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Deutscher und US-Strafprozess

Criminal Procedure in Germany

(Lecture held in Vilnius, Lithuania, in February 1999)

Introduction:

It would not be very sensible for me just to explain, how the topics of our conference are delt with in German law. I have made the experience, that legal expressions are used differently and with different meanings in different countries. So every report about the procedure of law should be accompanied by a short introduction into the basic relations between the organisations involved.

For example: A couple of months ago I took part in a seminar dealing with the English criminal court procedure and was very surprised to hear, that there is in fact no public prosecutor in Britain as we have in the German law. So, when the British talk about a public prosecutor what they have in mind is the Crown Prosecution Service, an organisation without any relation to the courtroom and even - hardly believable for a German PP  - without authority to command as regards the police.

There are also major differences between German and American concepts of police and prosecution. The American prosecutor has little control over police investigations, but almost unlimited discretion as to whether a particular crime should be charged and prosecuted. German law is almost the exact reverse. The German prosecutor has formal responsibility for investigation, and the police are considered to be a subordinate helping agency. German criminal justice contrasts sharply with the American system in a number of important ways. As in the United States, the states in Germany are responsible for the administration of criminal justice. Germany, however, has a single national criminal code, a single national code of criminal procedure, and a much more unified court system. The police and the prosecution are state-level rather than local agencies. The prosecutor is not an elected official, but a civil servant operating within a hierarchical system. There is no death penalty, and sentences for all crimes -- both major and minor -- are considerably lower than in the United States.

These differences  made me cautious. I really don‘t know the Lithuanian law well enough that I could decide, which parts of it are similar to the German law and which are different. Before I now talk about questions like plea bargaining or the judicial or prosecutorial discretion let me briefly explain the organisation of crime prosecution in Germany:

Unlike the situation in Britain the German criminal law as well as the German law on criminal procedure is a coded law, the origins of both dating from 1870. The institution of a PP was installed in Germany in the early 19th century. Unlike the situation in the former soviet system the German PP does not deal with civil cases, apart from some tasks in family law. You find a PP at every court from the lower regional court upwards.

    Usually a criminal offence is reported to the police like in every other country. The police investigate on their own in misdameanour cases; in felony cases they immediately report to the office of the PP at the “Landgericht”, the regional PP’s office (Folie).

    Most felony cases in the United States begin with the arrest of the suspect. The police make the vast majority of these arrests without a warrant. The suspect is then brought before a court that decides whether the suspect is to be released on bail or on the defendant's own recognizance. The German law is quite different. The German police are not allowed to arrest a suspect simply because they have probable cause to believe that the suspect has committed an offence. They are permitted to arrest without a warrant only when the suspect is caught in the act or when there is a risk of flight or a problem in identifying the suspect (vorläufige Festnahme). Detention for longer than one day requires a warrant issued by a court (Haftbefehl). Courts are allowed to issue warrants only when there is "urgent suspicion" of guilt (a standard higher than that required for filing charges) and a risk of flight or some other grounds for holding the suspect. The consequence of these tight German laws is that far more cases begin without arrest - even for serious offences - than in the United States. Longer term detention requires both a very high level of proof ("urgent suspicion") and strong reason for detention (risk of flight, or other reason). Longer term detention also requires a court order every three months; from the sixth month on the court of jurisdiction for this is only the regional court.

    The court will order to release the suspect, if there is a lack of evidence or no longer a risk of flight or collusion. Even with a smaller risk of flight, the suspect may be released, if he leaves his passport at the PP’s office, calls on the police every day and - very rarely - is granted to lodge a bail. A bail is not very popular in Germany as it is considered to favour the rich. In fact, there are no professionall bail bondsmen like in the US. The court has to release the suspect after six months, if the PP failed to accelerate the investigations. There is really no excuse, even if the number of PPs is too small in that court district.

    Anyway, after the investigations have been made by the police the file goes to the regional PP’s office. If during the investigations a decision of a judge is necessary, the court of jurisdiction would be the investigation judge of the district court. His competence is not dependent on the type of crime. The investigation judge rules on warrant of arrest, search of rooms, medical examination, telephone tapping and bugging.

