The Hamm Higher Regional Court, 5 Ws 199/23, decided that the annulment of the suspension of enforcement decision contested by the public prosecutor in the appeal proceedings cannot be measured against Section 116 Paragraph 4 of the Code of Criminal Procedure.
On the subject of an arrest warrant with us:
The fact that the public prosecutor’s office can only challenge a suspension order under the restrictive conditions of Section 116 Paragraph 4 StPO, if the court has not at the same time ordered the suspension of the contested decision in accordance with Section 307 Paragraph 2 StPO, has no support in the law – and the Higher Regional Court does At the same time, it is clear that no trust can be built if the public prosecutor’s office clearly communicates its intention to take action against a suspension of enforcement:
Furthermore, Section 116 Paragraph 4 of the Code of Criminal Procedure is not to be interpreted beyond its wording to the effect that the annulment of an illegal suspension of enforcement is only possible under the restrictive conditions of Section 116 Paragraph 4 Nos. 1 to 3 of the Code of Criminal Procedure if the accused is not suspended due to the lack of suspension enforcement of the contested decision in accordance with Section 307 Paragraph 2 StPO (OLG Bremen, decision of March 1, 2013 – Ws 5/13 – juris Rn.33; LG Bremen, decision of June 14, 2021 – 1 Qs 212/ 21 – Rn. 32 mwN; juris; Krauß, in: Beck’scherOK Status: July 1st, 2023, § 116 StPO Rn. 20; aA KG Berlin, decision of March 30th, 2010 – 4 Ws 38/10 – Rn. 4, juris ; Rostock Higher Regional Court, decision of September 17, 2009 – I Ws 269/09 – Rn. 17, juris; Böhm, in: MünchKomm, 2nd edition 2023, § 116 StPO Rn. 49). The fact that the public prosecutor’s office can only challenge a decision to suspend execution under the restrictive conditions of Section 116 Paragraph 4 StPO, unless the court has also ordered the suspension of the contested decision in accordance with Section 307 Paragraph 2 StPO, is neither supported by the law nor required the fundamental decision of the Federal Constitutional Court of February 1, 2006 – 2 BvR 2056/05 (as applicable: OLG Bremen, decision of March 1, 2013 – Ws 5/13 – juris Rn.33). The Federal Constitutional Court has set the principle that any new arrest law decision that results in the abolition of the exemption from imprisonment is only possible under the restrictive conditions of Section 116 (4) StPO, and only for constellations in which the arrest warrant has once been suspended without being challenged (BVerfG, approving chamber decision of February 1, 2006 – 2 BvR 2056/05 -, Rn. 26).
In the present case, a corresponding application of Section 116 Paragraph 4 of the Code of Criminal Procedure is also ruled out because the accused could not have a trustworthy trust that the suspension of enforcement would be maintained if the conditions were adhered to. In the habeas corpus proceedings on June 30, 2023, the public prosecutor’s office expressly requested that the arrest warrant be expanded and remain in effect. She did not attend the detention hearing on July 5, 2023. After the files were returned, she immediately filed a complaint on July 13, 2023. For this reason, the accused could not expect that the suspension of the arrest warrant would be valid if he complied with the conditions imposed.
2023-10-15 11:33:07
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