Germany

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LEGAL RESOURCES FOR GERMANY

LEGAL TRAINING RESOURCE CENTER

Background

The Federal Republic of Germany is currently the largest economy in Europe and has the second largest population in Europe, after Russia. [1] After two devastating world wars, Germany was left economically and politically crippled (World Factbook). At the end of World War II in 1945, Germany remained under Allied occupation and was stripped of its colonial possessions abroad (World Factbook). The country was eventually divided into the western Federal Republic of Germany (FRG) and the eastern German Democratic Republic (GDR) (World Factbook). While the west embraced integration with the western Europe and democracy, the east remained isolated behind the Iron Curtain of Soviet rule (World Factbook). Finally in 1990, the Soviet Union dissolved and Germany was unified (World Factbook). The capitol was established at Berlin and the process of integrating the former communist east into the capitalist west began (World Factbook). Today, Germany is recognized by many to be the economic and political powerhouse of Europe (World Factbook). Approximately 91.5% of the population is of German descent, 2.4% is of Turkish heritage, and 6.1% identify as some other ethnicity (World Factbook). 68% of the German population is Christian, while 28.3% is unaffiliated and 3.7% is Muslim. [2]

Type of system

German criminal procedure is based on the Code of Criminal Procedure that was created in 1877. The German Constitution does not outline many guidelines regarding criminal procedure, but it does provide certain stipulations regarding the criminal process. Even though German criminal procedure law is strictly federal in nature, the majority of criminal courts are located at the state level. At the highest level of these state courts, there is the Federal Court of Appeals which is comprised of five panels that deal with criminal matters. The Federal Court of Appeals is the highest authority in instances of interpreting criminal law and criminal procedure law. [3]

Source of defendants’ rights

The German Constitution (Basic Law 1949) does not outline many provisions related to criminal procedure, but does guarantee certain rights that are relevant to the criminal process. [4] Rights guaranteed by the German Constitution include the right to the freedom of movement [5], the inviolability of the home [6], and the right to secrecy of communication [7].

Pre-trial phase

Article 2 of Basic Law states that “everyone has the right to life and to bodily integrity. The freedom of the person is inviolable. These rights can be abridged only on the basis of a statute”. [8] Additionally, article 104 of Basic Law forbids the maltreatment, either physically or mentally, of prisoners or detainees. [9]

Article 13 of Basic Law upholds that the home is inviolable. Searches may only be conducted if they have been warranted by a judge. Nevertheless, in 1998 Article 13 of Basic Law was revised to allow the use of hidden microphones, etc. to survey houses in the investigation of a crime. [10]

Only a judge has the authority to determine the duration of a detention period. If an accused person has been detained without a judiciary order, the accused must be brought before a judge as soon as possible in order to determine the detention period. It is thus unlawful for the police to detain a suspect for longer than the end of the day following their arrest. [11] In order for a suspect to be detained, there must be reasonable suspicion that that person has committed a crime and that should he not be detained, the criminal process and evidence would be compromised. [12]

At the time of interrogation, the accused must be informed of the crime of which they are accused, that they have the right to either make a statement regarding the event or remain silent, that they have the right to counsel even before being interrogated, and that they have the right to ensure that officials take exonerating evidence. [13] At the time of detention, the suspect’s relatives must be informed of the suspect’s detention. [14] Additionally, the accused person’s lawyer must be informed of the time and place of an interrogation and has the right to be present at the interrogation. [15] Defendants nonetheless, do not have the right to have counsel appointed at the investigation stage of the criminal process. [16]

Court procedures

A prosecutor may only hold a suspect in pre-trial detention if the suspect has been arrested and has been brought before a judge. A hearing before the judge thus must take place by the end of the day following the arrest. [17] At this hearing, the defendant’s legal counsel has a right to be informed of the hearing and has the right to be present at the hearing.[18]

Only the prosecutor has the power to pursue charges against a suspect. If the prosecutor believes that there is a reasonable probability that the suspect has committed the crime, then he is legally obliged to press charges. [19] The defendant also has the right to ask the court to take certain evidence into account before the trial. [20]

German criminal trials cases are usually tried before one to five judges, depending on the seriousness of the crime committed. German trials do not use juries, but lay persons are involved in the process occasionally as co-equal judges. [21] German courts do not accept pleas of any kind. In the event that the defendant pleads guilty, the court must still try him in order to find him guilty and convict him. [22]

German trials additionally may not exceed three weeks. If a trial does exceed three weeks, the trial must start from the beginning. This rule was made in order to ensure that trials were speedy and continuous in their fact finding. [23]

German prosecutors are neutral actors. They are legally bound to find both incriminating evidence against the defendant as well as evidence that may exonerate him. [24] Criminal cases that involve crimes of lesser seriousness are tried before one professional judge and two lay judges. [25] For the most serious of offenses, a panel of two or three professional judges and two lay judges preside. For serious crimes against the security of the state, however, there are no lay judges present. [26].

