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Public Prosecutor's Session Service - Plea

Presentation of the public prosecutor's meeting service in exam and practice

In the assessor examination, an examination in the form of a final lecture by the public prosecutor can be made. Then it says in the editor's note: The complete closing lecture of the public prosecutor is to be drafted verbatim. At the public prosecutor's meeting service, the trainee lawyer must give this final lecture himself.

According to § 258 I StPO, the public prosecutor has the floor after the evidence has been taken. In his closing lecture, the public prosecutor appreciates the outcome of the main hearing. In contrast to the criminal judgment, the public prosecutor does not put the result at the beginning, but leads to this result.

The final day is divided into:

  1. Salutation of the court

  2. Presentation of facts

  3. Evidence assessment

  4. Legal appreciation

  5. Sentencing and application for conviction or acquittal

  6. Additional penalties / measures

  7. costs

I. Plea with motion for conviction

1. Salutation to the court

The closing lecture always begins with the address of the court and, if present, the defense attorney: "High Court", In the case of the single judge also" Mr. / Ms. Chairman "or "Supreme Court, Mr. / Mrs. Defender".

2. Presentation of the facts

The same principles apply here as for the facts in the indictment or the criminal judgment.

The matter is introduced after the salutation. A distinction must be made here:

a. The facts of the prosecution have been confirmed

It is easiest if the facts are confirmed at the main hearing as read out in the indictment (for example by a comprehensive confession by the defendant). Then an introductory sentence like:

The main hearing showed that the facts were presented as read at the beginning in the indictment. "

or:

"Based on the evidence taken in today's main hearing, the public prosecutor's office considers the facts set out in the indictment to be proven."

b. The facts differ from the indictment

It is more difficult if it becomes apparent in the main hearing that the facts have happened differently than what was read out in the indictment at the beginning of the main hearing.

In the event of a slight deviation, the following can be initiated:

Today's main hearing has shown that the facts, as already read out in the indictment, have essentially been confirmed. "

According to this, the facts are to be presented in the divergent points as the public prosecutor deems them to be proven.

In completely different circumstances, the following can be initiated:

"The public prosecutor's office considers the following facts to be proven on the basis of the evidence taken:

This is followed by the statement of the facts as the prosecutor is convinced it has expired.

3. Evaluation of evidence

The assessment of evidence also begins with an introductory sentence:

"This fact is (to my conviction / to the conviction of the public prosecutor's office) based on the admission of the accused" and or "the testimony of the witness " and or "The visual inspection etc."

An exhaustive assessment of the evidence takes place here, in which the submission of the accused, witness statements and other evidence must be dealt with.

Example: "The accused admitted the incident. His credible confession is confirmed by the credible testimony of the witness POM ... " (In exams, according to the editor's note, it can usually be assumed that the testimony of the witnesses is credible.) "... the expert has presented convincingly ... "" ... is confirmed by the BAK report ".

Contradicting statements must be given due consideration. Why is one statement credible and another not? The principle"In dubio pro reo" is taken into account.

In the exam, prohibitions on the use of evidence often play a role at this point, which must be dealt with here.

4. Legal appreciation

First sentence:

“On the basis of these established facts, the defendant has been charged with…. made guilty, punishable according to §§… StGB. "

In the session service, it is usually sufficient to determine which paragraphs the accused is guilty of because the case is usually unproblematic.

A comprehensive legal assessment is usually required at this point in the exam. Here, as in the criminal judgment, the result is put in advance and the facts are subsumed under the norm. For the sake of clarity, it is usually necessary to subdivide into individual sets of offenses.

5. Sentencing and application for conviction

First sentence: "How is the accused to be punished for this / now?" or "The question now arises as to how the accused is to be punished for this act."

a. Establishing the penalty

In practice, the scope of punishment is usually not mentioned in the plea - at least in simple cases. In the exam, however, explanations about the scope of punishment are expected.

In order to determine the range of punishment, the threat of punishment for the individual offenses must first be checked (in the case of a majority of offenses, a separate range of punishment for each offense). The general provisions according to §§ 38 ff. StGB then apply to the criminal framework provisions of the individual offenses.

aa. Imprisonment / Fine

According to Section 38 I StGB, a distinction is made between life imprisonment and temporary imprisonment. According to Section 38 II of the Criminal Code, the term of imprisonment ranges from one month to fifteen years. According to Section 39 of the Criminal Code, the term of imprisonment is measured in months and weeks for less than a year and in years and months for more than a year.

When a fine is imposed, the range of punishment is usually 5 to 360 daily rates in accordance with Section 40 I 2 StGB, and up to 720 daily rates may be imposed when creating a total penalty in accordance with Section 54 II 2 StGB.

bb. Special legal mitigation reasons, mitigation, tightening of penalties and postponement of the penalty framework

Mitigation and tightening of penalties can lead to a special penalty framework.

