VISITING EXPERTS’ PAPERS
THE COMPETENCE OF THE POLICE IN INVESTIGATION PROCEEDINGS
Eberhard Siegismund*
I. INTRODUCTION
Several years ago, a survey was conducted in Germany on the subject of security and protection against crime. The
results – not surprisingly – indicated that the majority of the country’s citizens want a stronger state. Approximately 70
percent of the people surveyed in Germany’s eastern states were even willing to accept a restriction of their basic rights
if this would lead to greater success in combating crime. Only roughly one in three persons over the age of 30 were of
the opinion that there could be no absolute protection against criminal offences in a free society.
Precisely older citizens have a – usually unfounded – excessive fear of becoming the victim of a criminal offence.
This fear and the desire among broad segments of the population for greater security in everyday life are reflected in thecall for a strengthening and extension of the powers of the police. The Code of Criminal Procedure is thereby quickly
exposed to the reproach that its unnecessary formalities serve solely to protect the perpetrator. Politicians who woo votersby championing an enlargement and strengthening of the police forces as well as an increase in the number and speed ofarrests and a concomitant shortening of criminal proceedings can reckon with considerable support. Especially since theevents of 11 September 2001 and the launch of the global campaign to combat terrorism, endeavours to strengthen andextend the powers of the police unquestionably have good prospects for success.
This development must be followed all the more closely in view of the fact that the previous expansion of the scopeof the duties of the police is problematic from the standpoint of both criminological policy and constitutional law andmore than ten years ago already gave German defence attorneys cause to warn against an “annexing of criminal proceedings
by the police”.
In the following I would like to familiarise you with the current law in Germany and with the broad scope of police
activity in criminal investigation proceedings. I would also like to discuss the subject of the extension of police powers
and present models for successful co-operation in response to specific kinds of crime. And, finally, permit me to address
the question of how constructive co-operation between the police and the judicial authorities could ideally be structured.
II. THE CURRENT LAW IN GERMANY
A. Overall Responsibility of the Public Prosecution Office in Investigation Proceedings
Pursuant to section 160 subsection (1) of the Code of Criminal Procedure (hereinafter also abbreviated as CCP), assoon as the public prosecution office obtains knowledge of a suspected criminal offence it must investigate the facts todecide whether public charges are to be preferred. For this purpose it is authorised to make investigations itself or throughthe authorities and officials in the police force (section 161 subsection (1), first sentence of the CCP). The officials in thepolice force are thereby obliged to comply with the request or order of the public prosecution office (section 161 subsection(1), second sentence of the CCP).
The police also have a duty to investigate criminal offences (section 163 subsection (1) of the CCP). To this extent
they may – even without an application by the public prosecution office – “take all measures where there should be nodelay, in order to prevent concealment of facts”. The duty of taking initial action is thus transferred to the police.
The aforementioned provision in section 161 of the CCP is thus the statutory foundation for the authorisation of
investigations of all kinds, including investigatory acts involving interference with a basic right that are less intrusive
and are therefore not encompassed by a specific authorisation of interference. These include short-term observation andthe use of confidential informers or undercover buyers (in the case of drugs), for example, as well as simple searchmeasures such as the procurement of information from authorities.

* Deputy Director General in the Judicial System Division,Federal Ministry of Justice,
Berlin, Germany

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With respect to the distribution of tasks between the public prosecution office and the police, account must also betaken of section 158 subsection (1) of the CCP, pursuant to which the information of a criminal offence or an application
for criminal prosecution may be filed with the authorities and officials in the police force as well as with the publicprosecution office and the Local Courts. This is a provision that for all practical purposes enables the police to take initialaction to investigate and thus ascertain the facts of the case in the overwhelming majority of cases (approximately 80
percent).
Moreover, you find a multitude of rights of interference in the Code of Criminal Procedure that can be exercised in
exigent circumstances either by all police officers or only by the so-called “officials assisting the public prosecution
office”, who have greater authority to make orders than the other officials in the police force.
B. All Police Officers have the Following Coercive Powers:• the right to make provisional arrests (section 127 subsection (1), first sentence; section 127 subsection (2); section 127b
subsection (1); section 163b subsection (1), second sentence of the CCP),•

the right to carry out measures for identification purposes (section 81b and section 163b subsection (1), third sentenceof the CCP; at checkpoints: section 111 subsection (3) of the CCP),•

the right to establish identity (section 163b of the CCP),•

the right to use technical means within the meaning of section 100c subsection (1), numbers 1a and 1b of the CCP(taking of photographs and making of visual recordings, use of technical means for the purposes of surveillance),•

the right to use an undercover investigator in exigent circumstances (section 110b subsection (1), second sentence of
the CCP),•the right to examine papers with the consent of the holder pursuant to section 110 subsection (2), first sentence of
the CCP.

C. The Police Officials Assisting the Public Prosecution Office also have the Authority to Order the Following:• seizure (section 98 subsection (1), first sentence, and section 111e subsection (1), second sentence of the CCP),•

search (section 105 subsection (1), first sentence of the CCP),•

physical examination of the accused (blood samples and other bodily intrusions; section 81a subsection (2) of the CCP),•

physical examination of persons other than the accused (section 81c subsection (5), first sentence of the CCP),•

establishment of identity through DNA analysis (section 81g subsection (3) of the CCP in conjunction with section
81a subsection (2) of the CCP),•

use of technical means within the meaning of section 100c subsection (1), number 2 of the CCP (listening to andrecording of private speech outside private premises),•establishment of checkpoints (section 111 subsection (2) of the CCP),•

emergency sale of objects that have been seized or attached (section 111l subsection (2), second sentence, andsubsection (3), second sentence of the CCP),•

computer-assisted search (section 163d subsection (2), first sentence of the CCP).

D. Statutory Distribution of Tasks Between the Public Prosecution Office and the Police
As I mentioned at the beginning, the police admittedly have the right to take initial action; on the other hand, however,they are obliged to comply with requests and orders of the public prosecution office and – this is crucial – transmit therecords of their investigations to the public prosecution office without delay (section 163 subsection 2, first sentence of
the CCP).

