
German public prosecutors don't provide sufficient independence [pdf] - Tomte
https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-05/cp190068en.pdf
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Arnt
[https://verfassungsblog.de/confidence-and-
trust/](https://verfassungsblog.de/confidence-and-trust/) has an excellent
take on this. Some key sentences: "The reasons are obvious: with the right to
issue directives, politicians could theoretically influence who is
investigated and who is indicted — and, even more relevant, who is not. … The
counter-argument has also been known for a long time: The right to give
instructions exists so that someone will bear the political responsibility…"

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rurban
Only Italian prosecutors are really independent. Everywhere else it's a sham.

~~~
Arnt
If if's a sham and you know it, you'll be able to give some examples, won't
you? This is about Germany, so please, please, please: An example of any of
the 17 relevant ministers shielding someone from prosecution, and one of
inappropriate prosecution.

~~~
Tomte
The Bavarian justice minister ordered the public prosecutor to drop
prosecution against Mollath.

Yes, the Internet mob was happy.

But even if you disagree with my opinion that he should have gone to jail, you
will surely agree that this directive by a minister is troubling, even if it
is in favor of "your guy".

~~~
Arnt
No. IMO, the moment SZ uncovered that the judge had made that phone call which
both parties denied, the case couldn't proceed. Lying witnesses lied plus a
lying judge adds up to too much doubt. In dubio pro.

(Didn't the judge refuse to talk about that phone call once its existence was
public, too, or am I confusing it with a different case? It's been a few
years.)

~~~
Tomte
I have no idea what you're talking about.

There was no judge involved. That's the point. When the justice minister
ordered the prosecutor to drop the case (technically, the appeal), the court
could not convict, by procedural law.

~~~
Arnt
There was a judge involved, Otto Brixner was his name. Brixner sent Mollath
off to a padded cell in 2006 for being deranged and confirmed/extended that a
couple of times. Then five or six years later it turned out that at least some
of the deranged ramblings about tax evasion and white-collar crimes were
correct. Further, Brixner had spoken to the relevant investigators before he
sentenced Mollath, Brixner denied having done that, and when someone leaked
paperwork that proved that Brixner's denial was a lie, he refused to talk
about what was said.

As I recall, there was also other questions. Wasn't there something about
where Mollath's possessions ended up, and Brixner refused to talk about that
too?

In such a state, Mollath's possible guilt becomes irrelevant. Only an
impartial court can sentence, and the border is between "trusted impartiality"
and "not trusted". This is why judges are required to recuse themselves if
there is a possibility that they may be thought partial, instead of e.g. if
they can be proved to be partial, or if the balance of evidence suggests that
they may.

