The speech given by Roxin on October 1, 1996 at the Berlin city hall on occasion of the 150th anniversary of the Berlin public prosecutor's office (i.e. the first German public prosecutor's office in a modern style) will certainly belong to the most impressing experiences in my professional life. His report on "The legal status of the public prosecution service in former times and todayÓ deals a great part with the "dependence and duty to comply with instructions of the public prosecutor", which will be my topic today. One should distinguish between the dependence of the public prosecutor (as an individual) on the one hand and the dependence of the public prosecutor's office (as an institution) from Government on the other hand.

Granting a public prosecutor the same independence as guaranteed expressly to judges only by Art. 97 para. 1 of the German Basic Law and relinquishing the internal duty to comply with instructions does not only raise constitutional questions but also be not practicable. According to Roxin's opinion (who is insofar in accordance with today's leading opinion in legal literature ) also the public prosecution service needs an institutional organisation which ensures an equal and predictable praxis of indictment and suspension of proceedings. The latter is - de lege lata - the case. Especially when taking into account (a) its traditionally hierarchic structure, (b) the dependence to comply with the instructions of the senior prosecutor laid down in Sect. 146 GVG [German Code on the Constitution of Courts), and (c) the right of the "chief senior public prosecutor" to take over the prosecution by him/herself or transfer it to another prosecutor as provided in Sect. 145 GVG. However, the "draft on the reform of the organisational law of the public prosecutors" - published by the Commission for the matters of public prosecutors in the German Federation of Judges in 2003 - intends to strengthen the position of the individual public prosecutor. This shall be achieved e.g. by providing that instructions shall be given in writing only, and that instructions shall not be allowed at all with respect to the activities of the public prosecutor in a public hearing.

Let us now have a look on the most problematic dependence of the public prosecution service as an institution, i.e. the dependence of the chief public prosecutor on the Ministry of Justice. Such dependence constitutes the danger of political influence on the decisions of the public prosecution service. This problem area can be paraphrased by the key phrases "politically appointed civil servant" and "duty to comply with external instructions".

In his speech Roxin rejected unequivocally the idea of the chief public prosecutor as a politically appointed civil servant who can be retired without reason at any time: According to Roxin, it was obvious that the duty of a superior civil servant in the public prosecution service cannot be subsumed under Sect 31 para. 1 sentence 1 BRRG [German Federal Law on Civil Servants] defining a politically appointed civil servant as "a civil servant whose exercise of an office must be in continuous coherence with the fundamental political views and aims of the Government". According to Roxin, the chief public prosecutor "should not enforce the political views and aims of the Government but the law". And, consequently, Roxin recommended to the legislators to "give up this ancient traditional position".

In 2000 and 2002, the legislators of the Länder [States] Nordrhein-Westfalen and Berlin followed Roxin's appeal with the result that the Federal State and the Länder Brandenburg, Mecklenburg-Vorpommern, Schleswig-Holstein and Thüringen stick for their chief public prosecutors to the status of a politically appointed civil servant - in contrast to the meanwhile leading opinion in the legal literature. These Länder are the addressees of the decision taken with a vast majority by the 65th Deutscher Juristentag [Association of German Jurists] in September 2004: "The position of a politically appointed civil servant in the public prosecution service must be abolished". A similar proposal was made by the Group of States against Corruption (GRECO) of the Council of Europe to the four named Länder in the course of the First Evaluation Round. The GRECO welcomed in its "Compliance Report on Germany" of May 14, 2004 that Schleswig-Holstein was thinking about abolishing the status of a politically appointed civil servant for the Advocate General in its state law on public civil servants. While the so created pressure may lead to the result that soon no public prosecutor in Germany will be a politically appointed civil servant any longer, a limitation of the duty of the public prosecutor's offices to comply with the instructions of the several German Ministers of Justice in the Länder must not be expected soon.

The German Federation of Judges proposed that the right of the Minister of Justice to give general instructions to the public prosecutor's offices should remain, but that the "external right to give instructions" in individual cases should be abolished by changing the GVG. This was rejected by the 65th Deutscher Juristentag , the Committee of Criminal Law of the German Association of Lawyers and especially by the politicians specialized in legal matters of the fractions of the current Government in their answers to the questions contained in the "Wahlkampfprüfsteine" [pre-electoral questionnaire] published by the German Federation of Judges. Indeed, such a limitation of the right to give instructions of the Minister of Justice seems to be doubtful because of the allocation of the public prosecutor's offices to the executive branch by Art. 92 of the German Basic Law. Art 92 of the German Basic Law allocates expressly the judicial branch to the judges only. Furthermore, it seems to be doubtful because of the constitutional principle that inside the executive branch no areas free of ministerial interference shall exist. Otherwise, the head of the executive would loose its possibilities of guidance and at the same time the parliamentary control would be limited In my opinion, it would correspond better to the principle of segregation of powers (which forms the basis of all democratic legal systems), if the chief public prosecutor was not subjected to the instructions of the Ministry of Justice. Therefore, I plead to allocate the public prosecutor's offices to the judiciary by way of an alteration of Art. 92 of the German Basic Law. In case of an alteration, their independence of instructions was commanded by the constitution and the danger of political influence would be reduced.