    The PP is responsible for finding sufficient evidence for the benefit of the defendant and against him. After having got the case he may order, that the police should do more investigations and will tell them, which. In very important cases he himself hears witnesses or heads the search of rooms. After having done his investigations he will decide

    to drop the case because of lack of evidence against a certain person - 33 % of all cases;

    to discontinue the proceedings concerning misdemeanours on the ground of insignificance - another third part of all cases. To do so the PP needs certain circumstances and sometimes a consent of the court of jurisdiction; I’ll show you the preconditions soon.

    to lay an indictment against the person charged with an offence or crime.

German law, like American law, divides offences into three levels. “Verbrechen” (the German equivalent of felonies) are those crimes for which the minimum penalty is one year or more. In Germany this includes murder, manslaughter, forcible rape, drug dealing and robbery but does not include burglary and many other crimes that would be felonies in the United States. “Vergehen” are the German equivalent of misdemeanors. “Ordnungswidrigkeiten” are the German equivalent of the American infraction category. There is a separate proceeding code for infractions, which refers only partly to the code of criminal procedure. In the same way there is a separate penal and proceeding code for young offenders and juveniles.

    German law has traditionally taken a strong stand against prosecutorial discretion, considering such discretion to be inconsistent with the rule of law and a violation of the principles of equal justice. Even today German law gives the prosecutor no discretion in the most serious cases and explicitly requires the prosecutor (and therefore the police as well) to investigate and prosecute every crime that is committed. German legal writers contrast the German "legality" principle with the American "opportunity" principle. In the last 25 years German law has been changed to allow the use of discretion in the more minor crimes. The use of discretion now appears to be expanding to medium level crimes up to burglary and aggravated assault. But only if the legal requirements for discontinuing are fulfilled it is up to the discretion of the PP, whether he lays an indictment or not. There are the following possibilities: (Folie)

    Prosecuturial Discretion in misdemeanour complains

    § 153     StPO: little guilt-no public interest in prosecuting

    § 153a   StPO:little guilt-public interest - fine

    § 153c   StPO:If the court could sentence without a real punishment in the cases of

    mutual insult

    possession of a small amount of drugs

    the defendant having serious harmed
    himself by his offence

    principal witness in a drug case

    § 153c   StPO:Offence being committed by a foreigner or in a foreign country

    § 154     StPO:Minor misdameanour need not be prosecuted if there is
    a more severe one, which is prosecuted already.

    § 154b   StPO:  The offender was extradited or expelled from Germany.

    § 154c    StPO:  The offender was blackmailed because of his misdameanour.

    If the PP sends a bill of indictment - together with his investigation-file - to the court, first the defendant gets a copy and may object.  After sending the indictment to court, the PP loses most of his responsibility for the case. For example: If the defendant is arrested before bringing an indictment to court, he may be released from custody by order of the judge. If the PP asks for this order, the judge has to release the defendant. After the indictment, the judge is free in his decision and may keep the defendant in prison against the application of the PP.

    The court  receives a written file with all the evidence when charges are filed. After that the professional members decide about opening the trial according to the written evidence. If there is not enough evidence, the opening of a trial will be denied. After having got the indictment the court is entitled to ask the office of the PP to hear more witnesses or experts.

    Germany does not use a jury any longer - we had it until 1975 in felony cases - and the trial process is very different from that in the United States. Guilt or innocence is decided by a single judge in minor cases, by a judge and two lay members in more serious cases, by a panel that normally consists of 2 judges and 2 lay members at the next level and by a panel of 3 judges and 2 lay members in the most serious cases. When a panel is involved, conviction requires at least two-thirds vote (3 of 4-person panels and 4 of 5-person panels). Sentences also require a two thirds vote.