Section 49 of the Criminal Code opens up the possibility of mitigating the punishment in favor of the accused in the event of a legal mitigating reason.

Examples of legal mitigation reasons: §§ 13 II, 17 S. 2, 21, 23 II, 27 II S. 2 StGB.

When checking whether the case is less serious, an overall assessment must be made. Here, the mitigating factors must outweigh considerably.

Examples of less serious cases: §§ 213, 249 II, 250 III StGB

According to § 50 StGB, a circumstance which alone or together with other circumstances justifies the assumption of a less serious case and at the same time represents a special legal mitigating reason, may only be taken into account once.

In the case of postponements within the scope of the penalty, the provisions of the special section of the StGB take precedence over the general provisions.

Examples of particularly severe cases: §§ 243, 263 III StGB.

In the case of unity, the penalty frame with the highest upper limit is decisive according to § 52 II sentence 1 StGB. According to § 52 II sentence 2 StGB, however, the punishment may not be less severe than the other applicable laws allow.

b. Penalty assessment in the narrower sense - filling in the penalty framework found

At this point it is weighed what speaks in favor of and what speaks against the accused. The legal basis for this is § 46 II sentence 1 StGB ("In the assessment, the court weighs the circumstances that speak against and for the perpetrator against each other.").

The reason for the sentencing results from the substantive and legal obligation to give reasons and the procedural obligation to give reasons (Section 267 III StPO - the reasons for the criminal judgment must describe the criminal law applied and the circumstances that were decisive for the penalty).

According to § 46 I S. 1 StGB, the punishment is based on the degree of guilt. (The most important) reasons for sentencing are given as an example in Section 46 II sentence 2 of the Criminal Code.

aa. Reasons for determining the sentence
aaa. First sentence:

"When determining the sentence is to be taken into account in favor of the accused ..."

In favor of the accused speaks (ex.): His confession, no (relevant) prior entries in the BZR, his behavior after the crime, remorse, compensation for damages (§ 46a StGB), little criminal energy, disinhibition through alcohol, in the case of BtMG violations, mere personal consumption and i. d. As a rule, if the BtM have not entered the market.

Is not addressed z. B. negligence, since it is already a constituent element (§ 46 III StGB) - exception § 316 StGB, since the range of penalties for intentional and negligent commission is the same (see § 316 I and II StGB). Not In favor of the accused, it may also be taken into account that the consequences could have been “worse” (e.g. only a “simple” not a “serious” bodily harm was committed). Here it is essential to observe Section 46 III of the Criminal Code - circumstances that are already characteristics of a legal fact may not be taken into account!

If nothing speaks for the accused, omit this point or say:

"Circumstances that speak in favor of the accused are not apparent."

bbb. Next introductory sentence:

"At the expense of the accused it has the effect that ..."

At the expense of the accused the following effects (e.g.): (relevant) previous convictions, previous entries in the BZR or VZR, significant injuries, high damage, high criminal energy.

A general "guilty of conduct" may not be considered as aggravating the penalty. The accused may therefore not be accused of aggravating circumstances that are part of his lifestyle and his general character, unless these are directly expressed in the actual execution of the crime.

It should be noted that a refusal to testify (§ 136 I S. 2 StPO, one of the most fundamental rights of the accused) or the (false) denial of the offense are not regarded as aggravating the punishment. On the other hand, it can be considered to increase the severity of the penalty if a third person is deliberately wrongly charged.

bb. Choice of type of penalty

"Taking into account all aspects of sentencing for and against the accused, the public prosecutor's office considers a fine / imprisonment of ... to be appropriate."

aaa. Fine

According to Section 40 II sentence 2 StGB, the daily rate is set at between EUR 30,000 and a maximum of EUR 30,000. As a rule, this is based on the defendant's net income. (In practice, the defendant's net income is discussed or, if he does not provide information, estimated.) Any maintenance obligations of the defendant must be deducted from the net income (about 1/10 for a child, about 1/5 for the wife who has no income of her own). A loan repayment is usually not taken into account. The adjusted net income is then divided by 30 to determine a daily rate. This also applies to low-income people such as the unemployed or social assistance recipients.

According to § 42 I 1 StGB, installment payments are also possible.

bbb. Imprisonment

According to § 56 I 1 StGB, a prison sentence of no more than one year can be suspended on probation if the social and criminal prognosis of the accused is favorable. According to Section 56 I 1 StGB, it must then be expected that the convicted person will use the conviction as a warning and it is also to be expected that he will not commit any more criminal offenses in the future. This must then be justified in the plea by a favorable social prognosis, see also § 56 I S. 2 StGB.