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The public prosecution office is responsible for leading the investigation proceedings; it is in charge of the proceedings
at this stage. The police criminal investigation department is thus (only) an investigatory body of the public prosecution
office. As a matter of principle, the public prosecution office is hence responsible for substantive direction of the police
investigations. It has legal control and bears basic responsibility for the proper procurement and the reliability of theevidence required for the criminal proceedings. Under the law there is thus neither any independent right of investigationon the part of the police nor any area of the investigation proceedings that is not subject to the control of the publicprosecution office.
The Federal Administrative Court summarised this finding as follows (Federal Administrative Court decision volume
47, pages 255 et. seq., 262):
The measures taken by the police when taking initial action are criminal investigations just the same as themeasures taken at the instruction of the public prosecution office and the actions of the public prosecution officeitself. The Criminal Procedure Code makes no provision for a special investigation proceeding by the police
criminal investigation department. The investigations to prosecute criminal acts form an integrated whole; theinvestigation proceeding is not split into a police proceeding and a public prosecution office proceeding.
From the sole responsibility of the public prosecution office for the conduct of the investigation proceedings it follows
that the power of decision concerning the conclusion of the investigation – termination or preferment of charges – islikewise solely the responsibility of the public prosecution office.
If the investigations offer sufficient reason for preferring public charges, the public prosecution office prefers themby submitting a bill of indictment to the competent court (section 170 subsection (1) of the CCP). In all other cases it
terminates the proceedings (section 170 subsection (2), first sentence of the CCP). The percentage of investigations thatare terminated due to negligible guilt of the perpetrator and lack of public interest in criminal prosecution or uponcompliance with conditions or instructions is relatively large, however. I already addressed these issues earlier in mylecture on the duties of the public prosecution office.
III. ACTUAL LEADERSHIP OF THE INVESTIGATION PROCEEDINGSAt least from crime thrillers, we are all familiar with the public prosecutor who leads the investigation at the sceneof the crime, supervises the taking of evidence, participates in the examination of witnesses or the accused, or conducts
such examination himself, and in all other respects co-operates closely in a spirit of mutual confidence and trust with theofficials of the homicide squad. The public prosecution office also makes extensive use of its authority to lead theinvestigations in the prosecution of so-called government crime, politically motivated criminal offences and legallycomplex environmental or economic crime.
Precisely in the area of economic crime, the investigations are clearly concentrated at the public prosecution office,which thereby often avails itself of the specialist knowledge of experts in the fields of tax or banking law. Command of
criminal investigation techniques is of lesser importance in cases involving these offences; for the most part, they turnon questions that can only be authoritatively answered by an expert trained in criminal or commercial law. It is thus
especially in this area that the public prosecutor exercises the authority to lead the case that is vested in him for the entire
investigation proceeding.
The guidelines for criminal proceedings – these are detailed instructions of the Land ministries of justice for the workof the public prosecution office – state the following in this regard:
In cases that are of considerable importance or are difficult in terms of fact or law, the public prosecutor should
personally clarify the facts of the case from the very beginning, namely inspect the scene of the crime himself andpersonally examine the accused and the most important witnesses. The consequences ensuing from the offence
can also be of importance for the decision as to whether he should personally examine the aggrieved person as awitness.
In all other cases, however, the authority of the public prosecutor to lead the investigations goes largely unexercised,although this is regulated in the aforementioned guidelines as well:37

RESOURCE MATERIAL SERIES No. 60
Even if the public prosecutor does not personally clarify the facts of the case but instead delegates this task to theofficials assisting him, to the authorities and officials in the police force or to other agencies, he must lead theinvestigations or at least determine their direction and their scope. He can thereby also give specific individual
instructions as to the way in which individual investigatory acts are to be carried out.
In fact, the legal position of the public prosecutor has been considerably watered down over the years. There are anumber of reasons for this:A. Greater Weight of Police Investigations
In practice, it is police officers who conduct the majority of all investigations and, namely, independently of a requestor order of the public prosecution office. In the area of petty and fairly serious crime, they in fact usually investigate
without the direction of the public prosecution office up to the point where a decision can be made. There is a relatively
simple explanation for this. Criminal offences are largely reported to the police. Moreover, the police often become awareof an initial suspicion in the course of performance of their official duties and take action on the basis of this.
In such cases section 163 of the CCP grants the police the authority to investigate the facts of the case themselves
and to take all measures where there should be no delay. As a rule, the public prosecution office initially knows nothing
about this and thus cannot exercise its authority to lead the investigation at all.
In other words: For all practical purposes, it is up to the police whether and how the principle of mandatory prosecution(Legalitätsprinzip) is translated into action.
I would like to make a few brief remarks concerning the principle of mandatory prosecution:
A criminal proceeding is not a proceeding between parties like a civil proceeding. In contrast to the civil proceeding,which is governed by the parties’ freedom of disposition and in which the decision is rendered on the basis of a formal
truth dependent on the submissions of the parties, in the criminal proceeding the public prosecution office – and the police– are bound by the principle of mandatory prosecution. This principle ensures uniform and equal application of the law
as opposed to arbitrary selection and instils confidence that criminal prosecution will be handled in an objective and justmanner.
Exceptions to the principle of mandatory prosecution are usually lumped together under the term “principle ofdiscretionary prosecution” (Opportunitätsprinzip). After all, the public does not have an interest in the prosecution of
every single criminal offence. In cases involving minor and moderately serious crimes where only private legal interests
have been infringed, the law therefore makes prosecution subject to further conditions.
Returning to the subject at hand: For all practical purposes, it is thus up to the police whether and how a matter isinvestigated, in other words, whether and how the principle of mandatory prosecution is translated into action. For thepolice by no means limit themselves to taking initial action but instead largely independently undertake investigatory
action up to the point where a decision can be made. They thereby strive to deliver conclusive results to the publicprosecution office. The public prosecution office and the judges are consequently only able to exercise their control in
isolated cases.
Thus it is in fact the principle of discretionary prosecution that reigns in investigation proceedings – at least according
to the criticism voiced in legal literature. For empirical studies indicate that the police can determine whether or notinvestigations will be instituted•

through the way in which the information of the offence is registered,•through selective clarification work in the course of police squad activity, and•through the offence-dependent intensity of police investigations.
Let me give you an example:

A few years ago a colleague from the United States stayed at our home. She did not speak German and still had somedifficulty keeping the German banknotes apart. When she paid for a purchase one day, the salesperson slipped her a38

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VISITING EXPERTS’ PAPERS
Czech 100-crown bill that was worth only a fraction of the German 100-mark bill she should have received in change.
Our guest failed to notice this fraudulent trick because the 100-crown bill was roughly the same size and colour as the
100-mark bill. My wife and I accompanied her to the police station, where the officers listened to her complaint. They
also confronted the salesperson with our guest’s accusation but were unable to clarify the facts of the case. The police
officer took the 100-crown bill for safekeeping and wrote down our address. When I inquired about the status of theinvestigations a few days later, I was surprised to learn that the police had neither filed a written report nor investigatedthe case any further. There was absolutely no documentation whatsoever of the incident; they merely offered to give meback the 100-crown bill.
This is a prime example of how sheer passivity on the part of the police authorities – in this case failure to file areport of a criminal offence – can result in a gross violation of the principle of mandatory prosecution. The fact that inthis way it is also possible to control the workload of the police and keep cases that are difficult or impossible to solveout of the statistics is another critical point that one must bear in mind when contemplating an extension of the powersof the police.
As a rule, the question of whether coercive measures under the law of criminal procedure will be used in the further
course of the investigation proceeding likewise hinges on a preliminary examination and decision by the police that is
not stipulated by law. For except in cases involving financial and economic crime, where the public prosecution officegenerally takes the lead in the proceedings, it is the police who decide whether the files should be submitted to the publicprosecution office in order for the latter to apply for the issue of a warrant of arrest. It is not unproblematic that this allows
the police a certain amount of discretion that can unquestionably be exercised after the provisional arrest of a suspect toinfluence his willingness to make statements, in particular to make a confession, name accomplices or divulge the hiding
places of loot or of objects used to commit the crime.
The police also often play a crucial role in determining the course of the proceedings through responsible examinationof the accused. It is the police who can decide the question of whether – in cases where the facts are unclear – a certain
person should no longer be examined as a witness but rather as an accused. For all practical purposes it is thus up to thepolice to determine the point at which certain rights of the accused become effective. This is a particularly delicate issue
in light of the fact that the police officers often conduct an “informal preliminary talk” or an “informatory questioning”
of the suspect in order to first ascertain whether they can reckon with a statement or perhaps even a confession or otherinformation pertaining to the offence. Such conduct by the police has no foundation in law, but it is not expressly prohibited
either. From the standpoint of respect for the rights of the accused, however, it is particularly problematic because thedefendant is not usually formally advised of his rights beforehand. Hence the term “informal” preliminary talk.
Such kinds of talks or questioning are quite popular with the police because the knowledge acquired in this manner
can ultimately find its way into the investigation proceedings. The investigating officer, for instance, can add a note to
the file detailing the information he has obtained and later testify to this in court as a witness. It goes without saying that
defence attorneys do not favour this practice.
While – at least under German procedural law – the defendant indeed has the right to call in and consult with defence
counsel at any time, the defence counsel does not have any statutory right to be present when the defendant is examined.
Thus in the final analysis the police examination can be structured at the discretion of the officer conducting theexamination, for the public prosecutor is usually not present.
Anyone familiar with the subject matter knows that in most cases, mistakes made during the investigation proceedings
cannot be eliminated later on in the main hearing; it is likewise common knowledge that once the defendant has made acomprehensive confession to the police he will hardly ever be able to distance himself from it. This alone makes it clearthat in the majority of cases it is not likely to be the public prosecution office but rather the police investigatory authorities
that take the steps determining the subsequent course of the investigation proceedings.
B. Head Start of the Police in the Investigations as a Consequence of Preventive Action
The police have an ambiguous position in criminal proceedings, as can clearly be seen from the following example:
A burglar has broken into a bank and taken a hostage. While the public prosecutor who has hurried to the scene of
the crime can order the police officers to apprehend the suspect and preserve evidence at the scene of the crime, he cannot
order them to free the hostage by firing a shot at the perpetrator. For the latter act would not be a criminal prosecution
measure but rather a measure to safeguard public security.