    Different from the system in Britain or the US the court is supposed to find out the truth. It is the duty of the court to investigate the case. In the US, a judge will have little or no knowledge of the facts of a case until evidence has been introduced in the courtroom. However in Germany  a judge will have read the case file very carefully before the trial. This file will contain copies of pretrial investigations, actions, statements, records, and other pertinent documents relating to the case. A German trial is generally shorter than a US trial and a decision regularly is found within three months.

    The presiding judge, rather than the lawyers, organizes the evidence and asks most of the questions. The prosecutor and the defense counsel are allowed to ask questions only after the judges have finished. The prosecutor and the defense counsel may ask the judge to call additional witnesses. The decision as to whether the additional witnesses will be called, however, is up to the judge. Disclosure of the prosecution case to the defense in advance of trial is virtually automatic.

    During the trial the presiding judge asks the defendant and the witnesses first; after him the assisting judges, the jurors, the PP and the defense counsel have the right to ask additional questions. Although a cross examination like that one in the British law and the better known in the American films is provided in principle by the German Code for criminal procedure, it is almost never used in reality.

    The right of an accused to be represented by a defense counsel is of course protected under German law. In some cases, for example when the accused is charged with a major felony punishable with confinement of 1 year or more, German law requires counsel to be provided by the court on its own initiative, even if the accused does not want any counsel. The costs for the counsel are paid by the state, if the defendant is acquitted or too poor to pay them himself. In turn, the convicted offender must pay the court fees. In a normal misdemeanour case there need not be a defense counsel.

    The court ist not in the least bound by applications of the PP or the defence counsel: Even if the PP asks for a release, the court may sentence the defendant. In my work as a PP at the Bavarian Supreme Court I applicate at least 5 times a year in favour of the defendant to reverse the decision of the lower court and court does not follow my application.

    We have two main stages of procedure and appeal:

    The PP brings an indictment to the “Amtsgericht” (County or Dictrict court), if he expects a punishment up to four years. In cases of misdemeanours the court of jurisdiction is the single judge, in cases of minor felonies the magistrate court. In a German magistrate court, which is part of the district court, sits one professional judge together with two lays. All of them rule by majority on the verdict of guilt as well as on the punishment and in one sentence, which covers both aspects. A separation of the part concerning guilt from that concerning the punishment, is discussed from time to time, but as never been accepted by court practice.

      The trial strictly follows the principle of oral proceeding. Only the evidence given in the trial is important. On the other hand a statement from “hear-say” ist not prohibited. We regard that as legal, because the witness from hear-say reports about his own perception - about what he has heard from another person. Under certain exceptional conditions, depositions (for example, sworn written statements taken before a judge) of absent witnesses can be admitted as evidence in a German court. This allows the prosecution and defense to introduce statements of absent or unavailable witnesses. On the other hand, a defendant must not be sentenced only on the basis of a hear-say-witness or a deposition. There has to be more evidence apart from that.

      Conduct of Trial

      The sequence of events during the trial normally is as follows:

      (1) The presiding judge calls the names of the accused and the witnesses to determine if they are present. Depending on the severity of the crime, there may be more than one judge. The panel may include two lay judges.There is no trial by jury!

      (2) The judge questions the accused concerning his or her background (place of birth, education, marital status).

      (3) The judge reads the order committing the accused for trial. The prosecutor reads the charges in the indictment.

      (4) The judge asks the accused if he or she wants to reply to the charges. The judge normally warns the accused to tell the truth before he or she replies. The accused may choose to remain silent or make an unsworn statement.

      (5) The judge then calls the witnesses and receives their testimony. Witnesses are excluded from the courtroom before their testimony. Expert witnesses (doctors, psychiatrists, automotive engineers), however, may stay in the courtroom and the court may permit them to question the accused and the witnesses. After each witness has testified, the judge will ask the accused if he or she wishes to make a statement or question the witness. If somebody does not agree to leave the witnesses statement an unsworn one, the witnesse has to take an oath after his statement.

      (6) After the court has heard the evidence, the prosecutor and the defense counsel sum up the case in their closing arguments. The accused has the option to make a final statement.

