The German Prosecution Service: Guardians of the Law?

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The book will take readers behind closed doors where prosecutors discuss case decisions and unveil the realities of practice. As a result, it will critically revise previous studies of German prosecution practices and offer readers a well-researched ethnographic analysis of actual German decision-making practices and the culture of the prosecution service.

III. Legal regulations

Unlike prosecutors in America's adversarial system, whom critics claim are driven by a "conviction-mentality" and gamesmanship, German prosecutors are institutionally positioned to function as at least semi- judicial officials dedicated to finding a case's objective truth. The book argues that, organizational incentives and norms, rather than the boundaries of the law determinately shapes how prosecutors investigate and prosecute crime in Germany. Read more Read less. K; ed. From the Back Cover Acclaimed as the "the most objective prosecutors in the world", the German prosecution service has long attracted the attention in the past of comparative law scholars.

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The German Prosecution Service: Guardians of the Law? by Shawn Marie Boyne -

If not what are the criteria according to which independence from the executive is to be decided? If so, must the public prosecutor also be functionally independent of the executive and what are the criteria according to which functional independence is to be decided? Procedure before the Court of Justice.

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Written observations were submitted by O. Preliminary considerations. They therefore wish to know which factors could have an impact on the assessment of that independence, citing the following:. Independence is indeed the institutional feature characteristic of judicial authority in a State governed by the rule of law. It is an instrumental quality, secondary to the function which it serves, but essential to the existence of a genuine rule of law.

If so, it will then be examined whether it is in a position to perform that function independently. The case-law of the Court on this point contains some ambiguities sometimes of a purely terminological nature , which have led, at least in part, to the doubts of the two referring courts. I believe that these doubts may be dispelled if, as I suggest, regard is had, in particular, to the characteristic features of the judicial function. In my view, the first of these requirements, namely that of participating in administering justice, is sufficient to rule out the classification of institutions which are manifestly attached to the executive again, the police or a department within the government itself as a judicial authority.

However, apart from its use in defining the outer limits of the concept thus defining it in negative terms , the very possibility of its use in order to develop a positive definition defining the content of the concept depends on the fulfilment of the second requirement: that of ensuring that the fundamental rights involved in the process of issuing and executing an EAW are adequately safeguarded. Participation in the administration of justice. In the field of criminal law, the exercise of jurisdiction by judges and courts may nevertheless depend on the involvement of other parties and institutions.

Thus, for example, a private individual who brings an action or a police authority which conducts an investigation or, a fortiori, which executes a summons or any other type of court order does not participate in the administration of justice, but collaborates in its execution. Those references have to be analysed with care. In the former case, it uses its prerogatives as a public authority to adopt, solely on a provisional basis and for a limited time, measures restricting liberty.

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On the contrary, it should not be the case. The leading judicial role in the context of the Framework Decision. However, in addition to that first or initial guarantee, there is a second guarantee, which concerns the issue of the EAW. Again, in my view this is not a minor issue. I do not share that view. In my view, the possibility that a person may be deprived of liberty for a period as long as that which the execution of an EAW may entail is sufficient to require of the entity responsible for the EAW such a high degree of independence that only courts stricto sensu can ensure it.

They may also directly and promptly weigh up the facts and circumstances justifying the decision to deprive the person brought before them of his liberty. By contrast, in the case of an EAW, the judicial authority in the executing Member State must deal primarily, as regards the individual situation of the requested person, with the objective of ensuring the surrender. Effective judicial protection is, in essence, the protection provided by a judge.

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That is to say, by that authority, which, by definitively applying the law to a particular case, ensures that the regulatory and decision-making procedure leading to the ultimate application of the provisions of the legal system ius dicere has been carried out in the manner laid down by the latter. In addition, it would make possible the adoption of a decision which, like the EAW, may involve a significant deprivation of liberty of the requested person in the executing Member State, by an entity which, in the issuing State, cannot order such an arrest except for very short periods and subject to prompt judicial scrutiny.

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Furthermore, only the judge or court is capable of properly assessing the proportionality of issuing an EAW. However, this would entail consequences which make it, in my view, undesirable. In the first place, it would entail difficulties for the requested person in terms of exercising his rights of defence. First, because, as a result of his absence, it is most likely that he would only become aware that an EAW was issued when he is arrested in the executing Member State.

Secondly, because he must exercise his right of defence without the guarantee of being present before the competent court. Metsimaholo municipality residents have accused the chemicals and energy company of not employing locals and of pumping toxic pollutants into the air.

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