BGH NJW 1996, 2373
Bundesgerichtshof judgment of 28th March 1996 – III ZR 141/95 (Düsseldorf).
This case is first published in the German Law Archive courtesy of:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by Mr Raymond Youngs, Southampton Institute
The A Group offered facilities for investment of capital for small investors. In October 1987 because of a fall in share prices the group suffered heavy losses so that the whole capital investment was exhausted. This was concealed from the investors, and the group carried on advertising investment facilities. The state prosecutor took investigatory proceedings against those responsible. The group’s money deposited with a bank was first of all seized, but the Amtsgericht (district court) quashed the seizure and the state prosecutor discontinued the investigatory proceedings. Five months later, the plaintiff made a financial management contract with the A Group. Over a year later the A Group suffered further heavy losses and the investigatory proceedings were recommenced against those responsible which led to their conviction for deceit. The plaintiff who had lost about three quarters of his capital claimed compensation from the defendant state (Land).
The case is not of significance on an issue of principle; and the appeal in law has no prospect of success [reference omitted].
1. The appeal court denied that the official duty of the state prosecutor to pursue crimes, to carry out investigatory proceedings against the perpetrators and if necessary to start a public prosecution is owed to third parties. It stated that this duty was exclusively to serve public interests, namely the fulfilment of the criminal powers of the state. The arguments raised in the appeal in law against this are unsuccessful. The introduction of investigatory proceedings in criminal law, the initiation and execution of a search order, a decision about the starting of a public prosecution and measures in proceedings for fines can represent violations of the official duty owed to the suspect if they are undertaken without justification [references omitted]. But there is no official duty on the part of the state prosecutor to intervene in the interest of a person possibly affected by a crime – in contrast to the position in relation to the police (see Senate, LM § 839 [Fg] BGB no 5). The duty of the state prosecutor to pursue crimes, to arrest an accused etc exists only in the public interest. Failure to carry it out cannot therefore as a rule violate an official duty against the person harmed by the crime [references omitted]. It can be otherwise if concrete protective duties to the person harmed by a crime are acquired by the state prosecutor in current investigatory proceedings, perhaps to secure stolen property in the interests of the person from whom it has been stolen [references omitted]. The principles set out above also apply to the prevention of crimes which is the issue in the case of plaintiff.
2. As the appeal court further states, the plaintiff did not in May 1988 come within the category of those who had already paid their money to the A Group. They could not therefore have possibly been protected from harm by the seizure being kept in force and the proceedings against the suspects being pursued on the grounds that those steps would have deprived the suspects of access to further accounts. As the plaintiff first made his investment on the 18th June 1988, he was not directly affected by the decision of the state prosecutor to order the quashing of the seizure and to discontinue the proceedings on the 2nd May 1988 [reference omitted]. The harm he has suffered is based on the fact that the accused persons had not been forced to give up their activity. It can however be left undecided whether, if an official duty on the part of the state prosecutor owed to third parties suffering harm could be accepted, this would stand in the way of including the plaintiff within the circle of those protected (see Senate, LM § 839 [Fg] BGB no 5), as the duty is not owed to third parties.
3. The appeal court judgment does not reveal any other legal errors which are significant in the context of the decision and are to the disadvantage of the plaintiff.