Attorney Popken is a criminal defense attorney in Berlin and has been a specialist attorney for criminal law for more than ten years. For questions about criminal law – write a message.
A complaint to the police can not be withdrawn. But a criminal complaint. – Photo by Mike Powell on Unsplash
The withdrawal of the criminal complaint –
A common mistake!
As a lawyer for criminal law, one always encounters misconceptions about the criminal justice system and criminal procedure. Among the most common misconceptions is certainly the assumption that one can withdraw a criminal complaint to the police . The question of Withdrawal of the criminal complaint often arises when the complaint is directed against the partner, family members, friends or acquaintances. It often happens that the parties involved have come to an agreement or reconciliation after the criminal complaint has been filed, so that punishment is no longer desired by the person who filed the complaint. But the ghosts that one called, one does not get rid of so simply again. Because you cannot simply withdraw a criminal complaint – in the Difference to the criminal complaint, where § 77d StGB explicitly provides for a withdrawal. If only the request, but not the complaint can be withdrawn – what then distinguishes the criminal complaint from the criminal complaint?
Read here about the withdrawal of the complaint:
Criminal complaint – criminal complaint: What is the difference??
The criminal complaint is exactly what its name says: The report of a crime. Anyone who has become aware of a criminal act can go to the police and report this act. If, for example, Mr. Muller observes from his window that young people are damaging cars parked on the street, he can call the police and file a criminal complaint. In subsequent criminal proceedings for damage to property, Mr. Muller is then a witness, otherwise he has nothing further to do with the matter. Whether the criminal offence is pursued and how the thing ends up, does not concern it further.
The case would be completely different if the young people did not damage any cars, but Mr. Muller’s car. In this case, Mr. Muller is not only an uninvolved witness, but also, since his property is affected aggrieved party of the crime. In this case, he can not only file a complaint, he can also file a complaint with the Criminal complaint (cf. §§ 77 ff. StGB) express that he or she wishes the offense to be prosecuted. Regularly a complainant, who is at the same time also injured of the act, is asked by the police whether also criminal complaint is made. The significance of the criminal complaint for the further proceedings depends on the nature of the offense.
Criminal complaint and criminal application must be distinguished.
Official offense / application offense – differences
Criminal lawyers divide the various criminal offenses into the following categories Official offences and relative resp. absolute Application offense.
Absolute application offense
Withdrawal of a criminal complaint?
Basically, it is the responsibility of the state to prosecute criminal offenses. However, there are offenses where it is up to the injured party to decide whether the offender is punished. That is for example the case with the insult gem. § 185 StGB or in the case of trespassing acc. to. § 123 StGB. With offenses of this kind – one calls them absolute request offense – A criminal complaint must be filed in order for the offense to be prosecuted at all . If a criminal complaint is filed in these cases, but no criminal complaint is filed, there cannot be a conviction, because a Obstacle to proceedings exists. The preliminary proceedings must then be discontinued.
Relative application offenses
Absolute application offenses are rather rare in the StGB. The so-called relative application offenses are more frequent. In the case of relative application offenses, a criminal complaint must also exist in principle. If this is missing, however, the public prosecutor’s office can still prosecute the offense if the prosecution of the offense is in the "public interest". This public interest (which is often affirmed) can, in the case of relative application offenses, therefore justify the criminal application of the injured party replace.
Official Offenses
In addition to the petition offenses, there are also the Official Offenses – for the prosecution of these offences no application of the injured person is required at all, also a public interest does not have to be explicitly affirmed. All serious offenses are official offenses – who, for example, became a victim of a robbery (§ 249 StGB), can not decide whether the act should be prosecuted or not, a criminal complaint is not necessary so that the case can be prosecuted.
What does this mean for the withdrawal of the criminal complaint??
A criminal complaint cannot be taken back therefore. If the police have become aware of the offense through the criminal complaint, they will start the investigation – they are responsible for the criminal offense because of the so-called "relative application offense". principle of legality even obliged to do so. However, the criminal complaint can be withdrawn (§ 77d StGB). However, what happens if the person entitled to file a complaint (usually the injured person) withdraws his complaint depends on the type of offense.
