Principles of German Criminal Procedure 9781472565839, 9781849462167

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Preface After the translation of the German Criminal Code in 2008 and the book on principles of German substantive criminal law in 2009, I am pleased to be able to present the next instalment, on German criminal procedure. It covers the major rules and stages of criminal proceedings, both in adult and juvenile cases, and has an extensive but nonetheless still superficial chapter on sentencing. I hope that together, these three books will now provide the reader with a reliable first impression of the operation of criminal law in theory and practice in Germany. The Code of Criminal Procedure and the Juvenile Courts Act, among many other pieces of legislation, including an up-to-date version of the Criminal Code, have been available for some time now in English on the official website of the German Federal Ministry of Justice. I thank the Ministry for agreeing to the use of excerpts from my translation of the Criminal Code in this book. As with the previous books, I have to express my deep gratitude to a number of colleagues who gave freely of their time and expertise to prevent any major blunders from happening; needless to say, any remaining errors are mine alone. Chris Newman from Sunderland University again did his best to keep the text within the generally accepted boundaries of proper English. Judge Wolfgang Feld-Gerdes of the Landgericht at Meiningen, Judge Wolfgang Schomburg, formerly of the Bundesgerichtshof, of the International Criminal Tribunals for the former Yugoslavia and Rwanda, and now a Honorary Professor of Law at Durham University, Mr Geoffrey Mercer QC, Walnut House Chambers, Exeter, as well as Rechtsanwalt Christian Latour, Meiningen, and Rechtsanwalt Dr Stefan Kirsch, Frankfurt, gave helpful and much-needed advice from the practitioner’s point of view, given that it has been almost seven years now since I left the German bench and many things have changed during that time, in law as much as in practice. I should like to thank the University of Durham and Durham Law School for their generous research leave policy, which allowed me to spend Michaelmas Term 2010 in Germany writing the major part of the text and gave me freedom from onerous teaching and administration duties in Epiphany Term 2011. Part of the latter was spent as a visiting scholar at the Department of Sociology and Criminal Justice of Old Dominion University in Norfolk, Virginia; I am indebted to its Head of Department, Professor Randy Gainey, and my friend Dawn Rothe and her colleagues for making me feel very welcome, and for supporting me with travel funds and accommodation as well as being excellent company during my stay. I am grateful to Richard Hart and his staff at Hart Publishing for accepting the manuscript into the series and handling the production process in the traditionally efficient and effective manner. CH Beck Publishers graciously granted the right to use and translate excerpts from two of their books in the annexes. vii

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Preface As always, I am amazed by the generosity of my wife and daughter, Christine and Laura, who allowed me to leave them behind in England for three months while I worked on the manuscript at our home in Germany. It was too long. This book is dedicated to the memory of my dear friend, Professor Kaiyan Homi Kaikobad, who passed away in 2010 after a short, aggressive and relentless illness. His untimely death has left a deep scar in the lives of those who knew and loved him. He is sorely missed. Michael Bohlander Durham, June 2011

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List of Abbreviations List of unusual terms, abbreviations and general citations §, §§

Section, sections

AG

Amtsgericht = County Court

AO

Abgabenordnung = Fiscal Code

BayObLG

Bayerisches Oberstes Landesgericht = Bavarian Supreme Court

BayObLGSt

Amtliche Sammlung der Entscheidungen des Bayerischen Obersten Landesgerichts in Strafsachen = Official Gazette of the Decisions of the Bavarian Supreme Court in Criminal Matters, cited by volume and page

BezG

Bezirksgericht = District Court under the previous court system of the German Democratic Republic

BFHE

Amtliche Sammlung der Entscheidungen des Bundesfinanzhofes = Official Gazette of the Decisions of the Federal Fiscal Court, cited by volume and page

BGH

Bundesgerichtshof = Federal Court of Justice

BGHR

BGH-Rechtsprechung Strafsachen, cited by section, keyword and number

BGHSt

Amtliche Sammlung der Entscheidungen des Bundesgerichtshofes in Strafsachen = Official Gazette of the Decisions of the Federal Court of Justice in Criminal Matters, cited by volume and page

BGHZ

Amtliche Sammlung der Entscheidungen des Bundesgerichtshofes in Zivilsachen = Official Gazette of the Decisions of the Federal Court of Justice in Civil Matters, cited by volume and page

BRat-Drs.

Bundesratsdrucksache = Document emanating from the Federal Council

BtMG

Betäubungsmittelgesetz = Drugs Act

Bund

The Federation, as opposed to the Länder

BVerfG

Bundesverfassungsgericht = Federal Constitutional Court

BVerfGE

Amtliche Sammlung der Entscheidungen des Bundesverfassungsgerichts = Official Gazette of the Decisions of the Federal Constitutional Court, cited by volume and page

DAR

Deutsches Autorecht, cited by year and page

DJZ

Deutsche Juristenzeitung, cited by year and page

DRiZ

Deutsche Richterzeitung, cited by year and page

EB

U Eisenberg, Jugendgerichtsgesetz, 14th edn (Munich, CH Beck, 2010), cited by § and marginal number

EBB

U Eisenberg, Beweisrecht der StPO—Spezialkommentar, 7th edn (Munich, CH Beck, 2011), cited by marginal number

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List of Abbreviations

EGGVG

Einführungsgesetz zum Gerichtsverfassungsgesetz = Organisation of Courts (Introduction) Act Einführungsgesetz zur Strafprozessordnung = Code of Criminal Procedure (Introduction) Act Einleitung = Introduction Goltdammers Archiv für Strafrecht, cited by year and page after 1953; prior to that by volume and page Grundgesetz = Basic Law Gerichtsverfassungsgesetz = Organisation of Courts Act P Hungerford-Welch, Criminal Procedure and Sentencing, 7th edn (London, Routledge & Cavendish, 2008) Jugendgerichtsgesetz = Juvenile Courts Act Justizministerialblatt für das Land Nordrhein-Westfalen = Ministry of Justice Gazette of North Rhine Westphalia, cited by year and page Juristische Rundschau, cited by year and page Juristische Wochenschrift, cited by year and page Juristenzeitung, cited by year and page A Keane et al, The Modern Law of Evidence, 8th edn (Oxford, OUP, 2010) Kammergericht = State Supreme Court of Berlin Karlsruher Kommentar zur Strafprozessordnung, GVG, EGGVG, EMRK, 6th edn (Munich, CH Beck, 2008), cited by § and marginal number (One of the) member States of the Federation Landgericht = District Court Monatsschrift für Deutsches Recht, cited by year and page L Meyer-Goßner, Strafprozessordnung mit GVG und Nebengesetzen, 53rd edn (Munich, CH Beck, 2010), cited by § and marginal number Marginal number Menschenrechtskonvention = ECHR Neue Juristische Wochenschrift, cited by year and page Neue Entscheidungssammlung für Strafrecht (looseleaf), cited by section and number Neue Zeitschrift für Strafrecht, cited by year and page Neue Zeitschrift für Strafrecht Rechtsprechungs-Report, cited by year and page Entscheidungen des Obersten Gerichtshofes der Britischen Zone in Strafsachen = Decisions of the Supreme Court of the British Zone in Criminal Matters, cited by volume and page

EGStPO Einl GA GG GVG HungerfordWelch JGG JMBlNW

JR JW JZ Keane KG KK-contributor

Land; Länder LG MDR MG

Mn. MRK NJW NStE NStZ NStZ-RR OGHSt

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List of Abbreviations

OLG OLGSt

Oberlandesgericht = State Supreme Court Entscheidungen der Oberlandesgerichte zum Straf- und Strafverfahrensrecht, cited by section and para or page OWiG Ordnungswidrigkeitengesetz = Summary Offences Act POGCL M Bohlander, Principles of German Criminal Law (Oxford, Hart Publishing, 2009) RG Reichsgericht = Supreme Court of the Reich RGSt Amtliche Sammlung der Entscheidungen des Reichsgerichts in Strafsachen = Official Gazette of the Decisions of the Supreme Court of the Reich in Criminal Matters, cited by volume and page RiStBV Richtlinien für das Strafverfahren und das Bussgeldverfahren = Guidelines for criminal and summary proceedings RPfleger Der Deutsche Rechtspfleger, cited by year and page SchlHA Schleswig-Holsteinische Anzeigen = Schleswig-Holstein Gazette, cited by year and page SSvG G Schäfer, GM Sander and G van Gemmeren, Praxis der Strafzumessung, 4th edn (Munich, CH Beck, 2008) Sch/Sch-contributor Schönke/Schröder, Strafgesetzbuch, Kommentar, 28th edn (Munich, CH Beck, 2010), cited by § and marginal number StGB Strafgesetzbuch = Criminal Code StPO Strafprozessordnung = Code of Criminal Procedure StraFo Strafverteidigerforum, cited by year and page StrEG Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen = Criminal Proceedings (Compensation) Act StVollStrO Strafvollstreckungsordnung = Criminal Sanctions (Enforcement) Order StV Strafverteidiger, cited by year and page Vor Before Vorbem Vorbemerkung Vormbaum T Vormbaum, Einführung in die moderne Strafrechtsgeschichte 2nd edn (Berlin, Springer, 2011) VRS Verkehrsrechtssammlung, cited by volume and page wistra Zeitschrift für Wirtschaft, Steuer, Strafrecht, cited by year and page ZPO Zivilprozessordnung = Code of Civil Procedure ZStW Zeitschrift für die gesamte Strafrechtswissenschaft, cited by year, volume and page

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1 Introduction SCOPE OF THE BOOK

In my previous book, Principles of German Criminal Law, I said: This book is … not a traditional textbook of German criminal law in the way that German academics would understand it. My German colleagues will probably say that I left out too much, emphasized the wrong things and indulged in oversimplification, not to mention the mistakes I may have made. While I do not feel that I should immediately plead guilty to that charge in its entirety, a plea of nolo contendere to the first three may be unavoidable, but I will leave that to the judgment of the reader.1

This is similarly, if not to an even greater degree, true of the present sequel on the procedural aspects of German criminal justice. The field of criminal procedure is, if anything, much wider than that of substantive law because practical issues come into play much more, which makes the task of selecting the right ingredients within the limited space of the present manuscript more difficult. For example, the entire field of international and European cooperation in criminal matters, an area of huge practical importance for German prosecutors, judges and defence counsel these days, has been left out. Issues such as, for example, the role of private prosecutors have been touched upon only in the context of certain other systemic questions, because they are not necessary to understand the general set up. This book is thus on the one hand about the ‘German’ in ‘German Criminal Procedure’, and on the other hand it does not presume to cover every concept or institution which in itself may without a doubt be worthy of closer attention. Above all, it is meant to show how the procedure works in practice, rather than to engage in discussing substrata of legal theory, policy or philosophy; it has a definite ‘nuts-and-bolts’ character, because I feel from experience that the comparative discussion among many common and international criminal lawyers about ‘the’ Continental systems often suffers from a lack of precise knowledge about the actual and sometimes major differences between the many Continental systems. The animal which normally gets the lion’s share of attention from 1

M Bohlander, Principles of German Criminal Law (Oxford, Hart Publishing, 2009) 1.

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Introduction common law procedural commentators, the French juge d’instruction, for example, has been a non-entity in German law for a long time and is now under threat in France too.2 It makes little sense, either, to talk about the threshold for preferring an indictment in different jurisdictions as long as one does not know what its exact function and role are in each system, and more to the point, what an indictment actually looks like. The differences between German and English law, for example, could not be more striking, as may be seen from Annex 1. Similar things may be said about judgment drafting, where the education of law3 students at university and in practical training after having obtained a first university degree, as well as the fact that German law does not know separate or dissenting opinions below the level of the Federal Constitutional Court (Bundesverfassungsgericht—BVerfG), have a marked influence on diction and style; compare, in this regard, Annexes 2 and 3. For a common lawyer, the code-based structure of German criminal procedure and the interpretation through the case law of the courts, mainly the BVerfG, Bundesgerichtshof (BGH) and the Oberlandesgericht (OLG), as well as the academic commentary, will unavoidably appear to take on a rather technical character at times, as evidenced, for example, in chapter three of this book, which discusses the rather dry topic of jurisdiction and internal case allocation at some length. Where English courts may be more quickly prepared to rely openly on what they call common sense in order to do justice to the individual case, German courts will tend to enforce the application of the rules across the board based on a more doctrinal understanding of the policy of equal treatment, while not losing sight of the old Latin maxim ‘summum ius, summa iniuria’. This tension is, I hope, explained in the appropriate places in the substantive chapters below. The main laws relating to the procedural aspects are the Strafprozessordnung (StPO), the Gerichtsverfassungsgesetz (GVG) and the Strafgesetzbuch (StGB), yet for decades now their interpretation has been influenced by the jurisprudence of the European Court of Human Rights (ECtHR); however, for Germany, the extension of parliamentary legislation by the judicial application in practice of higher-order principles of law is not that new. Since the implementation of the Grundgesetz (GG) and its catalogue of fundamental rights and liberties, the

2 See, eg, the September 2009 Report on the abolition of the juge d’instruction by the Léger Commission at . 3 In stark contrast to the English system, for example, it is impossible for someone to become a lawyer, prosecutor or judge without having passed the two State examinations in law (or their equivalent in some of the Länder). The university degree in law is the first half of the professional training, which is mirrored by the fact that the university curriculum naturally encompasses courses in basic civil, criminal, administrative and constitutional procedure, something unheard of in many UK universities these days and—questionably—frowned upon by many academics in the UK as not being scholarly enough to warrant inclusion in the academic teaching provision or their research portfolio. See on this topic, eg, S Bartie, ‘The lingering core of legal scholarship’ (2010) 30 Legal Studies 345.

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German materials uses BVerfG has kept a close watch over the manner in which the ordinary courts employ the sub-constitutional law. In recent times it has done so by de facto raising the case law of the ECtHR to a quasi-constitutional level through the principle that the GG has to be interpreted in a Convention-friendly manner unless by doing so the domestic safeguards would be reduced. In other words, German courts do not need to rely as directly and openly on the European Convention on Human Rights (ECHR) as UK courts, for example, often do via the Human Rights Act 1998, because the domestic German law is interpreted in the light of ECtHR jurisprudence, yet never with the aim of finding the lowest common denominator. Notably the strike-down power the BVerfG has even vis-à-vis acts of legislation has meant that the civil liberties of the GG quickly acquired the necessary bite in the face of attempted encroachments from the executive, the legislature and even the lower judiciary. The book therefore does not refer as much to the ECHR directly as a UK treatise on the topic might do. However, sometimes even the BVerfG is taken to task by the ECtHR, as happened recently over the law in the StGB on incapacitation orders (Sicherungsverwahrung), which had passed muster with the former but was partially declared to be in violation of the ECHR by the latter in a string of cases in 2009 and 2010. In an unprecedented landmark decision of 4 May 2011, the BVerfG—apparently in an attempt not to be outdone by its European sister court—jumped at the opportunity presented by a number of constitutional complaints and declared the entire law on incapacitation orders unconstitutional, giving the Federation and the Länder two years to pass new and compliant legislation, something that the complainants had not even asked for.

GERMAN MATERIALS USED

As with the book on substantive law and for the same reasons expressed therein, I have with a few exceptions restricted the use of literature sources to a few major and well-known commentaries and manuals. The case law of the BVerfG, BGH, the OLGs and other courts has again been heavily relied upon because, in procedure even more clearly than in substantive law, the law is what the courts say it is. That is not to say that the courts are always agreed about what the law is; in the absence of a rule of stare decisis, the smallest Amtsgericht (AG) may deviate from the consistent jurisprudence of the BGH. In fact, if the OLG under whose jurisdiction the AG sits has a different view from the BGH, it would almost be unwise for the AG to adopt the views of the BGH if its own final appellate court is likely to overturn judgments based on such a view as a matter of routine.

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Introduction HISTORICAL DEVELOPMENT

This book does not trace the development of criminal justice in Germany in general. In a few places and where necessary, historical comments have been made to explain the shape a certain rule has these days and why. For those interested in an up-to-date and modern account of the history of German criminal law in the European context from the nineteenth century onwards, I recommend the excellent work by Thomas Vormbaum, Einführung in die moderne Strafrechtsgeschichte, 2nd edition.4

MODE OF CITATION

I repeat what was said in the previous book on the Criminal Code, with a slight variation: I have kept to the German way of citation of laws. To keep the text as short and uncluttered as possible I have used the German symbol for ‘section’, which is ‘§’. After that, the subdivisions are ‘subsection’ (‘(1)’, or ‘(2) to (7)’), ‘sentence’ (‘1st sentence’), ‘number’ (‘No 1’, or ‘Nos 2 to 5’) and letters (‘(a)’), ‘alternatives’, etc. This is not necessarily an exclusive hierarchical sequence as, depending on the length of individual provisions, numbers could have several sentences, etc. Thus, for example, the following citation ‘§ 211(2) 3rd alt’ would read: ‘Section 211, subsection (2), third alternative’. The double ‘§§’ means ‘sections’. Unless another law is mentioned directly in the citation, all sections cited are those of the StPO.

CHAPTER OVERVIEW

Chapter two will set out a number of the fundamental constitutional and systemic principles that underpin the German concept of a fair trial and due process. It will, it is hoped, dispel a few of the myths about the ‘inquisitorial’ nature of the Continental legal systems. Chapter three presents the main players in the criminal justice arena and highlight their roles in relation to each other; it also explains the German criminal court hierarchy. Chapter four takes the reader 4 T Vormbaum, Einführung in die moderne Strafrechtsgeschichte, 2nd edn (Berlin, Springer, 2011).

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Chapter Overview through the stages of the pre-trial investigation and explains the roles of the prosecution, the court and the defence, as well as the rules on collecting evidence. Chapter five follows on from that and describes the issues connected with the process, from the prosecution’s decision to prosecute or discontinue until the judgment at trial. Chapter six is dedicated entirely to an overview of the law of evidence. Chapter seven serves as an introduction into the law and practice of sentencing; it is the longest chapter of the book, but the reader should nonetheless be aware that it does nothing but scratch the surface of a topic that would merit a book on its own. Lastly, chapter eight looks at the appeals process and post-conviction review. Annexes 1 to 3 are translations of a specimen indictment and two judgments, one at trial level and one at BGH appellate level.

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2 Basic Concepts INTRODUCTION – GERMANY AS AN INQUISITORIAL SYSTEM

This chapter sets out the conceptual background to the more detailed discussion of individual areas of law contained in the following chapters. One of the major distinctions often made about the German system as a member of the family of Continental legal systems is that its procedure is inquisitorial as opposed to the common law adversarial model. But what does that really mean? Is it all encapsulated in the role of the judge, or are there other features that define the character of the German procedure as inquisitorial? Is it actually still useful to use the terminology of ‘inquisitorial v adversarial’? Does ‘inquisitorial’ not tend to connote medieval practices involving dungeons, torture, extorted confessions, draconian punishments and the union1 of prosecutor, judge and executioner in the figure of the inquisitor,2 or a burden on defendants to prove their innocence? Is the standard of proof in the Continental systems, sometimes called intime conviction according to its French variant or freie Überzeugung in German, really lower than the standard ‘beyond reasonable doubt’ of which common lawyers tend to be so proud? A quick look at the law will teach us that none of these features are part and parcel of the German approach, or indeed of any modern Continental procedure, even if some very high-level common law practitioners and academics whom I have met over the years seem to think that, for example,

1 It might be worth reflecting upon the question to what extent such a personal union has been cemented in the UK by the introduction through pt 3 of the Criminal Justice Act 2003 of conditional cautions issued by the CPS and/or the police—see P Hungerford-Welch, Criminal Procedure and Sentencing, 7th edn (hereafter ‘Hungerford-Welch’) (London, Routledge & Cavendish, 2008) 115 ff. The equivalent to police cautions, the so-called polizeiliche Strafverfügungen, were abolished in Germany by § 6 of the Einführungsgesetz zur Strafprozessordnung (EGStPO); their function has de facto been assumed by the Bußgeldbescheid, ie a summary fine levied by the administrative authority in charge, which does, however, no longer have criminal but merely administrative character and is administered under separate legislation, the Ordnungswidrigkeitengesetz (OWiG). 2 A fact which has led some to argue—rightly—that the expression ‘judge-led’ is a better representation of the material substance of the law.

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Introduction − Germany as an Inquisitorial System Continental inquisitorial systems do not have an equivalent to the 5th Amendment in the US Constitution, and that an accused has to cooperate with the prosecution in her own trial and prove her innocence. These voices appear to lose sight of the fact that—to name just a few examples—German law does not accept any sort of reverse burden3 of proof on the defence; the defence is not obliged to provide the sort of disclosure to the prosecution or even the court as may be the case in common law systems, or to tell them in advance the nature of the defence case; neither is the defendant at risk of adverse comment merely for exercising her right to silence at the pre-trial stage and then choosing to make a statement in court. The defendant is protected by the rule of nemo tenetur se ipsum accusare, ie no one need cooperate in her own prosecution and conviction, to which fact the corollary is that the defendant is not a witness in her own cause, not an object of but a subject in the proceedings.4 She cannot therefore incur liability for perjury because she does not testify and is never under oath, a situation that has come to be called by many common lawyers the (in)famous ‘right to lie’. The presumption of innocence, yet another example, is actually stronger under German law than under English law and models based on the English understanding, because it attaches until the conviction has become final, that is until the last avenue of appeal has been exhausted.5 This, in the European context for example, in turn is predicated upon the understanding of what it means to be ‘proved guilty according to law’ (Art 6(2) ECHR): in England, this stage is (arguably6) reached with the jury verdict at trial, because there is no right to appeal against such a verdict absent leave being granted by the iudex ad quem or iudex a quo 7; in Germany (with one exception8), 3

Compare Sheldrake v DPP [2005] 1 AC 264. Evidence for this is, for example, that the defendant retains the right to ask questions of witnesses and experts, to make motions and seize the court directly of any matter even if she is represented by counsel. She is not relegated by either law or custom to sitting in the dock and merely watching the efforts of her counsel, as appears to be the case in many common law systems. In practice the picture is, however, very similar for obvious reasons, and it is a rare defendant who, although represented, will conduct her own witness examination; not infrequently, though, she will ask supplementary questions. 5 See, for a detailed explanation in the context of international criminal law, M Bohlander, ‘Death of an Appellant’ [2010] Criminal Law Forum 495. 6 In theory, the logical conclusion should be that it actually extends until the decision denying leave has become final because there is a right to ask for leave, but that may be a legal nicety. 7 Which is in stark and somewhat odd contrast to the situation in the magistrates’ court, where there is an automatic right of appeal to the Crown Court under s 108(1) of the Magistrates’ Courts Act 1980 and s 48 of the Senior Courts Act 1981, apart from other ways of challenging the verdict to the High Court by way of case stated or judicial review—see Hungerford-Welch, 377 ff, and pt 63 of the Criminal Procedure Rules 2010 (SI 2010/60). 8 § 313. This provision, which was introduced as a measure for easing the excessive case load and consequent backlog in the lower courts by the Gesetz zur Entlastung der Rechtspflege, ie the Administration of Justice (Reduction of Workload) Act, of 1993, allows the appellate court to dismiss an appeal without a hearing if either the defendant appeals against a fine or a warning of a fine of not more than 15 daily units (see §§ 40, 59 StGB) or a summary fine 4

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Basic Concepts and in most if not all Continental European countries, there is an automatic right to appeal against a trial verdict9—albeit in various shapes and forms depending on which court’s decision is being appealed—and thus a verdict cannot become final until there is no more chance of an appeal. The standard of proof required in § 261 for conviction, the ‘free conviction’ (freie Überzeugung), does in effect mean exactly the same thing as the reasonable doubt standard, because the judge must be convinced of the facts as supported by the evidence to a degree that ‘reasonable and not merely theoretical doubts are excluded’.10 In addition, the judge must set out her reasons for being so persuaded in the judgment, something an English jury does not do, and an English appellate court could thus in effect be said merely to be making an educated guess about whether the jury verdict is unsafe, based on the directions of the judge and his overall handling of the trial. The German judge’s reasons are susceptible to full appellate review

(Geldbuße), or the prosecution appeal against an acquittal or closure of the proceedings and they had not asked for a fine of more than 30 daily units, if the appeal is obviously unfounded. § 313(2), however, makes it clear that this is not an additional requirement for an appeal because the ‘leave’ must be granted unless the appeal is obviously without merit, in which case it shall be dismissed by written procedure as unzulässig, ie inadmissible. In other words, the law does not introduce a leave requirement but merely allows to court to dispose of the appeal based on its paper form, and to dispense with a hearing. This provision was politically motivated based on budgetary and staffing constraints in the judiciary, and is widely regarded as a systemic artefact and as probably inapplicable in juvenile proceedings. It has the clear potential for misuse by both judges and prosecutors by encouraging them to dispose of a case, for example, by reducing the number of daily units and increasing the amount of the daily unit instead, because the latter is not a criterion for § 313. See L Meyer-Goßner, Strafprozessordnung mit GVG und Nebengesetzen, 53rd edn (hereafter ‘MG’) (Munich, CH Beck, 2010), § 313 Mn 2 with further references. 9 See the Green Paper of the European Commission on the Presumption of Innocence, COM(2006) 174 final, and the replies by individual countries and organisations, all available at , especially Question 8 on the duration of the presumption, where the following picture emerged: There is a clear split between the civil law and common law countries in Europe. The former all put the emphasis on the final, ie unappealable, judgment (answers received from Germany, Austria, Czech Republic, France, Hungary, Italy, Poland, Slovakia, Turkey [answer not fully clear]). The following organisations replied in the same vein: Amnesty International, Deutscher Anwaltverein, Bundesrechtsanwaltskammer, Centro Studi di Diritto Penale, European Judicial Network. The only answers that chose the first conviction as the critical point were those from Ireland and the Bar Council of England and Wales; they did, however, point out that the presumption is revived once a conviction is quashed. The Bar Council expressly emphasised that this position is intricately linked to the fact that there is no automatic right of appeal from a conviction in the Crown Court, but only with leave of the latter or the Court of Appeal. The impact of the domestic appeals model on the operational scope of Art 6(2) is clearly brought out, for example, in the case of Callaghan v UK, European Commission of Human Rights, Decision of 9 May 1989, App no 14739/89. 10 Consistent jurisprudence of the BGH and the lower courts, see BGH NStZ 1988, 236; NStZ-RR 2010, 85; OLG Karlsruhe, NStZ-RR 2007, 90 and further references at MG § 261 Mn 2.

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The Applicable Law against the parameters laid down in the law, a degree of protection against judicial arbitrariness which is arguably higher than in English law. In sum, this short overview of some of the features of German procedural law should have shown that we had better be wary of attaching significant substantial connotations to mere terminological usage and should abstain from generalisations.

THE APPLICABLE LAW11

German criminal12 procedure is determined by a number of legal sources mainly on the federal level, much like the substantive law, and the same hierarchy of norms as well as rules of interpretation apply.13 The main sources we shall be looking at are, after the international and European Union14 levels of legislation, the following laws: a) Grundgesetz (GG). The Basic Law or German Federal Constitution, which lays the foundation for issues such as judicial independence and civil liberties. The Constitutions of the individual member states of the Federation may also have an impact on the application of the federal law, although the general rule is that the lowest rank of federal law trumps state constitutional law (Art 31 GG).15 11 All the laws mentioned in this book and a number of translations into English of the main acts of legislation in the form of their most recent amendments may be found on the official website of the Bundesministerium der Justiz, the Federal Ministry of Justice, at , the latter under the tab ‘Translations’. The translations used in this book are taken from that website and have been modified by the author when necessary. 12 This book will look only at criminal proceedings proper, not at the administrative sanctions under the OWiG, because those are no longer considered criminal sanctions. See, for the OWiG, the commentary by E Göhler, F Gürtler and H Seitz, Gesetz über Ordnungswidrigkeiten—OWiG, 15th edn (Munich, CH Beck, 2009). 13 See M Bohlander, Principles of German Criminal Law (hereafter ‘POGCL’) (Oxford, Hart Publishing, 2009), 10 ff, to which the reader is referred for the details. 14 European law has so far impacted mostly on the areas of international cooperation in prosecution and enforcement, eg, through instruments such as the European Arrest Warrant, the European Evidence Warrant, the Framework Decision on financial penalties, etc. For the German view on these developments and the German implementing legislation, see W Schomburg, O Lagodny et al, Internationale Rechtshilfe in Strafsachen, 5th edn (Munich, CH Beck, 2011). 15 A famous and highly controversial case on this issue was the trial of Erich Honecker, the former Chair of the Politbüro and Head of the Council of State (Staatsratsvorsitzender) of the now defunct German Democratic Republic, whose trial was stopped because of a procedural bar pursuant to § 206a under recourse to the Constitution of the Land Berlin, because he was terminally ill and therefore being put on trial violated his human dignity according to the Berlin, not the federal, Constitution. See Berliner Verfassungsgerichtshof NJW 1993, 515 and the critical literature voices listed at MG § 112 Mn 11a; more generally on the matter, see BVerfGE 96, 345; 103, 332.

