Victims of assault generally expect the police and the public prosecutor’s office to thoroughly investigate the facts of the case and initiate criminal prosecution of the perpetrator. However, filing a criminal complaint does not automatically lead to an indictment. If, after completing its investigation, the public prosecutor’s office concludes that there is insufficient suspicion of a crime, it may dismiss the case.
For the victim, however, such a dismissal does not necessarily mean that all legal options have been exhausted. In certain cases, it is possible to challenge the public prosecutor’s decision and ultimately seek judicial review. Of particular importance here is the so-called “compulsory prosecution” procedure under Section 172 of the Code of Criminal Procedure (StPO).
The starting point is the so-called principle of legality. According to this principle, the public prosecutor’s office is generally obligated to take action regarding prosecutable offenses if there are sufficient factual indications of a crime. The public prosecutor’s office may not therefore disregard a case merely because it considers prosecution to be inappropriate. However, whether sufficient factual and legal grounds exist for further investigation or an indictment must always be assessed on the basis of the specific individual case.
If proceedings are discontinued, the victim may initially be entitled to file a complaint against the notice of discontinuation. Section 172(1) of the Code of Criminal Procedure (StPO) generally provides for a two-week deadline for this following notification of the decision. If the complaint to the superior public prosecutor’s office is also unsuccessful, a request for a judicial decision may be filed within one month of notification of the rejection, provided the statutory requirements are met.
However, not every dismissal of criminal proceedings can be challenged with a motion to compel prosecution. The law specifically excludes this procedure when the case involves solely a criminal offense that the victim can pursue by way of a private prosecution. Exclusions also apply to various dismissals based on discretionary decisions by the public prosecutor’s office as provided by law, such as in certain cases under Sections 153 et seq. of the Code of Criminal Procedure (StPO).
This distinction is particularly important in cases of assault. Simple intentional assault under § 223 of the German Criminal Code (StGB) and negligent assault under § 229 StGB are among the offenses expressly listed in § 374 of the German Code of Criminal Procedure (StPO) as those subject to private prosecution. If an investigation is conducted exclusively for such an offense, a motion to compel prosecution is generally not admissible. Although the public prosecutor’s office may itself bring a public prosecution for offenses subject to private prosecution, pursuant to § 376 of the Code of Criminal Procedure (StPO), this occurs only if there is a public interest in criminal prosecution.
The situation may be different, for example, in the case of dangerous bodily injury. This offense is not among those listed in § 374 of the Code of Criminal Procedure (StPO) as offenses subject to private prosecution. The same applies, for example, to assault committed in the course of official duties. If the public prosecutor’s office rejects a suspicion of such an offense and dismisses the case for lack of sufficient grounds for suspicion, a proceeding to compel prosecution may, in principle, be considered—provided the other requirements are also met.
However, the procedure to compel prosecution must not be understood as a mere continuation of a criminal complaint. The application is subject to extremely high formal requirements. Pursuant to Section 172(3) of the Code of Criminal Procedure (StPO), it must specify the facts intended to justify the initiation of public prosecution, as well as the corresponding evidence. Furthermore, the application must be signed by a Lawyer and filed with the competent court. The Higher Regional Court decides on the application.
In practice, this means that the facts of the case must be presented completely and in a manner that is self-explanatory. It is generally not sufficient to merely refer to the investigative file or to make a blanket assertion that the public prosecutor’s office misinterpreted the available evidence. Rather, the relevant facts of the case, the available evidence, and the reasons why the dismissal is considered legally erroneous must be presented with such precision that the competent Higher Regional Court can review the motion from a legal perspective.
This is precisely why the preliminary investigation should be carefully prepared from the outset. Anyone who has been the victim of an assault should secure available evidence at an early stage. This may include, for example, medical records, photographs of injuries, the names and contact information of potential witnesses, correspondence, or other documents relevant to the specific allegation. It is crucial that the facts relevant to the criminal assessment be introduced into the proceedings as early as possible and in a manner that is clear and traceable.
The legal classification of the offense can also be of considerable importance. Whether the charge is merely simple assault or, for example, aggravated assault depends on the specific circumstances of the offense. This classification, in turn, can affect which legal remedies are available to the victim after the preliminary investigation is discontinued.
If you receive a notice of dismissal from the public prosecutor’s office, you should also carefully review the deadlines and information on legal remedies contained therein. Particularly in proceedings to compel prosecution, formal errors can result in a motion being dismissed as inadmissible without a thorough examination of the actual allegations. Due to the statutory deadlines, it is therefore advisable to have the prospects of success for any further steps assessed promptly.
For victims of assault, it therefore makes sense not to wait until the preliminary investigation is complete before considering legal representation. Early criminal law consultation can help organize the facts of the case, identify evidence, and ensure that the victim’s rights are protected throughout the proceedings. If the case is later dismissed, this foundation can be used to determine whether filing an appeal and, if necessary, subsequently initiating proceedings to compel prosecution are legally feasible and likely to succeed.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.