It is an incorrect information provided by "German authorities" to GRECO that the duty to comply with instructions of the public prosecution service does not constitute an improper political or other influence. The abuse of the public prosecution service as a "body of Government" - so called also by Roxin in his speech - in Germany can rather be tracked back to its very beginning. And the duty to comply with instructions is criticized since then. Politically motivated influences do not only occur in individual proceedings but also exist as general external instructions by the Ministry of Justice. Roxin calls such instructions "necessary in order to ensure the uniformity of public prosecution" - which is also true for the "federal guidelines for criminal proceedings and summary proceedings concerning administrative penalties". However, he fails to see that the statutory regulations by which the federal legislator allows the suspension of proceedings with regard to the principle of discretionary prosecution imposes the risk that the Ministers of Justice of the Länder use the latter as an political instrument by giving general advice to the subordinated public prosecutor's offices.

As an example one can refer to the big differences in the application of Sect. 31a BtMG [Law on Narcotics]. Sect. 31 a BtMG constitutes a discretion in the prosecution of possession and purchase of "small amounts" of drugs for consumption. However, the limits for the definition of the term "small amounts" of Cannabis imposed by the various Ministries of Justice of the Länder differ within a margin between 6 and 30 grams. The Bundesverfassungsgericht [Supreme Federal Constitutional Court] criticised this margin in its decision dated March 9, 1994. The court emphasized the obligation of the Länder to ensure a similar application of suspension of proceedings due to the principle of discretionary prosecution when applying federal law. Up to now, the Länder have not fulfilled this obligation. Similarly, the Ministers of Justice of the Länder have published with respect to shoplifting guidelines for the public prosecution service on the suspension of proceedings due to the principle of discretionary prosecution (Sect. 153 et seq. StPO [Criminal Procedural Code]). The Ministers set the respective value-limits for the prosecution of shoplifting as they seemed politically fit.

However, more problematic than the ministerial influences by general instructions are without doubt the instructions given in individual proceedings. The latter are only occasionally given by making formally use of the right to give external instructions. Because the public impression of an improper political influence is rather dangerous for a Minister of Justice. In case of an instruction in an individual proceeding, such public impression can only be avoided, if it can be proven (and explained to the public) that the public prosecutor's office was referring to incorrect facts or an inappropriate judicial classification when the instruction was given. As this is rather seldom the case, a careful Minister of Justice will restrain himself when making use of the right to give external instructions. However, one should not infer from this that the right to give external instructions in individual proceedings is only of minor practical importance. Because Ministers of Justice who get under political pressure from the members of their political party tend to make use of the "right to control and instruct" under Sect. 147 GVG by exerting subtle pressure (below the formal level) on the public prosecutor's offices. Thus, by way of "requests", "reports of intent" or "detailed informational meetings" the Minister of Justice may work towards certain politically suitable decisions, which are, however, taken by the public prosecutor's offices on their account. As it has already come to numerous well documented cases of politically motivated exertions of influence in individual proceedings in the history of the Federal Republic of Germany , and - as has been shown - also general instructions can be politically abused, the duty of the public prosecutor's offices to comply with instructions of the Government turned out to be an access point for political parties, and thus a weak point in the structure of our democratic system which is governed by the rule of law. In other European Countries and on an international level, the same conclusion has been reached and the appropriate steps have been taken: Apart from Italy also Hungary , Croatia , Latvia , Lithuania, Estonia, Slovenia, and Slovakia have opted for a public prosecution service which is independent from government. The Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR) as well as the Statute of the International Criminal Court stipulate that the prosecutor is a body of the court and does not have the duty to comply with instructions.

According to actual thoughts, also the future "European Public Prosecutor" (whose introduction by a European Law of the Council is provided by Article III 275 para. 1 of the Draft European Constitution) shall be independent from other bodies of the Community as well as from national authorities. The prosecutor shall be elected for a period of six years which cannot be prolonged. The model of the future European Prosecutors can already be derived from the "declaration of principle on the public prosecution service" which was adopted in Napoli on March 2nd, 1996 by the Magistrat Européens pour la Démocratie et les Libertés (MEDEL): "The public prosecution service is a body of the judiciary, and thus independent from the executive branch; because the independence of the public prosecution service is an indispensable precondition for the independence of the judiciary, and the equality of all people under the rule of law. Consequently, general or individual instructions of the executive branch are undue."

However, if also Germany finally one day came up to this level of protection under the rule of law, the power of the chief prosecutors would have to be limited by suitable means -, and their democratic legitimation should derive from an election by Parliament - as provided by the new EU Member States. The wish Roxin ended his festive speech with shall also stand at the end of my remarks: The public prosecution service shall always be a guardian bound by the law, where this is not yet or not sufficiently so, this shall be the case in the future!"

* Published in Goltdammer's Archiv für Strafrecht (GA), Vol. 5 [2006] (Commemorative Publication for Claus Roxin on occasion of his 75th birthday), p. 356-361.