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Basic Concepts b) European Convention on Human Rights (ECHR). Directly applicable in German law, this has the same functions as the Human Rights Act 1998 in the UK. c) Strafprozessordnung (StPO). The Code of Criminal Procedure, which contains the majority of the law relating to the conduct of criminal proceedings against adults. d) Jugendgerichtsgesetz (JGG). The Juvenile Courts Act, which regulates the specific features of proceedings and sentences against juveniles (14–18 years of age) and young adults (18–21 years of age). It is noteworthy in this context that the criminal law is not fully congruent with the civil law on the consequences of coming of age at 18. The civil law attaches the full canon of rights and duties once a person reaches that age; there is no separate treatment for the group between 18 and 21 (the latter had for many years been the age of majority in Germany). However, the juvenile law operates, not uncontroversially, on the common-sense experience that (i) many people under 21 are still in the developmental stages of a juvenile, or (ii) the offence sometimes carries a distinctly juvenile character, and they should consequently be given some leniency and be educated rather than punished.16 This has the consequence that adult criminal law will normally apply to 18-year-olds unless one of the two conditions just mentioned is made out. e) Strafgesetzbuch (StGB). The Criminal Code makes provision for the bulk of the sentencing law and for prerequisites to prosecution, such as requests to prosecute and limitation periods, etc. f) Gerichtsverfassungsgesetz (GVG) and Einführungsgesetz zum Gerichtsverfassungsgesetz (EGGVG). The Courts Organisation Act and its Introductory Act containing basic rules on jurisdiction, composition of courts, open justice, etc. There are further secondary pieces of legislation that exist now on the Länder, ie member state, level after the 2006 Federalism Reform, namely the law on the conditions of the detention on remand in criminal proceedings, the Untersuchungshaftvollzug, and the law on conditions of imprisonment, the Strafvollzug. Both of these were previously regulated by federal laws but have now been devolved into the domain of the individual Länder; at the time of writing not all of them had passed their own state legislation but a number still applied the old federal law as Land law for the time being. There are, furthermore, two sets of regulations that are important for the administrative side of the work mainly of the prosecution, the so-called Richtlinien für das Straf- und Bußgeldverfahren

16 However, there is potential for abuse as well, which is borne out by the previous practice in many courts of using adult law for traffic offences committed by young adults, because these offences are typically sanctioned in written proceedings, the so-called Strafbefehlsverfahren. This procedure is available neither against juveniles (§ 79(1) JGG) nor against young adults if juvenile law is applied (§ 109(2) 1st sentence JGG). Because of the mass of such cases, many judges had resorted to a rather looser appreciation of the developmental stage of the defendant in order to clear their docket.

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Juvenile Courts (RiStBV), ie the Guidelines for Criminal and Administrative Summary Fine Proceedings, and the Anordnung über Mitteilungen in Strafsachen (MiStra ), ie the Criminal Proceedings (Transmission of Information) Ordinance. Both may be loosely compared to statutory instruments and were passed by the governments of the Bund and the Länder. The law on criminal records is regulated by the Bundeszentralregistergesetz (Federal Central Criminal Register Act).

THE STAGES OF PROCEDURE

It is important to have a general grasp of the structure of the normal procedure in German criminal law, leaving aside some special procedures to which we will turn in a later chapter.17 The normal flow of a case is as shown (in a very simplified manner) in Figure 2.1 below. Within each of those stages, there are, of course, numerous fields of interaction between the prosecution and the courts. For example, in the investigation stage the prosecution may have to apply for arrest, search and seizure, phone-tapping warrants, etc; at trial it is within the discretion of the prosecution whether to extend an indictment to facts newly discovered during an ongoing trial under § 266, or to opt for a separate trial; and at the enforcement stage they may have to present the dossier to the court for decisions about early release, etc. All of this will be explained in detail below in the relevant chapters.

JUVENILE COURTS

We have already seen that there exist specific regulations for proceedings against juveniles and young adults under the JGG, which are to be conducted from the investigative stage with special reference to educating the defendants and not merely with a view to punishment (§ 2 JGG). The general provisions of the StGB and StPO apply only in so far as the JGG does not provide otherwise (§ 2(2) JGG). The most obvious distinction is that this category of defendant is (usually18) tried before special juvenile courts, staffed (ideally) by judges, both lay and professional, and prosecutors who have experience in dealing with young people; it is quite another issue whether the juvenile court will apply substantive juvenile 17

See ch 5. § 103(2) 2nd sentence JGG allows for juveniles, and § 112 1st sentence JGG (which refers to §§ 102–104 JGG) for young adults, to be tried exceptionally before certain courts that have specialist jurisdiction over adults, if the juveniles/young adults are co-defendants with adult defendants being tried before those courts and trying them together appears advisable in order to establish the truth of the case or for other serious reasons. § 104 JGG orders in those cases that for juveniles a number of provisions of the JGG shall apply before the adult court, and leaves it in the discretion of the court to apply others from the JGG; however, § 112 2nd 18

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Basic Concepts Figure 2.1

German criminal procedure

Ermittlungsverfahren (investigation) Controlled by the prosecution

Zwischenverfahren (admission of indictment) Controlled by the trial court

Hauptverfahren (trial) Controlled by the trial court

Rechtsmittelverfahren (appeals) Controlled by the appellate court

Vollstreckungsverfahren (enforcement) Controlled by the prosecution/juvenile judge

criminal law to cases of young adult offenders, as was indicated above. Juvenile courts take precedence over adult courts of the same or lower tiers (§ 47a 1st sentence JGG).19 Another major feature of the juvenile procedure that has no equivalent in proceedings against adults is the institution of the Jugendgerichtshilfe, the Juvenile Court Support Service (§ 38 JGG). This service is an invaluable source of

sentence JGG excludes the application of the provisions referred to in § 104 JGG in the case of young adults in so far as they would not ordinarily apply to young adults. 19 The only exception is the specialist courts mentioned in n 18 above; see § 47a 2nd sentence JGG, which refers to § 103(2) 2nd and 3rd sentences JGG; the latter states that these courts take precedence even before the juvenile chamber at the Landgericht (District Court). But see ch 3 on jurisdiction ratione materiae for more detail.

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Terminological Issues assistance for juvenile courts, in that it provides information about the defendant’s development and, in the case of a conviction, acts as a specialist probation service unless the court appoints another person as probation officer. As far as sentencing is concerned, the JGG contains its own arsenal of sanctions geared towards the overall aim of educating rather than punishing defendants. We shall look at those more closely in chapter seven on sentencing. Any specialties under the JGG that differ from the StPO will also be looked at in the relevant later chapters.

TERMINOLOGICAL ISSUES

Forms of decisions One difficulty that arises when trying to present the German system to an Anglophone audience is the lack of congruence between procedural concepts. One such issue is the various forms of judicial decisions and how these are described. In English, we have ‘judgment’, ‘decision’ and ‘order’, as well as the generic expression ‘a ruling’. A judgment usually closes an instance, for example after a trial or an appeal; a decision short of judgment may rule on a motion by a party, allowing or denying it; and an order usually expresses a command of the court to the parties or third persons. All of these may also (untechnically) be termed ‘rulings’. German law distinguishes decisions along other lines that are not easily classified: these include Urteile, Beschlüsse and Verfügungen, as well as the specific instrument of the Strafbefehl; the generic term for all of these is Entscheidungen. Urteile come closest to the English ‘judgments’ in that they are usually meant to close an instance based on a full trial20; any other decisions or orders are issued by Beschluss. A Beschluss does not normally require an oral hearing, but some decisions after an oral hearing are Beschlüsse. A Beschluss may contain a decision and/or an order within their meaning under English law. However, in some cases, the function of an Urteil can be taken by a Beschluss—for example in § 349(2), which allows the appellate court in the Revision, ie the appeal on points of law, to dismiss an appeal on the merits as obviously unfounded by Beschluss, or in a case of an obviously well-founded appeal to quash the lower court’s Urteil under § 349(4) by unanimous vote; a decision on the merits of an appeal against an Urteil usually has to be passed by Urteil (see, for example, § 349(5)). The Strafbefehl, a decision issued in purely written proceedings and characterised by some commentators as a Beschluss,21 may convict and sentence a defendant to a fine or, if he is represented by counsel, even to a suspended term of imprisonment not exceeding one year (§ 407(2) 2nd sentence); yet once it has become 20 21

MG Einl Mn 121 ff. MG Einl Mn 121.

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Basic Concepts final it has the force of an Urteil (§ 410(3)). Similarly, the decision of the court to order a provisional discontinuance of the proceedings under a condition in § 153a(2) 1st sentence after an indictment and until the end of the trial (and even of an appeal hearing on the facts), is given by Beschluss; if the defendant complies with the condition, the discontinuation becomes final and the effects of double jeopardy attach (§ 153a(1) 5th sentence), as they would to an Urteil.22 A Verfügung is usually a purely internal decision by a judge or prosecutor, for example the decision of a prosecutor to indict a defendant or to discontinue the proceedings, the so-called Abschlussverfügung. Why is all this important? The form a decision takes decides the manner in which an appeal may be lodged against it: Urteile typically23 can be attacked through the appellate avenues of Berufung (by way of trial de novo) and Revision (appeal on points of law only), both of which are time-limited; Beschlüsse are typically subject to an appeal in the form of the Beschwerde (which may be time-limited and is then called sofortige Beschwerde); Verfügungen, being mainly internal acts, are usually not subject to appeal.24 Indeed, if the court uses the wrong form, the proper appellate remedy is in principle determined by the form it should have taken.25 For example, if a court decides by Beschluss to discontinue a trial for a part of the facts underlying the indictment, because in its view the

22 However, in the case of provisional discontinuances, only to the extent that the offence was prosecuted as a Vergehen (misdemeanour), not as a Verbrechen (felony). For the distinction, see POGCL, 27. 23 This is not true of the procedure under the OWiG, for example, where an Urteil dismissing an objection to a summary fine as inadmissible is subject to the Rechtsbeschwerde, ie a Beschwerde on points of law only; § 79(1) 1st sentence No 4 OWiG. 24 There is a major exception for the most important Verfügung of the prosecution, the above-mentioned Abschlussverfügung, ie the decision under § 170 whether to indict or discontinue the proceedings. The decision to indict is not subject to appeal, neither is the trial court’s decision to admit the indictment for trial (§ 201(1)): however, the decision not to indict may be reviewed by the so-called Klageerzwingungsverfahren under § 172, which consists of a two-tier process comprising (i) a request to the senior prosecutor to order his subordinate to indict; and, in the case of the former’s refusal to do so, (ii) an application to the Oberlandesgericht to order the prosecution to indict. There is a more general discussion about whether such Verfügungen can be the object of a request for judicial review under § 23 EGGVG if they have some form of external effect and may infringe the rights of the defendant or other parties, and much here is still controversial; see the commentary in MG § 23 EGGVG. 25 MG Einl Mn 122. The ensuing question of how to treat an appeal that takes the right form for the decision as it has been issued but not for the form in which it should have been issued, is usually solved by the application of the Meistbegünstigungsprinzip, ie the principle of providing maximum effect to a party’s procedural declarations if the error is the court’s rather than the party’s; see BGH MDR 2009, 1000. This does not mean, however, that an appellant may obtain a better position than he would have been in had the decision been in the correct form and had he thus chosen the proper form of appeal. This may be relevant if the appeal as filed is still within the time limit for that appeal but may be out of time for the appeal that should have been filed, or if it has consequences in other respects. An instructive case in this context is BayObLG NJW 1978, 903, in which the judge at the Amtsgericht had incorrectly dismissed an objection to a summary fine as inadmissible by Beschluss, when he should have done so by

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Terminological Issues defendant is not guilty of committing an offence based on those facts, the decision is in fact a partial acquittal and is considered to be an Urteil.26 It is thus easy to see that the rhetorical question ‘What’s in a name?’ does not apply to (German) legal terminology. To avoid creating confusion and cumbersome references by using the English terminology, and if necessary paraphrasing the meaning each time in the specific context, I have chosen to use the German terms in this book unless the context allows for a clear distinction in and of itself. Stages of legal examination A notable decision from recent British legal history is that of Blackburn v Attorney-General,27 in which Mr Albert R Blackburn filed an action to prevent the UK from joining the Common Market by signing the Treaty of Rome and thus giving up part of its sovereignty. The Court of Appeal, led by the then Master of the Rolls, Lord Denning, dismissed the action on the merits. During the proceedings the question arose whether the plaintiff actually had standing to bring such an action, an issue which Lord Denning (and with him the entire panel) answered as follows: A point was raised as to whether Mr Blackburn has any standing to come before the Court. That is not a matter upon which we need rule upon today. He says that he feels very strongly and that it is a matter in which many persons in this country are concerned. I would not myself rule him out on the ground that he has no standing. But I do rule him out on the ground that these Courts will not impugn the treaty-making power of Her Majesty, and on the ground that insofar as Parliament enacts legislation, we will deal with that legislation as and when it arises.28

Urteil. The defendant appealed by filing a time-limited sofortige Beschwerde, when a Rechtsbeschwerde (on points of law only) would have been the right remedy against an Urteil. Each appeal was under the jurisdiction of a different court: the appeal first apparently went to the wrong court, and the question was whether (i) the appeal could be interpreted as having been lodged in the correct form—it could—and (ii) whether the course of the statute of limitations was stayed because of the operation of the previous and now repealed § 32(2) by the incorrect decision and the ensuing wrong designation of the appellate court by the wrong appeal. Had it not been stayed, the proper appellate court could not have decided on the merits and would have had to discontinue the proceedings. Yet the BayObLG held that an appellant cannot be put in a better position than he would have been in had the decision been the right one with the consequence of it going directly to the correct appellate court by way of the right appeal, and in that case the effect of a stay would have arisen. 26 BGH JZ 1963, 714; see also BGHSt 15, 259. This must be distinguished from the situation under § 300 which requires the court to interpret a declaration by the defendant aimed at reviewing a ruling in a manner to give it maximum effect as the proper remedy, ie if someone wrongly files a Beschwerde against an Urteil, the court must interpret this as either a Berufung or a Revision. The two scenarios may, of course, overlap; see KK-Paul, § 300 Mn 1–3. 27 [1971] 1 WLR 1037. 28 Ibid at 1041.

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Basic Concepts This approach, which matches what another common law judge, David Hunt, said about the function of procedural rules in the context of the international criminal justice system,29 would be anathema to a German judge. German law, not that different from English law on this issue in principle, recognises a distinction between whether an application, request, action, appeal, etc is admissible (zulässig) or inadmissible (unzulässig), or whether it is well-founded on the merits (begründet) or not (unbegründet).30 However, while an English judge such as Lord Denning might view it as an expression of pettiness to stop a case, especially one as important as the Blackburn litigation, on a technicality such as standing (locus standi), that is exactly what any German judge would do, regardless of the nature of the case. The rationale is, first, that the courts can exercise their powers only to the extent that the Constitution and the laws made by Parliament allow them to do so, and laws setting out formalities in the judicial process count among them. German law—and many Continental legal systems too—does not subscribe to the concept of an inherent judicial power that is not derived from some external source but emanates from the judicial function qua natura.31 Cases such as, for example, the US Supreme Court decision in Chambers v NASCO Inc,32 that allow such inherent powers to function even in the face of express external regulation, have no counterpart in German law. Apart from this purely doctrinal issue, and secondly, the distinction also has effects in the realm of res judicata. If an application, for example, has been rejected as inadmissible, it may be repeated once the criteria for admissibility have been complied with; if it is dismissed on the merits, the applicant is excluded from proceeding with a fresh application based on the same facts. The position of the offender at different stages in the proccedings Depending on the stage at which a person finds himself in the process, he is given a different name: before the prosecution indicts a person, he is called the Beschuldigte; after indictment, but before admission of the indictment, he is called the Angeschuldigte; and after the admission of the indictment, he becomes the Angeklagte.33 The use of the terms is apparent from the provisions of the StPO applying to the different stages of the proceedings. Their translation is 29

See POGCL, 7 f. The declaration of an appeal as either unzulässig or unbegründet also has an effect on the terminology of the decision dismissing it: inadmissible appeals are verworfen; unfounded appeals are zurückgewiesen. See, eg, §§ 346(1), 349(1). 31 See M Bohlander, ‘International Criminal Tribunals and their Power to Punish Contempt and False Testimony’ [2001] Criminal Law Forum 91. 32 See 501 US 32 (1991). 33 Note, however, that an offender who is not indicted but against whom a procedure is instituted with the aim of sequestering him in a mental health institution or in custodial addiction therapy (Sicherungsverfahren, §§ 413–416; Unterbringungssachen, § 171a GVG), is always called the Beschuldigte. 30

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The Major Procedural Maxims − An Overview relatively straightforward, without causing too much potential for confusion: Beschuldigter is hereinafter translated as ‘suspect’; Angeschuldigter as ‘accused’; and Angeklagter as ‘defendant’.34

THE MAJOR PROCEDURAL MAXIMS—AN OVERVIEW

Every legal system is driven by some axiomatic principles or maxims that determine its overall shape, the practice of the courts and the academic treatment of problematic scenarios. They normally are best explained in the context of the area of law in which they directly operate, and we shall return to them to the extent necessary in later chapters. Here, though, it will be helpful for the reader to receive an outline of a number of rules that make up the character of German criminal procedure; they are not exhaustive but represent the main facets required to understand the ensuing discussion. One might loosely categorise them as constitutional principles that have found a specific outlet in criminal procedure, and as systemic procedural principles, but there is a certain conceptual overlap between both categories.35 Constitutional principles Judicial independence This is an obvious feature to which almost all countries subscribe, at least on the paper setting out their Constitutions. In Germany, judicial independence historically was introduced in order to block attempts by the monarch36 to interfere in the judicial sphere37 (so-called Kabinettsjustiz—cabinet justice) and is not to be understood as a privilege of the judiciary.38 Its aim is to protect the judiciary from outside interference and to make it subject only to the law. It has two facets, personal independence (persönliche Unabhängigkeit) and independence in judicial decision-making (sachliche Unabhängigkeit). The latter has been enshrined in the constitution in Art 97(1) GG: Judges shall be independent and subject only to the law. 34 Note, however, that international criminal courts tend to call the offender the ‘accused’ after indictment. 35 So, eg, the overview in KK-Pfeiffer/Hannich Einleitung Parts II. and III. 36 In recent times such interference has been replaced by that of the Government; see, for recent attempts in Germany, M Bohlander, ‘Flexible Judges or Flexing the Political Muscle?’ in L De Groot-van Leeuwen and W Rombouts (eds), Separation of Powers in Theory and Practice—An International Perspective (Wolf Legal Publishers, Nijmegen, 2010), 123. 37 KK-Pfeiffer/Hannich Einleitung Mn 24. 38 BGH NStZ 2001, 651.

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Basic Concepts A major facet of this rule is that German judges are not bound by precedent; there is no doctrine of stare decisis and any judge at an Amtsgericht may deviate from the consistent jursiprudence of the BGH and even of the Federal Constitutional Court, unless the latter’s decision has the force of an Act of Parliament under § 31 BVerfGG. A binding effect exists only along the avenues of the appeal in question.39 This applies equally to professional and lay judges. Because independence in decision-making realistically depends on not having to worry about the consequences of one’s decisions, Art 97(2) GG provides corresponding protection to professional judges: Judges appointed permanently to full-time positions may be involuntarily dismissed, permanently or temporarily suspended, transferred or retired before the expiration of their term of office only by virtue of judicial decision and only for the reasons and in the manner specified by the laws. The legislature may set age limits for the retirement of judges appointed for life. In the event of changes in the structure of courts or in their districts, judges may be transferred to another court or removed from office, provided they retain their full salary.

The provisions on recusal in §§ 22–31 form a corollary to protecting judicial independence against personal bias. Furthermore, the German understanding of independence has a direct impact on the professional evaluation of judges, for example for the purposes of granting them life tenure or promotion: any comments that touch, however slightly, upon the actual work of a judge, his legal views and practice, his reversal rate by the appellate courts, etc are highly problematic, and may be questioned before the administrative courts and the special judicial disciplinary tribunal, the Richterdienstgericht.40 The position of the judiciary has been set out in the Deutsches Richtergesetz (DRiG—German Judiciary Act) which contains regulations for the federal judiciary and certain framework rules for all judges, and the corresponding state laws enacted in pursuance of Art 98(3) GG for the state judiciaries. The right to a predetermined judge (Gesetzlicher Richter) Judicial business needs to be allocated in a fashion that excludes to the greatest extent possible any kind of horse-trading as to who sits on which case. It is obvious that a party may have a strong interest in getting a judge they know is favourably disposed towards their position. Likewise, scenes sometimes seen in 39

Not even the decisions of the Great Senates or the Joint Great Senates of the BGH under § 132 GVG (MG § 132 GVG Mn 18–20), or those of the Joint Senate of the Federal Supreme Courts under Art 95(3) GG and the Gesetz zur Wahrung der Einheitlichkeit der Rechtsprechung der obersten Gerichtshöfe des Bundes of 19 June 1968 (BGBl I (1968), 661 as amended by BGBl I (2001), 1510), ie the Federal Supreme Courts (Uniformity of Jurisprudence) Act, are binding on any court save those in the individual case; see § 16 of the 1968 Act. Available online at . 40 BGHZ 100, 271 and, with further references, KK-Pfeiffer/Hannich Einleitung Mn 24.

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The Major Procedural Maxims − An Overview American courtroom movies, where one judge offers to take a case off a colleague because the latter, say, wants to go on vacation or attend a conference, may give rise to additional concerns about judicial docket-swapping. The German Constitution outlaws both scenarios in Art 101(1) 2nd sentence GG: No one may be removed from the jurisdiction of his lawful judge.

This has traditionally been held to mean that the methods of case assignment (Geschäftsverteilung—see, for more detail on the procedure, §§ 21a–21j GVG) in any individual court must be so exact and comprehensive as to ensure that each case finds its way to the proper judge ‘blindly’.41 To this end, courts must draw up annual case allocation plans (Geschäftsverteilungspläne), which may run into dozens or hundreds of pages depending on the size of the court.42 They must consider any eventuality, for example who takes over if a judge falls ill for a lengthy period of time. These plans are public record and may be—and regularly are—inspected by defence counsel in order to prepare motions for a change in the panel. If accompanied by a certain degree of arbitrariness, as opposed to a genuine error by the court, their violation may also have an effect on any appeal based on the unlawful composition of the panel under § 338 No1, and may result in the reversal of Urteile by courts that have assumed jurisdiction by grossly neglecting the statutory rules on jurisdiction.43 This restriction must be seen in connection with § 20 StPO and § 22d GVG, which state that the mere fact that a court has no jurisdiction ratione loci,44 or that a judge decided a matter who was not meant to do so under a valid45 case allocation plan, does not make their actions invalid,46 unless the violation obviously and glaringly breached the rules on jurisdiction.47 The right to be heard (Rechtliches Gehör) Article 103(1) GG provides: In the courts every person shall be entitled to a hearing in accordance with the law.