With the Absolute offences Withdrawal of the criminal complaint is a procedural requirement, the case cannot be pursued further. The proceedings are therefore to be discontinued.
In the case of relative offences of application – and these are practically the most common offenses – further prosecution of the case depends on whether the public prosecutor’s office affirms a public interest in prosecuting the offense. If this is the case, the withdrawal of the complaint is irrelevant, the offense can and will be prosecuted anyway. If, on the other hand, the public prosecutor’s office denies the public interest – for example, because it is a trivial matter and because the accused has not attracted attention so far – the proceedings will be dropped.
Withdrawal criminal complaint – criminal complaint at a glance
Not included in the overview official offences – For these offenses, no criminal complaint is necessary at all. All serious crimes are official offenses, for example, robbery (§ 249 StGB), rape (§ 177 StGB), dangerous and grievous bodily harm (§ 224, 226 StGB). Among the official offenses are also numerous less serious crimes, such as theft (§ 242 StGB), fraud (§ 263 StGB) or drunkenness in traffic (§ 316 StGB). For all these offenses, no criminal complaint is required – a "withdrawal of the criminal complaint" is excluded.
Conclusion: Withdrawal of a criminal complaint does not exist
The fact that a criminal complaint can be taken back, is thus a misunderstanding. Only a criminal complaint can be withdrawn. Whether the matter is settled with the withdrawal of a criminal complaint depends on the offense:
- In the case of an Official offense is a criminal complaint not required.
- With a Relative offence of applicationcan the case can be prosecuted if the public prosecutor’s office affirms the public interest.
- In the case of absolute application offense there is a procedural impediment without a criminal complaint.
In many cases, especially in the case of physical altercations and in cases in which the accused has already attracted attention for a criminal offense, the public interest is often affirmed. The case is therefore usually pursued further despite the withdrawal of the application.
One special feature should not go unmentioned here: If the person who filed the complaint and the accused are related or engaged, the injured party can exercise his right to refuse to testify in court (Section 52 of the Code of Criminal Procedure). If his statement is the decisive evidence for a conviction of the offender, then he has it factually in the hand whether it can come to a punishment of the offender or not. Therefore, even though the injured party may not be able to withdraw the criminal charges after reconciliation, if he or she is related to the perpetrator, he or she can, refuse to make a statement. This can lead to the fact that the procedure is stopped or that the accused is acquitted.
Excursus: Withdrawal of the criminal complaint and the criminal complaint in cases of domestic violence
It is particularly common to ask whether a charges of domestic violence can be withdrawn later on. Domestic violence is not a criminal offense, but a collective term for various offenses that are committed particularly frequently in the domestic environment or in relationships. In most cases, from a criminal law perspective, it is a matter of accusations of Bodily Injury, often accompanied by a Coercion. The accusation of stalking can also be in the room.
For these offenses, what has already been stated above applies: Criminal charges can be withdrawn, but not criminal complaints. Whether or not the pre-trial proceedings must be discontinued with the withdrawal of the criminal complaint depends on whether the offense is an official offense or an absolute offense or a criminal offense. relative application offense acts.
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The coercion acc. § Section 240 of the Criminal Code is an official offense. In this case it is not necessary to file a criminal complaint at all. If the preliminary investigation for domestic violence is also conducted for coercion, a withdrawal of the criminal complaint has no compelling effect on the proceedings.
All in all, the withdrawal of the criminalapplication in most cases of domestic violence does not necessarily lead to a discontinuation of the investigation.
Independently of this, of course, the question must be answered as to whether the public prosecutor’s office will in fact continue the investigation if the aggrieved witness or – in most cases – the aggrieved witness has expressed that they are no longer interested in pursuing the crime further. And also the question of whether or not the crime is later provable or. whether the witness will later turn herself in, if necessary. The fact that a witness can invoke a right to refuse to testify can play a role in the further fate of the proceedings.
Attorney Popken is a criminal defense attorney in Berlin and has been a specialist in criminal law for more than ten years. For questions about criminal law – write a message.