The Discretionary Powers of the Prosecuting Attorney in West Germany

Abstract

prosecuting attorney in the Federal Republic of Germany has by no means the same degree of freedom in the exercise of discretion as belongs to his American counterpart. difference arises above all from historical reasons. About the middle of the 19th century the office of prosecuting attorney (Staatsanwaltschaft) was introduced into the states of the German Federation following the prototype of the French procureur du roi. purpose of the new institution was first and foremost to replace by the accusatorial process the old inquisitorial procedure, in which the roles of prosecutor and decisionmaker were united in one and the same person-namely, the judge. Indeed, it was expressly stated by the first German National Assembly of 1848 to be one of the fundamental rights of the German people that: criminal cases the accusatorial process shall be used. However, it was felt undesirable to turn the power to prosecute a complaint over to either the police or the injured party. On the one hand the former stood too much in the shadow of the authoritarian state that people had wanted to discard in the liberal revolution of 1848. fear prevailed that the police, if placed in the position of prosecuting agency, would assert too strongly the state's desire to exercise power, and would not subject themselves sufficiently to the strict observation of law which people wanted in criminal proceedings. aggrieved private party on the other hand appeared similarly unsuitable to perform the prosecutorial function. Here the concern was that the accustomed thoroughness of criminal justice under the inquisitorial system, which, after all, had preserved law and order under the absolute state not badly, would be lost under a purely private system of presenting the prosecution's case. Thus the mid-nineteenth century reform movement in criminal procedure created the office of prosecuting attorney as an institution to take over the function of prosecution independent of the court itself, but which at the same time could preserve the zealousness of the prosecution. As in France, the primary function of the German state's attorney's office is initiating criminal prosecution. Rules of Criminal Procedure' state: The initiation of judicial investigation is conditioned upon the filing of a criminal complaint. In immediate juxtaposition to