This means on the one hand that every person must get a chance to state his views in judicial proceedings, orally or in writing, and that any decision taken without affording him such an opportunity runs the risk of being quashed as 41

BVerfGE 40, 356; 95, 322. The 2010 case assignment plan for the Landgericht Berlin, for example, has 147 pages and may be accessed at . 43 See BGHSt 38, 212 and KK-Pfeiffer/Hannich Einleitung Mn 25. 44 The principle does not apply to violations of the rules on jurisdiction ratione materiae other than case allocation plans; OLG Köln StV 2004, 417. 45 The rule does not apply to allocation plans that are legally flawed; MG § 22d GVG Mn 1. 46 MG § 20 Mn 1–3; § 22d GVG Mn 1. 47 MG § 20 Mn 1. 42

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Basic Concepts unconstitutional. On the other hand, it entails the duty of the court to advise the parties of any legal points upon which it intends to base its decision, if these are so far outside of what might be expected by a well-informed and diligent party that it would amount to a trial by ambush by the court.48 The decision of the court must show that it engaged with the relevant49 arguments put forward by a party; if this is not the case the decision may violate Art 103(1) GG and be reversed.50 Similarly, courts must not use facts known to them but not to the defendant in order to arrive at a decision that is to his disadvantage, an issue particularly relevant in proceedings for terrorism and organised crime.51 If a judge in a certain case indicates, because of fear or the existence of bias, or based on an exclusion by law, through a statement to the other judges of his chamber or another judge in charge of recusal matters, that he may be prevented from sitting on that case, his statement must be disclosed to the parties so they can comment upon it.52 This constitutional right has been taken up in many provisions of the StPO, such as §§ 33, 230, 243(4), 257, 258, etc. The right to a fair trial This right, which covers many different aspects of criminal proceedings and is in a way the basic right underlying almost all others, is guaranteed by Art 20(3) GG on the Rechtsstaat principle (State based on the rule of law), together with the general right to personal freedom in Art 2(1) GG.53 Its underlying rationale is to ensure that a person is not made a mere object of the proceedings but retains a way of engaging actively in them.54 For Germany, the right has been given concrete shape in the StPO and the corresponding parliamentary legislation, including the ECHR (mainly its Art 6). In practice, the right has been held to constitute a rule of interpretation to be applied by the courts to the existing law, rather than as a vehicle for creating new legal interests; in a democracy it should be used with great care, because it is primarily for the democratically-elected legislature to flesh out such general principles and there may be several equally acceptable ways of reaching that goal.55

48

BVerfGE 84, 188. Although not necessarily each and every one, even if they are abstruse and entirely off the mark: BVerfGE 47, 182. 50 BVerfGE 51, 129; NJW 1992, 2877. 51 BVerfGE 63, 45. 52 BVerfGE 89, 28. 53 BVerfGE 77, 65. 54 BVerfGE 63, 45. See also from a literary point of view the famous work by Franz Kafka, The Trial. Kafka describes the experiences of Josef K, who wakes up one morning and finds himself under arrest for a crime he did not commit and the nature of which is never revealed to him during the entire—and bizarre—proceedings. 55 BGHSt 24, 124; 49, 112; NStZ 1984, 274; BVerfGE 57, 250. 49

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The Major Procedural Maxims − An Overview Violations of the right to a fair trial do not necessarily lead to a procedural bar, but they may have the consequence of a substantial reduction in sentence, as, for example, in the case of the prosecution reneging on an assurance not to prosecute56 or in the well-known scenario of entrapment by undercover agents provocateurs.57 The principle also has had a major effect in the context of plea bargaining, which after a long period of being based purely on case law was finally codified in § 257c.58 Another important area of application is the right to the assistance of counsel59 and to legal representation on the basis of free legal aid in the case of indigent persons.60 The presumption of innocence (Unschuldsvermutung) As already indicated above, this is one of the foundation pillars of any criminal justice system worthy of the name. It is also based on the Rechtsstaat concept, and thus has constitutional rank, despite the fact that it also applies at the level of simple federal law through Art 6(2) ECHR. The Federal Constitutional Court has developed the practice of using the ECHR to interpret the German domestic constitutional concept of the presumption of innocence, based on the specific significance of the Convention for the relationship between its human rights and the German Constitution’s civil liberties (Grundrechte).61 The presumption has a connection to the principle in dubio pro reo, yet there are slight differences, in that the in dubio rule is triggered only after the court has evaluated all the available evidence before it, when it must then weigh any gaps in favour of the suspect, accused or defendant, whereas the presumption in German understanding applies irrespectively of that at all stages of the proceedings until the conviction has become final through exhaustion of the entire appeals process.62 Equally, a defendant is not required to prove, for example, an alibi, but she may do so and a failure to prove it does not automatically mean that she is guilty.63 In other words, the absence of exculpatory evidence is not equal to the

56

BGHSt 37, 10. BGHSt 45, 321; 47, 44; and see now the regulation of the conditions for their use in §§ 110a–110c. 58 Note, however, that § 257c(2) 3rd sentence clearly states that there must be no charge bargaining, and that measures of rehabilitation and incapacitation (§§ 61–72 StGB) cannot be made the subject of a bargain. 59 BVerfGE 38, 105. 60 BVerfGE 46, 202; 56, 185. 61 BVerfGE 74, 358. 62 BVerfGE 32, 202; BGH NStZ 1999, 205; KK-Pfeiffer/Hannich Einleitung Mn 32a. For further details of the principle in dubio pro reo, see the text connected to n 120 below. 63 Example used by KK-Pfeiffer/Hannich Einleitung Mn 32a. 57

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Basic Concepts presence of incriminating evidence.64 However, the presumption does not prevent measures such as arrest, search and seizure, which merely require a degree of suspicion instead of certainty.65 The principle of proportionality (Grundsatz der Verhältnismäßigkeit and Übermaßverbot) Also derived from the Rechtsstaat principle in Art 20(3) GG, the principle of proportionality states that any intrusion by the State into the rights of an individual must use the least burdensome means necessary to achieve a legitimate objective, and that the individual must overall be subject to a legitimate expectation of permitting the intrusion even if it is of such a character (Zumutbarkeit).66 Like the right to a fair trial, this rule has been broken down into specific provisions relating to the different stages of the proceedings, such as the taking of (intimate) samples from the suspect, arrest and detention, and similar considerations about the ambit of its application and the consequences of its violation apply as are set out above, under the fair trial heading. In practice, proportionality will often be determined by the seriousness of the charge and the strength of evidence underlying the suspicion at any given time. However, even a charge of murder or of other serious offences in and of itself is, for example, not sufficient reason to remand a suspect in custody pending trial if none of the usual reasons for denying bail exist: the introduction of the provision in § 112(3) which did away with the requirement to establish a risk of flight or tampering with evidence, etc in cases of serious crime in order to detain a suspect, was held to be unconstitutional qua lack of proportionality if applied literally, and was consequently read down by the Federal Constitutional Court to include such a requirement, although the Court conceded that in cases of such serious offences, the degree of justification required in an arrest warrant was for obvious reasons not as high as that for medium-level crime under the usual criteria.67 In fact, in many cases an arrest warrant may be based on flight risk because of the severe punishment the suspect can expect, and the court may thus circumvent the problems of subsection (3).68

64

BGHSt 41, 153. BVerfG NJW 1990, 2741. For the problem of whether the defendant can be burdened with his own expenses in the case of a discontinuance (he can), see KK-Pfeiffer/Hannich, Einleitung Mn 32a with further references. 66 Consistent jurisprudence of the Federal Constitutional Court: BVerfGE 17, 108; 20, 162; 35, 382; 37, 167; 44, 353; 67, 157; 110, 226. 67 BVerfGE 19, 342. 68 MG § 112 Mn 37−39. 65

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The Major Procedural Maxims − An Overview The judicial duty of care (Gerichtliche Fürsorgepflicht) This is a kind of ancillary duty based on a variety of constitutional axioms such as the right to a fair trial and the principle of a socially-oriented State based on the rule of law (sozialer Rechtsstaat) (Arts 20(1) and 28 GG). It supplements the right to a fair trial in asking judges to assist in particular undefended and inexperienced pro-se defendants in the proper exercise of their rights, and to abstain from exploiting the position of such defendants by asking them, for example, to declare a waiver of appeal by convincing them that they have been treated leniently, with the judge thus avoiding the need for a fully reasoned Urteil. 69 It may also mean re-opening the hearing if a co-defendant makes an unexpected confession in his final statement (§ 258(2)) before judgment is pronounced, to allow the other co-defendant(s) to react to this and consult with their counsel.70 Other instances include the court looking for a therapy placement for a drug addict who is willing to undergo treatment,71 or making a best effort to arrange a hearing date at which counsel trusted by the defendant can attend.72 Lastly, the duty of care also covers third persons, such as witnesses in need of support.73 Ne bis in idem—Strafklageverbrauch A feature of most modern criminal justice systems is the rule that a person should not be prosecuted or tried twice for the same74 offence.75 In its proper meaning, the principle refers to successive prosecutions, not to simultaneous prosecution under multiple legal characterisations of the same conduct.76 In German law, the ne bis in idem rule, also called the ban on double jeopardy, or autrefois convict or autrefois acquit (Strafklageverbrauch), is a constitutional fundamental right77 intricately connected to the finality of a decision (formelle Rechtskraft) and the ensuing effect of res judicata (materielle Rechtskraft): unless a

69

KK-Pfeiffer/Hannich Einleitung Mn 32. See the decision by the BGH of 11 June 1975, Docket No. 2 StR 88/75. 71 BGH NJW 1991, 3289. 72 BGH NJW 1992, 849. 73 BGH NStZ 1984, 31. 74 A conviction or acquittal for a summary offence (Ordnungswidrigkeit) also triggers ne bis in idem for reprosecution as a criminal offence and vice versa (§ 84 OWiG). Note that a sanction for a disciplinary offence does not bar a prosecution for a connected criminal offence based on the same conduct, but that acquittal of a criminal charge blocks a disciplinary sanction unless there is another aspect to the conduct that is distinguishable from the criminal charge; credit may have to be given, however, in the sentencing decision. See MG Einl Mn 178–179. 75 See, for the restricted application of the principle in the international and transnational context, M Bohlander, ‘Ne bis in idem’ in CM Bassiouni (ed), International Criminal Law, 3rd edn (Martinus Nijhoff, Leiden, 2008) vol III, 541. 76 There was initially some confusion about this in international criminal law: ibid, fn 74. 77 BVerfGE 9, 89; 23, 191. 70

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Basic Concepts decision is final, res judicata is not triggered.78 Note that only the operative parts of the decision partake of said effect, not the reasons for a judgment; for example, another judge, be it in civil or criminal proceedings, is free to deviate from the views of the previous court on the facts recorded therein as established, unless the law expressly states otherwise.79 Of course, the facts in the decision relating to the time, place and modus operandi of the offence determine which conduct is blocked from a new prosecution under a different legal characterisation; the German law attaches ne bis in idem to the same facts, not their legal characterisation. Note that only a decision on the merits80 blocks a new prosecution, not one based on procedural matters; if the procedural obstacle is removed, reprosecution is possible.81 The ban is not triggered by decisions of foreign courts, unless there is a duty to take them into account under international or bilateral agreements.82 Systemic principles Accusatory principle (Anklagegrundsatz) This principle states the simple fact that under German law a court cannot seize itself of a matter unless an external prosecution, request, etc is brought. This applies, with the exception of minor contempt issues,83 even if a serious offence is committed in front of the judge in a sitting.84 The prosecution must file an indictment under § 151 before a court can proceed to a trial; it is under a duty to check at all stages of the proceedings whether a proper indictment exists.85 The indictment determines the ambit of the court’s examination, as is evidenced by

78 MG Einl Mn 168. However, while a case is pending before one court, the procedural bar of lis pendens (Rechtshängigkeit) exists, which prevents another court from dealing with the case; see MG Einl Mn 145. 79 MG Einl Mn 170 with references to the case law. One example is § 190 2nd sentence StGB on proof of truth by judgment in cases of libel, where the libel consists of the allegation that the libelled person had committed an offence. If the libel victim had been finally acquitted of the alleged offence before the allegation was made, the defendant can no longer adduce evidence to prove that the allegation was true nonetheless. 80 Specific problems exist with regard to the extent of the bar in cases of continuous or serial offences (Dauerdelikte and fortgesetzte Handlung), where individual acts may be prosecuted before the overall pattern becomes known and vice versa; see, on this complex issue, MG Einl Mn 175–175a. 81 MG Einl Mn 172 with references. 82 MG Einl Mn 177–177c. 83 See §§ 176–178 GVG. 84 The judge will have to refer the case to the prosecution under § 183 GVG, after recording what happened and, if need be, arresting the offender provisionally under §§ 127, 128; she cannot, however, issue an arrest warrant based on § 112, because she lacks jurisdiction for that. See OLG Hamm NJW 1949, 191; MG § 183 GVG Mn 1–2. 85 BGHSt 5, 225.

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The Major Procedural Maxims − An Overview §§ 155(1) and 264–266. The procedure under § 172 described above86 is not an exception but merely serves as a check on the prosecution’s quasi-monopoly87 to indict persons before the courts.88 Principle of public prosecution (Offizialprinzip) As a corollary to the accusatory principle, the Offizialprinzip puts the power to prosecute and indict into the hands of the public prosecution service, which has to prosecute regardless of the wishes of the victim. There is thus no room in Germany for the scenario, seen many times in American films, in which a prosecution will not ensue if the victim does not ‘press charges’. There are a few exceptions that mainly deal with minor offences: a) where the victim must either formally request prosecution, the so-called Antragsdelikte 89; or b) where the victim may prosecute the offence herself (§ 374—Privatklage)90; or c) where certain persons, such as civil service superiors and line managers, political organs, foreign States, etc have the discretion to request prosecution or not (so-called Ermächtigungsdelikte).91 Principles of mandatory and discretionary prosecution (Legalitätsprinzip and Opportunitätsprinzip) The monopoly given to the prosecution to decide whom to prosecute requires a corrective mechanism to ensure that no arbitrary choices are being made. This is established in § 152(2), which requires the prosecution in principle to investigate, prosecute and indict any offence for which sufficient evidence exists. German doctrine therefore takes the opposite approach from that of England and Wales, 86

Above n 24. Leaving aside the institution of the Privatklage (private prosecution) for minor offences under §§ 374–394. 88 KK-Pfeiffer/Hannich Einleitung Mn 3. 89 For example, minor cases of trespass, insults, etc. See KK-Pfeiffer/Hannich Einleitung Mn 4 for further examples. 90 The prosecution may, however, at any stage of the proceedings join the private prosecutor or take over the case completely (§ 377). If they do take it over, which they normally will only do if it is in the public interest (see § 376), the proceedings change their nature and transmogrify into normal proceedings as if upon indictment, with the consequence that the private prosecutor is no longer a party to them unless he joins the prosecution as a Nebenkläger under §§ 395–402. This also means that the prosecution and the court can discontinue the proceedings under §§ 153 ff without the consent of the prior private prosecutor or the Nebenkläger; the Nebenkläger must, however, be heard before a discontinuance is issued, which is why a court intending to discontinue the proceedings under §§ 153(2), 153(a)(2), 153b(2) and 154(2) must first decide whether a person is allowed to join the prosecution, and hear that person before ordering the discontinuance; MG § 396 Mn 18. 91 For examples, see KK-Pfeiffer/Hannich Einleitung Mn 4. 87

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Basic Concepts famously expressed in 1951 by the former Attorney-General Sir Hartley Shawcross, who stated that ‘[i]t has never been the rule in this country—I hope it never will be—that suspected criminal offences must automatically be the subject of prosecution’. He added that a prosecution should occur ‘wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest’.92 However, as with so many things doctrinal, theory and practice are two different things. In England and Wales, the institution of private prosecution exists as it does in Germany (although in a somewhat different form), and it is subject to similar checks by requiring the consent of the DPP for some offences, and empowering the DPP to take over any criminal proceedings and, if necessary, discontinue them.93 The basic rule in Germany has been watered down considerably by the introduction of §§ 153 ff, which allow the prosecution and the courts to discontinue proceedings for minor offences if in their discretion it is opportune to stop the case (Opportunitätsprinzip) because the guilt of the offender is of a minor nature and/or may be sufficiently sanctioned by way of a conditionial discontinuance. Table 2.1 below94 shows the actual numbers of cases and how they were processed in 2006 in the Amtsgericht and Landgericht jurisdictions: Table 2.1 Cases dealt with by the prosecution service—all of Germany, 2006 Total number of cases

4,876,998

Indictment

560,427

11.5 %

Strafbefehl

581,713

11.9 %

Conditional discontinuance

241,102

4.9 %

Unconditional discontinuance

1,053,654

21.6 %

Insufficient evidence discontinuance

1,293,152

26.5 %

8,651

0.2 %

1,138,299

23.3 %

Death of suspect, lack of responsibility Other

The large category of ‘Other’ disposals included referrals to another prosecution service, administrative proceedings, juvenile proceedings, provisional discontinuances, joinder with other cases, etc. The important information, as far as adult proceedings are concerned, is that of the purely criminal charges only 23.4 per cent were actually either indicted formally or by way of a written Strafbefehl, with 92

HC Debs, vol 483, 29 January 1951. Prosecution of Offences Act 1985, s 6; see, for further reference, Hungerford-Welch, 134–36. 94 Taken from J-M Jehle, Criminal Justice in Germany, 5th edn (2009) 20. Taken from the website of the Federal Ministry of Justice at . 93

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The Major Procedural Maxims − An Overview the latter method again being applied more often than the formal indictment; one might almost say that the Strafbefehl has become a kind of secondary diversion instrument, sparing the accused the spectacle of an open trial unless she objects and chooses to contest it. Some 26.6 per cent of cases were dealt with by discontinuances, conditional and unconditional, under §§ 153 ff, and most of those were unconditional ones. Once a case goes to court, the picture changes somewhat, but there is still a high proportion of discontinuances, as is evidenced by Table 2.2 below.95 Table 2.2 Cases dealt with by the courts—all of Germany, 2006 Total number of defendants

976,600

Urteil (including acquittals)

461,274

Strafbefehl

47.2 %

25,835

2.6 %

Conditional discontinuance

124,083

12.7 %

Unconditional discontinuance

100,994

10.3 %

28,327

2.9 %

236,087

24.2 %

Other discontinuance/discharge Other disposal

The ‘Other discontinuance/discharge’ category included cases of extradition, expulsion, absence of the defendant and procedural bars. The ‘Other disposal’ category included combination with another case (119,532), withdrawal of a private prosecution or of an appeal (61,155), referral to another court and refusal by the trial court to admit the indictment for trial. Again, 23 per cent of the cases that had made it to the court were dealt with by a discontinuance under §§ 153 ff. It is thus clear from the statistics that in practice the Legalitätsprinzip has already been replaced as the guiding principle. It now merely means that the prosecution has to start an investigation if sufficient facts warrant it, but that a formal prosecution by indictment or Strafbefehl occurs in only about a quarter of all cases. Inquisitorial principle (Ermittlungsgrundsatz) The major feature that justifies calling the system in Germany an inquisitorial system, is the rule that the aim of any investigation and trial is the ascertainment of the material truth (materielle Wahrheit), not the truth based on facts adduced by the prosecution and defence. The court is not bound by any declarations of the parties, and investigates the facts of its own motion (§§ 155(2) and 244(2)). German procedure is not party-driven, despite the fact that the German term for the prosecution service, Staatsanwaltschaft, is somewhat unfortunate in that it 95

Ibid, 26.

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Basic Concepts means ‘State Attorney Service’ and could thus lead one to think that the prosecution represents only the one-sided interests of the State as a party. While in practice some prosecutors (and judges) may—and do, of course— develop a prosecution-minded attitude,96 the law is opposed to such partisan approaches. The principle applies to the prosecution in the form of § 160(2), which expressly states that the prosecution must investigate equally the incriminating and exculpatory facts of a case, a provision which has led some to call the German prosecution service the ‘most objective authority in the world’ (objektivste Behörde der Welt).97 In the case of a court, this may mean, for example, that a judge will order the police or the prosecution to investigate a certain set of facts if they have come up during the Zwischen- or Hauptverfahren and had not been examined by the prosecution.98 Principle of oral presentation of evidence (Mündlichkeitsprinzip) Under this rule, the court in making its decision may use only the evidence orally presented and discussed in the hearing before it. Despite the fact that this principle has not been expressly enunciated in the StPO, the courts have consistently interpreted various provisions, such as §§ 250, 261, 264 and § 169 GVG, that refer to the Vernehmung (interrogation) of witnesses or the Verhandlung (hearing) as meaning an oral hearing.99 On the one hand, this is further expression of the German approach to the concept of open justice, enshrined, for example, in § 169 GVG, which is intended to allow the audience to follow the

96 This can take rather extreme forms: a former judicial colleague of mine actually voiced his opinion in a private conversation that he did not think the police generally indulge in any sort of misconduct during the investigations. 97 They make implicit but questionable reference to a statement by Franz von Liszt made to the Berliner Anwaltsverein on 23 March 1901, when he said, quite to the contrary: ‘ … die Parteistellung der Staatsanwaltschaft ist durch unsere Prozeßordnung besonders verdunkelt worden. Durch die Aufstellung des Legalitätsprinzips, durch die dem Staatsanwalt auferlegte Verpflichtung in gleicher Weise Entlastungs- wie Belastungsmomente zu prüfen, könnte ein bloßer Civiljurist … zu der Annahme verleitet werden, als wäre die Staatsanwaltschaft nicht Partei, sondern die objektivste Behörde der Welt.’[Translation by the author: [ … ] the role of the prosecution as a party has been particularly obscured by our Code of Criminal Procedure. The introduction of the principle of mandatory prosecution and the duty imposed upon the prosecutor to investigate incriminating and exculpatory evidence alike, could lead a mere civil lawyer [ … ] to conclude that the prosecution was not a party but the most objective authority in the world.] (DJZ 1901, 179). As a matter of fact, the powers of the Staatsanwaltschaft continued to increase even in 1975, with the removal of the so-called gerichtliche Voruntersuchung, ie the judicial investigation; from shortly after the time of its introduction in the first half of the 19th century, it came to be seen—and used—as a medium of political influence by the governments in Prussia and the other German states, in order to counter the inevitable advance of the idea of judicial independence; see T Vormbaum, Einführung in die moderne Strafrechtsgeschichte, 2nd edn (Berlin, Springer, 2011) 92 ff. 98 KK-Pfeiffer/Hannich Einleitung Mn 7. 99 BGH NStZ 1990, 228.

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The Major Procedural Maxims − An Overview flow of the evidential presentation and to ensure that the work of the courts is not carried on away from public scrutiny; on the other hand, it serves to ensure that the parties to the proceedings know on which pieces of evidence the court will be able to base its decision.100 The consequence is that, for example, the full text of documents presented in evidence must be read out and not merely be presented as exhibits, unless they are, for example, very lengthy101 and the procedure under § 249(2) (Selbstleseverfahren—private reading procedure) is chosen, which allows the judges102 to take notice of a document simply by reading it, if all the parties have had a chance to read it as well.103 In such cases, and where the defendant is not put at a disadvantage, the efficiency and expediency of the trial proceedings obviously should be given precedence over the information interest of the public. Presentation of evidence before the deciding judges (Unmittelbarkeitsprinzip) Sections 240 and 250, together with Art 6(3)(d) ECHR, require all evidence to be presented directly to the judges who will decide the case. Section 261 further restricts the presentation to the hearing, and thus excludes in principle the use of evidence not adduced at the hearing; to this extent there is an overlap with the oral presentation principle discussed above.104 The Unmittelbarkeitsprinzip also prohibits the court from delegating the taking of evidence to third persons not

100

KK-Pfeiffer/Hannich Einleitung Mn 8. Possibly even entire books, see BGH NStZ 2000, 307. 102 Including the lay judges, BGH NStZ 2005, 160. 103 The German law thus differs substantially, for example, from the Dutch approach, which allows to a larger extent the direct use of pre-trial statements (processen-verbaal) made to the police, etc as evidence at trial; see Art 344 of the Wetboek van Strafvordering (Code of Criminal Procedure) and the pertinent commentary in B F Keulen and G Knigge, Strafprocesrecht, 12th edn (Kluwer, Deventer, 2010) 499; but see §§ 420, 411(2) 2nd sentence for the expedited and Strafbefehl procedures. Note also the human rights issue under Art 6(1) ECHR in the case of lay judges reading potentially incriminating material (essential result of the investigations in the indictment related to a prior co-defendant who had made a confession and referred to that part of the indicment for the content of her confession) in another but related proceeding, which was, however, not submitted in the trial of the present defendant, unless clear measures are taken by the court to ensure that the lay judges are aware of the evidential impact or lack thereof on the trial at hand; see Elezi v Germany, ECtHR judgment of 12 June 2008, App no 26771/03 (no violation) and BGHSt 43, 360 (no violation). 104 On 26 January 2011, the BGH reversed a decision of the LG Cologne of 4 November 2009, before the introduction on 30 July 2010 of § 33 No 5 GVG (see below), because one of the lay judges (Schöffen) was a Russian-born German citizen who hardly spoke any German and thus could not follow the proceedings. The court held that this violated the Unmittelbarkeitsprinzip, as well as the rule that the official language of the proceedings is German (§ 184 1st sentence GVG), and the use of an interpreter for Russian in the deliberations of the panel violated the secrecy rule under § 193 GVG. As of 30 July 2010, § 33 No 5 GVG demands that persons who do not speak German sufficiently well must not be appointed as Schöffen, and if they are on the list already, they must be struck off. See BGH, judgment of 26 January 2011, docket no 2 StR 338/10. 101

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Basic Concepts involved in the final decision-making process. A court thus may not, in the course of a regular trial,105 instruct another official to visit, for example, a witness living abroad or in hospital in another city and take her statement, and then use the record of that official as evidence, unless the conditions for a so-called kommissarische Beweisaufnahme (commissary taking of evidence) under §§ 223–225 are fulfilled. These allow for a judge to hear witnesses and experts if, for reasons of illness, disability or old age, they cannot attend the trial, or to carry out an inspection on behalf of the court. The law distinguishes between the beauftragter Richter (commissioned judge), who is always a member of the panel106 seized107 of the case, and the ersuchter Richter (requested judge), who is usually a judge of another court at the place of residence of the witness or expert, or where the inspection is to be taken. The principle has also been interpreted as supporting the precedence of personal evidence (witnesses, experts) over documentary evidence, and is thus related to the ‘best evidence rule’.108 Critical problems arise in this context in the course of proceedings involving undercover agents, informers, etc, where the Government may refuse to allow them to testify and block their evidence under § 96 for reasons of national security or danger to their life, limb or liberty, and only permits their ‘handlers’ to testify as hearsay evidence.109 Concentration and speedy trial principles (Konzentrationsprinzip and Beschleunigungsgrundsatz) These two principles are closely interrelated and aim at the fast and efficient disposal of a case; in the case of the ‘speedy trial’ rule this is most obviously in the interest of the defendant, who will want to know his fate as soon as possible. The ‘concentration principle’ in particular means that a trial should be managed with as few hearing dates as possible. The law distinguishes in this respect between the Aussetzung (decision leading to a full retrial ab initio) and the Unterbrechung (adjournment). An adjournment may be ordered for a period of up to three

105 The rule has been relaxed under § 420 for the expedited procedure under §§ 417 ff, and is also applicable to the Strafbefehl procedure via § 411(2) 2nd sentence. 106 A panel sitting with professional and lay judges may commission all the professional judges on the panel; BGH NStZ 1983, 182 and 421. 107 The BGH has held that the commissioned judge does not actually have to sit on the trial later on if she was commissioned before (see § 63) the trial began; BGHSt 2, 1. This can happen, for example, if the judge is assigned to another docket after the trial court admitted the indictment and she took the evidence, but before the actual trial hearings begin. 108 BGHSt 15, 253. See on the (critical) reception of the old common law ‘best evidence rule’ in the modern-day practice of England and Wales, A Keane, The Modern Law of Evidence, 8th edn (OUP, Oxford, 2010) 27–29. 109 KK-Pfeiffer/Hannich Einleitung Mn 9.

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The Major Procedural Maxims − An Overview weeks, but for no more than a month110 between hearings (§ 229(1) and (2)); anything that happened in the trial previously retains its validity. If that period cannot be kept, all previous procedural acts are extinguished and the trial must start again from scratch (§ 229(4) 1st sentence). The temptation to set hearing dates at three-week intervals is countered by the ‘speedy trial’ rule.111 The latter has not been specifically codified in the StPO but conceptually supplants several of its provisions and flows from Art 5(3) 2nd sentence and Art 6(1) 1st sentence ECHR, as well as from the Rechtsstaat principle.112 A speedy trial, apart from serving the interests of the defendant, is also a guarantee for preserving the evidence in its best possible state: the longer a case lasts, the greater the danger of loss of memory, or illness or death of (old) witnesses, or of destruction or deterioration of real evidence such as documents, specimens, etc. The determination of an appropriate timeframe may be difficult in the individual case, and the mere lapse of time, especially if no blame can be apportioned to the justice system, may be a sentencing factor under § 46 StGB but will not normally give rise to a violation of the ‘speedy trial’ principle under Convention standards or German law.113 After the decision of the Great Senate of the BGH of 17 January 2008,114 violations of the ‘speedy trial’ rule are now sanctioned through the so-called Vollstreckungslösung (enforcement solution): the court first determines, in the case of a conviction,115 the appropriate sentence, taking into account the length of the proceedings, but without regard to the legal aspect of the violation of the Convention (as had been the case previously), and then declares on the basis of the severity of the violation which part of that sentence shall be considered to have been served.116 This approach avoids the problems caused by the old system with its statutory minimum sentences, and thus allows for credit to be given even in cases of a mandatory life sentence.117

110 If the trial has already lasted for 10 days, and then for each new block of 10 days; KK-Pfeiffer/Hannich Einleitung Mn 10. 111 BGH NJW 2006, 3077. 112 BVerfGE 63, 45; NStZ 2006, 680. 113 See the references in KK-Pfeiffer/Hannich Einleitung Mn 11. 114 NJW 2008, 860. 115 The BGH has held that in cases of an acquittal, the provisions of the Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen (StrEG), ie the Criminal Proceedings (Compensation) Act, do not apply mutatis mutandis; there is thus a tension with the view of the ECtHR, which requires some form of compensation for material damage and pain and suffering if a mere statement that the actions of the State violated the Convention is not enough; see MG Art 6 MRK Mn 9d with further references, and at 9g for the cases of violations of other conventions or procedural principles. 116 However, the courts advise caution with regard toa too generous application of this rule, and require a serious violation in addition to the length of the proceedings; see BGH StV 2008, 633; 2010, 228. 117 BGH NJW 2006, 1529. For further explanation, see KK-Pfeiffer/Hannich Einleitung Mn 12–13b and MG Art 6 MRK Mn 9.

