Judicial Process in Germany

Judicial Process in Germany

PROSECUTORIAL AND JUDICIAL PROCESS

1. Rights of the accused.

* Rights of the accused at trial. Prior to and
during the trial, the accused has the following
rights, which are, in part, laid forth by the Code
of Criminal Procedure: 1)The suspect has the right
to be heard and can request that evidence be
taken before a writ of indictment is issued (StPO,
s 163a(1)); 2)If the suspect is interrogated by
police, the suspect must be told of the charges
against him/her (StPO, s 163a(4)); and 3)Once the
Public Prosecutor’s Office has completed its
inquiry, the writ of indictment will be
communicated to the accused before the court
decides to open the main proceedings. Counsel for
the accused has an absolute right to inspect all
evidence against the accused (StPO, s 201). In
addition, the defendant may plea guilty to a
lesser offense. 19 A guilty plea, however, does
not automatically end the trial and more often
than not the court will review the evidence
presented by the prosecutor to determine if it
supports the guilty plea. A guilty plea can be
changed at any time, whereby the court would weigh
the evidence presented to it to determine if a
change in plea can be supported. At the district
court level, where the defendant can receive up to
a maximum sentence of 3 years of incarceration,
the defendant can be tried either by a single
judge or by a judicial panel consisting of one
professional judge and 2 lay judges. There is no
jury system in German courts. (GVG 24(1), GVG 25,
and GVG 28 et seq.)(Heinz, 1992; 40, 41.)

* Assistance to the accused. The accused must be
provided with legal representation under the
following circumstances (StPO, s 140): 1)where the
defendant is facing a trial in the regional court
or higher regional court; 2)where the defendant is
charged with a serious crime; 3)where the
defendant may be prohibited from practicing a
profession; or 4)where the defendant has been
incarcerated for at least 3 months and is not
expected to be released until 2 weeks prior to the
trial.
The defendant may choose up to three
attorneys (StPO, s 137). Since legal
representation under these circumstances is
compulsory, it is provided by the state if the
defendant cannot afford an attorney. Attorneys
are obliged to provide legal services for the
accused and are paid a fixed salary by the state
for their services.

2. Procedures.

* Preparatory procedures for bringing a suspect to
trial. The investigatory procedures for bringing
an accused to trial are usually initiated by
either the police or the Public Prosecutor’s
Office or both. When sufficient evidence exists
to indicate a criminal offense has occurred, the
prosecutor will initiate an inquiry. If the
inquiry suggests an indictment should be issued,
the prosecutor’s office will issue the indictment
(StPO, s 170(1)). The power to indict is vested
in the Public Prosecutor’s Office. If the
prosecutor refuses to indict, an injured party can
turn to the courts to appeal the decision (Heinz,
1992; 39).
The indictment will then be reviewed by the
relevant court. If sufficient grounds to proceed
exist, the court moves the case on to the main
proceedings. If insufficient evidence exists, the
court issues an order refusing to open the main
proceedings (StPO, s 204(1)).

* Official who conducts prosecution. The Public
Prosecutor’s office is legally obligated to
investigate any criminal offense, providing
sufficient evidence exists to support the
allegation that a crime has occurred (that is a
police investigation, citizen’s complaint, or
press report). This is the “Principle of
Legality” (StPO, s 152(2)). (Friedrich, 1987; 57).
Although in most cases offenses are
prosecuted by the Public Prosecutor’s Office in
the court of appropriate jurisdiction, there are
limited exceptions to this rule. For instance,
tax authorities may apply directly to the court to
impose fines, bypassing the prosecutor’s office,
in criminal tax offenses (Heinz, 1992; 39).
In some cases, such as libel, slander,
trespass, and simple assault and battery, the
injured party may seek an indictment without
having to rely on the prosecutor’s office. The
injured party takes the role of the Public
Prosecutor’s Office. If in such cases the
prosecutor’s office files an indictment, the
injured party may join the public proceedings as
an accessory to the prosecution. This role grants
the injured party specific rights in reviewing
defense material, calling witnesses, rejecting a
judge and the right to be heard in court. (StPO, s
395 to 402).