In the case of a custodial sentence that exceeds one year but not two years, the custodial sentence can only be suspended on probation according to Section 56 II sentence 1 StGB if, after an overall assessment, there are special circumstances. According to Section 56 II sentence 2 of the Criminal Code, such circumstances lie particularly in the endeavor of the convicted person to repair the damage.

In the case of a custodial sentence of at least 6 months, the sentence does not become suspended if the defense of the legal system so requires, see Section 56 (3) StGB. According to Paragraph 3, the execution of a custodial sentence is required if it would appear incomprehensible to the general sense of justice and thereby shatter the trust of the population in the inviolability of the law and could be viewed by the general public as an unjustified retreat from crime (established case; BGHSt 53 , 311 (320)

In the case of a prison sentence of over two years, probation is excluded.

In the case of pre-trial detention, this is offset against the custodial sentence in accordance with Section 51 I Sentence 1 StGB, unless this is not justified with regard to the behavior after the offense, Section 51 I Sentence 2 StGB.

c. Application for total penalty formation

aa. Formation of a total penalty according to §§ 53, 54 StGB

In the case of several independent, jointly judged crimes, a total sentence is recognized according to Section 53 I StGB. According to § 53 II S. 1 StGB, a total penalty is formed if a fine and a custodial sentence coincide. As a rule, therefore, an aggregate fine or a total imprisonment must be formed. First of all, an individual penalty is created for each penalty, the most severe of which is the operational penalty. According to § 54 I S. 2 StGB, the penalty for fines is at least one daily rate, § 40 I S. 1 StGB) and for imprisonment by at least one week (for months) or one month (for years), § 39 StGB elevated. According to Section 54 II of the Criminal Code, the total amount must not reach the sum of the individual sentences.

Note: This is often a deliberate mistake in the exam: In the case, a total penalty is formed by simply adding up the individual penalties.

Example: In the case of individual penalties of 30 and 60 daily rates, the lower limit for the formation of the total penalty is 61 daily rates; in the case of individual sentences of 2 and 5 months, the lower limit is 5 months and one week; for individual sentences of 2 and 5 years, the lower limit is 5 years and one month.

Maximum total penalties: 15 years for imprisonment, 720 daily rates for fines, Section 54 II sentence 2 StGB.

bb. Subsequent total punishment according to § 55 StGB

According to § 55 I S. 1 StGB, §§ 53, 54 StGB are also to be applied if a legally convicted person is convicted of another offense before the previous one before the sentence against him is enforced, statute barred or waived Has committed conviction.

6. Additional penalties / measures

a. The driving ban in accordance with Section 44 of the Criminal Code is a secondary penalty. The court can prohibit driving a vehicle for a period of one month to three months. The driving ban is usually to be ordered according to § 44 I S. 2 StGB, but it can also be considered under § 142 StGB if the damage according to § 69 II No. 3 StGB was not significant. Driving vehicles that do not require a driver's license can also be prohibited. The prohibition can also be limited to certain classes or exempt from the prohibition.

b. The application for the withdrawal of the driving license represents a measure for security and improvement. The withdrawal of the driving license is the most common measure for security and improvement according to §§ 61 ff StGB in the exams. According to §§ 69 I S. 1 StGB, the driving license can withdrawn, the driver's license withdrawn according to § 69 III StGB and a blocking period applied for according to § 69 a StGB. When the driver's license is confiscated, the minimum amount of the ban is shortened according to Section 69 IV of the Criminal Code by the time in which the provisional confiscation was effective.

"I apply to the defendant to withdraw his driving license and to withdraw his driver's license. Furthermore, I request an order that the administrative authority may not grant him a new driver's license before ... months have elapsed. "

7. Cost:

According to § 464 I, II StPO, it must be determined who bears the costs of the proceedings. Section 465 I sentence 1 StPO determines when the defendant has to bear the costs.

"Finally, I request that the defendant be ordered to pay the costs."

II. Plea for acquittal

If a conviction is out of the question, an acquittal must be requested. The acquittal is structured like an application for conviction; the application is for acquittal. An acquittal is possible if the evidence of the crime could not be provided due to a lack of evidence, in other cases of doubt ("in dubio pro reo“) Or if the defendant is proven innocent.

In the case of an acquittal (§ 467 I StPO) or a suspension, it then says:

"I apply to the state treasury to order the defendant's costs and necessary expenses."

Compensation for the accused due to criminal prosecution under StrEG is also possible.

In the case of a majority of the offenses, a partial acquittal can also come into question.

III.Plea for attitude

A process requirement is missing when hiring, for example a criminal complaint. Then the recruitment is requested after describing the allegation. The costs and necessary expenses of the accused are then to be imposed on the state treasury.

★ Important notice

As a trainee lawyer, you can only stop proceedings after consulting the responsible public prosecutor!