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The general clause laid down in the police acts of Germany’s Länder stipulates thatIn the context of action to avert danger, the police authorities must also prevent any foreseeable criminal offences(preventive suppression of crime).
It is thus the task of the police, as the law enforcement authority under the purview of the Minister of the Interior, totake preventive or responsive action to suppress disturbances of the peace. This also includes action taken against
perpetrators, such as an assault to free hostages.
Here the police are subject to the instructions of the Minister of the Interior; as soon as investigations of persons
suspected of having committed a criminal offence are on the agenda, however, the federal statutory regulations of theCode of Criminal Procedure and the Courts Constitution Act apply, with the result that the public prosecution office isauthorised to give instructions to the officials assisting it. To the extent that the police are engaged in the prosecution ofa criminal offence, one speaks of repressive action; to the extent that they are acting to prevent criminal offences, one
speaks of preventive action. Occasionally, however, this distinction poses problems because the general duty (regulatedby Land law) of the police to suppress crime overlaps with the duty (regulated by federal law) to clear up criminal offences
pursuant to the provisions of the Code of Criminal Procedure.
It must, however, be noted that preventive action to suppress crime is an independent pillar in the area of action to
avert danger and thus logically falls within the sole competence of the police. Given the use of computers to collect andprocess vast quantities of information, prevention as conceived above constitutes a considerable extension of the dutiesof the police. This can be seen from the example of a confidential informer – a small-time drug dealer, for instance –controlled by the police who regularly supplies the police with a wealth of information that – after evaluation and collationby the police – makes targeted investigatory action possible. Since the public prosecution office does not find out about
this flow of information in most cases, it cannot exercise its authority to lead the investigations at all.
You will now ask me who has “supreme authority” at the scene of the crime in the case involving the hostage-taker:
the senior public prosecutor or a senior police officer. The guidelines for criminal proceedings contain a wise provision
for such a constellation:
In the event that criminal prosecution duties and duties to avert danger follow simultaneously and directly fromone and the same situation, the public prosecution office and police shall be competent to take the measuresnecessary to fulfil their duties.
In such a case, close co-operation based on mutual trust between the public prosecution office and the police isparticularly essential. Co-operation in a spirit of partnership dictates that when fulfilling its duties each agency
also take into account the implications this will have for the fulfilment of the other duties following from thesituation. If the public prosecution office becomes involved, the public prosecutor and the police shall takemutually agreed action if at all possible. This shall also apply in the event that the situation does not permit
simultaneous appropriate fulfilment of both their duties. In this case it shall be decided, by weighing the merits ofthe duties and the legal interests involved, whether criminal prosecution or action to avert danger is the higher
good under the given specific circumstances.
Up to this point there has only been an appeal to the police and the public prosecutor to agree on a mutually acceptablecourse of action at the scene of the crime; the question of whether the police may on its own responsibility fell the hostagetaker by firing a shot or must instead wait until the public prosecutor gives his instructions is answered by the following
provision:
If the situation requires a decision concerning the use of direct force without delay and if agreement cannot bereached – even after consulting the superior agencies – as to which duty has priority under the specificcircumstances, the police shall make the decision.
C. Professionalisation of Criminal Investigation Techniques
Last year, the police investigatory authorities dealt with approximately 6.5 million criminal offences. It goes without
saying that not only in view of the multitude of investigation proceedings but also in view of its usual lack of specialisation,
the public prosecution office is dependent on the specialist knowledge of the police criminal investigation officers.
Furthermore, the police with their technical equipment are much more in the public limelight and hence more the focus

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120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSof political attention; they thus enjoy not only greater goodwill but also greater financial support. As a consequence of
the wide range of new techniques for establishing proof that have also been upheld in decisions of the highest courts(such as DNA analysis, fibre expertise, chemical analysis) and the frequently convincing command of these techniquesby the police, the head start of the police in the investigation proceedings from the standpoint of information has become
so pronounced that the public prosecution office must often limit itself to checking the plausibility of the results of theinvestigations submitted to it.
It is meanwhile often only the police who have specialists capable of accurately selecting, sequencing and assessing
the prospects for success of individual investigatory methods. The public prosecution offices are thus only rarely able tocontrol, influence or direct the investigations in substantive terms.
It must be pointed out in this context that the police forces – which are organized at Land level and have no central
office where information can be accessed by all Land police authorities – are hardly in a position to effectively combat
criminal offences committed on a national scale. This particularly hinders the prosecution of offenders who operateinternationally. Against this background, the decision was taken to establish the Federal Criminal Police Office (BKA)
in Wiesbaden. In addition to its information collection and co-ordination functions, the Federal Criminal Police Officemaintains the facilities and equipment required for all kinds of criminal investigations and criminological research inorder to assist the Land police authorities in their investigations.
D. Police Control of Data
Since 1972, the Federal Criminal Police Office has had the electronic information network “INPOL” at its disposal
to assist the police in the fulfilment of their duties. INPOL is made available at federal and Land level for joint use bypolice agencies and contains the following data, among other things:•

wanted persons data file,•wanted property data file,•

Criminal Records Index (CRI),•

prisoner file,•

Identification Service,•

Automated Fingerprint Identification System (AFIS),•

motor vehicle light identification file for hit-and-run accident queries,•

vehicle identification and analysis system,•

unidentified dead and missing persons data file,•police crime statistics.

