Is the Journey from the 'In Box' to the 'Out Box' a Straight Line: The Prosecution of Low Level Criminality in Germany
20 Pages Posted: 12 Dec 2010
Date Written: December 8, 2010
The defining challenge facing German prosecution offices today is reconciling the tension that exists between prosecutors’ historical mandate to serve as “guardians of the law” and their institutional position as members of an institution with limited resources. During the past three decades, the tension between the prosecution service’s normative mission to objectively investigate and prosecute criminal activity and increasingly severe resource constraints has transformed the law and practice of German criminal procedure. Although German legal scholars have long championed the system’s commitment to restricting prosecutorial discretion, in recent years the scope of prosecutors’ discretionary decision-making authority has widened dramatically. This development is particularly stark with respect to low-level crimes where prosecutors perform a critical gate keeping role.
Since the mid-1970’s, prosecutors and judges have struggled to find ways to manage high criminal case loads while maintaining their fidelity to the core principles of an inquisitorial “truth” finding process. To prevent backlogs, German prosecutors have developed case processing processes that conserve resources and promote efficiency. In a world with finite resources, strategies that privilege case processing efficiency theoretically enable prosecution offices to reserve the full truth finding case investigation and prosecution process for the most serious cases. In this chapter I argue that, this drive for efficiency, when coupled with a corresponding increase in prosecutorial discretion, currently threatens to irrevocably undermine the guiding principles of German criminal procedure.
Keywords: Prosecutorial Discretion, Comparative Criminal Law, Civil Law Tradition
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