Although lay judges are involved in court proceedings, their influence and participation is limited. For example, they are not involved in the admission of a case or the preparation of cases for trial. [27] Lay judges are required to be German citizens and must be older than 25 years old, but younger than 70 years old. Lay judges also must have lived in the community for less than one year, and may not be cabinet members, judges, prosecutors, attorneys, police officers, or clergymen. [28]

The presiding judge conducts the majority of the trial. He determines what sequence poof is taken in, has responsibility for the completeness of evidence [29], and interrogates witnesses and the defendant. [30] The presiding judge has the responsibility of subpoenaing witnesses to the stand. [31] In order for either the prosecutor or the defendant to summon witnesses they must follow one of two procedures. The first way they can summon a witness is to make a formal “offer of proof” to the court and demand that that the witness be heard. The other way would be to have the witness directly subpoenaed by the bailiff. [32]

German law does not recognize the defendant as a witness. Therefore, the defendant is not required to tell the truth and has the right to remain silent in order to avoid self-incrimination. [33] Expert witnesses in German courts act as neutral participants. Therefore, it is the presiding judge who appoints the expert witness. [34] The prosecutor and the police, however, usually have a strong influence on the selection of the expert witness. As a result, many public defenders complain that expert witnesses do not tend to be neutral at all, but almost always favor the party responsible for their appointment. [35]

Post-conviction

Appeals can be made against all judgments except for those delivered by appeal courts. Both the defendant and the prosecutor have the right to make an appeal, but whereas the prosecutor can appeal both acquittals and convictions, the defendant can only appeal a conviction. [36]

German law recognizes two kinds of appeals, general appeals and appeals on legal grounds. A general appeal may be made in the event that one of the parties feels they have been wronged by the by judgment of a single judge. In this case, the court must be obliged to hold a new trial. [37] Appeals on legal grounds may be made against every judgment of a trial. State courts hear those cases tried in local courts [38] while appeals from district or state courts are heard in the Federal Court of Appeals. [39] In order for an appeal to be made on legal grounds, the appeal must assert that a violation of law occurred. [40]

References

  1. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  2. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  3. Craig M. Bradley, Criminal Procedure A Worldwide Study 243 ( 2d ed., Carolina Academic Press 2007)
  4. Craig M. Bradley, Criminal Procedure A Worldwide Study 243 ( 2d ed., Carolina Academic Press 2007)
  5. Basic Law, article 2, section 2, 2nd sentence
  6. Basic Law, article 13
  7. Basic Law, article 10
  8. Basic Law, article 2
  9. Basic Law, article 104
  10. Basic Law, article 13
  11. Basic Law, article 104
  12. Code of Criminal Procedure, paragraph 112
  13. Code of Criminal Procedure, paragraph 136, section 1
  14. Code of Criminal Procedure, paragraph 114b
  15. Code of Criminal Procedure, paragraph 168c, section 1 and paragraph 163a, section 3
  16. Craig M. Bradley, Criminal Procedure A Worldwide Study 261 ( 2d ed., Carolina Academic Press 2007)
  17. Code of Criminal Procedure, paragraphs 115 and 128
  18. Code of Criminal Procedure, paragraph 168c, sections 1 and 5
  19. Code of Criminal Procedure, paragraph 170, section 1
  20. Code of Criminal Procedure, paragraphs 201 and 202
  21. Craig M. Bradley, Criminal Procedure A Worldwide Study 263 ( 2d ed., Carolina Academic Press 2007)
  22. Code of Criminal Procedure, paragraph 244, section 2
  23. Code of Criminal Procedure, paragraph 229
  24. Code of Criminal Procedure, paragraph 160, section 2
  25. Code of Court Organization, paragraphs 24, 28, 29, section 1
  26. Code of Court Organization, paragraphs 120, 122, section 2
  27. Code of Court Organization, paragraph 30, section 2, paragraph 76, section 1
  28. Code of Court Organization, paragraphs 33, 34
  29. Code of Criminal Procedure, paragraph 224, section 2
  30. Code of Criminal Procedure, paragraph 238, section 1
  31. Code of Criminal Procedure, paragraph 214, section 1
  32. Code of Criminal Procedure, paragraph 220,
  33. Craig M. Bradley, Criminal Procedure A Worldwide Study 266 ( 2d ed., Carolina Academic Press 2007)
  34. Code of Criminal Procedure, paragraph 73, section 1
  35. Craig M. Bradley, Criminal Procedure A Worldwide Study 267( 2d ed., Carolina Academic Press 2007)
  36. Code of Criminal Procedure, section 2, paragraph 296
  37. Code of Court Organization, section 1, paragraph 76
  38. Code of Court Organization, section 1, paragraph 121
  39. Code of Court Organization, section 1, paragraph 135
  40. Code of Criminal Procedure, section 1, paragraph 337

QUICK FACTS


  • Germany has a total prison population of 69,385, with every 85 per 100,000 people in prison
  • About 15.5% of the German prison population consists of pre-trial detainees and about 3.5% consists of juvenile prisoners
  • Germany currently has 185 prison institutions with an official capacity of 77,944. Occupancy is currently at 89%
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