Of particular importance in this context is the wanted persons data file. It facilitates determination of the whereaboutsof wanted persons, apprehension, detention, taking of fingerprints and photographs, and establishment of identity. Amongother things, it contains data concerning persons who are wanted for arrest, whose whereabouts are unknown, whose
permission to drive has been withdrawn or who are sought in matters falling within the competence of the border police.
Just under one million persons are currently listed in this file.
The wanted property data file serves to conserve evidence and recover property. It contains, for example, theinformation needed for search measures concerning objects that were used to commit a criminal offence or surfaced inconnection with the offence or are otherwise of significance to a criminal proceeding. It also contains information
concerning vehicles that are under police surveillance. Among the approximately 6.5 million objects contained in thisdata file are 350,000 cars, 500,000 motor vehicle license plate numbers, 1.3 million personal identification documents,
just under 600,000 blank documents – including personal identification documents, for instance – and more than 100,000
weapons.

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Only the police authorities are entitled to use INPOL, Germany’s most important collection of data. Only they may
enter and access data. Thus far the judicial authorities have no right of their own to access INPOL.
The judicial authorities themselves have only relatively few information systems at their disposal. In addition to theprogrammes installed at the public prosecution offices, through which they compile and administer their own files, thesesystems include•

the Federal Central Criminal Register (here is where all criminal sanctions are registered),•

the Central Commercial Register (the purpose of which is to ensure uniform approval or denial of business licenses
to weed out unsuitable persons), and•the Central Register of Traffic Offenders (here is where all traffic infractions are registered).

In practice this means that when the police stop a person to check identification, they can access the INPOL datafrom the squad car by radio. The police officers on the scene thus have a considerable amount of highly sensitive data
concerning the person in front of them at their fingertips, but the person being checked cannot discern or deduce theextent of this information.
If the public prosecution office wanted to comprehensively control the police in investigation proceedings, it would
have to be able to access the current database at any time in order to also be able to judge the latter’s lawfulness in thecontext of its control function. In fact, however, the judicial authorities have no access to police data because some of it
is obtained on the basis of information acquired in the course of preventive action by the police. While consideration is
being given to the possibility of granting the judicial authorities access to police databases in the future, at present the
information advantage of the police essentially rules out the possibility of control by the public prosecution office in
certain areas of investigation.
E. Information Advantage through EUROPOL
Through EUROPOL, police and other information and data from the European Union Member States and third
countries are collected and analysed at a central facility for later use in investigations, control measures and executive
operations.
The aim of EUROPOL is to bring to light the activities and structures of organized crime as well as data concerning
the members and profits of criminal organizations with the aid of modern analysis techniques and to process thisinformation for the use of the national police authorities. This includes defining focal areas for further technicalinvestigatory measures, identifying connections with other investigation complexes and elaborating new investigatory
approaches. Future threatening scenarios are generated and their impact assessed in order to enable decision-makers tocarry out medium- and long-term planning and take preventive action. EUROPOL thus functions more or less as aclearinghouse for the collection and exchange of criminally relevant information. In addition to personal data of convictedindividuals, suspects, potential witnesses and victims, contacts, companions and possible informants, information fromvirtually all national and European institutions can be accessed. This data is then processed to compile strategic analyses,
among other things.
The judicial authorities do not (yet) have any influence on the activities of EUROPOL within the European area.
The German public prosecution offices do not even have a right to obtain information directly from EUROPOL. The
Federal Criminal Police Office, as the EUROPOL “national unit” for Germany, is merely obliged under the EUROPOL
Convention to notify the criminal prosecution authorities of information concerning them and of any connections identified
between criminal offences. It is currently not, however, under any obligation to forward requests for information by the
public prosecution offices or the courts to EUROPOL.
One must thus conclude that police clearly have a crucial advantage in the case of EUROPOL as well, and that here,
too, the public prosecution office cannot exercise its statutory right to control and lead the investigation proceedings.
F. The de facto Control of Matters by the Police in a Large Percentage of Investigation Proceedings is Based on
the Following:• Many investigatory acts are undertaken nearly exclusively by police officers on their sole responsibility (summons,
examination, taking of fingerprints and photographs, search, arrest, evaluation of evidence, assessment of the status42

120TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSof the parties to the proceedings as accused or as witnesses). The police maintain a presence day and night; in manycases they are therefore immediately at the scene of the crime and are thus able to determine the course of the future
investigations.
•

Since the police are also engaged in preventive activity, i.e. work to prevent criminal offences, they have a wealthof detailed knowledge that often enables them to take swift action without the public prosecution office becoming
aware of this.

•Public attention and media coverage focus far more often on the work of the police than on the work of the publicprosecution office. Thanks to the benevolence of political leaders, the police are better staffed and have more modern
equipment and a more highly developed basic and further training system than the judicial authorities.

•

The control of data by the police in the context of increasingly comprehensive computer-assisted investigatory
methods gives them a distinct advantage over the public prosecution office.

•The same is true of the professionalisation of criminal investigation and intelligence techniques by the police.

•

The police alone have taken organizational measures in response to the internationalisation of crime by establishing
INTERPOL and EUROPOL. The public prosecution offices are still denied access to these databases.
IV. REFLECTIONS ON AN EXTENSION OF THE POWERS OF
THE POLICE UNDER THE LAW OF CRIMINAL PROCEDURE

Given the increasingly important role of the police in criminal proceedings and their de facto advantage over the
public prosecution office, it is not surprising that the police in Germany have begun to explore the possibility of amending
provisions of the law of criminal procedure to reflect this growing importance. In the following I would like to examine
a number of suggestions in greater detail:A. Obligation of the Witness to Appear before the Police and Make Statements
Pursuant to section 161a of the CCP, witnesses are obliged to appear before the public prosecution office upon being
summoned and to make statements on the subject matter. If witnesses fail or refuse to appear without justification, thepublic prosecutor may impose a coercive fine on them. The current law of criminal procedure does not, however, provide
for an obligation of the witness to appear before the police and make statements. The police merely have the possibilityof pointing out to the witness that if he refuses, they will see to it that he is examined by the public prosecutor or thejudge, vis-a-vis whom the witness has an obligation to appear and make statements.
Time and again there have been calls by the police for legislation mandating an obligation to appear and makestatements in the case of police examination of witnesses as well. A corresponding proposal is now the subject of a billthat has been submitted by the Länder.
Law enforcement practitioners believe that investigation proceedings could be conducted more efficiently if witnesses
were under an obligation to appear before the police and make statements. In their opinion, an early initial examinationby the police takes on particular importance when the public prosecution office leading the investigation does not yet
have sufficient knowledge of the facts of the case and it would be useful to be able to draw on specific experience or
knowledge of the police or on intelligence they have gathered from preventive work to combat crime that is not immediately
available to the public prosecution office. Furthermore, they continue, in no small number of cases the investigatory
authorities have to deal with ambivalent and intimidated witnesses whose willingness to testify must also be encouragedby the police. From the standpoint of the police, it is precisely the witnesses occasionally called upon to make statements
concerning crime complexes of organized crime who should be examined promptly.
In the case of minor and moderately serious crimes, they continue, witnesses are often unwilling to appear before
the police upon being summoned due to the inconvenience, cost or time commitment this entails. An obligation to appear
before the police would at any rate be likely to accelerate the proceedings in such cases and reduce the time, cost andeffort involved for the simple reason that once such witnesses have put in an appearance, they are generally willing to
make statements. The proposed provision is to read as follows:

