Comparative Law Spring 2002 Professor Susanna Fischer CLASS 27 GERMAN CRIMINAL PROCEDURE March 22, 2002

Wrap-up: German Civil Procedure

German Criminal Law What is the main task of criminal proceedings (Strafverfahren)? How do you know if a particular act or omission amounts to a criminal offence (Straftat)?

German Criminal Law What is the main task of criminal proceedings (Strafverfahren)? To prosecute criminal offenses on behalf of the State How do you know if a particular act or omission amounts to a criminal offence (Straftat)? Check the Penal Code (Strafgesetzbuch)

Legal Sources for Criminal Procedure What are the legal sources governing criminal procedure in Germany?

Legal Sources for Criminal Procedure Strafprozeßordnung - (StPO or Code of Criminal Procdure) Jungendgerichtsgesetz (JGG or Juvenile Court Act) Gerichtsverfassungsgesetz (GVG or Judicature Act) Grundgesetz (GG or Basic Law) Arts. 1-19, 101, European Convention on Human Rights Administrative directives

Penal Code Divided into general part and special part General part has all underlying assumptions of code and general rules applicable to all offenses Special part then deals with individualoffenses Criticised because it is too general and requires too much judicial interpretation

Criminal Courts in Germany What German courts hear criminal proceedings? And are they first instance courts or appellate courts?

Criminal Courts in Germany Amtsgericht: 1st instance Landgericht: 1st instance or 2d instance Oberlandesgericht: 1st, 2d or 3d instance Bundesgericht: Court of appeal of last resort

Criminal Courts in Germany Amtsgericht (minor offenses carrying penalties up to 4 years imprisonment), How many judges hear cases in the Amtsgericht?

Amtsgericht How many judges hear cases in the Amtsgericht? This depends on the seriousness of the offense. A single judge will hear less serious offenses (private prosecutions or sentences of imprisonment no more than 2 years). 3 judges (usually 1 professional and 2 lay) for more serious cases.

Landgericht 1st instance or 2d instance may hear appeals on fact and law against Amtsgericht (1 prof judge and 2-3 lay assessors) rehearing. 1 week to appeal. No reasons must be given Can be constituted as small chamber (which hears Amtsgericht appeals) and large chamber of 3 professional and 2 lay judges (which tries serious crimes). For most serious crimes, like homicide, Schwurgericht, which has 3 professional and 2 lay judges)

Oberlandesgericht 1st instance: 5 judge senate hears crimes against the State like treason 2d instance: hears appeals of fact and law against Landgericht 3d instance: hears appeals of law from Amtsgericht - reasons must be given In practice, this is mostly the last instance court

Bundesgerichtshof Only appellate - either 2d or 3d instance Hears appeals of point of law from Landgericht or Oberlandesgericht 5 professional judges Must consent to hear appeals from Oberlandesgericht and will only do so if involves a novel point of law Overworked, much delay

Principles of Criminal Procedure What are the basic principles underlying the German system of criminal procedure?

Principles of Criminal Procedure Rule of law No capital punishment (Art. 102 GG) No retroactive punishments Double jeopardy No deprivation of liberty without due process (Art. 104 GG) Fair trial (Arts. 1 and 2(1) GG) Right to a hearing (Art. 103) presumption of innocence

More principles Ex officio proceedings (only the prosecutors office can prosecute - limited exception for private prosecutions) Accusation - there must be a charge Legality - everyone subject equally to law- prosecutor has a duty to investigate if sufficient suspicion that offense committed except in limited cases like motoring offenses Expedition Immediacy - trial in person with accused present and same judges throughout Investigation -

Principle of Investigation What is the principle of investigation and what is the justification for this? Compare it to the U.S. system.

Investigation The court must conduct its own investigation independent from the prosecutor and the police Parties do not conduct this investigation; it is the court that does what it considers necessary to determine the truth

Course of a Criminal Proceeding How does a criminal proceeding start? How does it proceed? How does it end?