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Basic Concepts Free evaluation of evidence (Freie Beweiswürdigung) Free evaluation of evidence (§ 261) does not mean a judicial free-for-all with respect to what the court makes of the evidence presented before it, but rather freedom from strict rules of evidence. For example, before the nineteenth century, the German law operated evidential rules reminiscent of those applying in Islamic Shari’ah: a confession by the defendant provided full proof of the charges against him, as did the testimony of two witnesses of unimpeachable character. If there was only one witness, the charge was only half proven, and the judge was then permitted to proceed to the peinliche Befragung (painful interrogation)—or in other words, to torture. In the first half of the nineteenth century these rules were abolished, and a system was introduced that followed the French principle of the intime conviction, as set out, for example, in Art 342 of the Code d’instruction criminelle of 1808.118 Section 261 requires the judge to be convinced of the facts before he proceeds to conviction and sentence. In effect, this is much the same as the judicial instruction in England and Wales to the members of the jury, that they ‘must be sure’ that the defendant committed the acts with which he is charged before they can find him guilty. The law acknowledges that no human being can have absolute certainty of any fact, not even those she may have witnessed herself. Therefore no merely theoretically possible alternative will prevent a conviction, but only one that is reasonably possible. German law consequently does not ask the judge for absolute certainty but for his own conviction, based on the laws of logic and the absence of vernünftige Zweifel, ie reasonable doubt,119 and an adequate description of his argument in the Urteil. In dubio pro reo As we saw above when we looked at the presumption of innocence, the application of the principle in dubio pro reo requires the existence of a finite amount of evidence: only when the judge has seen and heard all the evidence in a case will she be able to decide what and whom she can believe. The in dubio rule is about the factual basis for the guilt of the defendant, it does therefore not apply to each and every piece of evidence but only to the totality of the evidence120: a judge may be unsure whether to believe witnesses A, B and C because their memories may have been hazy and/or their testimony hearsay or outright lies, but if she is sure that she can believe the incriminating testimony of witnesses D–H, and maybe the expert X in a case, then she has no reasonable doubt about the guilt of the defendant.

118 119 120

KK-Pfeiffer/Hannich Einleitung Mn 14. BGHSt 10, 208; StV 1999, 5; NJW 1999, 1562; NStZ-RR 1999, 332. Consistent jurisprudence of the courts: BGH NStZ 1999, 205; 2002, 656; NStZ-RR 2005,

209.

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The Major Procedural Maxims − An Overview Because it is a principle that attaches to the evaluation of evidence, the in dubio rule has no application to questions of law: if a certain provision can be given a strict and a lenient interpretation and clear guidance from the legislator is missing, the court is not obliged to choose the more lenient one if there are good reasons for choosing the strict one.121 The question whether the rule applies to factual uncertainty in procedural matters as well, for example: a) whether the prosecution of an offence is barred by the statute of limitations122; b) whether a request to prosecute was filed in time123; c) whether double jeopardy is triggered124; d) whether a young adult was still at the same developmental stage as a juvenile125; e) whether the prosecution have to apply it when deciding whether to indict the suspect126; f) whether on appeal a procedural bar is raised based on whether the defendant is unfit to stand trial127; g) whether the withdrawal of an appeal was valid128; h) whether a procedural error has occurred129; has been answered on a case-by-case basis so far.130

121

BGHSt 14, 68. Yes: BGHSt 18, 274. 123 Yes: BGHSt 22, 90. 124 Yes: BayObLG NJW 1968, 2118. 125 Yes: BGHSt 12, 116. 126 No: OLG Karlsruhe NJW 1974, 806. A certain amount of uncertainty is immanent in that stage of the proceedings; it will, however, play a part in the overall reflections of the prosecution about the likelihood of a conviction; OLG Karlsruhe Justiz 2003, 272; OLG Bamberg NStZ 1991, 252. 127 No: BGH NStZ 1984, 181. This must be distinguished from the scenario of whether a trial may take place if the trial judge has doubts about whether the defendant is fit to plead and none of the criteria in §§ 231(2) (voluntary unlawful absence of the defendant from the hearing) or § 231a (intentionally putting oneself in a state of unfitness to plead) are fulfilled: in that case the rule applies; BGH NStZ 1984, 520; BVerfGE 51, 324. 128 No: BGHSt 10, 245. 129 No: BGHSt 16, 164. Procedural errors must be fully demonstrated by the appellant on appeal; as far as § 136a on forbidden means of interrogation is concerned, the appellate court must ascertain these for itself through the Freibeweisverfahren (discretionary evidence), ie the court is not bound to use the means of evidence provided for in the StPO for the purpose of establishing the guilt of the defendant (Strengbeweis—strict evidence); it may, eg, make a simple phone call to establish whether a violation has occurred, something on which it could not base a conviction. 130 KK-Pfeiffer/Hannich Einleitung Mn 19–20. 122

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Basic Concepts Open justice (Öffentlichkeitsgrundsatz) Adult proceedings Section 169 GVG had already been mentioned above under the heading ‘Principle of oral presentation of evidence (Mündlichkeitsprinzip)’. It refers only to the trial proceedings, not to a duty of the courts to publicise their decisions adequately.131 German law does not, however, subscribe to the understanding of open justice as practised in England and Wales, where it includes the right of the media to report about suspects from the earliest stages of the proceedings, including their full name, address and picture.132 The open justice principle exists in a natural tension with the protection of the interests of victims, and the rules about the latter have been significantly strengthened in recent years.133 The public may be excluded from the hearing for reasons of victim protection, for example in sexual offence cases, or if there is a concern based on public morality, etc. The reasons are set out in §§ 170–175: a) Hearings in the family court and the cautelary jurisdiction (Freiwillige Gerichtsbarkeit) are in principle held in camera; the public may exceptionally be admitted, although not normally over the objection of one of the parties (§ 170 GVG); the public may be excluded in cases of a Sicherungsverfahren (§§ 413–415) with the aim of sequestering the offender in a mental health hospital or in custodial addiction treatment (§ 171a GVG). b) The court may exclude the public if in the course of a hearing the intimate sphere of any of the parties, victims or witnesses, etc is being discussed (this may include the defendant’s intimate sphere134); the exclusion must not be ordered if the protected person objects to it135 (§ 171b GVG). c) An exclusion may be ordered for reasons of national security, public order

131

See KK-Pfeiffer/Hannich Einleitung Mn 21. See the critical contribution by M Bohlander, ‘Open Justice or Open Season?’ (2010) 74 Journal of Criminal Law 321. 133 KK-Pfeiffer/Hannich Einleitung Mn 21. 134 MG § 171b GVG Mn 3. 135 This would appear to be unusual, but from my own experience as a judge in a slightly different scenario I remember the case of a young woman who had been raped and seriously sexually abused in various ways by the defendant, whilst being trapped in an elevator with him for over half an hour, all the time being threatened by him with a weapon. When I asked her whether she wished to have the defendant excluded for the duration of her testimony about the intimate facts of the abuse, she answered: ‘No, he shall hear what he did to me!’ She was, if it may be said to her credit, the deadliest of witnesses imaginable: calm, detached and precise in her memory despite the ordeal she had been subjected to. –Equally memorable, albeit for different reasons, was the defendant’s counsel, also a woman, who started her closing speech with the words: ‘Life has many faces … ’ (Das Leben ist vielfältig . . . ), insinuating that the victim may have enjoyed the events as ‘rough sex’. 132

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The Major Procedural Maxims − An Overview and morality; to protect life, limb or freedom of a witness; to protect an important business or trade secret or tax confidentiality, if the interests of the protected person outweigh that of an open court discussion; if a private secret is going to be discussed, the divulging of which by an expert or a witness might be an offence under § 203 StGB; if a person under the age of 18 is being heard (§ 172 GVG). The operating part or Tenor of the Urteil must always be pronounced in public, although the public may again be excluded for the reasons set out in §§ 171b, 172 GVG (see b) and c) above) when the court gives its reasons for the decision (§ 173 GVG). Juvenile proceedings In proceedings against juveniles, § 48 JGG imposes a different regime: trials against juveniles are always conducted in the absence of the public, including the pronouncement of the judgment. The somewhat counterintuitive fact is that the time of the offence, not of the trial, decides whether § 48 JGG is triggered; the prevailing opinion deduces that from the definition of ‘juvenile’ in § 1(2) JGG, which refers to the time of the offence. This means that a 55-year-old defendant on trial for a murder he committed at the age of 17 will fall under § 48 JGG.136 Only the parties, members of support agencies dealing with the defendant and persons who have a relationship to the case at hand, such as the victim and her parents, legal representatives, probation officers, etc, as well as law students or other persons in related training positions may be present. The media may be admitted unless there are grave concerns about the impact that may have on the development of the defendant; a careful balancing of interests is required.137 Young adults do not enjoy this protection, but the court has a discretion to exclude the public under § 109 JGG.138 If a defendant committed some offences when he was a juvenile and others as a young adult and is tried for all of them at the same time, § 48 JGG requires exclusion of the public.139 If juveniles are standing trial together with adults or young adults, the session is held in public but the court has a discretion to exclude the public if the development of the juvenile defendants so requires.140 These rules apply to appellate proceedings as well.141

136

EB § 48 Mn 3. EB § 48 Mn 19–20. 138 EB § 48 Mn 2. 139 EB § 48 Mn 3. The application by way of analogy of § 32 JGG to offences at different stages for sentencing purposes (see, for more details, ch 7 on sentencing) is prohibited; BGHSt, 22, 25. 140 § 48(3) JGG. 141 EB § 48 Mn 6. 137

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3 Actors in the Criminal Justice System Before we move on to talk about the different procedural stages, rules of evidence, appeals etc. it will be useful to have an understanding of the roles of and interplay between the different actors in the criminal justice system. Depending on the individual proceedings, there may be a myriad of people and institutions who may be involved, but for our purposes a look at the main actors shall be sufficient: — — — — — — — —

Courts and Judges (Gerichte and Richter) Prosecution Service (Staatsanwaltschaft) Defence (Verteidigung) Police (Ermittlungspersonen der Staatsanwaltschaft) Victims Court Support Services (Gerichtshilfe and Jugendgerichtshilfe) Probation Service (Bewährungshilfe) Court Clerk (Urkundsbeamter der Geschäftsstelle)

COURTS AND JUDGES

Germany is a federation whose power on the legislative, judicial and executive levels is divided between 16 member states, called the Bundesländer, and the Federation, called the Bund. The courts and the judiciary are consequently organised along the same lines. Each Land has its state courts and judiciary, and the Bund has the federal courts and judges. The jurisdictions are governed mainly by the GVG and StPO, to which we will turn in a moment. As far as jurisdiction at first instance is concerned, there is, however, one notable difference from other federally organised States such as, for example, the USA, in that there is in criminal matters no first instance trial court of the Bund, despite the fact that Art 96(5) GG speaks of a federal jurisdiction for certain offences.1 The federal criminal jurisdiction is thus in practice one of appeals on points of law only. 1 § 130(2) GVG and § 169 do provide for an Ermittlungsrichter (pre-trial examining judge) at the level of the BGH. This judge has the pre-trial functions (issuing arrest warrants, orders

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Courts and Judges Court structure—general overview Figure 3.1 below shows a very simplified outline of the hierarchy of courts in adult and juvenile jurisdictions, with the main appellate avenues. The abbreviation ‘P’ means professional judge (Berufsrichter); ‘L’ means lay judge (Schöffe). Note that Germany has not used juries since 1924. The BVerfG is not an appellate instance, because it controls the activities of the lower courts only as to their constitutionality under the GG. It may be seized by individuals via the constitutional complaint (Verfassungsbeschwerde) and by the courts via a judicial request for a preliminary ruling on the constitutionality of a provision in a particular case (konkrete Normenkontrolle) that is of decisive importance for a question of law; the procedure is not a vehicle for obtaining merely advisory opinions from the BVerfG. While the Verfassungsbeschwerde requires the complainant first to exhaust the ordinary appellate process, the Normenkontrolle may in principle be requested by any court at any stage2 of the proceedings.3 Appeals in adult cases from the Amtsgericht (AG) on fact and law (Berufung) go to the Landgericht (LG): regardless of whether the AG sat as a single professional judge (Einzelrichter) or as a mixed panel of professional and lay judges, (Schöffengericht) such appeals go to the Small Appeals Chamber (§ 76(1) 1st sentence GVG); however, in cases where the extended Schöffengericht sat with two professionals and two lay judges at the AG, the appeals chamber must also sit with two professional judges (§ 76(3) GVG).

for search and seizure, phone tapping, etc) of a normal Ermittlungsrichter at State level if the proceedings concern cases under the jurisdiction of an Oberlandesgericht (State Supreme Court) pursuant to § 120 GVG, ie so-called Staatsschutzdelikte (offences against the State), if and only if the Federal Prosecutor General (Generalbundesanwalt) conducts the investigations. Note that an Ermittlungsrichter is not the same thing as the French juge d’instruction but conceptually more akin to the juge des libertés, in that he controls the actions of the prosecution, and sometimes carries out certain investigative matters at their request, such as hearing witnesses under oath. 2 Not, however, if and when the judge is in charge of the enforcement of a sentence— instead of the prosecution—under § 451, ie in the case of juveniles, because he is then seen as an executive authority rather than as acting in his judicial role, and an executive authority cannot request a ruling under Art 100(1) GG; MG Einl Mn 220; § 451 Mn 3. 3 Note that the Normenkontrolle under Art 100(1) GG applies only to laws enacted after the coming into force of the GG on 24 May 1949, and only to formal Acts of Parliament; any other laws, be they pre-constitutional (vorkonstitutionelles Recht) or of a rank lower than a formal Act of Parliament, may be declared unconstitutional by any court, in the case of pre-constitutional laws even if they are Acts of Parliament; BVerfGE 2, 124; 32, 296. One needs to exercise extreme caution in this context, because a pre-constitutional law may have been expressly or impliedly confirmed by the legislature through later amending legislation and thus have acquired post-constitutional character, triggering the monopoly of the BVerfG; BVerfGE 6, 55. However, in contrast to a decision of the BVerfG, the decisions of a lower court have effect only in the individual case and do not bind any other court. The BVerfG also has a monopoly on the question of whether previous legislation continues to have effect as federal law; Art 126 GG.

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Actors in the Criminal Justice System Figure 3.1 Hierarchy of courts, including appellate jurisdiction

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Courts and Judges Juvenile cases go to a special juvenile appeals chamber at the LG, which sits as a Great Appeals Chamber in appeals against the Jugendschöffengericht and otherwise as a Small Appeals Chamber (§§ 41(2), 33b(1) JGG). Appeals on points of law (Revision) from both adult and juvenile jurisdiction at the AG can go to the appellate senate of the Oberlandesgericht (OLG) by way of a leapfrog appeal. Note that in juvenile cases, each party may file only one appeal (§ 55(2) JGG), ie if the defence file an admissible Berufung, they cannot file a Revision against the Urteil in the Berufung. Appeals from the Urteile of the LG trial chambers are on points of law only to the BGH; there is no OLG appellate jurisdiction against first-instance trial Urteile, but there is an interlocutory appellate jurisdiction against Beschlüsse of the LG. Urteile issued by any appellate chamber of the LG may be appealed to the OLG by way of a Revision. Urteile by an OLG in state security cases under § 120 GVG may be appealed to the BGH through Revision. At the level of both the OLG and the BGH there are no specialised juvenile panels. Jurisdiction ratione materiae and ratione loci The jurisdiction ratione materiae of the several courts is determined mainly by the GVG and JGG, jurisdiction ratione loci mainly by the StGB and the StPO. In order to avoid confusion and, not least, to keep the treatment of this dry and technical, but nonetheless important, subject to a minimum, we shall neglect any secondary rules of assignment of jurisdiction. We shall first look at the ratione materiae jurisdiction. For the full picture, it is necessary to refer to the exact wording of the provisions, because assignment of jurisdiction is a complex matter involving an intricate mix of criteria based on specific offences, on the one hand, and on sentencing powers, on the other, which is not easily simplified. However, the most important markers that establish jurisdiction will be highlighted in what follows. Ratione materiae Jurisdiction of the Amtsgericht The jurisdiction of the AG is set out mainly in §§ 24–26 GVG, with § 27 GVG as a catch-all clause referring to assignments of jurisdiction in other provisions which we can neglect here. The AG thus has jurisdiction in the following cases: a) Unless the LG’s or OLG’s jurisdiction is triggered; b) unless a sentence exceeding four years, or a mental hospital or incapacitation order under §§ 66–66b StGB is to be expected in the individual case, because the AG cannot not order those sanctions; 39

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Actors in the Criminal Justice System c)

unless the prosecution indicts the accused before the LG due to considerations of witness protection, the scale of the case or its special significance. d) The single judge at the AG has jurisdiction for offences prosecuted by a private prosecutor or where a sentence not exceeding two years is to be expected. Section 26 GVG establishes a discretionary jurisdiction for child protection cases, ie offences committed by adults against juveniles. Jurisdiction of the Landgericht The jurisdiction of the LG can be found in §§ 73–74f, 78a GVG, with the last provision relating to the jurisdiction of the Strafvollstreckungskammer at the enforcement stage. The LG thus has jurisdiction according to the following criteria: a) §§ 73 and 74(3) GVG establish the general interlocutory and final appellate jurisdiction over AG Beschlüsse and Urteile, and also contain a blanket reference to other matters assigned by the StPO to the LG; b) § 74(1) GVG attaches general LG trial jurisdiction to all cases unless the AG or OLG have jurisdiction, which is a bit awkward methodologically as § 24 GVG defines AG jurisdiction as that not covered by the LG or OLG. It confers general jurisdiction over cases with an expected sentence of over four years or one of the orders mentioned above, ie a mental hospital order or those under §§ 66–66b4 StGB, or where the prosecution chooses to indict before the LG. Section 74(2) GVG confers jurisdiction over a number of serious offences (homicide offences in the wider meaning, including the result-qualified offences5 and the offence of exposing a multitude of persons to ionising radiation) to a specific chamber, the so-called Schwurgericht, the name being the sole remnant of the time when Germany used juries.6 This chamber always sits as a panel comprising three professional judges and two lay judges, and takes jurisdictional precedence over the other adult crime LG chambers under § 74e GVG; 4

But see the text accompanying n 9 below. See M Bohlander, Principles of German Criminal Law (Oxford, Hart Publishing, 2009) 31. 6 The jury, which in most German states had a function similar to the English trial jury, with its wider remit than the French version, had been viewed critically by academia throughout most of German legal history. It was was introduced across Germany during and after the revolution of 1848/9 in the mid-19th century, during a wave of liberalism in legal policymaking. Yet the renowned German criminal law professor Feuerbach, whose research helped trigger the advent of the jury, opined even then that from a legal point of view nothing spoke for the use of juries but that politically they were to be welcomed within a constitutional body politic. The jury was abolished again already in 1924 by the so-called Lex Emminger, after the then Minister of Justice of the Reich who signed the legislation, and replaced with extended Schöffengerichte of three professional and six lay judges; see T Vormbaum, Einführung in die moderne Strafrechtsgeschichte, 2nd edn (Berlin, Springer, 2011) 102 ff, 181 f. 5

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Courts and Judges c)

§ 74a GVG, with a blanket reference to § 73 GVG for appellate decisions, confers jurisdiction over state security offences to the LG (Staatsschutzkammer) in whose district the OLG has its seat, for the obvious reason that the OLG has jurisdiction over serious criminal cases related to state security under § 120 GVG, and it is thus useful to have the judicial expertise and especially the necessary facilities (high-security courtrooms and detention facilities, etc) close together. The LG has no jurisdiction if the Federal Prosecutor-General has taken over the prosecution before the indictment is admitted for trial. A case may, however, be released by the Federal Prosecution (§ 142a(4) GVG)), or referred back by the OLG (§ 120(2) GVG); the release or referral will then (re-)establish LG jurisdiction. Importantly, § 74a(4) GVG mandates that a chamber at that LG which does not have any criminal trial docket must be given the jurisdiction for ordering the acoustic surveillance of private conversations in a person’s home in cases under § 100c (the commonly so-called großer Lauschangriff)7; d) § 74b GVG makes the considerations under §§ 26(2), 73 and 74 GVG applicable mutatis mutandis, and orders that the juvenile court chamber of the LG shall have concurrent jurisdiction with the general adult criminal chambers; e) § 74c GVG arranges for the establishment of a special chamber for commercial offences (Wirtschaftsstrafkammer), if special expertise is necessary to try them. The government of a Land can assign all cases in that Land to a chamber at one central LG; the same applies under § 74d GVG to a central Schwurgericht; f) § 74e GVG regulates precedence in adult criminal cases as follows: i) first rank is given to the Schwurgericht, ii) followed by the Wirtschaftsstrafkammer and iii) lastly the Staatsschutzkammer. Note that § 74e GVG does not apply8 to the relationship between adult and juvenile courts (Jugendrichter, Jugendschöffengericht and Jugendkammer); juvenile courts are based on a different jurisdictional concept (see below) and take precedence over adult courts (§§ 101, 103(2) 1st sentence, 112 JGG), especially the Schwurgericht. There is a complicated regime for cases of joint prosecutions of adults and juveniles or young adults: if the Wirtschaftsstrafkammer or the Staatsschutzkammer have jurisdiction, they trump the juvenile courts (§§ 103(2) 2nd sentence, (3), 108 JGG); however, should their jurisdiction in turn be trumped by the Schwurgericht because the case involves one of the offences listed in § 74(2) GVG, the juvenile courts take precedence again (§ 103(2) 1st sentence JGG);

7 8

See MG § 100c Mn 1. BGHSt 42, 39.

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Actors in the Criminal Justice System g) § 74f GVG contains a complicated provision for cases of § 66b StGB (subsequent incapacitation order—nachträgliche Sicherungsverwahrung). Note that a procedure similar to the procedure under § 66b StGB, that of an ex-post extension of an existing incapacitation order under § 67d(3) StGB, was declared in breach of the ECHR9 by the ECtHR in 2009, which led to a major law reform at the end of 2010 and a declaration of unconstitutionality of the entire law on incapacitation orders by the BVerfG in May 2011. The details will be looked at in chapter seven on sentencing and enforcement; h) lastly, § 78a GVG establishes the jurisdiction of the Strafvollstreckungskammer, the chamber which decides on issues of early conditional release, complaints from prisoners about conditions of imprisonment, etc. Jurisdiction of the Oberlandesgericht The jurisdiction of the OLG is regulated by §§ 120–121 GVG: a) § 120 GVG basically reserves the serious state security offences to the OLG, and importantly transfers jurisdiction for murder under §§ 212, 211 StGB and a number of other serious general offences from the LG to the OLG, if those offences were committed in the context of state security. The section contains a provision similar to that at the LG level regarding surveillance measures under §§ 100c and 100d. The Länder may designate one OLG as a joint central OLG for state security affairs even across Länder borders. Section 120(7) GVG states that if a Land has to bear costs in a state security case, for example in the case of an acquittal, it may claim reimbursement from the Bund if the Federal Prosecutor-General prosecuted the case, because then the OLG would be exercising federal jurisdiction under Art 96(5) No 5 GG. This is thus a curious case where federal trial jurisdiction exists under the Constitution but there is no federal trial court to exercise it10; b) § 120a GVG contains similar provisions on the procedure under the now defunct § 66b StGB as in § 74f GVG; c) § 121 GVG establishes the appellate jurisdiction of the OLG set out above, including the procedure under § 121(2) GVG if the OLG wishes to deviate from a decision of another OLG or of the BGH issued after 1 April 1950, in which case the OLG must refer it to the BGH for a preliminary ruling. Section 120(3) GVG allows a Land with several OLG districts to create a joint central OLG for appeals in enforcement matters.

9 10

M v Germany, App no 19359/04, judgment of 17 December 2009. See MG § 120 GVG Mn 9 and 12.

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Courts and Judges Jurisdiction of the Bundesgerichtshof The BGH has jurisdiction under §§ 135, 138 GVG, as follows: a) § 135(1) GVG establishes the general appellate jurisdictions against trial decisions of the LG and OLG (Urteile) as courts of first instance. There is no appeal to the BGH from an OLG or an LG acting as an appellate court. Section 135(2) GVG provides for interlocutory jurisdiction against a number of Beschlüsse by the OLG and the BGH’s own Ermittlungsrichter; b) § 138 GVG regulates the competence of the Great Senate and the Joint Great Senates in matters of preserving the uniformity of jurisprudence in serious questions of law. Jurisdiction of the juvenile courts As mentioned above, the juvenile jurisdiction is different from that of the adult courts. It is set out in §§ 39–42 JGG, the last provision being a mix between ratione materiae and ratione loci: a) § 39 JGG assigns jurisdiction to the single judge at the AG (Jugendrichter) if the sentence to be expected does not exceed minor juvenile-specific sanctions such as a short detention or community service, etc, or ancillary measures such as a driving disqualification etc, and the prosecution chooses to indict before the single judge. The Jugendrichter does not have jurisdiction in matters of joint adult and juvenile accused, unless the single judge in the adult court would have jurisdiction for the joint proceeding. The judge may, however, hand down a sentence of juvenile imprisonment not exceeding one year. He may not make a mental hospital order; b) § 40 JGG refers the basic overall jurisdiction to the Jugendschöffengericht, unless the Jugendkammer at the LG or the Jugendrichter have jurisdiction. It may propio motu request a decision from the Jugendkammer about whether the latter wishes to take over a case because of its scale. The court has the full sentencing powers under the JGG; c) § 41(1) JGG establishes the trial jurisdiction of the Jugendkammer: i) for all cases that in adult proceedings would belong before the Schwurgericht, including the precedence regime under § 74e GVG explained above, ii) for the cases it takes over under § 40 JGG, iii) for joint proceedings against juveniles and adults if under general rules a trial chamber of the LG had jurisdiction, iv) for cases in which the prosecution indicts the accused before the LG because of the special need to protect victim witnesses, v) in cases of homicide, sexual offences, offences against the person and robbery, theft or blackmail causing death (§§ 251, 252, 253 StGB), if a

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Actors in the Criminal Justice System sentence of juvenile imprisonment of more than five years or a mental hospital order is to be expected; d) § 41(2) JGG makes the Jugendkammer the appellate court for all decisons of the Jugendrichter or the Jugendschöffengericht in the Beschwerde or Berufung; e) § 42 JGG, by combining aspects of ratione materiae and ratione loci, allows for the jurisdiction of the judge who has partial family court jurisdiction over the defendant under § 34 (2) and (3) JGG, the court in whose district he resides or the judge enforcing a sentence of juvenile imprisonment not yet completely spent. The law encourages the prosecution to indict before the judge with family court jurisdiction, if possible, and before the enforcement judge in the case of a sentence of imprisonment not fully served. If the defendant changes his place of residence, the jurisdiction can move with him; § 42(3) JGG. Section 269 states as an exception to the general duty of the court under § 6 to verify its jurisdiction at any stage of the proceedings, that a court may not decline jurisdiction merely because it thinks the case belongs before a court of lower jurisdiction. The exception to that exception, and thus re-affirming the rule, is § 209(1), which allows a court to admit a case for trial before a lower court; however, once the case is admitted before a court, § 209(1) ceases to have effect.11 This may have an impact on the appellate process: if a case that belonged before the AG was indicted before the LG and admitted there for trial, there is only one appeal, and only on points of law, to the BGH; had it been admitted before the AG, there would have been two appeals, one on fact and law (Berufung) to the LG, and a second one on law (Revision) to the OLG. It is thus not immediately intelligible that some courts and commentators say the rule in § 269 does not disadvantage the defendant.12 Sections 270, 225a and 209(2) deal with the reverse situation, where a court thinks that the jurisdiction of a higher court is triggered: if this happens before the admission of the indictment for trial, the lower court can send the dossier to the higher court for its decision on whether it takes the case (§ 209(2)). The same applies after admission but before the actual start of the trial (§ 225a). The lower court is in a much stronger position once the case has been admitted for trial and the trial has started, because then § 270 (1) and (3) allow the lower court to refer the case to the higher court with binding effect13; this may be an attractive vehicle

11

See MG § 269 Mn 1–3. RGSt 62, 265 and MG § 269 Mn 1 who appears to approve. 13 The higher court cannot refuse to accept the case (BGHSt 27, 99), and the defendant cannot appeal the referral because it acts as an order admitting the case for trial before the higher court (§ 270(3) 1st sentence) which a defendant can never appeal; only the prosecution can file a Beschwerde under § 270(3) 2nd sentence and §210(2), but only if they would have requested referral to an even higher court; BGHSt 45, 26 and MG § 270 Mn 22. 12

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Courts and Judges for some less conscientious AG judges to clear their heavy dockets at the cost of the superior courts.14 Ratione loci German criminal courts have jurisdiction ratione loci under §§ 3–7, 9 StGB on German domestic jurisdiction in general, together with §§ 7–21 StPO on individual criminal jurisdiction once German jurisdiction has been established, ie: a) if the offence was committed on German territory (§ 3 StGB), or on a German ship or aircraft (§ 4 StGB); or b) if the offence was committed abroad against certain domestic legal interests, regardless of the law applicable at the locality where it was committed, ie a case of extended domestic jurisdiction (§ 5 Nos 1–15 StGB); c) if the offence was committed abroad against internationally protected legal interests, again regardless of the law applicable at the locality where it was committed, ie a case of universal jurisdiction (§ 6 Nos 1–9 StGB). A residual clause is found in § 7 StGB: §7

Offences committed abroad—other cases

(1)

German criminal law shall apply to offences committed abroad against a German, if the act is a criminal offence at the locality of its commission or if that locality is not subject to any criminal jurisdiction. German criminal law shall apply to other offences committed abroad if the act is a criminal offence at the locality of its commission or if that locality is not subject to any criminal law jurisdiction, and if the offender: 1. was German at the time of the offence or became German after the commission; or 2. was a foreigner at the time of the offence, is discovered in Germany and, although the Extradition Act would permit extradition for such an offence, is not extradited because a request for extradition within a reasonable period of time is not made, is rejected, or the extradition is not feasible.