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Witnesses shall be obliged to appear before the police authority upon being summoned and to make statementson the subject matter if the summons is based on an order or request of the public prosecution office.
In the opinion of the Federal Government, which commented on the proposed provision, this would merely lead toa shift of powers to the police. For according to the explanatory memorandum to the bill, an obligation of witnesses toappear before the police and make statements was to then take on particular importance when the public prosecution
office did not yet have sufficient knowledge of the facts of the case but an early examination would nevertheless be
useful. In the Government’s view, however, an order or request by the public prosecution office to the police to summon
a witness would – if it were to be more than just a formality – presuppose a prior comprehensive briefing on the statusof the proceedings in each individual case. Thus no acceleration or increase in the efficiency of investigation proceedings
would be associated with a provision such as the one proposed.
Furthermore, it is admissible under German law for witnesses to be accompanied by legal counsel when they appear
at the examination. If witnesses were obliged to appear before the police, they would in any case bring legal counsel withthem if they could themselves be subject to criminal prosecution and therefore have a right to refuse to make statements
or if they belonged to the group of aggrieved persons or witnesses entitled to private accessory prosecution or, finally, if
they were particularly in need of protection. In these cases it is possible under the law for an attorney to be assigned to
the witness as counsel prior to examination by the public prosecutor or the judge.
In the event of the introduction of an obligation to appear before the police and make statements, the principle of fair
proceedings would demand that legal counsel already be called in – at state cost, if necessary – during the examinationby the police. This could not only lead to delays in the proceedings and addition expense for the police but also perhaps
exceed their expertise. For it is certainly doubtful whether a police criminal investigation officer, who as a rule has only
an intermediate-level school education, would be able to hold his own against an attorney with considerable court
experience serving as legal counsel for the witness. In such cases the officer conducting the examination would be
dependent on the assistance of the competent public prosecutor, insofar as he did not simply discontinue the examination
session and leave the questioning of the witness accompanied by counsel to the public prosecutor.
This example shows that the police authorities should only be given additional powers if there is no doubt that they
are fully capable of exercising them.
B. Independent Power of the Police to Terminate the Investigation when the Perpetrators are Unknown
More than 1.5 million cases of ordinary theft and just under 700,000 cases of damage to property – snapping off a
car antenna, for example – are committed in Germany each year. In cases involving crimes committed on a mass scalein which the perpetrators are likely to remain unknown, the investigation proceedings have already been simplified tothe point where no effort is generally made to procure evidence or examine witnesses.
As a rule, the file consists of just one sheet of paper on which the person harmed describes the criminal offence, aform with which the police notify the person harmed two or three weeks after the crime that they were unable to locate
a perpetrator, and another form signed two or three weeks later by the public prosecutor with which he notifies the person
harmed that the criminal proceedings had to be terminated because the perpetrator is unknown.
In view of this practice it is not surprising that consideration is being given in police circles to whether – at least in
the case of unknown perpetrators – the final termination order could not also be signed by the investigating police officer.
For this – according to the argumentation of the proponents of such a solution – would avoid unnecessary circulation offiles and spare the public prosecutor a review of the case and the issue of a termination order.
The shifting of competence for termination of proceedings to the police appears very problematic to me not only inlight of the statutory authority of the public prosecution office to lead the investigation proceedings but also in view ofthe following:•

44

The termination of proceedings against unknown perpetrators by the police on their own responsibility would callfor more intense police review of the criminal investigation process especially in regard to the legal assessment of
the offence; thus far, given the competence of the public prosecution office for final review, this question has notbeen a focus of review by the police investigation officials. A competence of the police to terminate proceedings ontheir own would therefore go hand in hand with an additional commitment of resources to review that cannot bemade by the police in every case.

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The termination of proceedings against unknown perpetrators by the police harbours a slew of potential objections
by affected insurance companies, etc., who might perhaps demand further investigatory acts and insist on a decisionby the public prosecution office.

•Such a shift would essentially result in the emergence of parallel competence of the police and the public prosecution
office all the way up to the conclusion of criminal proceedings, which would in turn complicate queries concerning
the outcome of criminal proceedings as well as the fulfilment of reporting requirements both for statistical purposes
and for the Federal Central Criminal Register.

•

The termination of investigations against unknown perpetrators is often only temporary or at least open-ended
timewise. Since the police are not as centrally organized as the public prosecution office and the number of police
authorities is significantly larger, it is not likely to be all that easy to promptly link subsequent incoming tips concerningperpetrators to the correct proceedings.

•

Even investigation proceedings in which no accused persons have been identified or examined can involve interference
that could make it appear wise on rule-of-law grounds to provide for review by another body – in this case the publicprosecution office.

•And, finally, it is difficult to imagine that authority to lead the investigation could remain vested in the publicprosecution office but at the same time be undermined by an independent power of the police to terminate theproceedings.

In short: Independent termination of certain investigation proceedings by the police is unlikely to lead to either ageneral reduction in public administration costs in the area of criminal prosecution or better co-operation between the
public prosecution office and the police. The mere fact that the police largely take the lead in proceedings involving
prosecution of minor and moderately serious crimes does not justify any changes to the law. Interests protected under
the constitution such as the effectiveness of criminal prosecution and the separation of powers as well as the traditional
distribution of functions between the investigatory and judicial bodies, to which the public prosecution office belongs,
dare not be infringed. The idea of transferring an independent power of termination to the police in certain investigation
proceedings should therefore be abandoned.
V. IDEAS FOR OPTIMISING CO-OPERATION BETWEEN
THE PUBLIC PROSECUTION OFFICE AND THE POLICE
My remarks are intended to make it clear that merely shifting competences from the public prosecution office to thepolice – in other words, increasing the latter’s power – will not necessarily lead to simplification and acceleration of theproceedings and save costs and, moreover, that it can be questionable from the rule-of-law perspective.
There are, however, a number of areas in which an intensification of co-operation between the public prosecution
office and the police could improve criminal prosecution and relieve the burden on the investigatory authorities as awhole, in other words, on both the public prosecution office and the police:
A. Co-ordination of Investigation Strategies
Insofar as the prosecution concepts and investigation strategies of the police can have an impact on criminal
prosecution, involvement of the public prosecution office in the form of mutual consultation and co-ordination appears
indispensable. There would otherwise be reason to fear that the measures taken by the police would not be followed upby the public prosecution offices and would thus prove fruitless. If, for instance, the police launch a long-term campaign
aimed at busting an openly active drug scene by making a multitude of arrests, the public prosecution office must be
involved beforehand so that it can take steps to ensure the availability of the personnel resources required to handle thesearrests and their subsequent processing by the judicial authorities.
The arrangement spelled out in item No. 5 of Annex E to the Joint Guidelines of the Ministers of Justice and Ministersof the Interior relating to Co-operation between the Public Prosecution Offices and the Police in the Prosecution oforganized Crime is a prime example of how to structure co-operation extending beyond individual cases between the
public prosecution office and the police to combat organized crime:

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RESOURCE MATERIAL SERIES No. 60
Co-operation, extending beyond individual cases, between the public prosecution office and the police isintended to enable both authorities to obtain, jointly develop and use as the basis for their respective individual
measures the same in-depth knowledge of the forms of manifestation of organized crime and of the specificproblems relating to the cases involved.
Co-operation extending beyond individual cases is also to enable agreement to be reached on the local andtemporal management of the investigation capacities of the public prosecution office and the police criminal
investigation department through the creation of focal points corresponding to the actual situation in question.
The public prosecution office and the police criminal investigation department arrange regular official meetings
at which there is special discussion of the•actual situation, anticipated development and measures to combat organized crime within their sphere,•knowledge and experience gained from the course of investigations and of court proceedings, and also the effectsof mistakes made during investigations,•knowledge and experience acquired from the use of undercover investigation methods and from the protection of
witnesses, including ensuring the necessary secrecy,•knowledge and experience acquired from measures for siphoning off profits,•local practice with regard to international legal assistance and other forms of co-operation with foreign authorities,•general questions of co-operation,•public relations.
Discussions should take place once a year, and where necessary more frequently. The customs investigation
department should be given the opportunity of taking part. The departments participating decide on whether tocall in other authorities. The respective superior authorities must be informed of the outcome of such discussions.
This “model” could be applied without any problem to other areas of crime (especially fairly serious and serious
crime) and facilitate the elaboration of joint strategies to combat crime.
In several of Germany’s Länder, for instance, working groups consisting of both public prosecutors and police officers
have been established at the public prosecution office to take concerted action to combat official corruption.
B. Steps to Combat Domestic Violence
Strategies for combating domestic violence have also been developed by the public prosecution office and the police
in collaboration with other authorities in order to effectively protect women and children against violence, impose
appropriate sanctions for offences and prevent recidivism.
Violence in the immediate social environment is a phenomenon that was long taboo and played down in importance.
This form of crime, however, to which more than 10,000 women fall victim every year, constitutes a gross violation of
the physical and emotional integrity of the individuals concerned.
As in the case of efforts to combat organized crime, intensive co-operation between public prosecution offices, policeand other agencies leads to a concentration of knowledge and experience and thus not only to higher-quality investigations
but also to more effective protection of the affected victims. The investigation work is complemented by measuresdesigned to heighten the awareness of the individuals and agencies concerned. Among other things, these include;•

the elaboration of a handbook for criminal investigation officers to provide guidance for action at the scene,conservation of evidence and handling of cases,•

a broad range of basic and further training courses to teach police strategies for intervention in cases involving domestic
violence,46

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an informational brochure for women frequently affected by domestic violence explaining how they can effectively
protect and defend themselves with the assistance of the police and the judicial authorities.

C. Co-operation Models for Simplification of Proceedings
1. Juvenile Delinquency
In my opinion, there is a need for co-operation between the police and the public prosecution office not only in regard
to co-ordination of police investigation measures; consideration should also be given to the question of whether closer
co-operation between the public prosecution office and the police in the form of delegation of responsibilities or
preliminary examinations could simplify and speed up the conclusive handling of criminal proceedings.
In a number of Germany’s Länder there are guidelines for combating juvenile delinquency that assign a broad rangeof responsibilities to the police in order to relieve the burden on the judicial authorities without, however, encroachingon the authority of the public prosecution office to lead the investigation proceedings.
Behind this is the fact that in cases involving more minor criminal offences, the Juvenile Courts Act allows the publicprosecutor at the juvenile court or the juvenile court judge to refrain from imposing formal sanctions at an early stage ofthe proceedings. The term “diversion” used in this context means a deviation in sanction practice from the classic formal
procedure involving the judicial authorities in favour of an informal, swift and flexible response. Accordingly, preferenceof charges and conviction may – following the exercise of socio-educational influence or implementation of socioeducational measures – be replaced by termination of the proceedings.
The aim of these administrative provisions is thus;•

the promotion and improvement of co-operation between the police, the youth welfare authorities, the publicprosecution office and the court,•

the guarantee of a real socio-educational response by the state in lieu of a formal court decision,•

the involvement of parents and other persons with the right of care and custody,•

the simplification and acceleration of juvenile criminal proceedings, not only in the interest of the judicial authorities
but also in the interest of the young person concerned.

The prerequisite for such flexible handling of proceedings is that it apply only to criminal offences of a minor naturesuch as;•theft, misappropriation and receiving stolen property of slight value (up to approximately fifty dollars),•minor cases of fraud (involving damages of up to fifty dollars),•

unauthorised use of a vehicle,•

obtaining benefits by devious means, or travelling without paying for a ticket,•

minor cases of damage to property, especially damage that is the product of typically juvenile motivation or situations,such as graffiti,•

negligent bodily injury,•

insult,•minor cases of driving without permission to drive.

In order to submit only really suitable cases to the public prosecutor or the court, the police must determine in theirinvestigations whether the accused has already voluntarily rendered meaningful socio-educational accomplishments or
voluntarily suggests or actually renders such accomplishments. These can consist of the following in particular;

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an apology to the person harmed,•

restitution of the harm caused (also partial restitution)•

payment of compensation for pain and suffering•

performance of work for the person harmed,•

community service work,•

participation in police road safety instruction,•a socio-educational talk by the police with the young person in connection with his examination,•a socio-educational talk by the public prosecutor with the young person.

Insofar as a socio-educational measure of this kind is suggested or implemented by the police after consulting withthe public prosecution office, or by the public prosecution office itself, this presupposes three things;•

no earnest denial of the criminal accusation,•consent of the young person to the measure,•no objection by the person with the right of care and custody or by the statutory representative.

Final control of the implementation of a socio-educational measure involving the young person lies in the hands ofthe public prosecution office. It is responsible for ensuring that due account is taken of the idea of social education. Not
until then is the proceeding terminated without leaving a blot on the accused juvenile’s record.
The distribution of labour between the police and the public prosecution office is advantageous for all the parties
involved, including the young person concerned;•

The proceeding is standardised and simplified in such a manner as to avoid unnecessary effort and expense,•

The waiver of intensive investigations – at the youth and social welfare authorities, for instance – ensures that the young
person’s private sphere remains largely untouched,•

The socio-educational option afforded the young person confronts him with the consequences of his act just the same
way as a formal sanction,•

The regular consultations between the police and the public prosecution office guarantee that the police investigatory
authorities remain aware of their limits.

2. Mediation between the Perpetrator and the Victim
Administrative provisions are in place that promote pragmatic and flexible co-operation on a case-by-case basis
between the police and the public prosecution office in order to ensure uniform practice in the area of mediation between
the perpetrator and the victim. Here, too, the police investigatory authorities are only conceded powers of their own tothe extent that this does not dilute the supreme investigatory authority of the public prosecution office.
The statutory basis for mediation between the perpetrator and the victim is section 46a of the Criminal Code. Pursuant
to section 46a, the court may mitigate or dispense with punishment if the perpetrator has completely or substantially maderestitution for his act or has earnestly strived to make restitution. The same is true if the perpetrator has, in a case in which
the restitution for the harm caused required substantial personal accomplishments or personal sacrifice on his part,completely or substantially compensated the victim.
The guidelines issued in most of Germany’s Länder provide for the following action on the part of the police:48

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After clarifying the basic facts of the case, the police limit their investigations to verification of personal particulars
and examination of the victim and the accused person,•

In suitable cases the police inform the victim or his attorney at the earliest opportunity of the possibility of mediation
between the perpetrator and the victim; this can be done by handing out or sending an information sheet or by giving
an oral explanation,•

To the extent that this appears expedient, the police seek to establish contact with the accused or his attorney and informthem of the possibility of mediation between the perpetrator and the victim and of the conceivable consequences under
the law of criminal procedure. The standardised information sheet is to be handed out or sent for this purpose,•

