proceedings, the judge acting either on application by the prosecutor or in his stead as ' emergency prosecutor ' (Not-Staatsanwalt), sections 165 to 167.

The purpose of a magisterial inquiry, which is conducted by an Untersuchungsrichter (lit. Investigating judge), is to clarify the facts and establish a basis for the decision whether the trial shall be held or whether the accused is to be released, section 190. A motion for such magisterial inquiry may be made either by the prosecutor or by the accused on the ground that 'extraordinary circumstances' demand judicial investigation. In the case of petty offences no magisterial inquiry is held. The magisterial inquiry is obligatory (notwendige Voruntersuchung) in all cases before the Bundesgerichtshof, the Oberlandesgericht as first instance and the Schwurgericht;

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