      (7) After the closing arguments, the judge(s) withdraw(s) from the courtroom for deliberation. Two thirds of the judges must find the accused guilty to constitute a conviction. If the judges have reasonable doubt concerning the guilt of the accused, the court cannot find the accused guilty.

      Some details:

      Under German law, the accused cannot be forced to testify against him- or herself. He or she may make an unsworn statement if desired. If the accused makes a statement, it may be used in determining guilt or innocence. Of course he may give or deny a statement without any inhibiting disadvantage for his position. He has a legal right to lie. If he confesses, this fact has to be considered for the sentence. Very important for the procedure is his final speech: There is a sort of fiction, that the court must not show its opinion of guilt until the defendant has had his chance for a “last word”. In theory this last word should be able to change everything.

      Contrary to US law, the German Code of Criminal Procedure allows victims of an offence, or their survivors, the right to participate in the trial as intervenors or private prosecutors. Intervenors are usually represented by counsel and may produce evidence related to the case, as well as question witnesses. Victims usually join the proceedings to enhance their chances of success in civil litigation.

      In petty misdameanours like insult or unlawful entering or trespassing he even may be plaintiff in a private criminal action against the offender. In these cases the PP does not take part in the procedure, when there is no public interest in prosecuting.

      In a German trial, the judge, not the defense counsel or the prosecutor, obtains the testimony of the witnesses. After the judge has completed his or her questioning, the prosecutor and the defense counsel will be permitted to question witnesses. The emphasis is to obtain the truth from witnesses by direct questioning rather than through examination and cross-examination as they are generally used in a US trial.

      For every sentence - release or guilt - the reasons have to be supplied by the professional judges. This usually takes a lot of time; the reasons very often are long and very detailed. You expect at least five pages in a case of a light misdemeanour and you actually find 80 or more pages in more serious cases. The reasons of a sentence are one of the main bases of every appeal.

      The District Court must not extend its sentence over a punishment of four years , except in juvenile cases. Against the sentence of the County Court both sides - defendant and PP - may fully appeal. In the next stage, the “Landgericht” (Regional Court) will verify the facts as well as the legal side in both procedure and sentence. The appeal can be limited to the sentence of the legal consequences or even to the question of probation. Every appeal of the PP may take effect in favour of the defendant as well, the appeal of the defendant must not effect against him. On the other hand it is not important, what the PP demanded in the first stage. Even if he pleaded for release and the defendant was sentenced to three years‘ imprisonment, the PP may appeal in the aim of achieving a more severe punishment. Although German law protects the accused from being repeatedly prosecuted or subjected to double jeopardy, an appeal by the prosecution is not considered double jeopardy.

      In all the cases which started at the County Court there is a third stage. Here only an appeal on questions of law is possible. No evidence will be taken in this procedure. The court of jurisdiction is the “Oberlandesgericht”, in Bavaria the Higher Bavarian Court.

      In cases of the most serious felonies like murder, manslaughter and if the PP expects a punishment of more than four years he brings an indictment to the “Landgericht” (Regional Court”), which then has sessions with 3 professionals and 2 lay judges. Like in the Magistrate Court every judge - professional or lay - rules both on guilt and punishment.

       

      Against the sentence of the Regional Court boths sides may appeal on questions of law only to the Federal Court.

I would like to describe the position of the PP in Germany as “very close to that of a judge”. There is - especially in the south of Germany a permanent changing between court and office of the PP. Let me show you as an for example my own career:

    I started like every other colleague I know in the office of the PP in Munich and stayed there for three years. After that I changed to the County Court as a judge, first as investigation judge, then competent for landlord - tenant  disputes, after that criminal cases concerning young offenders. Less typically I was then a sort of a teacher for bachelors of law for 8 years, before I went to the Higher Regional Court as an assistant judge. That was boring after a year and I became chief  land registrar in the District Court, being head of the land registry department of the court with 150 employees at the same time. Another 8 years later I was promoted and have a senior PP at the Bavarian Supreme Court been for three years now.

