1. Independence of judges and binding effect of court decisions
Which behaviour is punishable is first of all written in the law. For the question of whether a concrete act is actually to be formulated under the wording of the law, the law must be interpreted. The lawyer knows various methods of interpretation, the absolute limit of which is always the wording of the law. This limit is particularly important in criminal law; the so-called prohibition of analogy has constitutional status (cf. Art. 103 Abs. 2 GG and § 1 StGB). Within this limit, however, there is a lot of scope and this alone can lead to the supposedly paradoxical situation that one sees it that way, the other that way – and both are right.
Not least for this reason, judges who have to decide a concrete case have considerable room for manoeuvre. Therefore, according to Article 97 GG, judges are “independent and subject only to the law”. The judge is free to make his understanding of the norm the basis of the judgement – as long as he adheres to the law (which is capable of interpretation and requires interpretation). Over time, certain views can be consolidated and asserted, but can also change again. This ensures that the law is applied in a timely manner without the legislator having to take any action. In doing so, more weight is attached from the outset to certain judicial decisions than to others. Judgments of the Federal Constitutional Court, for example, bind “the constitutional organs of the Federation and the States as well as all courts and authorities” pursuant to § 31 Abs. 1 BVerfGG. In some cases the decisions even have the force of law, § 31 Abs. 2 S. 1 BVerfGG.
For the judge, however, his independence also means that he does not have to heed decisions of courts other than the Federal Constitutional Court, whether of a higher or lower order – even if all other courts hold a different opinion. As long as it does not result from the law, these decisions have no binding effect. The resulting inequality in the application of the law, which is regularly reflected, for example, in the sanctions gap between North and South (lax Berlin, strict Bavaria), is the price for the independence of the judiciary from any, above all political, influence.
But until a case reaches a decision by a court at all, a file goes through several hands. The police and the public prosecutor’s office, who have been dealing with the case long before the judge, are a pre-filter. At the same time, however, they are also bound by law and the law pursuant to Article 20 Abs. 3 GG. It could therefore be argued that the police would not even have to investigate if they only followed a legal opinion that does not consider certain conduct to be punishable. In this respect, the question arises as to whether the prosecuting authorities must follow a certain interpretation of law.
For the police, jurisdictional practice is only of very indirect importance in the first instance. If it becomes aware of the suspicion of a criminal offence, e.g. through a criminal complaint, it is obliged to investigate according to §§ 152, 163 StPO. In the rarest of cases, the issue at this early stage will already be whether or not a certain conduct is punishable according to the settled case law of a court. Rather, at the end of the investigations there is a report to the competent public prosecutor’s office, which then decides whether or not charges are to be brought.
The criminal investigation procedure, of which the public prosecutor’s office is the “mistress”, actually acts like a preliminary filter. In less than 15% of the cases there is an indictment. In total, only about 35% of all proceedings initiated by the police end with a sanction for the accused.
What if a particularly zealous police officer considers what some consider to be impunity? The public prosecutor’s office is not forced to follow this view. Unlike judges, however, public prosecutors are not independent, but expressly bound by instructions, § 146 GVG, and thus not free from political influence.
If the responsible public prosecutor agrees with the opinion of the investigating police officer, although it probably concerns an unpunished behavior, still the responsible court must decide whether it admits the charge to the procedure, § 199 StPO. Until then, several lawyers have regularly dealt with the matter quite extensively. In the ideal case naturally also a criminal defender, who brought up at best good reasons, why the behavior is straight not punishable and one can spare oneself and the accused the procedure.
Only extremely rarely is a crime so simple that it can be judged at first glance whether the case is punishable by reference to the practice of judgment of Court A or by reference to the practice of judgment of Court B. The case is not punishable by a criminal offence. As a rule, such problems are only discussed in the main proceedings, i.e. in court. The chances of then convincing the judge by referring to the decision-making practice of other courts are, however, slight – after all, in case of doubt he has already admitted the charge and identified himself with the legal opinion. But perhaps he is also the first judge to adopt a new interpretation of the law and to allow himself to be convinced by the arguments – he is not bound by the previous practice of jurisdiction.
In the case of particularly difficult and controversial legal issues, it also happens that several courts of appeal come to different conclusions after appeal and appeal. The bizarre Nuremberg dental gold case was an example of this. The defendants, who as workers in a Nuremberg crematorium were entrusted with the cremation of corpses, had for years secretly taken the dental gold left over from the cremations in order to keep it for themselves and resell it profitably.