* Alternatives to going to trial. There are
various options to trial which exist for certain
cases of minor offenses, such as when the
prosecutor asks for a punishment order (StPO, s
407) to be granted by the court. This
out-of-court settlement occurs when the judge
allows the defendant to make payments or forfeit a
driver’s license rather than face trial. The
accused then has the option of refusing the order
and requesting a hearing at which time the main
hearing will resume.
The prosecutor can also exercise discretion
and drop the charges against the accused under the
following conditions: a)the suspect’s role is
limited and prosecution serves no public function
or interest; b)the defendant is being tried for
another more serious crime; or c)in the case of a
minor offense, the prosecutor moves for a
conditional waiver and the judge and the accused
must agree to the conditions and orders which are
sufficient to accommodate the public interest in a
prosecution (StPO, s 153a). Conditional waivers often include the
following: a)restoration of damage resulting from
the offense; b)financial payment to the Treasury
or community institution; c)community service to
benefit community; and/or d)payment of maintenance
money (Kalmthout and Tak, 457).

* What proportion of prosecuted cases go to trial?
The limited capacity of police and the justice
system demand a filtering process whereby not all
cases will result in arrest, processing, formal
trial or penal sanctioning. While specific
figures concerning the number of prosecuted cases
which actually go to trial are unavailable, the
variables which influence a prosecutor’s decision
are the nature of the offense, relationship
between victim and offender, the presence of a
confession, the degree of injury to the victim and
the criminal record of the accused. (Kaiser, 1989;
184).

* Pre-trial incarceration conditions. A suspect
may be detained by either the police or the
prosecutor’s office but only until the end of the
day following arrest (GG, article 104 (2)) and
must then be brought before a judge (StPO, s 128,
115). Only a judge has the authority to determine
whether a detention is warranted. Further
detention may be judicially mandated indefinitely,
in 4 week increments, until a suspect is either
charged or released (Cannings, 1990; 229). A
suspect who is being held during the course of an
investigative inquiry may at any time request a
judicial review of the initial decision on the
continuance of the detention. A special hearing
before the Higher Regional Court
(Oberlandesgericht) is held if the detention has
lasted more than 6 months and the decision to
detain must be reviewed every three months (StPO,
s 122). The Principle of Commensurability
governs decisions to incarcerate individuals prior
to trial. Individuals who commit offenses for
which a sentence of probation or a fine are
anticipated will generally not be held in pretrial
detention. Violators facing a maximum sentence of
6 months incarceration or a fine consisting of 180
day-fines may be detained under the following
prerequisites (Friedrich, 1987; 61-62): 1)there
is great likelihood that the accused under
suspicion has committed the criminal offense; 2.
the detainee is a flight risk, for instance, he
has failed to show for a previous hearing; 3)the
individual has no permanent place of residence;
4)there is a great likelihood that the suspect
will commit another crime if detention is not
ordered; 5)there is a great risk that evidence
will be destroyed (“Verdunklungsgefahr”); and/or
6)the crime involved a life-threatening offense.

* Bail procedure. There is no absolute right to
bail. Although an application for bail may be made
at any time, the court can exercise unlimited
discretion in fixing the amount of bail (StPO, s
116a). National statistics are not available on
the proportion of pretrial offenders incarcerated
(Tolzmann, 1993).

Note: this work was completed in 1993

Resources

See Also

  • Criminal Justice
  • Legal System
  • Criminology
  • German Criminal Justice System

Further Reading

  • Eser, Albin, “A Century of Penal Legislation in Germany” in Old Ways and New Needs in
    Criminal Legislation, Eser, Albin and Thormundsson (Eds.), Max-Planck-Institut: Freiburg, 1989, pp. 26.
  • “Federal Republic of Germany, The”, International Criminal Police Review, ICPO-INTERPOL, July-August 1987, Number 407, pp. 9-12.
  • Heinz, Volker G., “Germany” in EC Legal Systems: An Introductory Guide, by Sheridan, Maurice and Cameron, James (eds.), Butterworth and Co., Ltd.: London, 1992, pp. Germany iii – Germany 60.
  • International Criminal Police Review, “The Federal Republic of Germany”, Number 407, July-August 1987, Saint-Cloud, France; 9-12.

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