(2)

The place of the offence is defined by § 9 StGB:

14 The binding effect may be avoided only if the referral was entirely arbitrary (willkürlich) or blatantly unlawful; BGHSt 29, 216; NStZ 2009, 404. The higher court may then refer the matter back to the lower court; BGHSt 45, 58. However, even in cases of arbitrariness, the case will remain with the higher court if its jurisdiction is actually triggered, possibly for reasons other than those adduced in the referral; BGH, 45, 58. Judges should, of course, think twice before engaging in such procedural engineering techniques, because there may be liability under § 339 StGB for perverting the course of justice, depending on the circumstances.

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Actors in the Criminal Justice System § 9 Place of the offence (1)

(2)

An offence is deemed to have been committed in every place where the offender acted or, in the case of an omission, should have acted, or in which the result if it is an element of the offence occurs or should have occurred according to the intention of the offender. Acts of secondary participation are committed not only in the place where the offence was committed, but also in every place where the secondary participant acted or, in the case of an omission, should have acted or where, according to his intention, the offence should have been committed. If the secondary participant to an offence committed abroad acted within the territory of the Federal Republic of Germany, German criminal law shall apply to the secondary participation even though the act is not a criminal offence according to the law of the locality of its commission.

Within that framework, criminal courts may have jurisdiction based on the following: a) b) c) d)

The place of the offence (§§ 7, 10); the offender’s place of residence or the place where she usually lives (§ 8); the place where she was apprehended (§ 9); in the case of offences committed on the sea outside the 12-mile zone, the high seas and in foreign territorial waters, the AG Hamburg has residual jurisdiction, unless jurisdiction can otherwise be established (§ 10a)15; for German officials enjoying diplomatic immunity abroad jurisdiction is determined by their German place of residence, or, if they do not have a residence in Germany, by the seat of the Federal Government (§ 11).

e)

Conflicts of jurisdiction The question of competing or alternative jurisdictions between courts of the five different thematic branch jurisdictions (ie ordinary, administrative, employment, fiscal and social welfare) is regulated in §§ 17–17b GVG. The basic principle is that once and while a matter is pending before a court, no party may seize another court of it, unless the proceedings concern different scenarios such as, for example, a private prosecution before the AG and an action for damages in civil court (Rechtshängigkeit—compare the concept of lis pendens). This applies even if, after a case has been formally filed, the circumstances related to jurisdiction change (§ 17(1) GVG). The court seized of a case can either accept it, or refer it to the court of the branch jurisdiction it deems competent (§ 17a GVG). In criminal cases, the incidence of this sort of dispute is negligible, with the possible exception of the procedures under §§ 23 ff EGGVG and conflicts within the

15

MG § 10a Mn 2.

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Courts and Judges branch of the ordinary jurisdiction (ordentliche Gerichtsbarkeit, ie criminal and civil courts). Much is still controversial, and we need not dwell upon it here.16 Much more important are the central conflict provisions in the StPO and in § 143 GVG, which tie the jurisdiction of the prosecution services to the jurisdiction of the court: a) The basic rule is § 12, which provides that among several jurisdictions the one that first initiated an investigation has precedence; the common superior court may transfer jurisdiction to another court in an individual case.17 However, this rule is usually triggered only if the case is actually pending before different courts, because the prosecution, ie the institution actually doing the ‘investigation’, normally have the right to select one of the potential jurisdictions.18 Precedence based on the sequence of initiating the ‘investigation’ is thus usually determined by the question of which court first admitted the indictment for trial.19 b) In the case of several offences committed by one person, or one or more offences committed by several persons, including offences of assistance after the fact in the wider sense and handling stolen goods (§§ 257–259 StGB) (zusammenhängende Strafsachen according to § 3) which individually belong to the jurisdiction of different courts, § 13 provides for a procedure to join them together before one of those courts, either by agreement of the courts upon the request of the prosecution services involved, or, where such an agreement cannot be reached, through determination by the common superior court. c) Section 13a allows the BGH to determine the competent court if there is uncertainty which German court has jurisdiction. The provision is inapplicable if it is absolutely clear ab initio that German courts do not have jurisdiction at all, and in cases of extradition proceedings under § 14(2) IRG which provides for its own procedure for determining jurisdiction.20 d) In the event that several courts wish to exercise jurisdiction (positiver Kompetenzkonflikt), § 14 requires the common superior court to determine the court to be seized at the application of a party (usually the prosecution) or one of the courts.21 The same applies, with the proviso that not the courts but only the parties may request the common superior court’s decision,22

16

See MG § 17b Mn 2 with further references. Note that for AG in different Länder the common superior court is usually the BGH. 18 BGHSt 10, 391; 21, 212; 26, 374. Regarding concerns over the tension with the principle of the pre-determined judge (gesetzlicher Richter) if one leaves the selection of venue to the prosecution, see MG Vor § 7 Mn 10 with further references. 19 MG § 13 Mn 3. 20 BGH wistra 1989, 34; BGHSt 11, 379; 12, 326; 15, 72 and 33, 97 (related to the special case of exterritoriality under § 20 GVG). 21 MG § 14 Mn 3. 22 MG § 19 Mn 3. 17

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Actors in the Criminal Justice System

e)

where several courts, of which at least one has jurisdiction,23 have declined jurisdiction by final decision (negativer Kompetenzkonflikt). Section 16 requires the court to verify its jurisdiction ex officio until the admission of the indictment for trial. After that point in time, it may do so only at the objection of the defendant, and she in turn may object only until the start of her interrogation at trial.

We should also remind ourselves in this context of the provisions of §§ 20 StPO and 22d GVG, already mentioned in chapter two, under which a mere (and innocent) violation of the jurisdiction ratione loci or of a case allocation plan does not in and of itself void the judicial decisions taken in such violation. Lastly, it is worth noting that German courts have no powers governing contempt comparable to many common law jurisdictions; only minor sanctions are available against parties and witnesses, and against members of the audience under §§ 175–183 GVG and some special provisions in individual procedural codes. The courts have no powers whatsoever against prosecutors or counsel appearing in the proceedings, regardless of their behaviour; what little power there was with respect to counsel had already been abolished by Parliament in 1921 at the request of the Bar.24 Given that some counsel tend to use seriously disruptive practices in complex trials, one sometimes wonders about the desirability of reinstating the court’s power; but in any case the chances for such a reform are practically zero, and many judges do not wish to entertain the idea either. Staffing of the courts—professional and lay judges25 Courts are always staffed with at least one professional judge; German law does not accept the idea of lay judges sitting alone albeit with the advice of a legally-trained clerk. There are always26 two lay judges on any panel that includes

23 If none of them have jurisdiction, the common superior court must decline the determination; it cannot simply refer the case to the proper court: MG §19 Mn 3. The same applies to the positive Kompetenzkonflikt under § 14; BGHSt 31, 244. 24 See, on this problem, M Bohlander, ‘A Silly Question?—Court Sanctions against Defence Counsel for Trial Misconduct’ [1999] Criminal Law Forum 467; M Bohlander, Gerichtliche Sanktionen gegen Anwälte wegen Mißbrauchs von Verfahrensrechten—Eine Studie zum institutionellen Rollenverständnis von Rechtsanwälten gegenüber den Gerichten (Aachen, Shaker Verlag, 2001). 25 See, for an overview of the English, French and Spanish use of lay judges against the background of Japanese law reform, M Bohlander, ‘Laienrichter in der Strafjustiz—Ein Vergleich am Beispiel der Rechtsordnungen von England, Spanien und Frankreich’ in H-P Marutschke (ed), Laienrichter in Japan, Deutschland und Europa—Japanisch-Deutsches Symposium, Doshisha University Law School, Kyoto, 15 May 2005 (Berlin, Berliner WissenschaftsVerlag, 2006) 62. 26 Leaving aside the issue of so-called Ergänzungsschöffen (additional lay judges) under § 192(2) and (3) GVG in large trials, when a court may have more than the basic two Schöffen

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Courts and Judges lay judges, although the number of professional judges may vary depending on the court and the nature of a case. Professional judges must have a legal27 education consisting of two exams in law (Staatsexamen) usually at an elevated level (see §§ 5–7 DRiG)28; many German judges, prosecutors and attorneys also have a PhD in law, and quite a few of the more prominent ones hold honorary professorships at law faculties. It is also common for judges to publish in academic or professional journals, or to contribute to commentaries and practitioner manuals. There is overall probably a stronger link to academic thinking than in the practitioner-driven common law systems. Germany has a career judiciary, with professional judges in their mid- to late twenties starting as probationary judges, usually for a period of three years, before being appointed for life to either an AG or an LG entry-level post, or possibly to a prosecution service. They can then move up the ranks to become, for example, either presiding judges at the LG or judges at the OLG, presiding judges at the OLG or even judges at the BGH, the latter by separate election at federal level. It is not uncommon for judges and prosecutors to move between bench and prosecution in order to climb the ladder. In fact, rumour has it that some Länder cherish this instrument as a means to re-instil a sense of obedience in their judges from time to time while they are prosecutors (and thus not independent); other Länder use the so-called ‘Drittes Staatsexamen’ (Third State Exam) via a temporary secondment to the OLG, the BGH or the BVerfG, to detect promotable material.29 Movement from bar to bench and vice versa is rare. Lay judges (Schöffen) are judges in the full meaning of the word. They have the same powers as the professionals in the trial, but do not take part in all decisions

(and/or professional judges) sitting in court in case of one judge or Schöffe becoming ill or being recused, etc after the trial has started, if a judge becomes unavailable before the trial starts, she is replaced according to the case allocation plan. The additional or reserve (lay) judge does not take part in the deliberations or decisions until she is required to replace one of the primary sitting judges; however, she otherwise has the same rights and duties as the primary judges in the trial, and may also be recused at any time: see MG § 192 GVG Mn 2–3; KK-Diemer § 192 GVG Mn 9. 27 To allow someone to have a career in the legal profession, the prosecution or judiciary based on an university degree in a non-law subject and a conversion course plus some practical training in the law, is unthinkable within the German framework. Law studies with the aim of practising in one of the above professions in Germany take longer than, for example, in England and Wales, and this gives rise to concerns regarding German lawyers’ ability to compete for jobs on the international scene, but the level of training and expertise, both in their academic and practical aspects, is in my experience generally still higher. Some Länder have begun to introduce Bachelor and Master programmes of study based on the Bologna process, but the above still holds true for the classic legal professions. 28 See, for empirical research on the recruitment, promotion and remuneration of German judges, especially in the context after German unification, M Bohlander and C Latour, The German Judiciary in the Nineties (Aachen, Shaker Verlag, 1998). 29 Experience shows that quite a number of BGH judges are later recruited from these secondments once they have returned for a few years to their state jurisdictions, where they will often have been given a promotion already after the term of secondment.

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Actors in the Criminal Justice System outside the courtroom during an ongoing trial (see, eg, §§ 27(2), 31(2) 1st sentence StPO; § 30 GVG) and are subject to some restrictions as to the information they obtain, for the obvious reason that they are not trained to think as lawyers and to disregard information they may have heard but were later told was inadmissible in evidence.30 Schöffen may outvote a professional judge on fact and law, leaving the professional31 in the undesirable position to have to draft the judgment32 in the full knowledge that she is writing against her own opinion and that the judgment will very likely be reversed on appeal33—if one party lodges an appeal.34 The lay judges do not have to take the law from the professional judges, but usually do of course.35 They are elected for periods of five years (§ 42(1) GVG) based on lists prepared by different organisations from among the civil society of a district (Vorschlagsliste; § 36 GVG) under the procedure laid down in §§ 31 ff, 77 GVG. For our purposes the following main points are relevant: 30 See Elezi v Germany, ECtHR, judgment of 12 June 2008, App No 26771/03 (no violation) and BGHSt 43, 360. 31 Lay judges do not take part in the drafting of the reasons of the Urteil and do not usually sign it either, although they may do so; § 275(2) 3rd sentence, and see BGHSt 39, 281. The signature will, if at all, be most likely on the actual document on the day of the trial if judgment is given ex tempore (§ 268(3) 1st sentence) and not reserved, because then the operating section of the Urteil (Urteilsformel or Tenor) must be put in writing before pronouncing the verdict by reading it out in open court—however, that document does not actually need to be signed at that time: see § 268(2) 1st sentence; RGSt 60, 270; MG § 268 Mn 4. 32 German law does not grant judges below the level of the BVerfG the right to write separate or dissenting opinions. Even an outvoted judge must sign the decision of the majority; he may not refuse to vote on a question because he was in a minority in a previous matter; § 195 GVG. The deliberations are secret (§§ 43, 45(1) 2nd sentence DRiG). The system proceeds from the assumption that a signature does not necessarily mean support of all aspects of a decision, yet under ordinary circumstances no judge must ever reveal his voting record; exceptions on the grounds of procedural necessity have been recognised, eg, if and when a court notices a mistake in the voting procedure after pronouncing judgment and wishes to lay this open to the appellate court proprio motu, or if the judges of a collegiate panel are charged with perverting the course of justice (§ 339 StGB)—MG § 263 Mn 9 with further references. 33 Experienced practitioners among the prosecution service will notice this situation despite the secrecy of the deliberations, and there are subtle ways of drafting a judgment that tell the informed reader what the story is without openly violating that secrecy. Given that the prosecution may also appeal an Urteil in favour of the defendant, and will exceptionally do so in such cases in particular, there is thus a safety valve. 34 Unlike their English counterparts, where the situation is somewhat different depending on whether they sit as lay magistrates at first instance or as lay assessors in the Crown Court; see M Bohlander, ‘Take it from me’ (2005) 69 Journal of Criminal Law 442. 35 This may, however, occasionally mean educating them on rather fundamental principles: I recall a trial in which I sat with two lay judges, when in the deliberation room doubts were expressed as to whether the evidence was sufficient to make us entirely certain of the defendant’s guilt. One of the lay judges then actually asked whether we could not simply give the defendant a suspended sentence because she was not convinced of his innocence either, and she seemed to consider a suspended sentence to be a way of saying ‘We’re not sure enough to send you to prison on the evidence but we have a gut feeling you did it and therefore won’t let you get away with it completely scot-free—and, hey, a suspended sentence doesn’t really hurt you’! I then had to explain the meaning and consequences of reasonable doubt and the in dubio principle. But such cases are rare.

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Courts and Judges a) The position of lay judge is based on civic duty and is not remunerated apart from certain expenses. Unexcused absence from duty (see also § 54(1) GVG) constitutes contempt and may lead to a summary fine and the imposition of a wasted costs order (§§ 55, 56 GVG, 15 JVEG). Only Germans may become Schöffen (§ 31 GVG). b) Persons convicted of a crime punishable by a sentence of imprisonment of more than six months because of an intentional offence, or to loss of the ability to hold public office, or against whom an investigation is pending that may lead to such a loss, are not eligible to be Schöffen (§ 32 GVG). c) The following persons cannot be elected: i) persons who at the begin of their election period would be under the age of 25 or over the age of 70, ii) those who do not live in the municipality at the time the Vorschlagsliste is drafted, and iii) persons who for medical reasons are incapabable of discharging their duties as lay judges or whose financial situation is destitute. A certain class of persons, mainly public officials, is also excluded (§§ 33, 34 GVG). d) It is difficult to refuse the office of a lay judge, and the right to do so is restricted to certain groups of persons who either serve or have served the public interest in another capacity (parliamentary delegates, medical personnel, lay judges who have sat on at least 40 days in the previous election period), people who would be 65 at the end of the election period, or for whom it would be a severe personal hardship based on reasons of family care or sustaining their livelihood (§ 35 GVG). e) If one of the grounds for exclusion arises or become known later, a lay judge shall be struck from the list of elected Schöffen (§ 52 GVG). Reasons for refusal must be notified to the court within an exclusion period of one week from the time when the elected lay judge became aware of them (§ 53(1) GVG). A lay judge may be excused from sitting on individual days for serious reasons beyond his control or society’s legitimate expectation of civic service (§ 54(1) GVG). Exclusion and recusal of judges Any credible judicial system must be based on the assumption that a fair trial requires fair judges. Thus there may be reasons for excluding judges from sitting on a case in principle, or based on bias or related concerns because of behaviour displayed by the judge during or outside the proceedings. The underlying presumption for any system to be workable must be that judges are deemed fair and unbiased unless shown to be otherwise, and thus it is usually for the parties to show cause why a judge should be removed from the bench. As for the lay judges, they are full judges and not jurors; there is thus no equivalent to a voir dire during jury selection for the lay judges. 51

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Actors in the Criminal Justice System The rules in the StPO have been considered as concretisations of the right to a predetermined judge (the gesetzlicher Richter—see the constitutional principles discussed in chapter two).36 They apply to professional and lay judges alike, as well as to the court clerks (Urkundsbeamte) and other persons in charge of writing the procedurally hugely important court record during trial (§ 31(1)). They do not apply to prosecutors, not even by analogy,37 and the other parties have no right to recuse a prosecutor in circumstances that would lead to the exclusion or recusal of a judge; the court must, however, try to effect the replacement of the prosecutor by remonstrating with the prosecutor’s superior. The involvement of a ‘tainted’ prosecutor may in certain circumstances be a ground for appeal.38 A judge is excluded by law from any judicial activity in the following cases (§§ 22, 23): a) if he is the victim of the offence; b) if he is related to the victim or the offender by bloodline or marriage up to a certain degree, or is the victim’s guardian; c) if he was seized of the case previously as a prosecutor or police officer, or as the legal representative of either the victim or the offender; d) if he was heard as an expert or witness in the case; e) if he participated in a decision, he is excluded from sitting on an appeal or in review proceedings in the same matter. A judge39 may proprio motu indicate reasons that might lead to his exclusion or recusal, or the panel may exclude him ex officio if there is cause to believe that he might be excluded (§ 30) or be recused by the prosecution, the defence, the private prosecutor and the Nebenkläger, and in juvenile proceedings by the representatives and carers of the defendant (parents, guardians, etc)40 for reasons that would trigger the exclusion provisions, as well as for concern of bias (§ 24(1) and (3)); actual bias is not required. ‘Concern of bias’ is defined in § 24(2) as based on reasons41 that are capable of giving rise to doubts about the impartiality

36

BVerfGE 21, 139; 46, 34. Consistent jurisprudence of the courts, see BGH NJW 1980, 845; 1984, 1907; BayObLGSt 1983, 327; OLG Hamm NJW 1969, 808; OLG Stuttgart NJW 1974, 1394. 38 MG Vor § 22 Mn 3–7. 39 The recusal must always be directed against individual judges, even in the case of a collegiate panel, because a panel as such cannot hold any views; the views are held by the judges making up the panel: BVerfGE 11, 1. 40 § 67(1) JGG. See, for other persons, MG § 24 Mn 20. 41 A party cannot, however, for obvious reasons engineer a cause for concern through her own behaviour, for example by insulting the judge or laying an information against him for perverting the course of justice or false imprisonment, even if the judge does not simply suffer the abuse but takes legal steps against the allegations or insults, unless wholly exceptional circumstances exist that go beyond the ‘normal’ range of responses to such behaviour; see BGH NJW 1952, 1425; NStZ 1992, 290. In practice, the rather relaxed view of many judges is that in the normal course of things it is almost something of a rite of passage to get the first 37

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Courts and Judges of the judge. The standard to be applied is an objective one, that of a ‘reasonable and calm defendant’ in the same situation as the actual defendant.42 The personal characteristics of a judge, such as his religion, ethnicity, political affiliations, etc, are irrelevant unless they have a demonstrable impact on the case at hand.43 For example, if there is a reasonable suspicion that the judge is decidedly xenophobic, in proceedings against a foreigner.44 Media reports, especially negative pre-trial publicity, cannot be used to found a concern of bias45—not even against the lay judges—unless there is evidence of potential bias from the judges’ reaction to them, or because a judge somehow engages in active support of the media, for example by giving tendentious background information, interviews or TV appearances.46 The fact that a judge was previously seized of interlocutory decisions in the same proceedings (for example, arrest and search warrants, admitting the indictment for trial, etc) or in civil proceedings based on the same facts, is not in and of itself a reason for recusal unless it reaches the level required for exclusion by law under §§ 22 and 23 above. In all other cases, there must be additional evidence that the judge might not be impartial, for example if his decisions betray a sense of arbitrariness.47 The behaviour of judges during the hearing naturally can be, and often is, a ground for recusal, but not every utterance is sufficient and judges do not need to tread on eggshells. It has been held to be acceptable: a) if a judge puts searching and insistent questions to the accused, or keeps reminding him of certain unpleasant facts or pieces of evidence in order to elicit a reaction48; b) if the judge rebukes defence counsel for one defendant in an appropriate manner for putting pressure on a co-defendant49; c) to advise an appellant to withdraw the appeal because of an obvious lack of merit50;

prosecution dossier opened against oneself because of such (spurious) allegations. I had one such dossier, too; but I also had the very unusual experience of a defendant with a serious and long criminal record, and many years in prison still before the bow from other sentences, thanking the chamber over which I presided in open court for giving him a fair trial—but then he might not have said that had he not been acquitted on that particular occasion. 42 See the extensive case law listed at MG § 24 Mn 8. See, for the test under English law based on whether a fair-minded observer, having considered all the facts, would conclude that there is a real possibility of bias, Re Medicaments (No 2) [2001] 1 WLR 700. 43 MG § 24 Mn 9. 44 OLG Karlsruhe NJW 1995, 2503; AG Köln StV 2007, 127. 45 BGHSt 22, 289. 46 KK-Fischer § 24 Mn 3. 47 Extensive case law references at MG § 24 Mn 12–14 and KK-Fischer § 24 Mn 8–11. This area of law is still highly controversial, especially given the jurisprudence of the ECtHR. 48 BGH MDR 1957, 16. 49 BGH MDR 1971, 897. 50 RGSt 60, 43.

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Actors in the Criminal Justice System d) to express understandable irritation,51 even if in strong terms, for example: i) if the judge uses the word ‘theatrics’ in relation to a party’s conduct in court, or is irritable after a prolonged witness interrogation,52 or ii) uttering ‘Silly nonsense’53, or iii) ‘The tax payer thanks you for this kind of motion’,54 or iv) ‘That’s ridiculous’55 or v) ‘You’ll soon be laughing on the other side of your face’.56 However, if a judge were to start writing the judgment in open court while defence counsel was still delivering her closing speech, this would be a cause for recusal.57 Recusal motions for bias are time-limited and subject to the principle of concentration. They must all be filed together and no later than the start of the interrogation of the first defendant about his personal status (residence, date of birth, etc), or on an appeal before the introduction by the reporting judge (Berichterstatter). If the reason for concern arises or becomes known only at a later stage, the recusal motion must be lodged without undue delay. It must be supported by material that tends to show the truth of the allegation (Glaubhaftmachung). Recusal is inadmissible after the defendant’s last word (§ 25). The recused judge must file an official statement responding to the motion, which is disclosed to the parties before a decision is taken. The full court, including the recused judge, will dismiss the recusal motion as inadmissible if it was either made out of time, without supporting materials, or if the recusal’s aim is only to delay the proceedings or if it is meant to pursue only a purpose unconnected to the proceedings, such as, for example, providing a platform for mere political or insulting statementsetc. (§26a); the threshold for the last two criteria is very high for obvious reasons, and it is not uncontroversial to allow the recused judge to participate in deciding upon the motives of the party recusing her.58 If the motion is not dismissed as inadmissible, the court decides without the recused judge by co-opting another professional judge based on the case allocation plan; the lay judges do not take part in this decision (§ 27(1) and (2)). At the AG, the decision about the recusal of a professional judge is made by another judge, unless the recused judge declares the recusal to be justified (§ 27(3)). The decision upholding the recusal cannot be appealed. The rejection of the motion is subject to the sofortige Beschwerde, but if the recusal concerns a judge sitting on a 51 These cases naturally turn on all the facts in an individual situation and not just on the form of words used. Some of the examples listed here are, however, at the very least borderline in my own view, and should, as a matter of course, never be uttered by a judge. 52 BGH NStZ 2000, 325; NJW 1977, 1829. 53 BGH MDR 1971, 17. 54 BGH NStZ 1996, 200. 55 BGH, decision of 9 June 2009, Docket No 4 StR 461/08. 56 BGH MDR 1953, 147. 57 BayObLG VRS 44, 206. 58 See, for more details, KK-Fischer § 26a Mn 9–11.

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The Prosecution trial, the rejection may be appealed only together with the Urteil so as not to cause disruption to and possible re-commencement of the trial, because the adjournment periods would most likely be exceeded were a separate interlocutory appeal admissible (§ 28). Once recused, the judge must not take any more measures than are absolutely necessary before a decision on the recusal has been reached; any parts of the trial, save these emergency measures, after the time of filing of a successful recusal must be repeated unless the trial has to re-commence anyway (§ 29).

THE PROSECUTION

The prosecution or Staatsanwaltschaft is in practice59 the main60 actor on the side of the accusation in any proceeding. Prosecutors (Staatsanwälte) are civil servants61 who must usually have the same level of qualifications as a judge,62 especially in those Länder that provide for career moves between bench and prosecution, as is the case in most of them. The prosecution is independent of the courts (§ 150 GVG) and does not take instructions from judges outside specific proceedings. In turn, they must not carry out functions which are judicial in nature and must not be given disciplinary power over judges (§ 151 GVG). They are, however, not independent in the sense that judges are, and must follow the instructions of their superiors63 (§ 146 GVG), with one major exception: their conduct at trial. The prosecution, like the judges, gain their view of the trial and any questions of law and fact from experiencing the evidence first-hand, and

59

Although it provides for private prosecutions, German law generally frowns upon the

idea. 60 Another major area of prosecutions are those purely for tax and customs offences, where the Inland Revenue or Customs Administration usually is in autonomous charge of the investigation (§ 386 AO) without being bound by instructions from the prosecution; BFHE 104, 187. The prosecution may, however, always ask that the proceedings be deferred to them, and the financial authority may do this at any time proprio motu; the financial authority does in that case nevertheless retain its rights of participation. The financial authority cannot issue an indictment, but it may apply (§ 400 AO) for a Strafbefehl. If the court declines to issue it, or if the defendant objects to it (§ 406(1) AO), jurisdiction automatically shifts back to the prosecution; MG Einl Mn 11–15. 61 Unlike in England and Wales, the prosecution never use private counsel to appear in court on their behalf; the law does not permit that. All state public prosecutors have in principle full rights of audience before the state courts, and simply the organisational attachment of an individual prosecutor to a prosecution service (at the LG or OLG) decides in practice before which court he will appear; this does not apply to federal prosecutions. 62 We will neglect the so-called Amtsanwälte, ie prosecutors who may be used to handle minor cases before the AG and who have a lesser qualification; § 142(1) No 3, (2) GVG. 63 They are therefore considered part of the executive and not of the judiciary; BVerfGE 32, 216. There is no comparable esprit de corps as, eg, in the Magistrature in France, and its equivalents in Italy and Spain.