The police submit a case they deem suitable for mediation between the perpetrator and the victim to the publicprosecution office without delay,•

In cases of doubt, the police consult the public prosecution office either in person or by phone as to the procedure to
be followed.
Similar guidelines exist for the procedure to be followed at the public prosecution office:Insofar as the accused and the person harmed agree to such mediation, the public prosecution office requests a conflictmediation agency to carry it out. There the affected parties receive impartial assistance in regulating the consequencesof the act that caused the harm.
Upon conclusion of mediation between the perpetrator and the victim, the files are submitted to the public prosecution
office, which then decides – with the involvement of the court, if necessary – whether the proceeding should be terminatedor whether the circumstances of the act nevertheless give cause for preferment of charges. In such a case, as I pointed
out earlier, the conclusion of mediation between the perpetrator and the victim can lead the court to mitigate or evendispense with punishment.
As you have undoubtedly realised, in such cases it would probably be simpler for a public prosecutor to immediately
prefer charges – i.e. without mediation between the perpetrator and the victim – or terminate the proceedings upon paymentof a regulatory fine. In my opinion, however, this relatively time-consuming mediation procedure is worthwhile for all
the parties concerned;•

Peaceful relations under the law are restored, and conflicts are settled,•

The victim obtains satisfaction from the perpetrator,•

Further disputes between perpetrators and victims under the law of civil procedure are usually unlikely to arise.

3. Models for more Efficient Efforts to Combat Shoplifting
The extent of petty crime in Germany gives cause for reflection on steps to optimise the state’s response.
Approximately 700,000 cases of shoplifting are registered by the police every year. In more than half of the cases,
the value of the shoplifted items is less than ten dollars; in another thirty percent the value is between ten and fifty dollars;
and in only about one percent of the cases is the value more than five hundred dollars.
Even though the fault of the perpetrators in the majority of cases is extremely slight and the proceedings – at leastin the case of first offenders – are very often terminated without imposition of any sanctions at all, the processing of suchoffences nevertheless places a considerable burden on the police and the judicial authorities. Furthermore, law enforcement
practitioners are of the opinion that the previous sanctioning practice in this area of petty crime is inadequate.
A working group in the state of Saxony is now developing a model for efficient co-operation between the police andthe public prosecution office. This model not only greatly simplifies the handling procedure but also leads to impositionof financial sanctions on the perpetrator in every case of shoplifting, even those involving loot of slight value.
The key features of this co-operation model are the following;

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In the case of loot with a value of less than fifty dollars, the police offer the accused the option of terminating theproceedings upon payment of a regulatory fine – subject, however, to the decision of the public prosecution office,•Whenever possible, the offer to terminate the proceedings is made in the context of the personal hearing of the accused.
In cases where small amounts are involved, a form with a standardised offer can already be enclosed with the summonssent to the accused to appear for examination,•

The form makes it clear that this offer is only applicable if the perpetrator does not already have a theft record. It thenpoints out that the public prosecution office will most likely terminate the proceeding upon payment of the regulatory
fine, that no entry will be made in the Federal Central Criminal Register, and that in the event that the public prosecutor
decides otherwise any regulatory fine that may have been paid will be reimbursed or credited toward any other finethat may be payable,•

The consent of the accused should be declared on the form,•

The accused is informed that he can suggest a specific non-profit-making institution in the declaration of consent,•

In the interests of equal treatment, the assessment of the suggested sum of money to be paid is made on a standardised
basis (a multiple of the value of the shoplifted goods, for instance).
In the city of Nuremberg there is a similar pilot project to effectively combat shoplifting:If a shoplifter is caught in the act, the police arriving on the scene may offer him the option of immediately andvoluntarily paying a specific sum of money to the police officer on the spot or to the public treasury within six days. The
prerequisite, however, is that the person in question be a first-time offender and that the value of the stolen goods notexceed fifty dollars. The sum of money collected on the spot should be nine times the value of the goods. After payment
has been made, the public prosecution office can usually conclude the proceeding immediately. The sanction thus follows
hot on the heels of the act.
These two models clearly show that acceleration and simplification of the investigation proceedings are only possible
through co-operation models providing for a distribution of labour that are jointly developed and translated into action
by the police and the public prosecution office.
4. The “House of Juvenile Justice” in Stuttgart
This pilot project optimises co-operation between the police and the public prosecution office in a manner that canhardly be surpassed, namely by accommodating the youth welfare office, the police and the competent public prosecutor
under one roof. This ensures constant and direct contact between the three most important institutions concerned withchild and juvenile delinquency. Moreover, the nearby local court keeps time slots available for hearings so that main
hearings can be conducted at short notice if necessary.
The key principles governing the work in the House of Juvenile Justice can be summarised as follows;•

Case conferences: All the institutions involved exchange their knowledge and co-ordinate assistance measures in theevent of interventions or sanctions. Close daily co-operation and the personnel continuity marking this co-operation
foster mutual trust and confidence in both the individuals involved and their skills. At the same time, they ensure aqualified multidisciplinary diagnosis as the prerequisite for an effective response to child or juvenile delinquency,•

Parallelism of case handling: Upon receipt by the police of a notice of a criminal offence, the public prosecution
office is also promptly informed so that it can immediately bring its own set of instruments to bear in suitable cases.
The officials of the youth welfare office function as intermediaries in this context, involving the necessary co-operation
partners,•

Immediacy: There is no longer merely discussion about the young person concerned but discussion with him as well
– and, if appropriate, also with his parents. The young person thus experiences the public prosecutor in action as areal person rather than just a faceless name contacting him through a form letter. Many young delinquents are
impressed by the intensity of the adults’ concern for them. Not infrequently, this is the first time that the children
and young people concerned sense that someone really cares about what they do and what becomes of them.

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This new form of co-operation has thus far shown in an impressive manner how proceedings can be made more
effective and, in particular, how they can be handled more expeditiously. More high-quality pilot projects of this kind
are to follow in Germany.
VI. SUMMARYa)

For all practical purposes, it is the police who take the lead in the majority of investigation proceedings. Thanks totheir constant presence and consequent ability to take initial action to apprehend suspects, their superior personnel
and technical resources, their control of data, and their European network, they are in a position to decisively
influence the course of the investigation proceedings. In most cases the steps paving the way for conviction or
acquittal are thus already taken during the investigation proceedings, not later on in the courtroom.

b)

In order to meet rule-of-law standards, promote acceptance of court decisions by the accused, strengthen publicconfidence in the lawfulness of intervention by the judicial authorities and forestall critical reporting by the
media, the investigation work of the police should be critically monitored, controlled and, in individual cases,
managed by a competent, fully trained lawyer – the public prosecutor in Germany. This should at least be the casewhen criminal offences other than petty crimes or crimes committed on a mass scale are involved.

c)

Against this background, any attempts by the police to obtain even more latitude and even more freedom from theinfluence and control of the public prosecution office must be greeted with extreme caution. There should also be
no further consideration of the idea of shifting powers of the public prosecution office to the police.

d)Strong support should, however, be given to joint endeavours by the public prosecution office and the police todivide up the tasks arising in the course of the investigation proceedings in such a way as to increase thetransparency of the investigation proceedings and more swiftly and efficiently bring them to a conclusion while atthe same time preserving the competence of the public prosecution office to lead the proceedings. Close cooperation in close quarters between the police and the public prosecution office affords optimal conditions for
this, as pilot projects prove.

