Discontinuance of investigative proceedings

The reasons why investigative proceedings may be discontinued include:

Discontinuance for lack of proof
This applies if no criminal conduct is involved or if the accused person is unlikely to be convicted based on the evidence at hand.

Discontinuance on the ground of insignificance
In the case of misdemeanours, i.e. criminal offences which – unlike felonies – are not punishable by a minimum term of imprisonment of one year, prosecution may be dispensed with if the offender’s guilt is considered to be minor and there is no public interest in the prosecution. This is the case, for example, if an offence does not result in serious consequences and the offender has no prior convictions.

Discontinuance subject to conditions and instructions
In the case of misdemeanours, prosecution can be dispensed with if conditions and instructions are imposed on the accused which are apt to eliminate the public interest in criminal prosecution, and if the degree of guilt does not present an obstacle to this.

Discontinuance in order to speed up proceedings
If an accused is charged with several offences, the public prosecutor’s office may choose to dispense with prosecuting one of these offences. This is the case if that offence carries a negligible penalty compared to the other sentence which he or she is facing or which has already been imposed with final and binding effect.

Discontinuance for lack of public interest
In the case of so-called offences subject to private prosecution, the public prosecutor's office informs the affected persons of the possibility to initiate private prosecution unless there is a public interest in prosecuting the offence.

Bringing a private prosecution before a criminal court should not be confused with bringing an action for damages before a civil court. Whereas you can use a civil action to obtain an award of damages and compensation, as a private prosecutor you are seeking punishment for the offender. In the event that a private prosecution leads to a judgment, any imposed fines have to be paid to the state treasury and not to you personally. Section 374 of the Code of Criminal Procedure (Strafprozessordnung, StPO) contains a list of offences which you may yourself pursue by way of private prosecution provided the offender was at least 18 years old at the time of the offence. The costs of the proceedings and the accused person’s necessary expenses (such as lawyer's fees) are charged to the private prosecutor if the charges against the accused person are dismissed, if the defendant is acquitted, or if the proceedings are discontinued.

Extended possibilities for discontinuing proceedings under juvenile criminal law
If the accused person is a juvenile or young adult (18 to 20 years old) subject to juvenile criminal law, there are more potential reasons to discontinue the proceedings. One example is if an indictment or further prosecution is considered unnecessary because socio-educational measures have already been imposed in another context and appear to be sufficient. Moreover, for the most part the possibilities for discontinuing proceedings are not strictly limited to misdemeanours.

Possibilities for complaint after the proceedings were discontinued
Affected persons have the possibility to file a complaint against the decision to discontinue the proceedings for lack of sufficient proof. If they are aware of any additional facts relating to the offence or of further evidence, they should definitely state these in their written complaint. This can be done by the affected persons themselves or with the assistance of a lawyer. You can find a sample complaint here.

If the public prosecutor's office stands by its decision, the case is examined by the public prosecutor general. The persons affected are always notified in writing.

If the public prosecutor general also declines to re-open the investigations and if the proceedings were discontinued for lack of proof, the persons affected can initiate so-called proceedings to compel public charges. This may lead to the public prosecutor's office bringing an indictment after all. This course of action involves time limits and it is subject to strict regulations. The motion for initiating such proceedings must be signed by a lawyer and the costs must be borne by the affected persons if they lose in court.

Appeals against court decisions

General principles
A court decision becomes final and binding only if no appeal is lodged against it, i.e. if it is not challenged. Appeals are legal remedies which are decided by the court of next instance. There are two types of appeals in criminal proceedings: appeals on points of fact and law, and appeals on points of law only. As a general rule, appeals may be lodged by the following parties to the proceedings: the public prosecutor's office, the defendant or his or her legal representatives, the defendant's attorney, the private prosecutor and the private accessory prosecutor.

Appeal on points of fact and law/appeal on points of law only
While local court judgments can generally be challenged by an appeal on points of fact and law or an appeal on points of law only, regional court judgments can be challenged only by an appeal on points of law. If an appeal on points of fact and law is lodged, a completely new trial is conducted including the fresh taking of evidence. An appeal on points of law only, on the other hand, solely involves a review of the case to determine whether any procedural or legal errors have occurred. Appeals must be lodged within one week after the judgment was pronounced. Subsequently, the proceedings go to the next instance. The higher court then decides on the judgment, i.e. it may affirm, amend or quash it. If an appeal on points of fact and law or an appeal on points of law only is lodged, this prevents the judgment from becoming final and binding. This means that the judgment cannot be enforced yet.

Appealing against a judgment as a private accessory prosecutor
As a private accessory prosecutor, you can usually appeal against judgments. You can do so especially if you are of the opinion that the defendant was wrongly acquitted. However, you cannot appeal the level of the imposed penalty. If you or your lawyer were present at the hearing, the time limit for lodging an appeal begins when the judgment is pronounced. On the other hand, if you or your lawyer were not present at the hearing at all, or only during you own examination as a witness, the time limit does not begin until the operative provisions of the judgment are served on you. The time limit is usually one week. Nevertheless, before lodging an appeal, you should generally seek legal advice because of the risk that you may incur costs.

Complaints against court decisions
Generally, court decisions taken outside the actual trial can be challenged by way of complaint. For instance, a complaint may be filed against a coercive fine imposed on a witness or against similar measures. In addition, private accessory prosecutors are entitled to lodge an immediate complaint if the court declines to accept the public prosecutor's indictment for trial. If a complaint has been filed, the court's decisions are reviewed.