Public Prosecutors and Discretion: A Comparative Study

By Julia Fionda | Go to book overview

5 The German Prosecution System: The Developing Sentencers

1. INTRODUCTION

THE office of public prosecutor in Germany is relatively new. The office of Staatsanwaltschaft, created around the middle of the nineteenth century, was essentially a compromise between the earlier situation in which an inquisitorial judge carried the responsibility for the investigation, prosecution, and adjudication processes, and a suggested alternative, in which the injured party should take over the prosecution role, with extensive rights of private prosecution. In the former situation, the prosecutor was found to be too closely connected with the investigative and adjudication processes to be sufficiently objective. The latter situation, with no public monopoly over prosecution, was thought to be equally undesirable. The result was a separation of the prosecution and the adjudication processes, and the creation of the office of public prosecutor. In order to prevent public prosecutors from merely adopting the findings of police investigations and over-zealously prosecuting as ciphers of the state's power, they were invested with neutrality and independence from the police and the judiciary (although, of course, they are subject to directions and instructions issued by the state). Thus the situation has arisen in Germany where the public prosecutor has an almost complete monopoly over the prosecution process,1 but is required by the Code of Criminal Procedure to provide the court with 'not only inculpating but also exculpating evidence'.2 The neutrality of the Staatsanwaltschaft was summed up by the nineteenth-century Prussian Minister of Justice, Savigny, when he described them as 'the watchmen of the law'.3

Aside from a few significant changes, the extent of the prosecutor's role and power has remained more or less the same over the last 150 years,

____________________
1
Although the traditional rights of private prosecution have been maintained; see Section 5 below.
2
Code of Criminal Procedure, s. 160(II).
3
Savigny, quoted in J. Langbein, Comparative Criminal Procedure: German, ( Minnesota, 1977).

-133-

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