The Influence of Informal Rules on the Practice of Termination with Criminal Proceedings in Germany

Most criminal proceedings do not end with a decision in a main trial, but by termination of action. The relevant formal rules grant legal practitioners a wide scope of discretion, which is barely restricted by case law and theory. Therefore, we find strong variance in judges’ and prosecutors’ decision-making regarding the termination of proceedings. This can be explained neither by legal interpretation nor the analysis of offense-related and offender- associated variables. I argue that it may be linked to the fact that criminal proceedings are based on informal, that is non-explicit rules of action regarding timing, the exchange between the actors or the atmosphere of the proceedings. The aim of this paper is to identify these informal rules of criminal procedure by conducting semi-standardized expert interviews with prosecutors, judges, and defence lawyers and thereby to make a contribution to our understanding of judicial decisions beyond constitutional jurisdiction.