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Actors in the Criminal Justice System thus, in principle, cannot be told64 how to evaluate the evidence and what conclusions to draw, ie whether to ask for a conviction or acquittal, and what sentence to recommend to the court. Of course, as with so many things, it is a matter of personal resilience to questionable instructions and career ambitions that will decide whether a prosecutor follows instructions given by his superior in a trial or not. The prosecution services in Germany are regulated by §§ 141–152 GVG; they are organised along the same lines as the courts, as federal and state prosecution services (§ 142(1) GVG). In practice this means that there are prosecution offices65 attached to the jurisdictions of the BGH, each OLG and each LG; the LG office also covers the AG jurisdictions in each LG’s district (§ 143 GVG). The federal prosecution service (Bundesanwaltschaft) has sole appellate jurisdiction for appeals before the BGH and trial jurisdiction for the serious State security offences that are tried before an OLG under § 120 GVG, unless they are of a minor nature in which case the federal service releases them to the state prosecution service (§ 142a GVG). The prosecution does not have its own enforcement staff, and thus must use the police to carry out their investigations; these are consequently called Ermittlungspersonen 66 der Staatsanwaltschaft, or investigative agents of the prosecution, if and when they become active in that role (§ 152(1) GVG). Yet in practice it is the police who carry out investigations more or less autonomously; and once an investigation is complete, it is they who submit the dossier to the prosecution for further instructions or a decision on whether to prosecute. However, unlike the Crown Prosecution Service in England and Wales, the German Staatsanwaltschaft is not merely the final clearing-house for the decision to prosecute, it is also the master of the investigation procedure67 from the very beginning, in German the ‘Herrin des Ermittlungsverfahrens’ (see, for example, §§ 161, 163).68 Apart from their role in the pre-trial phase, the prosecution is also in charge of the majority of the measures under the enforcement regime of the StPO in the 64

This may be different if the superior is also participating in the trial; MG § 146 GVG

Mn 4. 65 Within each office there is a special section on juvenile cases, as required by §§ 36, 37 JGG. However, this is usually an organisational matter only, and prosecutors change in and out of these sections based on internal staffing demands, not because of their special educational skills. If they wish, they can attend special training courses on juvenile law and procedure, eg at the Deutsche Richterakademie (German Judges’ Academy), but in my experience a lot, if not everything, is left to their own initiative. As with so many things, the laudable aims of the law are countermanded by the gray reality of administrative and budgetary restrictions. 66 Previously the title was Hilfsbeamte—auxiliary officers. 67 There is a curious exception in § 165 which allows a judge at the AG to act as an emergency prosecutor and carry out investigative measures without the need for a prosecutorial request if the prosecution cannot be reached and certain investigative acts are necessary to prevent deterioration of evidence, etc; see MG § 165 Mn 1–4. However, once the prosecution can be reached again, they have the last word about what to do with the results of that emergency action; § 167. See also § 166. 68 KK-Pfeiffer/Hannich Einleitung Mn 34 and 61; BVerfG NJW 1976, 231.

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The Defence case of adults; for juveniles, enforcement is in principle carried out by the juvenile courts. The prosecution must always be heard before any judicial decision, whether inside or outside the courtroom (§ 33(1) and (2)). If a decision outside69 the courtroom has a detrimental effect on another party, they must also be heard; of course, this does not normally70 apply to search and arrest warrants (§ 33(3) and (4)). German law does not generally know ex parte proceedings as such; unless the purpose of the investigations would be jeopardised, or in cases of a necessary surprise effect (arrest, search, surveillance, etc), all proceedings are in principle inter partes. The prosecution must be present in court during the whole trial (§ 226), although not necessarily in the person of the same prosecutor; and because of the prosecution’s objective function as guarantors of the observance of the law71 by all involved in the proceedings, including the courts, they may also file appeals on behalf of the defendant (§ 296(2)). The roles of the prosecution at the individual stages of the proceedings will be looked at in situ in the following chapters.

THE DEFENCE72

The defence, consisting of the defendant and his counsel, is a privately-run affair in Germany. There is no public defender service of any kind; there is no means-tested legal aid scheme for defence counsel.73 German law operates on the distinction between non-means-tested mandatory and discretionary representation, about which more in a moment. The law on criminal defence is mainly regulated in §§ 137–149; we shall look only at the most relevant provisions necessary for the purpose of an outline. All defence counsel must have the same legal qualifications as a judge, although it is no secret that the actual grades of judges and prosecutors tend to be higher than those of the average private lawyer, because of the rigorous selection process for judicial and prosecutorial office, and the great popularity that these

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In court, every party has, of course, the right to be heard at all times; § 33(1). Yet it is not excluded; eg, a suspect at liberty or under mere arrest pursuant to §§ 127, 128, 163b(1) may be examined by a judge pre-trial, and on the basis of the interrogation the prosecution may apply for an arrest warrant on the spot. In such a case the court must, of course, hear the suspect. 71 See BGHSt 15, 155. 72 See, for an additonal overview, although now somewhat dated in parts, M Bohlander, ‘Legal Advice in Criminal Proceedings in the Federal Republic of Germany’ [1992] Criminal Law Forum 401. 73 This is different as regards the legal representation of private prosecutors (Privatkläger) and Nebenkläger, where legal aid aspects apply to a certain degree; see §§ 379, 397a. The Nebenkläger can request the assignment of counsel under similar rules as apply to the assignment of defence counsel in cases of serious offences against life, the person and personal liberty, and sexual offences (§ 397a(1) Nos 1–4); in other cases, the legal aid regime applies. 70

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Actors in the Criminal Justice System careers still enjoy with many law graduates.74 Section 138(1) also allows professors of law at a public75 university or polytechnic (Fachhochschulen)76 to represent clients in criminal court if they have the qualifications mentioned above; other persons may be admitted at the discretion of the court under § 138(2), and at the discretion of counsel77 under § 139 (Rechtsreferendare—trainee lawyers78). Fundamentally, defence counsel have a split role: on the one hand, they are Organe der Rechtspflege,79 on an equal footing with the courts and the prosecution, which translates loosely80 into the common law concept of ‘officers of the court’ but does not mean that they are under the courts’ authority and in danger, for example, of being disbarred by them for misconduct81; on the other hand they are the representatives of their clients’ interests and are not required to be impartial. However, they must use only legitimate means as provided for in the law to exercise their functions.82 They have a duty to be truthful, and at the same time a conflicting duty of silence based on attorney–client privilege. In essence, this means that while they may not actively distort the truth, defence counsel are entitled and actually obliged not to make the court aware of any errors that might benefit their client, or of the existence of facts that may harm him. Defence counsel may, of course, ask for an acquittal even if they know that their client is guilty, as long as they merely use the instruments provided by the law, for example to have tainted evidence excluded, etc.83 Section 137 allows a suspect, an accused or a defendant to have the assistance of counsel at any stage84 of the proceedings, but never more than three privatelyretained counsel; this is to avoid the potential for delay caused by a multiplicity of

74 It is, however, also a fact that at the very least the big city firms require an equally high profile from candidates, in some cases significantly more, especially a master’s degree, a PhD or secondary skills such as command of foreign languages, business studies, proven understanding of commercial environments, etc. See Bohlander and Latour, above n 28. 75 Not those employed at a private university; MG § 138 Mn 4. 76 The German polytechnics have come up with a new creation, ie the expression ‘University of Applied Sciences’ in order to avoid the ‘P-word’ in their English language materials. 77 But see also § 142(2) for a similar case—however, here of assigned counsel—at the discretion of the court if the Rechtsreferendar is currently serving her training with that court. 78 Yet curiously enough not someone who has passed the 2nd State Examination for which the Rechtsreferendar is still in training, ie a fully-fledged Assessor; BGHSt 26, 319. 79 And as such equal in standing to the courts and the prosecution; BGHSt 15, 326; BVerfGE 53, 207. 80 Literal translation: ‘Organs of the administration of justice’. 81 BVerfGE 34, 293. Matters of professional conduct are mainly for the state and federal bars, and the professional tribunals. As explained in the text accompanying n 24 above, there is no judicial power of contempt against counsel appearing in a case; BVerfGE 66, 337. In practice, and judging from my experience as a criminal and civil judge, the aspect of being an officer of the court plays little part in defence counsel’s everyday lives, and is usually trotted out only to defend their position against any intrusion threatening to diminish their status. 82 KK-Pfeiffer/Hannich Einleitung Mn 64 with further references. 83 KK-Pfeiffer/Hannich Einleitung Mn 65. 84 On the duty solicitor schemes and their implementation in German criminal procedure, see M Bohlander, Verteidigernotdienst im strafprozessualen Ermittlungsverfahren (Peter Lang,

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The Defence counsel.85 Conversely, one counsel must not represent more than one client (§ 146). In this context, the phenomenon of the so-called Sockelverteidigung (joint basis defence) deserves attention: in cases of co-defendants who are more or less in the same position, some counsel tend to cooperate closely with regard to those issues which affect all accused equally, and to concentrate their individual efforts on those matters specific to their own clients. The effect of this approach is that a defendant may have three counsel plus the efforts of counsel for the other defendants, and one counsel may actually in fact be speaking on behalf of more than one client; nonetheless, the courts have held it to be an admissible practice.86 The right to counsel of one’s choice may be restricted by the very harsh87 provisions of § 138a–d, which were introduced based on the experiences during the terrorism trials in the 1970s: a particular defence counsel may be excluded from the proceedings under these provisions if there is reason88 to believe that she participated in the offence in question, abuses her right of access to the defendant to commit offences or jeopardise the security of the prison, or committed an act which would qualify as assistance after the fact in the wider sense (§ 138a(1) Nos 1–3). In the case of certain terrorism offences (§ 129a and b StGB), exclusion is also possible if the degree of suspicion is lower but based on ascertainable facts (§ 138a(2)). The effect of the exclusion is: a) that counsel can no longer represent the client in any criminal or disciplinary89 proceedings; and b) that she must not contact the client, hence the amendment’s popular name Kontaktsperregesetz (Contact Prevention Act) (§ 138(4)). Section 138b extends the exclusion power to certain State security offences if there is reason to believe that counsel’s participation in the proceedings would cause a danger to the security of the Federal Republic. The jurisdiction for the exclusion lies, depending on the state of the main proceedings, with the OLG or the BGH; if the case is already pending before a senate of either of these courts, the decision on exclusion must be taken by another senate of that court. The decision may be taken even if counsel withdraws from the proceedings; it has then the function of a declaratory ruling for the active proceedings, but constitutive effect for all other proceedings mentioned above. During the course of the Frankfurt am Main, 1992). Many local bar associations have introduced so-called Anwaltsnotdienste, ie 24/7 emergency counsel hotlines. 85

BGHSt 27,124; the restriction is not unconstitutional, see BVerfGE 39, 156. LG Frankfurt NStZ-RR 2008, 205; KG StraFo 2003, 147. 87 But constitutional: BVerfG NJW 1975, 2341. There is no equivalent to the UK special advocate scheme. 88 To a degree that would justify the admission of an indictment, ie the likelihood of conviction; § 138a(1). 89 She may, however, represent him in civil and administrative matters, but cannot visit him to take instructions if the client is in custody; MG § 138a Mn 22–26. 86

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Actors in the Criminal Justice System exclusion proceedings, the defendant must ex officio be assigned counsel (Pflichtverteidiger) (§ 138c). The exclusion order may be appealed by sofortige Beschwerde, but note that the president of the regional bar council has no right to appeal. The prosecution cannot appeal a denial of exclusion (§ 138d(6)). As was mentioned above, German law differentiates between discretionary representation and mandatory representation. The rule is that it is a person’s own choice whether and when he wants to have assistance of counsel. However, in certain serious cases (§ 140) the law has taken the paternalistic decision to require representation by counsel (notwendige Verteidigung) in the interests of the offender and based on the public interest in a proper functioning of the administration of justice (Funktionstüchtigkeit der Rechtspflege); the rule is an emanation of the Rechtsstaatsprinzip.90 Section 140(1) makes representation by assignment of counsel compulsory,91 regardless of a request by the offender or his financial means, in the following scenarios: a) the trial is to be held before the LG or OLG; b) the offence the person is charged with is a felony (Verbrechen), ie carries a minimum sentence of one year (§ 12 StGB); c) the proceedings may lead to professional disqualification order; d) the person is in custody pursuant to §§ 112, 112a, or is being held under a preliminary mental hospital or custodial addiction treatment order under § 126 or a preliminary incapacitation order (§ 275a(5)); e) the person has been held in custody by judicial order for at least three months and is not going to released at least two weeks before the start date of the trial. The assignment may be rescinded if the person is released at least two weeks before the trial (§ 140(2) 1st sentence); f) the preparation of expert report on the psychological state of the person may make his detention under § 81 necessary; g) a Sicherungsverfahren (§§ 413–415) is pending, with the aim of sequestering the person in a mental health hospital or in custodial addiction treatment; h) previous defence counsel has been excluded under §§ 138a–d. Section 140(2) mandates the assignment of counsel if in the view of the court the case is so serious or complex that the assistance of counsel is necessary, or if it is obvious that the person is incapable of defending himself, especially in those cases where the victim has been assigned counsel under § 397a or § 406g(3) and (4).92 The request of a person with a hearing or speech impediment must be granted.93

90 91

BVerfGE 39, 238; 46, 202; 63, 380; 65, 171; 68, 237. The assignment under § 140(1) remains valid for the entire proceedings; MG § 140

Mn 5. 92

Ie, if the court thinks these conditions are met, it must assign counsel. See, for the details of these distinct categories, the explanation of which is beyond the scope of this work, MG § 140 Mn 10–37. 93

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The Defence Section 68 JGG contains additional criteria for assigning counsel in juvenile proceedings, but only in restricted form in proceedings against young adults. Counsel must be assigned in the following cases: a) If an adult would be assigned counsel (§ 68 No 1 JGG)—also applicable to young adults; b) if the parents and other carers or legal representatives of the suspect have had their right of care and representation withdrawn under § 67(4) JGG because of complicity in the suspect’s offence (§ 68 No 2 JGG); c) if the parents and other carers or legal representatives of the suspect have been excluded from the trial under § 51 because their presence could have a detrimental impact on his education or might otherwise put him at risk (§ 68 No 3 JGG)—also applicable to young adults; d) if the suspect may be referred to a mental hospital for in-patient psychological exploration under § 73 JGG (§ 68 No 4 JGG); and e) in the case of the execution of an arrest warrant or order for provisional detention under § 126a (mental hospital/addiction treatment) if the suspect is under 18 years (§ 68 No 5 JGG). Section 69 JGG allows for the assignment of a person trusted by the suspect to support her at any stage of the proceedings, but this provision has little practical significance.94 The time and procedure of assignment under the different categories of § 140 is regulated by § 141: unless the person already has privately-retained counsel, the presiding judge of the (prospective) trial court (except in the case of arrest warrants and the provisional orders under §§ 126a, 275a(5), which follow a different jurisdiction) will assign counsel. In practice, many privately-retained counsel will get their power of attorney rescinded by the client and withdraw from the case, only to have themselves (re)assigned by the court: this occurs mainly in the case of indigent clients, so as to obtain a secure claim against public funds for the fees earned. The law allows the assignment of (several) counsel in addition to a privately-retained counsel if there is reason to fear (or evidence based on experience in the case) that otherwise the (further) proceedings may be delayed or disrupted, for example because of frequent absences or the disruptive behaviour of the privately-retained lawyer. The consent of the defendant to the person of the counsel is desirable in principle (§ 142) but not required, which is why this form of assignment has also come to be called aufgezwungene Verteidigung or Zwangsverteidigung (imposed defence).95 It is, of course, open to question what sort of a defence such imposed counsel can deliver if the defendant does not cooperate with her or give her instructions; it is obvious that in this case counsel will be working more in the interests of the court than in those of the 94 U Eisenberg, Jugendgerichtsgesetz, 14th edn (Munich, CH Beck, 2010) § 69 Mn 4 with critical commentary on that practice. 95 See MG § 141 Mn 1a with references to the case law.

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Actors in the Criminal Justice System client. It is also necessary to remember that neither private retention nor judicial assignment of counsel robs the defendant of his right to participate fully in the proceedings; counsel does not replace the defendant procedurally but complements him. An assignment is to be rescinded if a person instructs counsel of his choice and the lawyer accepts the instructions (§ 143). Not regulated in the StPO but developed in the case law is the power to rescind an assignment for serious cause, for example if counsel becomes seriously and permanently ill, grossly neglects her professional duties or has irrevocably lost the trust of the defendant. These decisons must be considered with extreme caution, because there is obvious potential, on the one hand, for judicial abuse in order to get rid of an uncooperative lawyer who fights zealously for his client and to chill zealous advocacy generally in the mid- to long term, and, on the other hand, abuse by a defendant who does not like the way counsel acts on his behalf and tries to get him replaced, or to string a case out by changing horses at crucial junctures in his trial.96 One of the central functions of defence counsel, mainly during the pre-trial stage, is the inspection of the prosecution dossier, a procedure in German law which has a function similar to that of the common law disclosure rules. This is regulated exhaustively97 by § 147. The basic rule is that counsel, but not the suspect, accused or defendant,98 is entitled to inspect the entire99 dossier that the prosecution has submitted to the court, or that they would have to submit in the case of an indictment, at any time during the proceedings, including any exhibits in official custody (§ 147(1)). This includes the so-called Spurenakten, ie files on other suspects, which might have been opened by the police or prosecution during the investigation but which are not intended to be used at trial, the contents of which may have relevance100 (widely interpreted) for the defence case, both as far as conviction and/or sentence are concerned.101 The inspection may be refused as long as and/or to the extent that the investigation might be jeopardised102 by premature disclosure of relevant information to the defence (§ 147(2)); this restriction does not apply to any statements made by the accused, or to judicial investigatory acts in the presence of counsel or to which counsel 96

See the case law listed at MG § 143 Mn 3–5b. Inspection beyond the limits of § 147 cannot be gained by arguing general freedom of information legislation; MG § 147 Mn 2. 98 They may obtain copies of excerpts of the dossier to the extent that they are relevant to guarantee an adequate defence, as long as the purpose of the investigations is not jeopardised and there are no conflicting third-party rights that should take precedence; § 147(7). 99 Excluding those parts of the dossier blocked under the national security rules in § 96; OLG Celle StV 1982, 264; OLG Hamm NJW 1984, 880. 100 This is controversial, with a number of commentators asking for full inspection rights regardless of any relevance criteria, however widely interpreted; MG § 147 Mn 18. 101 BGHSt 30, 131; NStZ 1983, 228; BVerfGE 63, 45. 102 This criterion is, however, not triggered by a mere general concern that a suspect may use the knowledge of the prosecution case to construct his defence, eg create a false alibi; BGHSt 29, 99. 97

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The Police should have been admitted (§ 147(3)). It ends at the very latest once the prosecution terminates the investigation stage and either proceeds to indictment or discontinues the case, unless the grounds for restriction cease to exist sooner. Defence counsel must be notified of any cessation of restrictions, and may then have full access to the dossier again (§ 147(2) 1st sentence, (6)). Counsel may apply to take the dossier, but not the exhibits, to her office for inspection, unless there are serious grounds for refusal (§ 147(4)). Counsel has the right—and indeed typically the duty—to inform her client of any facts learned from this inspection103; this may include handing over a complete photocopy104 of the dossier. Section 148 recognises the right of the defendant to access to his counsel in writing and in person, with some restrictions regarding materials sent or received in terrorism cases (§ 148a). Visits by counsel and phone calls105 between her and her client are never subject to surveillance, and searches of counsel’s person and seizure of materials are permissible only as extreme exceptions, normally by judicial order on instructions by the prison warden or the prosecution, based on grounds of general security; in none of those cases may the search be conducted with the aim or side-effect of obtaining knowledge of the contents of privileged documents, and normally any opening of envelopes, etc is forbidden.106

THE POLICE

As was mentioned above, the role of the police in criminal proceedings in general is defined by § 152 GVG: They are the investigative agents of the prosecution who does not have its own investigation section. Section 161 2nd sentence puts them under an obligation to comply with requests from the prosecution at all stages of the proceedings. This makes the police sound more subservient than is the case in practice: most investigations are begun by the police and submitted to the prosecution for further instructions only when the police think they have done all there is to be done. The governments of the Länder may designate certain categories of officers from their respective Land jurisdictions in order to define who is an ‘agent’ within the meaning of § 152 GVG; the same applies to the Bund with the Bundeskriminalamt, the Federal Criminal Office (BKA), Germany’s equivalent to the FBI. Generally speaking, all Land and Bund enforcement officers with civil service status (Vollzugsbeamte) fall into that category, and the principle use of the

103

BGHSt 29, 99. MG § 147 Mn 20. 105 If the client calls from a prison office extension, he cannot, however, demand that everyone else leave the room; BGH NStZ 1999, 471. 106 See, for the criteria in detail, MG § 147 Mn 6–16. 104

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Actors in the Criminal Justice System above-mentioned power of designation is in relation to personnel who are employed on a contract (Angestellte) rather than under tenure.107 It is important to note here that the police have a twofold function: a) criminal investigation; and b) prevention of danger to the public order and safety. Only as regards the former function do they take orders from the prosecution. The investigative agents have more powers than police staff not so designated, and the law always makes specific reference to the term ‘investigative agent’; they may, in cases of urgency or emergency in particular, order certain invasive measures that normally only a judge or a prosecutor could order. The individual roles of the police at each stage of the proceedings will be addressed where necessary in the individual chapters.

VICTIMS

Victims tend(ed) to appear mostly as witnesses in the proceedings; however, as we have already seen above, victims may also participate directly in the prosecution process, either as a Privatkläger (§§ 374–394) or a Nebenkläger (§§ 395–402). They may also apply for a judgment for compensation against the defendant directly in the criminal proceedings (Adhäsionsverfahren—§§ 403–406c), something that does not happen very often, however. Lastly, the StPO gives the victim rights to information about the outcome of the proceedings (§ 406d) and about the availability of victim rights as such (§ 406h); victims also have the right to inspect the dossier through counsel (§ 406e), and to have the advice and assistance of counsel or of a person whom they trust (§§ 406f and g).

COURT SUPPORT SERVICES—GERICHTSHILFE, JUGENDGERICHTSHILFE AND BEWÄHRUNGSHILFE

The courts are generally not in a position to investigate the social, financial, professional and personal background of defendants themselves, although all of these matters may have an impact on the choice and severity of sanctions, or in juvenile proceedings on the decision whether to apply juvenile law to young adults or whether a juvenile has the necessary maturity under § 3 JGG. This is what the Gerichtshilfe doesin the case of adult defendants, and the Jugendgerichtshilfe for juveniles and young adults.

107

See MG § 152 GVG Mn 1–7.

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The Clerk of the Court Further, a convicted person may, for example, be in need of a stabilising influence during the operational period of a suspended sentence, and in the case of adults this will normally be the Bewährungshilfe (the probation service). In the case of juveniles and young adults, in many cases the Jugendgerichtshilfe also, even if they do not supervise the probation, will work closely with the probation service (§ 83(2) 8th sentence JGG). The Gerichtshilfe provides a mere support service for the trial and enforcement phases, for example, when decisions about early release must be taken (§ 463d); it has no formal standing in the proceedings and its representatives have no right to be present or to be heard at trial108; the Jugendgerichtshilfe, however, has all of these rights (§§ 38(3), 50(3) JGG).109 The Bewährungshilfe is usually a separate section of the LG administration and covers the LG district; the organisation changes from Land to Land; there is no federal probation service. Its main functions, which may be called upon at different stages of the proceedings, are set out, for example, in § 56d(3) StGB: (3)

The probation officer shall offer assistance and care to the convicted person. In cooperation with the court he shall supervise the fulfilment of any conditions and directions as well as of any offers and assurances. He shall report on the way the convicted person is conducting himself, at intervals determined by the court. He shall inform the court as to serious or persistent violations of the conditions, directions, offers or assurances.

Some Länder have in recent years experimented with the idea of privatising their probation service; Baden-Württemberg has very controversially, and against the views of about 93 per cent of the judiciary, privatised its service since 2007.110

THE CLERK OF THE COURT

The clerk, or Urkundsbeamter, has important functions with regard to the record of the trial and the authentication of judicial decisions. The record (§ 271) must

108 BGH NStZ 2008, 709. Its report must be introduced much like a pre-trial witness statement; it may be read out in open court by a representative (BGH NStZ 1984, 467), but not as an official report under § 256, because the report is that of an individual social worker, not that of a separate and distinct public authority; MG § 160 Mn 26. 109 MG § 160 Mn 23. 110 The State Auditor’s Office of Baden-Württemberg calculated in 2010 that the privatisation will cause additional costs of €47 million from 2007–16, and has asked for a rescission of the contract of privatisation; see . See also the constitutional law expert report prepared for the national association of probation officers on the privatisation issue at and the judicial survey on matters of probation at .

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Actors in the Criminal Justice System be signed by the judge and the clerk; if only one judge was sitting and he is unavailable for signature, the signature of the clerk suffices. The record has a very strong procedural position: it is the only proof that all essential procedural requirements have been followed at trial, and it may be attacked on this matter only by proving that it has been forged (§ 274). The clerk registers and notes the date and time a signed judgment reaches the court registry, and thus checks that the time limits for drafting and finalising a judgment are complied with by the judges (§ 275(1) 5th sentence); violation of these time limits is an absolute ground for appeal under § 338 No 7.111 As the original of the judgment remains with the dossier, the clerk must authenticate any copies made and affix the court seal to them (§ 275(4)); if these are missing, service of an unsealed or unauthenticated copy may, for example, not start the appeal time limit under §§ 314(2), 341(2).112

111 This means that there can be no argument of harmless error; see MG § 338 Mn 54–55 with references to the case law. 112 MG § 341 Mn 11; § 37 Mn 1.

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4 Pre-trial Investigation INTRODUCTION

Although the trial is from a traditional perspective the dramatic culmination of the struggle between prosecution and defence, and in Germany it is fair to include the court in that tug-of-war, much of what happens at trial will have been predetermined to a large degree—and mostly irreversibly so at the pre-trial stage—by the investigations of the police, the prosecution, the examining pretrial judge and sometimes also the defence. Evidence not gathered before the trial is usually extremely difficult to track down and obtain later. A potential defendant must therefore have an interest in the best possible protection and the most effective means of participating in the proceedings against him from the very start when he is still a suspect. This chapter looks at a number of typical features in the investigation phase, the Ermittlungsverfahren, such as arrest and remand, search and seizure, the taking of samples, electronic surveillance in the wider sense, the interrogation of the suspect and preliminary measures such as, for example, a preliminary driving disqualification order, etc. We first need to remind ourselves of the interplay between prosecution, police, defence and the courts at this stage of the proceedings. In the pre-trial phase the proceedings are under the control of the prosecution, the Herrin des Ermittlungsverfahrens; there is no investigating judge as, for example, in traditional French or Spanish procedures. Yet, as we know, in practice a case will generally come to the attention of the prosecution only once the police have terminated their own investigations and submitted the case file to the prosecutor for further instructions (see § 163(1), (2) 1st sentence). The courts at this point are merely called upon to consider requests by the prosecution (and in cases of urgency, the police—§ 163(2) 2nd sentence), and less often by the defence, for measures that either intrude on the suspect’s or a third party’s rights, and thus require judicial sanction under the StPO and other laws, or are meant to provide a higher degree of preservation of evidence, such as, for example, a judicial examination of the suspect or witnesses. The defence have, of course, the right to perform their own research and witness examination to the extent that doing so will not jeopardise the integrity of the investigation, but in the majority of cases, especially run-ofthe-mill cases, German defence counsel at the pre-trial stage are content to adopt 67

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Pre-trial Investigation a passive role and simply check the activity of the prosecution and courts; this may, however, be different in complex or high-profile cases, or where it has become obvious that the prosecution has gone the wrong way, or where material is needed to counter the prosecution’s stance early in order to avoid the reputational damage of a public trial or even that of an indictment. This passivity will also end, of course, if intrusive interlocutory measures are taken that impact immediately on the client’s position, such as arrest warrants, driving disqualifications, etc. One instrument of scrutiny, as we saw in the last chapter, is that of obtaining access to the dossier at any stage of the proceedings. This approach is in part based on the fact that German procedure is not adversarial and does not require any pre-trial defence disclosure with its possibly attendant adverse comment and inferences at trial in cases of non-compliance, so that the pressure on the defence to produce and disclose their own evidence before the trial is not of the same order of magnitude as in an adversarial context. From a purely pragmatic and economic point of view, many counsel will also try to minimise the costs for their clients by remaining passive, because if they perform any research, etc and the proccedings are then discontinued, their clients usually are unable to recover their costs or receive compensation from the State, with very few exceptions. Lastly, we need to be clear that the German pre-trial proceedings are structured somewhat differently from those of England and Wales: the decision to prosecute (or not) usually comes at a much later stage after a full and meticulous investigation, and in the case of a full prosecution immediately leads to a formal indictment or a Strafbefehl application seizing the trial court directly of the matter; in German law there is no equivalent to English committal proceedings and no choice of court by the defendant, as in either-way cases, or plea before venue. Neither is there anything resembling a police caution in any form, conditional or not: the police have no power whatsoever to sanction a person outside the OWiG; the same applies to the prosecution in the context of § 153a, where any discontinuance that is conditional on some sort of sanction has to be approved by the trial court and is subject to the consent of the accused. The charge of which the suspect must be informed during the investigation stage before her first interrogation by the police (§ 163(4) 1st sentence) is not in nature identical to the charge that leads to a trial and which can only be determined by the prosecution; there is no cooperation whatsoever between prosecution and police in determining the legal nature of the indictment charge, neither are there different ways of charging such as, for example, statutory charging, information and summons, or written charge and requisition, etc.1 Every fully prosecuted case starts directly with either an indictment or a request for a Strafbefehl to the trial court. The charging documents, called Anklageschrift or Strafbefehlsantrag, as we shall see in chapter five, are much more lengthy and much more formal and

1 Unlike in England and Wales; see P Hungerford-Welch, Criminal Procedure and Sentencing, 7th edn (hereafter ‘Hungerford-Welch’) (London, Routledge & Cavendish, 2008) 57 ff.