The PP has some of the privileges of a judge: He has not to conform to set working hours, he gets the same payment as a judge in the same court and he is part of the third power in the state. Just to give you an idea of a German judge‘s payment: In Germany the whole civil service and the whole military service provide equivalent ranks. So an usher is paid like a corporal, a court’s clerk like a sergeant and a paralegal like a lieutenant or a captain. As a judge you start with the same payment as a college professor or a major. A senior judge - maybe a a chairman of a chamber or an assistant judge at the regional court - gets the same money as a colonel or a college headmaster.

Of course the PP is not completely free in his decisions. At least in theory the Chief Public Prosecutor is in power of command towards him and the CPP himself has to do, what the Ministry of Justice orders him to. But an actual order ist very rare and strictly limited by law in one direction: There may be an order to prosecute; there must not be an order, to release a defendant. Only a court is entitled to give this order.

The PP himself is the ”Master of the Investigation”. It is in his competence to direct the police when investigating an offence or a crime. This sometimes causes problems:

1971 there was a severe bank robbery with hostage-taking in Munich. The PP,  who was on stand-by-service, came to the scene of crime and ordered, how and when to shoot. One hostage was killed. As a result of this accident the ministers of justice and the interior in Germany agreed to split responsibility: The PP in these cases now has to decide, whether to shoot or not, police officers have to decide, when and how.

This leads me to another question: How do you become a PP in Germany? The very simple answer: The same way as you become a judge. After college you first study for at least four years at the university and pass a state exam. Everyone, who succeeds in doing this will have two years of practical training in a civil and a criminal court, with a PP and a law firm and in the administration. After this period he has to pass the “Great Exam” with 11 written tests of 5 hrs and an oral examination lasting for the same time. If you are among the best 2 % you may apply to the Ministry of justice and start as a PP. After 7 years you normally become a judge, if you fulfill the preconditions. You may be a life long judge apart from the chance of changing back to the PP-office as senior or chief PP. That system applies to South Germany only; in the northern part is more common to stay either in court or in the PPs office. I think it is not a bad idea to start as a PP and become a judge later on. That way you can profit from the experience in prosecuting and have a more realistic approach to the position of a judge.

Plea Bargaining

The German law on criminal procedure is ruled by the principle of objective justice: The PP has to find out the truth, the judge has to find out the truth and the law does not trust in the defendant’s abilities to do the best for himself. Formal pleas of "guilty" or "not guilty" do not exist in German trials. The German legal system does not permit an accused to plead guilty to receive a lesser punishment. He is not even allowed to disclaim the court appointed counsel, when he has to have a defence counsel and does not present one himself. If the defendant admits guilt, the court  has to find out, whether the confession is true and the trial is sometimes truncated, and prosecutors sometimes offer concessions on the sentence to be recommended in exchange for admissions of guilt. Even in these cases, however, there is a trial. The only instance in which there is no trial in the German system is when a "penal order" (Strafbefehl) is entered. In cases of lesser serious misdemeanours, German prosecutors may dismiss the case on condition that the defendant voluntarily accepts a lesser penalty. If the defendant and the judge accept the prosecutor's proposal, there is no trial. Roughly 40 % of all cases brought to a court end this way.

This and the fact, that the court is not bound by applications from either side makes any plea bargaining very difficult. The discussion in Germany is not, how to do that, but whether it is legal at all or could create new problems.

There are some reasons for plea bargaining in Germany, too. The main problem is the nearly unlimited right of the defence counsel to applicate for more evidence. As I said, our main principle is that of the objectice justice, the court or judge, who investigates himself. This makes it impossible to set a time limit for motions to admit more evidence. In theory these applications are legal until the oral reasoning of the sentence has ended, Practically offers for more evidence may come until the end of the final speeches. Very often the defence counsel offers in his final speech more evidence in the case, that the court will sentence his client or that no probation will be given.

There are always endeavours in parliament to cut the right of evidence applications, but we have the same situation in Germany as in the US or Britain: Too many lawyers. Their number has increased in the last 50 years from 12.000 to 100.000. Quite a few out of this crowd are members of the federal parliament. They block any initiative to cut down the right of evidence application as well as that of the right to appeal.

