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In German penal law, does an attorney (Staatsanwalt) have to prosecute own relatives (parents children, siblings, etc.)? If no, by what law (I could not find any that would provide them with that right)? If so, are there some case examples?

  • My strong guess is that ordinarily it would be conflict of interest for him to do so, that he or she would be forbidden from doing so, and that a different attorney in the office (or someone assigned from a neighboring office or more central office if no one was available in the office) would be assigned to that case instead. The answer is probably not in the German penal law and is instead probably in the law regulating lawyers or the law and regulations pertaining to prosecutor's office organization. – ohwilleke Nov 13 '17 at 4:37
  • Good point. With your hint I could find this in German Wikipedia. Does this also apply to attorneys? – Richard Neumann Nov 13 '17 at 14:15
  • The material you cite from Wikipedia discusses rules of conduct for attorneys. – ohwilleke Nov 13 '17 at 22:49
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Attorneys are normal officials (Beamte), so the laws about officials apply to them. So e.g. § 47 Gesetz über die Beamtinnen und Beamten des Landes Nordrhein-Westfalen (Law about officials of the state North Rhine-Westphalia):

(1) Beamtinnen und Beamte sind von Amtshandlungen zu befreien, die sich gegen sie selbst oder Angehörige richten würden, zu deren Gunsten ihnen wegen familienrechtlicher Beziehungen im Strafverfahren das Zeugnisverweigerungsrecht zusteht.

(1) Officials are to excuse of official actions, that are against them or their relatives, if they have the right to refuse to testify against them in criminal proceedings.

(my bad translation)

These relatives are according to § 52 Strafprozessordnung (Code of criminal procedure): fiancée, spouse (even ex-spouse) and any "person who is or was lineally related or related by marriage, collaterally related to the third degree or related by marriage to the second degree."

So attorneys do not have to prosecute their relatives.

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