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Initiation of the Investigations elaborate than, for example, their English counterparts; they are submitted to the prospective trial court together with the full dossier, against which they are checked rigorously before they are admitted for trial, and thus they require thorough preparation.

INITIATION OF THE INVESTIGATIONS

The StPO requires the prosecution and the police in principle to initiate investigations on suspicion of any offence committed by anybody2 of which it receives notice based on sufficiently reliable3 facts (§§ 152(2), 163(1))—the so-called Legalitätsprinzip or principle of mandatory investigation/prosecution. It is the necessary corollary to the prosecution’s monopoly of prosecutorial power. The prosecution does not have a discretion not to initiate a formal investigation once these criteria are fulfilled; they have a very closely circumscribed4 discretion in determining whether they are so fulfilled.5 Sections 153 ff, which are related to the principle of discretionary prosecution, concern not the decision to investigate but the decision to prosecute, or more precisely, the decision to indict or discontinue. The duty to investigate for the purpose of deciding whether to indict flows from §§ 160(1), 163(1) and 170(1). The investigation does not have to relate to a specific person, it may be opened against a person or persons unknown6 (gegen Unbekannt) (see, for example, § 69(1) 2nd sentence). The mere fact that someone files a complaint against a person is not a sufficient reason if the facts mentioned in the complaint do not contain elements indicative of a potential criminal offence.7 The degree of suspicion needed to open an investigation (Anfangsverdacht) based on ascertainable facts is not very high, though; it need only make it

2

BVerfG NStZ 1982, 430. The question of whether the prosecution may use facts that have been unearthed by violation of the rules on evidence or the rights of the accused, making the evidence inadmissible at any trial, for the decision whether to open an investigation, has received controversial treatment. The prevailing opinion appears to be that this requires a balancing exercise in each individual case, between the weight and nature of the violation and the gravity of the alleged offence. However, the balancing exercise only pertains to the use of the questionable evidence; once the evidence is deemed usable and discloses a case against the suspect, there is no discretion not to investigate; L Meyer-Goßner, Strafprozessordnung mit GVG und Nebengesetzen, 53rd edn (hereafter ‘MG’) (Munich, CH Beck, 2010) § 152 Mn 4. 4 The arbitrary abuse of that discretion may amount to a violation of the right to a fair trial and constitute a ground for appeal; BGH JR 2005, 300. 5 BGH NJW 1970, 1543; NStZ 1988, 510, 6 These usually receive special dossier signatures, mainly ‘UJs’ (‘Js’ being the general signature for an investigation file, and the ‘U’ standing for Unbekannt). 7 BayObLGSt 85, 71. 3

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Pre-trial Investigation appear possible that, according to criminal experience, an offence may have been committed.8 The prosecution must also be of the legal view that the facts as established9 at the time give rise to criminal liability of the suspect, which includes the absence of obviously-triggered defences such as self-defence, etc.10 In their legal examination, the prosecution is, according to the BGH, bound to abide by the consistent and clear jurisprudence of the highest courts11 on any particular matter, although strictly speaking the prosecution is not under a legal duty to follow precedent because there is no doctrine of stare decisis in German law.12 In proceedings against juveniles and young adults (§ 109(1) 1st sentence JGG), the investigation will not merely cover the incriminating and exculpatory evidence directly related to the offence in issue, but also will explore the suspect’s personal and family situation, the CV and the development of the suspect, as well as all circumstances that may be relevant for gauging his mental and intellectual qualities and character. The JGG encourages the prosecution, with the help of the Jugendgerichtshilfe, to obtain information from the suspect’s school or employer, unless this could have negative consequences such as loss of employment or a training contract (§§ 38(3), 43(1) JGG). The law provides in particular for the early involvement of a psychological expert to examine the suspect about his state of development and personality, in so far as this is relevant to the proceedings (§ 43(2) JGG).13

8 MG § 152 Mn 4. The prosecution may also carry out preliminary investigations (Vorermittlungen) based on other facts already known in order to establish whether there is a sufficient Anfangsverdacht for a proper investigation; the person being ‘investigated’ in this preliminary fashion does not have the status of a suspect (Beschuldigter) and no intrusive measures are permitted. Amongst these Vorermittlungen one must distinguish the so-called Vorfeldermittlungen, ie enquiries aimed at establishing whether there is a sufficient Anfangsverdacht in the first place; these are in principle unlawful because the prosecution are effectively engaging in a mere fishing expedition and possibly intruding upon the protected sphere of citizens without legally acceptable cause. In this context, it must be emphasised that the legality of an exchange of data between the punitive branch of criminal justice and the preventive branch of police work and vice-versa is highly controversial; KK-Schoreit § 152 Mn 18a–b. Whether evidence obtained in Vorfeldermittlungen is admissible at trial is still not entirely clear; MG § 152 Mn 4a. 9 The BGH has held (BGHSt 27, 355) that evidence obtained legally in connection with a certain kind of offence listed in a special and exhaustive provision (here, § 100a) must not be used for the investigation and/or prosecution of an offence not on that list, unless that non-listed offence is closely connected to the commission of the listed offence, eg one and the same act violating the provisions of a listed and a non-listed offence; BGHSt 54, 69. This evidence must not be used during the interrogation of the suspect by the police either; and it—along with any statements made by the suspect in connection with that material—will be excluded at trial. 10 MG § 152 Mn 4b. 11 BGHSt 15, 155. 12 KK-Schoreit § 152 Mn 35. 13 See U Eisenberg, Jugendgerichtsgesetz, 14th edn (hereafter ‘EB’) (Munich, CH Beck, 2010) § 43 Mn 12–54d for details.

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Intrusive Measures During Investigation INTRUSIVE MEASURES DURING INVESTIGATION

Investigations do not take place in a legal vacuum, neither are they neutral with respect to the suspect’s rights or those of third parties; they are often covert in nature. The law must provide a framework to guarantee that those rights are protected, while at the same time ensuring the effective investigation and prosecution of offenders. In this section we look at a few of the most important measures making up that framework. It is useful to note at the outset the provisions of § 101, which contains a duty to inform persons of the fact that they have been investigated in a number of ways without their knowledge, once those investigations are over and their effectiveness is no longer in danger of being jeopardised. The duty is coupled with a time limit after which information must normally be provided, and increasing judicial control is exercised over any extensions of that time limit the longer the information is withheld. Arrest, holding and detention The most intrusive means of securing the smooth course of an investigation is that of arresting and—more to the point—detaining the suspect pending the decision to prosecute and/or trial. Arrest (vorläufige Festnahme), holding (Festhaltung) and detention on remand (Untersuchungshaft/vorläufige Unterbringung) are mainly regulated in §§ 112–130, 163b–c. An important feature of these methods of depriving a person of her liberty is the blanket referral in a number of provisions to §§ 114a–c on that person’s right to notification of relatives and consular representatives, translation of documents for foreigners who do not speak German, etc. Arrest and holding without warrant An arrest may be effected by anyone, including the police and prosecution, under § 127(1) 1st sentence, if the offender is caught in the act of committing a criminal offence14 and there is reason to believe she will try to abscond, or if her identity is unknown (citizen’s arrest).15 According to the prevailing interpretation,16 children under the age of 14 must not be arrested under § 127, not even for the purpose of ascertaining their identity, since they are deemed incapable of committing offences because of the

14

Not a mere summary offence under the OWiG; MG § 127 Mn 3. See, on this and the substantive law consequences of mistakes by the arresting person, M Bohlander, Principles of German Criminal Law (hereafter ‘POGCL’) (Oxford, Hart Publishing, 2009) 98–99. 16 See for a different view, eg, KG JR 1971, 30. 15

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Pre-trial Investigation statutory irrebuttable presumption of lack of responsibility in § 19 StGB.17 Some commentators refer the observer to the ‘general necessity’ provisions in the BGB and StGB.18 This irrebuttable presumption clearly could lead to an undesirable situation, if one were to imagine the case of a 13-year-old about to throw a bomb into a crowded restaurant. Apart from the separate question of whether the arresting person will always know the exact age of the actor, § 127(1) first sentence should be interpreted as reading ‘unlawful act’ rather than ‘criminal offence’, because the interest protected in § 127 is on the border between prevention of imminent acts and apprehension for committed acts; putting the stress only on the second element may be too monodimensional. There is no doubt that the owner and any patron of the restaurant could argue self-defence or necessity19 under §§ 32, 34 StGB if he apprehended such a child, because §§ 32, 34 StGB refers to an ‘unlawful act’ not requiring guilt; similarly, a third person could use §§ 32, 34 StGB to assist the attacked person because the ambit of these defences is not restricted to an attacked person only; so from a systematic point of view the restrictive interpretation adopted by the majority view makes little practical sense. The interest of the community in not having to suffer serious damage merely because of an age issue in my view outweighs the interests of the offender in not being held even for a short time to ascertain her identity. Compare this, for example, to § 126a on provisional detention in a mental hospital for persons acting while in a state of insanity or diminished responsibility under §§ 20, 21 StGB20: the detention order requires an unlawful act and is conditional on the suspect’s representing a danger to public safety, a clear preventive aspect. Why should § 127(1) 1st sentence not be interpreted similarly? In any event, a clarification by the legislature would be the preferrable approach, because a person trying to help should not be required to apply general principles of criminal law the interpretation of which may be contentious even among lawyers; the culture of Zivilcourage, ie being prepared to help others in danger at the cost of perhaps only a mere inconvenience to oneself, is already rather diminished in Germany, as in many other European countries.21 However, and importantly, § 127(1) 2nd sentence states that the police and the prosecution may hold—not arrest22—someone for the purpose of merely ascertaining their identity solely23 under the conditions set out in § 163b(1), ie their general responsibility for crime prevention and prosecution, and this power is actually based on wider grounds than those under § 127(1) 1st sentence, because 17

See the references to the debate in MG § 127 Mn 3a. KK-Schultheis § 127 Mn 8. 19 Depending on the degree of imminence of the attack; see POGCL, 100–01. 20 See ibid, 131–35. 21 MG § 127 Mn 3a. 22 MG § 163b Mn 7. See, for the different position in England and Wales, the Police and Criminal Evidence Act 1984, s 24(5)(a) and (b). 23 MG § 127 Mn 11. 18

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Intrusive Measures During Investigation § 163b(1) refers to a person who is suspected of having committed a crime—there is no requirement to catch them in the act. Under § 127(2)24 the prosecution and the police may also arrest someone in cases of urgency if the conditions for ordering pre-trial detention are met but there is no time to obtain a judicial order to that effect.25 Section 127b allows the prosecution and the police to arrest a person caught in the act if there is a likelihood that the expedited procedure will be used against him and if there is reason to believe he will not present himself at the hearing. Section 163b, as mentioned above, regulates the police and prosecution powers to hold a person for the sole purpose of establishing that person’s identity. Section 163b(1) permits holding a suspect for that purpose, but for no longer than 12 hours in total (§ 163c(2)); this includes police and judicially-approved detention.26 The suspect and any effects carried by him may be searched, and he may be subjected to measures under § 81b aimed at facilitating his identification (erkennungsdienstliche Behandlung), ie taking photos of his whole body or of parts of it (for example, tattoos27), fingerprints and measuring his height, weight, etc, but also making a video of the suspect, for example of him participating in an identity parade.28 Not covered by this are, for example, the measurement of the suspect’s rate of respiration and pulse in order to find out whether he is nervous, or forcing the suspect to speak for the purpose of recording his words for a subsequent voice comparison test.29 Section 163b(2) provides authorisation to hold a person who is not a suspect, possibly a witness or even a victim, if this is strictly necessary to investigate an offence and to establish his identity; searches and measures under § 81b are not permitted unless that person consents. Once a suspect has been arrested, § 128 mandates that he must be brought before a judge at the AG where he was arrested (§128(1) 1st sentence) or where any jurisdiction ratione loci exists (§ 125(1)), or, if an indictment has already been filed, before the trial court seized of it (§§ 125(2), 129), without undue delay but no later than on the day following the arrest. This has led to the practice in some police forces of booking the suspect as under arrest as late as possible: if, for example, the suspect comes in ‘to help the police with their enquiries’, ie of his 24 § 127a complements § 127(2) in that it allows the prosecution or police, in the case of a suspect without fixed abode in Germany and where the only reason for arrest is risk of flight, to waive the arrest or end it if no custodial sanction is to be expected and the suspect provides sufficient surety for the expected fine and costs of the proceedings. 25 If the offence is punishable only upon request, § 127(3) allows the arrest notwithstanding that a request has not yet been made. This also applies in principle to an order for remand in custody after the suspect has been brought before a judge under §§ 128 ff. However, as soon as a judicial warrant has been issued (see below), the persons entitled to file a request must be notified and informed that unless they file a request within a period set by the court (which may not exceed a week), the warrant will be lifted; § 130. 26 MG § 163c Mn 15. 27 MG § 81b Mn 8. 28 BVerfG NStZ 1983, 84; LG Berlin NStZ 1989, 488. 29 BGHSt 34, 39.

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Pre-trial Investigation own free will, the interrogation may go on until late at night. If the police then have sufficient reason to arrest him, they often wait until after midnight to do so, because then they have won an extra day during which they can, by law, hold him without judicial order; however, if they book him before midnight, he must be brought before a judge on the very next day. This practice has been condemned by the courts, who rightly state that this time limit is the absolute maximum and the practice of regularly exhausting it must not become the rule.30 The judge will examine the suspect according to § 115(3), informing him of the charges as well as of his right to silence, and giving him the opportunity to make representations both as to the charge and any reasons militating against his detention. If the judge deems the arrest unjustified or the reasons for it moot, he must release the suspect; otherwise he will issue an arrest warrant under the conditions in §§ 112, 112a, or an order for provisional detention in a mental hospital or custodial addiction treatment under § 126a, remanding the suspect in custody pending further investigations or trial. He must inform the suspect of his right to appeal the warrant (Haftbeschwerde) or to request a custody review hearing (Haftprüfung) (§ 115(4)). If the person has already been indicted, ie become an accused, § 129 orders that he must be brought either immediately or upon an order of the judge having jurisdiction under §§ 125(1), 128 before the trial court seized of the indictment, which then has to decide upon release or custody no later than the day following the arrest.31 Arrest on the basis of a warrant or a provisional mental hospital/addiction treatment order In some cases, the procedure will not develop from an arrest without warrant to issuance of a warrant for remand in custody; instead, the prosecution may have obtained a warrant under §§ 112 ff on the basis of other evidence and put the 30 BVerfG Decision of 4 September 2009, docket no 2 BvR 2520/07; BGH § 128 NStE Nr 3; LG Hamburg StraFo 2009, 283. 31 There are controversial views as to what happens if the accused cannot be brought before the trial court and/or that court’s decision cannot be issued within the deadline. MG § 129 Mn 4 argues that the AG may release the accused if it finds no grounds for a warrant, but must not issue a warrant for his remand if it does find grounds for one, because that decision is for the trial court and all the AG may do is uphold the (provisional) arrest and send the accused to the trial court for disposition, possibly after expiry of the deadline; one could, however, argue that the decision to release him is the flipside of the above and thus also one for the trial court. Others (see KK-Schultheis § 129 Mn 4 with references) opine either that the AG exceptionally has the power to order remand if the deadline otherwise could not be kept, or, at the other end of the spectrum, that the accused must be released. The latter is a rather unappealing stance in the case of a mass murderer or terrorist. Interestingly, an online case law search with the search term ‘129 StPO’ on the German database Jurisweb at the time of writing did result in only one hit, BGHSt 54, 69: yet that case does not talk about § 129 StPO at all, despite the provision being part of the database’s list of offences cited in the decision. From this it would appear to be reasonably safe to conclude that the problem has not yet caused any major difficulties in practice.

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Intrusive Measures During Investigation suspect on a wanted-for-arrest-list.32 Similarly, an offender may have committed an unlawful act in a state of insanity or diminished responsibility based on an addiction, etc, and the court may have issued an order under § 126a for her provisional detention in a mental hospital or addiction treatment facility because there is reason to believe that in the case of a conviction the suspect might be sentenced to such treatment and the protection of the public from further offences requires her detention. Arrest warrants The criteria for issuing33 an arrest warrant are mainly34 set out in §§ 112, 112a, and concern the period before an Urteil has become final.35 The rule is that a suspect remains at liberty; remand in custody is the exception. This is a direct consequence of the principle of proportionality36 which requires a careful balancing of the interests of the as-yet-officially-innocent suspect and the public37 interest in an effective administration of justice and prosecution of

32 See § 131 which also applies to orders under § 126a. Note that §§ 131a and 131b also allow putting suspects and witnesses on a wanted list, and exceptionally publishing photographs of them in cases of serious crimes; in the case of witnesses, however, it must be made absolutely clear that they are not wanted as suspects. Orders for such measures are for the judge, although in cases of urgency they may be issued by the prosecution or their agents; §§ 131c. 33 Jurisdiction to issue a warrant follows § 125, as set out above for judicial decisons after an arrest without warrant (see the text accompanying n 30 above). Once the suspect has become an accused after indictment, jurisdiction shifts to the trial court seized of the indictment. 34 For the so-called Vorführungsbefehl, ie an order to bring the suspect before a judge for the purpose of an interrogation, see §§ 134, 135 and the section entitled ‘Interrogation of the suspect’ later in this chapter. 35 Remand under § 112 may be ordered after an Urteil but before its becoming final to ensure its execution (OLG Hamm NJW 1954, 403); however, once an Urteil has become final, remand may be ordered by a court only under the conditions set out in § 453c in the case of an expected order giving effect to a suspended sentence or for the revocation of a conditional early release (§§ 453, 455 StPO, 56f StGB), and in the case of review proceedings under § 370; MG § 112 Mn 2. For the mere purpose of enforcing the Urteil or apprehending an escaped prisoner, the enforcement authority, ie in adult cases the prosecution —and in juvenile and young adult cases the juvenile court (§§ 82(1) 1st sentence, 110(1) JGG)—may issue an enforcement arrest warrant (Vollstreckungshaftbefehl) under § 457, unless the convicted defendant presents himself at the prison gate upon receipt of the summons to begin serving his sentence according to § 27 StVollstrO, which is the rule; OLG Frankfurt StraFo 2005, 259; OLG Karlsruhe StraFo 2005, 261. For a power to issue an arrest warrant in order to ensure the presence of the accused in the expedited procedure, see § 127b, which restricts the period of detention to one week; MG § 127b Mn 1–19. 36 For juveniles, but not for young adults (argumentum ex § 109(1) 1st sentence JGG: EB § 72 Mn 2), § 72 JGG increases the level of scrutiny by requiring an enhanced evaluation and justification of the need for detention, taking into account the specific impact of detention on juveniles; the provision also contains specific rules on jurisdiction. 37 Remand must therefore not be ordered in proceedings based on a private prosecution unless and before the prosecution take over the matter under §§ 376, 377; OLG Karlsruhe MDR 1974, 332.

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Pre-trial Investigation offences38; importantly, it must be remembered that because of the presumption of innocence, remand in custody cannot be construed as a form of anticipated punishment.39 Section 112 allows for a written40 warrant to be issued under the following conditions41: a) There must be a high degree of suspicion that the suspect committed an offence (dringender Tatverdacht), which is incidentally a more stringent test than the one required for an indictment (hinreichender Tatverdacht) (§ 112(1) 1st sentence). b) Detaining the suspect must not be out of proportion to the sanction that may be expected in the event of a conviction (§ 112(1) 2nd sentence). c) There must, on the basis of ascertainable facts, be one of the following grounds for ordering detention (Haftgründe) (§ 112(1) 1st sentence): i) flight or risk of flight (§ 112(2) Nos 1 and 2)42; ii) risk of tampering with the evidence, including witnesses and experts, or with others suspected of being accomplices in the offence, or risk of inciting others to engage in tampering of that kind (§ 112 No 3 (a)–(c)); iii) the commission of an offence from an exhaustive list of very serious offences (§ 112(3)). According to the wording of § 112(3), this applies without the need for a risk of flight or tampering. However, in order to avoid a declaration of unconstitutionality and striking the law down, this provision has been read down by the BVerfG43 to constitute merely a vehicle to reduce the burden of judicial justification, yet in principle the risk of flight or tampering is also required for this alternative. Section 113 restricts the ambit of § 112, in that it prohibits a warrant based on danger of tampering if the sentence to be expected does not exceed six months or a fine of 180 daily units; risk of flight is a sufficient reason in those circumstances only if the suspect has already absconded before or made preparations to do so, and either does not have a fixed abode or place of residence in Germany, or cannot provide identification. Section 112a allows for the issuing of a warrant if the suspect is strongly suspected either:

38

BVerfGE 19, 342; 20, 45; 35, 185; 53, 152. BVerfG StV 2008, 25. 40 On the form and contents of the warrant, see § 114 and MG § 114 Mn 3–16. 41 See, for an overview of the relevant case law which cannot be reproduced here for reasons of space, MG § 112 Mn 4–39. 42 § 72(2) JGG prohibits an arrest warrant based on risk of flight in the case of a juvenile under the age of 16, unless the suspect had actually already absconded once or made preparations therefore, or if he does not have a fixed abode or place of residence on German territory. 43 BVerfGE 19, 342. 39

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Intrusive Measures During Investigation a) to have committed a serious sexual offence, including aggravated forms of stalking (§ 112a(1) 1st sentence No 1); or b) to have repeatedly, or as part of a continued offence,44 committed serious offences against the person or property, arson or public order offences, etc (§ 112a(1) 1st sentence No 2); and if there is reason to believe that he will commit more of those45 serious offences before final judgment in his case, and if detention is necessary to avert that danger and if, in the case of § 112a(1) 1st sentence No 2, the sentence to be expected exceeds one year. Section 112a(2) makes it clear that this provision shall not apply if the warrant can be based on § 112 directly and bail will not be granted: a warrant under § 112a is clearly a preventive measure to protect the public from further serious offences, and as such is problematic from the point of view of proportionality46 in the context of criminal proccedings47 as a repressive form of State intrusion because of past conduct, because it is triggered only in cases where there is no risk of flight or tampering with the evidence and where a merely tenuous link to that past conduct thus exists.48 Once a suspect has been arrested on the basis of a warrant, he must be brought before the judge who issued the warrant49 (Vorführung) without undue delay, but no later than on the day following the arrest, and he must be immediately informed of a number of rights even before his appearance in court.50 The court must 44 The strong suspicion may be founded on offences for which the suspect has already been convicted or is being investigated in other proceedings; § 112a(1) 2nd sentence. 45 It is not necessary for the present offence and the previous ones or those to be expected to have exactly the same legal qualification; it is sufficient that from a legal-ethical and psychological point of view they are comparable; BezG Meiningen NStE § 112a Nr 2, affirmed by MG § 112a Mn 13 and KK-Graf § 112a Mn 17. 46 It has, however, been held to be constitutional; BVerfGE 19, 342. It does not violate the ECHR, either, because Art 5(1)(c) ECHR expressly provides for detention based on the danger of the commission of future and thus also repeat offences; see MG § 112a Mn 1 with further references. 47 § 112a is also applicable to juveniles and young adults; OLG Hamm JMBlNW 1996, 66; StV 2002, 432; KG StV 2009, 83; for a critical evaluation of the prevailing opinion, see EB § 72 Mn 7–7a. 48 For the details of the case law on the various elements, see MG § 112a Mn 2–16. 49 If the deadline for the appearance with the issuing court cannot be met, a judge at the nearest AG may perform the examination instead, but she may not release the suspect in any case other than when the warrant has been lifted in the meantime or the prosecution have ordered the relase under § 120(3), or if the arrested person is not the person named in the warrant; if the court has doubts about upholding the warrant, the judge must inform the issuing court by the most expeditious means possible and obtain its decision; if the suspect is not released, he must be informed of his right to be brought before the issuing court; § 115a. 50 The suspect must as soon as practicable receive a copy of the warrant in a language he understands; § 114a. He must also be informed about his rights to be brought before a judge no later than on the day following the arrest, to remain silent, to ask for evidence to be taken on his behalf, to have the assistance of counsel and, if need be, of an interpreter, to be medically examined and to have a relative or other person whom he trusts (person of his trust) notified of

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Pre-trial Investigation examine the suspect immediately upon, but no later than on the day following, his Vorführung,51 and must give him the opportunity, if he so wishes, to dispel the suspicions against him, raise issues that militate against a remand, and adduce any exculpatory facts and evidence. If the warrant is upheld and its execution is not stayed (§ 116), the suspect must be notified of his right to appeal that decision and to an oral review hearing52 (§§ 117–118b), as well as of other legal remedies available during the period of detention on remand (Untersuchungshaft) (§ 115). Section 116 allows the judge to stay the execution of a warrant: a) based on risk of flight, if there are less intrusive means to ensure the attendance of the suspect at the proceedings, for example by requiring him to report to the police at certain times, not to leave his home town without approval, not to leave his home unless accompanied by a specified person, or to post sufficient bail (§ 116a) either himself or through another (§ 116(1) 1st sentence Nos 1–4); b) based on risk of tampering with the evidence, if less intrusive means ensure the integrity of the evidence, for example an instruction not to contact other suspects, witnesses or experts (§ 116(2)); c) based on the danger of repeat offences, if certain instructions are given and there is a sufficient expectation that the suspect will abide by them (§ 116(3)). In all of these cases the judge may revoke the stay if the suspect grossly violates the instructions given, does not attend as directed at specified times and places

his arrest unless the investigations might be jeopardised by that notification. A foreigner must be informed of his right to notify and send messages to his consular office (§114b), and he must immediately be given the opportunity to notify a relative or a person of his trust (§ 114c(1)). If the arrested suspect is subsequently remanded in custody—and upon each new decision about the continuance of the remand—the notification of a relative or other person of his trust becomes an ex officio duty of the court; Art 104(4) GG, § 114c(2). This ex officio notification is not subject to any waiver or objection by the suspect unless it has serious and disproportionate repercussions on the rights of the suspect himself; LG Frankfurt NJW 1959, 61; MG § 114c Mn 6; KK-Graf § 114b Mn 5. § 114d provides for information also to be given to the prison where the suspect is to be remanded; § 114e establishes the duty of the prison to inform the court and the prosecution of any facts that it deems relevant for the execution of their duties. Note, however, that despite the BVerfG’s view that a violation of § 114b (consular representative) is a ground for appeal (BVerfG NJW 2007, 499), the BGH has held that it does not make the evidence obtained on the basis of the violation inadmissible; BGHSt 52, 48; 110. This has been the subject of controversial comment in the literature; see MG § 114b Mn 9. 51 According to some commentators, violation of that deadline as such does not, however, require lifting of the warrant, yet the issue is controversial; MG § 115 Mn 5. But see the discussion at n 31 above with regard to § 128. 52 The request for a review hearing always takes precedence over an appeal against the decision to uphold the warrant or not to stay its execution. An appeal filed before, simultaneously with or after a review request is or becomes inadmissible once the review request is pending; § 117(2) 1st sentence. See also MG § 117 Mn 14.