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ANNEX 1
Rates of various offences or offence groups
Population: 82 163 500 (01-01-2000)12
Key___

Offence or offence groups1
Total offences

Cases
recorded%

Offencerate2

6 264 723

100.0

7 625

Encompassing:
4***

Theft under aggravating circumstances

1 519 475

24.3

1 849

3***

Theft without aggravating circumstances

1 463 794

23.4

1782

5100

Fraud

771 367

12.3

939

6740

Criminal damage to property

671 368

10.7

817

2240

Intentional bodily harm in less serious cases

261 894

4.2

319

7300

Drug offences

244 336

3.9

297

6730

Insult, assault and battery

152 282

2.4

185

2300

Crimes against personal freedom

146 198

2.3

178

2220

Dangerous bodily harm and serious bodily harm

116 912

1.9

142

6200

Resisting a public official in the execution of his duties and lessserious criminal offences against public order

115 097

1.8

140

5300

Embezzlement

86 284

1.4

105

5400

Forgery of documents

71 796

1.1

87

2100

Robbery; extortion resembling robbery and assault of a motor
vehicle driver resembling robbery

59 414

0.9

72

5200

Breach of trust (section 266 Criminal Code)Withholding and embezzlement of wages or salaries (section
266a Criminal Code)Misuse of cheque and credit cards (section 266b Criminal Code)38 107

0.6

46

6760

Environmental offences

34 415

0.5

42

6300

Accessoryship before and after the fact

29 479

0.5

36

7100

Serious criminal offences and less serious criminal offences insecondary criminal law

28 308

0.5

34

6400

Arson

28 002

0.4

34

7260

Offences in violation of laws concerning weapons

23 607

0.4

29

6710

Non-payment of maintenance allowance

15 761

0.3

19

6500

Crimes in public office (Cases of bribery are included)

8 512

0.1

10

1110

Rape (attempts included) and aggravated sexual assault

7 499

0.1

9

0100

Murder and manslaughter (attempts included)

2 770

0.0

3

+0200

1

The list of keys is incomplete.

2

The offence rate is the number of cases, which have come to the attention of the police, calculated on the basis of 100 000 inhabitants.

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ANNEX 2

(Crest)(Stamp of the authority)

Ms/Mr

Date:
Tel.:
Case officer:
Ref. No.:(Please quote when replying)
Investigation proceedings in respect of theft
Encls.:

Reply letter
Transfer slip

Dear,
You stand accused of the following:That on(date) at around(time) you did misappropriate in(place)goods to the value of DM
in order to permanently retain these goods for yourself
without payment (minor crime of theft in accordance with section 242 subsection 1 of the Criminal
Code [StGB]).
In accordance with section 163a of the Code of Criminal Procedure (Strafprozessordnung - StPO)
you are herewith afforded the opportunity to make a statement with regard to this accusation. You
are furthermore afforded the possibility below of applying for simplified conclusion of proceedings
on payment of a sum of money. If within two weeks of your receipt of this letter no notice quoting
the above ref. No. and no statement returning the enclosed reply letter is received from you by theabovereferenced authority, it will be presumed that you do not wish to avail yourself of the possibility of simplified conclusion of proceedings or of your right to make a statement.
1.

3

Possibility of simplified conclusion of proceedings
If you are a first offender3, it is possible in the case at hand in accordance with section 153 a
subsection 1 of the Code of Criminal Procedure to refrain from filing a public charge if you- consent to simplified conclusion of proceedings using the form enclosed by the dateofand-effect payment in respect of the amount of DM(in words:
Deutsche Mark)byat the latest.

A first offender in this context is whoever has not been previously punished for a property offence and in respect of whom no proceedings relating
to such offences have been discontinued in the past five years in accordance with section 153 of the Code of Criminal Procedure (Non-Prosecutionof Petty Offences) or section 153a of the Code of Criminal Procedure (Provisional Dispensing with Court Action).

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Payment should be effected for the benefit of the Landesjustizkasse Chemnitz, a/c No. 87 001
500 at the Landeszentralbank Chemnitz (branch code [Bankleitzahl]: 870 000 00) expressly
stating the ref. No. above.
Please find enclosed a transfer slip.
The public prosecution office will decide as to allocation to the sum of money to state funds or
to a charitable establishment. You may propose a charity yourself.
If you agree to this treatment of the case in good time and effect payment in respect of theamount in good time and in full, the proceedings are very likely to be discontinued by the public prosecution office. This is conditional on you not having come to notice previously undercriminal law. The final decision is to be taken by the public prosecution office. Documented
payment of the sum of money in good time will be considered agreement. If the proceedings
are discontinued by the public prosecution office, no entry will be made in the Federal Central
Criminal Register ("criminal register"). You will be considered not to have a criminal record,
and the event will not be entered in a certificate of good conduct.
If you do not agree to this treatment of the case, the public prosecution office will decide.
Please note in particular that there is no mechanism for the following:- an extension of the period set for the submission of your agreement;- a reminder to pay the sum of money;- examination of the reasons for which you have not paid the sum of money, or have not paid
it in good time.
In the event of a different decision being taken on the merits of the case by the public prosecution office, the sum of money paid may be refunded or set off against any criminal fine
imposed by the court.
2. Information regarding the caseIf you wish to provide information concerning the case, you may also use the enclosed reply
letter.
Please note that you are free in accordance with the statutory provisions whether to make astatement on the case, and at any time to consult defence counsel to be chosen by yourself.
Furthermore, you may apply for individual items of evidence to be taken to exonerate you.
Yours sincerely,

Signature of case officer

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(First name, last name of the accused, postcode, city, street, house No.)To (Stamp of the police authority)

Reply

Investigation proceedings concerning myself in respect of theft
Re your letter ofRef. No.
I would like to inform you of the following:
1. Application for simplified conclusion of proceedings (Please do not forget to sign!)
q I am a first offender.4 I consent to the treatment of the case as proposed and intended by
the police and suggest discontinuation of the proceedings on payment of a sum of money,q I will pay the sum of money in cash to the police.
q I transferred the sum of money to the Landesjustizkasse Chemnitz on(date).
q I will pay the money to the benefit of the Landesjustizkasse Chemnitz, a/c
No. 87 001 500 at the Landeszentralbank Chemnitz (branch code [BLZ] 870
000 00).
q I propose the following charity to receive the sum of money(optional):q In the event of a different decision on the merits being taken by the public prosecution
office, I agree to the sum of money being set off.
If the sum of money is not used up by an instruction in accordance with section 153 a of
the Code of Criminal Procedure or by setting off in the context of another decision on the
merits of the case, I apply for repayment to a/c No.:
Branch code (BLZ):
Name and address of the financial institution:~ I do not consent to simplified conclusion of proceedings.
2. Information on the case (optional, see legal notice in covering letter, continue on another sheet if necessary)_____________________
place, date4_________________________d.o.b.__________________
signature with first and last names

date of birth

A first offender in this context is whoever has not been previously punished for a property offence and in respect of whom no proceedings relating
to such offences have been discontinued in the past five years in accordance with section 153 of the Code of Criminal Procedure (Non-Prosecutionof Petty Offences) or section 153a of the Code of Criminal Procedure (Provisional Dispensing with Court Action).

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