Normal courts can’t do that. They could refer the issue to the Federal Constitutional Court, our Supreme Court for purposes of legal review and constitutional disputes (though not a court of appeals.) However it is not unlikely that they would leave that to him.
Yes, absolutely. Officially the prosecutors have no say in the matter. Of course in many cases they have considerable practical discretion because they get to assess the evidence and estimate the chances of a conviction or they might declare the allegations so minor that wasting time on that would not be in the public interest. But even that can be challenged in court. Letting prosecutors choose would only exacerbate the problem discussed above because it would allow them to throw the book at undesirables while keeping “good people” safe from bad laws.
I don’t know why everyone seems so sure that the law is unconstitutional. I’d say that is far from clear cut and I would focus my effort on an aquittal.
