Discontinuation of proceedings by the prosecutor under section 190 StPO: grounds and consequences

Section 190 StPO names three main grounds for discontinuation. First the prosecutor can discontinue if the conduct is not subject to judicial punishment. Second a discontinuation is required if a ground of justification or excuse exists or if another reason excludes criminal liability. Third a discontinuation takes place where there is no sufficient suspicion that the defendant committed the offence.

These three grounds cover the bulk of practical cases. From a legal perspective the classification matters because the effect of the discontinuation depends on it and because the response to a later reopening or continuation request depends on the reasoning.

Discontinuation under section 190 StPO must be distinguished from discontinuation for triviality under section 191 StPO and from diversionary disposal under sections 198 et seqq. StPO. While discontinuation for triviality is possible even where the conduct is established, diversion requires sufficient suspicion and ends without a finding of guilt once a condition is fulfilled.

A suggestion of discontinuation is an important instrument of the defence. It is not a formal application, but in practice it carries weight where it is substantively reasoned and based on file access. From a legal perspective it is worthwhile to identify the weaknesses of the complaint and the investigation and to give the prosecutor a sustainable basis for the discontinuation.

The suggestion can be made at any stage of the investigation. It is particularly useful where, after the essential investigative steps have been taken, the evidence does not support a continuation. A conversation with the responsible prosecutor can also help in suitable proceedings.

The notice to the defendant and to the injured party is issued formally by the prosecutor after discontinuation. It contains the reasoning in outline and refers to the possibility of a continuation request by the injured party.

The injured party can apply for the continuation of the proceedings after the notice of discontinuation. The application must be addressed to the prosecutor within 14 days of service of the notice. The higher regional court decides on the application.

The court examines whether the discontinuation was lawful or whether the proceedings should be continued. If continuation is ordered the prosecutor must act again and where appropriate file an indictment. From a legal perspective it makes sense to prepare for a possible response and to re-examine the evidence.

A continuation request is not automatic. The higher regional court examines carefully and dismisses requests where the discontinuation was substantively correct. A well founded statement by the defence can support the court in its assessment.

Discontinuation under section 190 StPO has a limited blocking effect. It prevents fresh prosecution for the same conduct only if no new facts or evidence emerge. If new evidence appears the prosecutor can take up the proceedings again without a formal act being required.

The discontinuation also matters for registration purposes. It does not lead to a finding of guilt and does not lead to an entry in the criminal register. The matter remains documented in the prosecutor file. Anyone who fears specific disclosure obligations or entries in their profession should have the question clarified by a lawyer.

From a legal perspective it is recommended to examine the notice of discontinuation carefully and in particular to take note of the reasoning. The reasoning forms the basis for assessing the blocking effect and for handling any continuation request.