This situation gives the defence counsel something to bargain with. On the other hand he cannot just offer to renounce the right of evidence motion, because the court itself has to find out the truth. So what is often done is, that  the defence counsel offers to advice his client to confess in the trial. The PP and the court declare, that the punishment against a confessing defendant will not exceed - let us say - 5 years. If the defendant now confesses, the punishment is limited to five years, but may be less. A higher punishment would in this case not pass the appeal court, if the plea bargaining - always including three sides - is evident. So as a result, bargaining takes place, but is the exception rather than the rule, and the overall amount of bargaining is not great compared to American standards.

    Sentencing Alternatives

The normal consequence of an adult‘s criminal act in Germany is - like in all other countries - a fine or a prison sentence.

Germany makes extensive use of fines, however, instead of jail for misdemeanours. Normally a fine is the consequence of a first offnece. The fines imposed are day fines that attempt to establish punishments related to the defendant's ability to pay. Frequently the fines involve installment payments. German law also uses fixed payment schedules but only for infractions that are not considered criminal (Ordnungswidrigkeit).

German law has developed a prosecutorial diversion procedure that is widely used for minor crimes. Under this procedure prosecutors do not formally prosecute defendants who make fixed payments to specified charities or other good causes or the state. Like in all juvenile cases it is possible, that the suspect does social work instead of paying money to fullfil the preconditions of the diversion scheme. Although quite differently administered, this scheme, like fixed payment schedules, allows large numbers of cases to be handled administratively.

The sentenced fine is formed by two components, the number and the amount of the daily rates. The number of the daily rates ranges from 5 to 360 and is dependent on the guilt of the defendant. The amount of the daily rates is the 30th part of the defendant‘s monthly net income. A fine is regularly sentenced up to 180 daily rates, if the defendant is a first offender, otherwise a prison sentence would be the right one. A fine of more than 180 daily rates is sentenced very rarely, maybe sometimes in cases of tax fraud. It is possible to combine a fine with a prison sentence. In extraordinary cases a fine may be set on probation.

As the normal fine relates to the future income of the defendant - What will he earn, when the sentence will come into force? -  it is the wrong instrument to punish let’s  say a drug dealer or another member of what we call “organized crime”. He will not earn more than some Deutschmarks a day when in prison.  So we introduced a new kind of fine in 1993. It is called “fine of property” and allows the court to sentence the defendant to pay a certain percentage of the worth of his assets. The percentage may be even 100 %, but no more. There are only two preconditions: A prison sentence of more than two years and a felony which belongs to a catalogue of certain criminal acts like drug dealing or other organized crimes.

Prison sentences range from one month to 15 years and life long. Probation is possible up to two years. A very dangerous criminal may be kept in live long preventive detention after having served his sentence.

The court has a huge scope for discretion with its length. If the penal code gives a margin between 1 and 15 years prison the actual time of conviction depends on the number of sentences before, a possible full confession of the defendant, the effect and the damage caused by the crime. On the whole, however, both the sentencing structure contained in the German penal code and the actual sentences imposed by German judges are lower than those for similar offences in the United States.

If the defendant was not or not fully responsible for his crime, he may be sentenced to stay in a psychiatric hospital or in an institution for treatment of chemical dependency. If the crime was traffic-related - drunk driving as well as transporting drugs - there will be a withdrawal of the driving license for a limited period from 6 months on or at least a driving ban for up to 3 months.

At the moment everyone in the criminal law business is speaking about new sentencing alternatives, because the new German federal government tries to show a new profile and has made several proposals in that direction. The prisons are overcrowded and cost a lot of money, although we have less than one third of the people in prison compared to the US-figures. So a driving ban is proposed to replace a short prison time even for not traffic-related offences now. House arrest is being discussed, possibly in combination with electronic footcuffs.

We have all these sentencing alternatives in the penal code for young offenders already. These alternatives look like an intelligent and flexible answer to crime, but they render fine and prison not unnecessary.

 

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