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Intrusive Measures During Investigation without good cause, or otherwise shows behaviour that justifies the conclusion that he did not deserve the trust placed in him; the stay must also be lifted in the light of new evidence requiring the execution of the warrant (§ 116(4)). Any measures ordered under § 116 must be lifted either as soon as the warrant is lifted, or if its execution is ordered and the suspect detained; any sureties, etc given in support of bail are released53 at the same time (§ 123). During the execution of the warrant by detention on remand, the suspect may be subjected by judicial54 order to a number of restrictions relating to visits, letters, parcels, telecommunication and being kept separate from other suspects; the suspect and the communication partner, in the case of visits, telecommunication, letters and parcels, must be notified of these. The court may transfer the execution of the measures so ordered to the prosecution, which in turn may delegate them to the police or the prison warden (§ 119(1)–(3)). The attorney– client privilege under §§ 148, 148a, as described in chapter three, remains unaffected. Section 119(4) 2nd sentence Nos 1–19 lists a number of institutions—such as the probation service, parliamentary bodies, courts, ombudsmen, etc—to which this privilege applies mutatis mutandis. Note that since the Federalism Reform of 2006, the regulation of the internal institutional conditions of the detention on remand (Vollzugsrecht) has become a matter for the legislative bodies of the Länder, with the attendant transitional problems.55 The warrant must be lifted as soon as the preconditions for issuing it cease to exist, and regardless of this, as soon as the prosecution requests it; the prosecution may release the suspect simultaneously with the request, the consent of the court is not required (§ 120). Sections 121–122a make it clear that detention periods of more than six months require proof of exceptional difficulty or scope of the investigations, or of another serious ground justifying the absence of an Urteil in the case. The decision to extend the detention for longer than six months is under the jurisdiction of the OLG, or of the BGH if the OLG is the court in charge of the detention decisions. Unless such evidence can be presented by the prosecution or the execution of the warrant is stayed under § 116, the warrant must be lifted (§ 121). A serious ground other than the difficulty and scope of the investigations requires, first, that the prosecution and the courts have expedited the proceedings as best as they could56; the degree of scrutiny in that respect increases with the length of the detention.57 If delays are in any way attributable to matters falling within the sphere of the State, no argument based on lack of diligence or negligence will be heard; the State’s responsibility in that 53

They are forfeit under § 124 if the suspect absconds; see MG § 124 Mn 1–14 for the details. 54 In cases of urgency also by order of the prosecution or the prison warden, but with the duty to obtain the approval of the court as soon as practicable, but in any event no later than within three days; § 119(1) 3rd–5th sentences. 55 See, for an overview, MG § 119 Mn 2. 56 BVerfGE 20, 45; 36, 264; 53, 152. 57 BVerfG NStZ 2000, 153.

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Pre-trial Investigation respect is strict.58 In practice, as a consequence, detention periods before an Urteil exceeding one year are the rare exception59; and if the detention is based on § 112a, it must by law be terminated after one year (§ 122a). Serious grounds are more likely to be accepted if there are unforeseeable reasons beyond the control of the courts and prosecution but possibly within the control of the defence, such as intentional delaying tactics, or the absence of vital persons (for example, the only prosecutor in charge of the investigations, special experts, etc) through illness or an unforeseeable, brief and unavoidable overload of the prosecution and/or the court. Notorious and chronic work overload is not a serious reason, and the prosecution and courts are required to address such problems as soon as possible at the organisational level, for example by requiring judges from the civil docket of a court to manage criminal dockets instead of or in addition to their civil caseload, or changing the case allocation plan overall. The same applies to absences and vacation periods of the judges or prosecutors. One particular organisational stumbling block is the lack of creation of multiple full copies of the police/prosecution dossier in complex proceedings,60 an omission that will inevitably lead to delays based on requests for access to the dossier under § 147. Note that the seriousness of the offence charged is not in itself a serious ground warranting extended detention, and unless the prosecution and the courts have expedited the proceedings properly, a mass murderer will go free after six months if the case is otherwise clear-cut. Provisional mental hospital/addiction treatment order Section 126a allows for the detention of a suspect in a mental hospital or a closed addiction treatment facility in cases where there is strong reason to believe that she acted whilst in a state of insanity or diminished responsibility, and that therefore a mental hospital order under § 63 StGB or a custodial addiction treatment order pursuant to § 64 StGB will be made in the Urteil, and if the protection of the public from further serious offences by the suspect requires the detention of the suspect before final judgment.61 This excludes offenders who qualify for the defences of insanity or diminished responsibility because of

58 BVerfG StV 2006, 703. The previous jurisprudence of the courts that required gross negligence will be difficult to sustain after the decision of the BVerfG in NJW 2006, 672 which expressed ‘substantial concerns’ with regard to this practice. See also OLG Hamm StV 2006, 191 and MG § 121 Mn 26. 59 BVerfG StV 2006, 703. 60 See, for an overview of the case law, MG § 121 Mn 18–26. 61 Note, however, that in the case of diminished responsibility there still exists criminal liability as such, and consequently the chance of a sentence consisting of both a punitive element and of one of the above measures (see, eg, § 67(1) StGB). Therefore, § 126a does not have exclusive application in this context and the suspect may alternatively be subject to an arrest warrant; MG § 126a Mn 2. An order under § 126a may be exchanged for one under §§ 112, 112a and vice versa if the facts underlying the original order change; KG JR 1989, 476.

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Intrusive Measures During Investigation intoxication, unless it is a symptom of addictive behaviour. It also excludes persons who do not engage in anything more serious than petty crime, which is something society has to put up with in the interests of respecting the human and constitutional rights of suspects within a State governed by the rule of law. Procedurally, § 126a(2) declares a number of provisions from the law on arrest warrants applicable mutatis mutandis, so that reference may be made to what has been said above in this regard. A reform act of 2007 now provides for the jurisdiction of the OLG after a detention period of six months, to bring the law into line with that for arrest warrants. As with an arrest warrant, the suspect must and can be released if and as soon as the prosecution requests it. Special provisions in juvenile proceedings The JGG, while allowing arrest warrants in § 72 JGG and provisional detention orders under § 126a62 against juveniles and young adults, contains a few special, youth-related instruments to provide the prosecution and courts with a more graduated approach to the need to control a suspect’s conduct during the course of the proceedings. Section 72a JGG makes the early involvement of the Jugendgerichtshilfe mandatory, requiring the service to be notified that a warrant has been issued even before the suspect is arrested on the basis of that arrest warrant, and § 72b JGG gives the service’s representatives the status of defence counsel as far as access to the suspect and supervision of communications with her are concerned. Section 71 JGG provides the juvenile court with the power to give instructions related to the education of the juvenile63 suspect, and to order his provisional stay in a home run by a juvenile support service (Jugendhilfe) if this is required to protect the juvenile from further harm to his development, especially against the commission of new offences; this order is subject to a number of the protections applicable to arrest warrants (§ 71(2) JGG). Lastly, § 73 permits the court to refer the suspect to a mental hospital or similar institution for in-patient psychological exploration by an expert. The period of referral must not exceed six weeks (§ 73(3) JGG). Search and seizure Another classic instrument of investigation is the searching of persons and/or localities, and the seizure of anything found that may serve as evidence at trial. The rules for searches may be found in §§ 102–110, those for seizure in §§ 94–98, 99–100. 62 OLG Jena NStZ-RR 2007, 217; but see, apparently critically, EB § 73 Mn 6. The concern by EB is difficult to follow, because the applicability of § 126a follows directly from § 68 No 5 JGG, which expressly mentions the execution of an order under § 126a against a person under 18. 63 Not, however, of young adults; § 109(1) and (2) JGG.

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Pre-trial Investigation Search Section 102 is the general search authorisation which relates to the person of the suspect, including accomplices before, during and after the fact, and of his home as well as other rooms owned by him, either for the purpose of his apprehension or if there is a likelihood that such a search will yield relevant evidence for the offence being investigated.64 The provision requires more than the proverbial mere ‘hunch’; it demands a probability that an offence has been committed by the suspect.65 Persons under the age of 14 and those with obviously valid defences cannot be searched as suspects but fall under § 103 as uninvolved innocent third parties.66 A decision to search must always take special account of the principle of proportionality, which may make a search unlawful if the offence is of a minor nature or the intrusion into other rights too severe, as, for example, the search of a newspaper office.67 Searches of the residence or other rooms of people not suspected of participation in the offence are admissible under § 103(1) 1st sentence only with a view to apprehending the suspect or finding traces of the offence, or for seizing certain objects, and only if there is well-founded reason to believe that the suspect, traces or objects are present in those rooms; the difference from § 102 is that in the cases of uninvolved persons, the facts underlying the search must already be established before an intrusion is permitted into the sphere of an innocent person.68 These restrictions do not apply to multiple rooms in a building in cases of a number of serious crimes against national security and terrorism, as long as there is well-founded reason to believe that the suspect is hiding somewhere in the building (§ 103(1) 2nd sentence), or if the room is one in which the suspect either was apprehended or which he entered while being pursued (§103(2)). Section 104 forbids searches of homes, business premises or other fenced-off enclosures during the night-time (defined in § 104(3)), unless this occurs in the course of hot pursuit or in another emergency situation, or for the purpose of apprehending a fugitive prisoner or other person detained in an institution (see § 120(1) and (IV) StGB). These restrictions do not apply to locations which are either accessible to the public at night, or known to the police to be used as gathering places or shelter by convicted persons, depots for stolen property or as places for gambling, illegal drugs and weapons trading or prostitution (§ 104(2)). Searches under § 102 may be ordered69 by the judge, and in the case of an emergency by the prosecution or the police too; those under § 103(1) 2nd 64

So-called ‘Zufallsfunde’, ie accidental finds relevant for other proceedings, are to be provisionally seized under § 108(1); MG § 102 Mn 17. 65 MG § 102 Mn 2. 66 OLG Bamberg NStZ 1989, 40; MG § 102 Mn 4. 67 MG § 102 Mn 15–16 with references to the case law. 68 See, eg, BVerfG NJW 2007, 1804; KG JR 1972, 297; LG Saarbücken NStZ-RR 2002, 267. 69 The orders must be carried out within a maximum period of six months or earlier, depending on the offence and the nature of the investigations, otherwise they will become

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Intrusive Measures During Investigation sentence may be ordered only by the judge, or in emergency cases by the prosecution (§ 105(1)). Such orders are often combined with an order for seizure of any material found.70 If the search of a home etc is conducted in the absence of the judge or the prosecutor, the police shall as far as practicable ask an official or two members of the public of the respective municipality to attend; the last must not be police officers or other agents of the prosecution (§ 105(2)). Under § 106, the owner of the home or objects has the right to be present during the search; if she is not contactable, the police must as far as practicable ask her representative, adult relative, cohabitant or neighbour to attend, and explain to that person the purpose of the search before it begins, except in the cases of § 104(2) mentioned above (disreputable premises). In the special case of searches of parts of military installations not accessible to the public, the search is normally to be carried out by the superior officer (§ 105(3)). The person affected by the search must, if she so requests, be given a written confirmation after the search about its reasons, plus a list of any objects seized or an attestation that nothing was found (§ 107). Section 108 allows the provisional seizure of objects found accidentally which may be relevant as evidence of another offence; it expressly excludes their use as evidence at trial where they comprise: a) evidence of an abortion by a patient found in a doctor’s practice for the prosecution of the patient under § 218 StGB; and b) evidence covered by a person’s right to refuse to testify under § 53(1) 1st sentence No 5, ie media professionals, unless the offence is one punishable with a maximum sentence of at least five years, but not one under § 353b StGB on breaches of official secrets.71 Seizure The basic provision for seizure is § 94(2), which requires an order for seizure of objects that are relevant as evidence, are in the custody of a person and are not voluntarily surrendered. A person who is in possession of a piece of evidence must produce and surrender it if requested, on pain of sanctions for contempt under § 70 unless the person is entitled to refuse testimony (see further below).72 A major, and mostly insuperable hurdle for orders for surrender or seizure is § 96, which allows the Government to block access to official documents in the

unlawful and inadmissible; BVerfGE 96, 44. This is, however, controversial according to some commentators, see MG § 105 Mn 8a. 70

MG § 105 Mn 7. This exclusion was introduced to enhance the protection of media informants; MG § 108 Mn 10. 72 This may include a summary fine or punitive detention, but also civil contempt detention not exceeding six months to ensure compliance with the order. 71

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Pre-trial Investigation interests of Land or national security. The court is under a duty to exert all possible efforts to obtain: a) a proper explanation from the Government as to why access is blocked; and b) in the case of a refusal by the Government to release the documents which is unfounded in the court’s view, to remonstrate in order to make the authority in charge change its mind. If neither a) nor b) bears fruit, the court is bound by the Government’s decision and the matter must not be discussed further in the proceedings.73 The consequences for the proceedings are regulated by the law of evidence and will mostly lead to the application of the in dubio principle, to the benefit of the defendant.74 Section 97(1) Nos 1–3, (4) and (5) contain prohibitions on seizure based on the right of certain categories of persons to refuse to testify, if the objects are in their custody and they are not suspected of participation in the offence or assistance after the fact (§ 97(2)). Those persons are: a) relatives, spouses and partners of the suspect (§ 52); b) priests or ministers of religion as regards secrets they have learned in the context of pastoral care, for example at confession (§ 53(1) 1st sentence No 1); c) defence counsel as regards the facts learned in the exercise of their mandate (§ 53(1) 1st sentence No 2); d) lawyers, patent attorneys, notaries, doctors and other professionals, for any facts they have learned in the course of their professional relationship with the client or patient (§ 53(1) 1st sentence No 3); e) members of a recognised abortion counselling service, for matters learned in the exercise of the service (§ 53(1) 1st sentence No 3a); f) drug addiction counsellors at certain institutions (§ 53(1) 1st sentence No 3b); g) media professionals (§ 53(1) 1st sentence No 5) and h) parliamentary delegates (§ 53(1) 1st sentence No 4). Pursuant to § 98(1), seizure orders shall be made by a judge, or in cases of emergency by the prosecution and its agents, except for those related to media offices under § 97(5) 2nd sentence which may only be ordered by a judge. Section 98(2) and (3) provide for a judicial review and confirmation procedure if the seizure occurred without a judicial order. Section 99 allows for the seizure of postal communications to and from a suspect, if this is necessary for the investigations, as long as they are in the control of the postal service. Such seizures may be ordered only by a judge or, in cases of urgency, by the prosecution; a seizure ordered by the latter becomes void, 73

BGHSt 20, 189; 33, 178. MG § 96 Mn 10 with references to the case law. For further discussion of the in dubio principle, see ch 2. 74

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Intrusive Measures During Investigation however, unless it is judicially confirmed within three days (§ 100(1) and (2)). The mail items generally may be opened by the judge alone, but he may delegate this to the prosecution if the urgency of the investigations requires it (§ 100(3)). Unopened items and opened items without relevance to the investigation must be forwarded immediately to the intended recipient, regardless of whether this will impact on the investigations.75 Bodily samples and DNA analysis Another important source of evidence consists of biological and chemical examinations of samples provided by the suspect or other persons, which modern science and technology have perfected down to the molecular level and genetic analysis. The legislation and practice, especially regarding genetic analysis, has become so complex and convoluted that the following provides only an outline of the topic. Bodily samples in general Section 81a is the basic provision covering non-consensual76 physical examination of a suspect with the purpose of establishing evidence relevant to the proceedings, including invasive measures such as drawing blood samples and other medical procedures. These must be carried out by medical doctors, or by nurses under the supervision of the doctor (unless the suspect waives this criterion),77 and are permissible against the suspect’s will only if his health is not endangered by them.78 As with many measures, the primary jurisdiction for ordering the taking of bodily samples lies with the judge, but in emergency cases the prosecution and its agents may also order it. Any bodily samples taken from the suspect may be used only for the purpose of the proceedings in regard to which they are taken, or for other already pending proceedings; they must be destroyed as soon as they are no longer needed for these purposes.

75

MG § 100 Mn 10–13. If the suspect consents, an order under § 81a is not required; the consent is revocable, yet the material collected until such revocation remains admissible in evidence; MG § 81a Mn 3–5. 77 MG § 81a Mn 19; in serious cases of dangerous procedures, the procedure must be performed by a specialist. 78 Permissible procedures include, for example, a CT scan, EEG, ECG, pumping out of the stomach, X-ray examinations and scintigraphy. In the case of serious offences, certain more invasive procedures have been held to be acceptable too, such as cranial and spinal fluid tapping, pneumenencephalography, excorporation (forced vomiting or defecation). The following procedures have, amongst others, been held to be impermissible because of their dangerousness, or questionable nature and reliability: angiography, taking urine via a catheter, phallography; see MG § 81a Mn 20–22. 76

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Pre-trial Investigation The provisions of § 81b have already been mentioned above79: the suspect and any effects carried by him may be searched, and he may be subjected to measures under § 81b aimed at facilitating his identification (erkennungsdienstliche Behandlung), ie taking photos of his whole body or of parts of it (for example, tattoos80), taking his fingerprints and measuring his height and weight, but also making a video of the suspect, for example, participating in an identity parade.81 Section 81c extends the power to examine potential witnesses against their will, but only in exceptional cases and only for the purpose of establishing whether their bodies show traces or other signs of an offence (wounds, lacerations, semen, etc). The taking of blood samples or other samples to determine the lineage of the person is admissible only if the procedure poses no danger to the suspect’s health and is absolutely necessary for determining the truth of the case. Section 81c(4) makes measures inadmissible if compliance with them cannot be expected from the person in the circumstances; however, this is merely an expression of the general proportionality principle and reminds the parties involved that there must be a balancing exercise in each individual case between the need to ascertain the truth and the interests of the individual, for example, not to have their most intimate privacy invaded. Often this will mean nothing more than that the examination will have to be carried out by a medical professional. Section 81c(3) allows refusal of a blood sample or other examinations under the same conditions that would justify a refusal to testify: a wife could thus in theory refuse to be tested for semen in proceedings against her husband for her marital rape. Refusal to comply with a lawful order may result in a contempt citation under § 70; the use of force requires judicial authorisation, and may be ordered only if the matter is urgent or the person has refused to comply despite already having been sanctioned with a fine. Any and all of these examinations, if they might violate the sexual privacy of the examined person in the wider sense, must be performed by a person of the same sex, regardless of whether the person being examined waives this requirement (§ 81d). DNA analysis Material obtained through measures in relation to a suspect and persons not involved in the commission of the offence under §§ 81a(1), 81c (above), as well as material found and/or seized otherwise, may, pursuant to § 81e, be used in an already pending 82 proceeding for molecular genetic testing, for the purpose of a) establishing lineage;

79 80 81 82

See the text accompanying nn 27 and 28 above. MG § 81b Mn 8. BVerfG NStZ 1983, 84; LG Berlin NStZ 1989, 488. KK-Senge § 81e Mn 5; MG § 81e Mn 4.

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Intrusive Measures During Investigation b) determining whether trace material found elsewhere stems from the suspect or the victim; and c) determining the sex of the person. Any other purpose is forbidden and any evidence so obtained will be inadmissible (for example, procedures aimed at determining ethnicity, ie whether the source is European, African, Asian, etc; § 81e(1) 3rd sentence). Materials deposited by individuals in so-called bio banks must not be used for genetic testing.83 The materials must be destroyed as soon as they are no longer needed for the proceedings. Section 81f(1) requires a judicial order if the person to be tested does not consent; in cases of urgency the prosecution or its agents may also make such an order. A person who consents must be told the purpose for which the data obtained will be used. The examination under § 81e must normally be entrusted to official or officially recognised and certified experts who have no organisational link to the investigating authorities, and precautions must be taken to prevent unauthorised disclosure of data and unlawful tests. The material must be transferred to the expert anonymously (§ 81f(2)). If the suspect is charged with a serious offence or a sexual offence, § 81g(1) allows the sampling of body cells for the purpose of establishing and recording his DNA pattern in a database for identification in future proceedings, if the nature of the offence or its mode of commission, the personality of the suspect or other intelligence gives rise to concern that there is a danger he will be the subject of proceedings for serious offences in the future; one serious offence may be equalled by a series of repeated offences, which do not need to be either serious or sexual offences.84 The cells sampled may be used only for this purpose and must be destroyed as soon as they are no longer required to that end (§ 81g(2)). In the absence of the suspect’s consent, the procedure for obtaining the cells may be authorised by a judge, and in cases of emergency by the prosecution or its agents; however, the actual testing procedure can be ordered only by a judge, unless the person consents. The court must under § 81g(3) give explicit reasons for the authorisation, covering all the elements required under §81g(1). Section 81g(1) to (3) apply mutatis mutandis to persons who were a) previously finally convicted; or b) not convicted only because they were: i) acting without guilt (the third tier of the tripartite structure of offences under German law), or lack of guilt (§ 20 StGB) could not be excluded, or ii) unfit to plead based on a mental illness, or

83 84

MG § 81e Mn 5. MG § 81g Mn 7c.

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Pre-trial Investigation iii)

not responsible as a juvenile under the provision of § 3 JGG, or because lack of such responsibility could not be excluded;

as long as the criminal record for these convictions or decisions has not been expunged (§ 81g(4)). The data may be transmitted to other authorities for the purpose of other criminal proceedings, preventive administrative law measures (Gefahrenabwehr) or international cooperation in criminal matters. Lastly, § 81h provides for a procedure for mass screenings in the case of a serious crime against life, limb, personal liberty or a sexual offence, to test genetically a large number of people who fit certain criteria of an otherwise unknown suspect, for example ‘bald man, six feet tall, between the ages of 30 and 40’, against existing genetic trace material found on the victim or at the scene of the crime, for the purpose of establishing whether any of those persons were the cause of the trace. This method of investigation must be ordered by a judge and its execution requires the consent of the persons to be tested; it must not be out of proportion to the seriousness of the offence. The material collected from the test persons must not be used for the DNA database under § 81g, and those tested must be informed of this and, according to some commentators,85 of the fact that refusal to consent does not in and of itself create a suspicion; further, the material collected must not be used as such to found an adverse comment at trial.86 However, if, because of the mass of samples obtained and the number of persons excluded, the group of remaining potential suspects has been narrowed down considerably to a very small number, and if there are further facts capable of creating a specific suspicion against one or a number from among them, the court may order compulsory tests under §§ 81a, 81e, 81f and 81c if their criteria are met.87 Dragnet investigations (Raster- and Schleppnetzfahndung) Unless other, more specific means of investigations provide a sufficient basis, the court or the prosecution88 may as a subsidiary measure order a ‘dragnet’ investigation under §§ 98a–98b in cases of organised89 crime and other serious offences against drugs, weapons and currency laws, national security, offences causing a danger to the public, against life, limb, sexual integrity or personal liberty. The dragnet allows for the matching of a large number of people against a set of already existing data in order to obtain further material for the determination of the suspects and to exclude uninvolved persons. These data must 85

See the references at MG § 81h Mn 6. BVerfG NJW 1996, 1587. 87 BGHSt 49, 56; BVerfG NJW 1996, 3071 (conflicting statements about an alibi); further references at MG § 81h Mn 16–17. 88 Who have to obtain judicial confirmation no later than within three working days of ordering the dragnet, otherwise the order will become void; § 98b(1). 89 In this context the provisions of §§ 98a–98c were introduced; MG § 98a Mn 1. 86

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Intrusive Measures During Investigation normally be provided to the prosecution by the storing entity in such a form that the data relevant for the investigation and specified as such by the prosecution are separated from the remaining data stock; if this is not feasible, entire data sets may be transmitted, but the use of the non-specified data is prohibited (§ 98(3)). Sections 96, 97 and 98(1) 2nd sentence, concerning privileged materials, apply mutatis mutandis. Section 163d allows the time-limited90 collection, storage and automated matching of clearly specified personal data obtained on the occasion of border checks and other spot checks, for the purpose of investigating serious offences such as armed robbery, terrorism, weapons offences and transborder economic offences, and international offences such as war crimes, crimes against humanity, genocide, etc. The data sets created by the matching process are to be used only for pending investigations, and must be destroyed as soon as they are no longer necessary for that purpose, but in any event no later than three months after the end of the measure91 (§ 163d(4)). This naturally does not include those data that have become additional pieces of evidence narrowing down the circle of suspects and which have therefore been made an integral part of the prosecution dossier; they may, of course, be used for any further investigations and, eventually, as evidence at trial.92 Electronic surveillance of telecommunications Modern investigations, especially in the realm of organised crime and terrorism offences, have to rely increasingly on methods that are capable of countering the stealth and intelligence used by the criminal. The classic means of investigation are often useless in that context because of the use of modern technology in the commission and preparation of offences. This necessitates the use of equally covert countermeasures by the police in the case of a criminal93 investigation.

90 Three months, with an exceptional possibility of extension for another three months; § 163d(3). 91 Which may be ordered by the judge, and in cases of emegency by the prosecution and their agents; again, it must be confirmed by a judge within three working days or the order will become void; §§ 163d(2) 3rd sentence, 100b(1) 3rd sentence. 92 MG § 163d Mn 7 and 21. 93 Some police laws of the Länder and of the Bund provide for similar powers in the context of preventive administrative policing, and there is evidence that the provisions of the StPO are in practice also used for that purpose; MG § 100a Mn 4 with references. For the purpose of secret intelligence operations (Verfassungsschutz) that are not directly tied to a criminal investigation, the surveillance of telecommunications is regulated by the so-called Artikel 10-Gesetz or G10 on the restriction of the privacy of communications under Art 10 GG. This law has its own parliamentary oversight regime and is beyond the scope of this work. The text may be found at MG Anh 11 G10. Note, however, that §§ 100a ff and the G10 are complementary and not mutually exclusive, because they both concern different scenarios which may be triggered simultaneously; MG § 100a Mn 3.

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Pre-trial Investigation The flipside of that coin is that the civil liberties of suspects and uninvolved people may be infringed by their wide-scale application. Sections 100a–100h allow different intrusions into the constitutionally protected privacy of individuals94 in the cases of serious offences, mostly listed explicitly in a catalogue in each provision, if the investigations would otherwise be seriously impeded; they must mostly95 be ordered or confirmed—within three working days if initially ordered by the prosecution—by a judge: a) Section 100a permits the surveillance of telecommunications, which includes, for example, phone, fax, Internet and e-mail.96 Note, however, that secret online surveillance by remote forensic software (for example, so-called trojans and backdoor programs) violates the Constitution and is prohibited.97 The measures are permissible only against the suspect, or persons acting for her in the course of communication or whose facilities the suspect uses, even though they may be entirely innocent. Section 100a(4) prohibits the measures if it is to be expected that the results would relate solely 98 to the absolute core of the right to privacy, for example communication between spouses, close family members, with priests, defence counsel, etc.99 If such material has been recorded it must be deleted immediately; it is inadmissible in evidence. b) Section100c provides the basis for the so-called großer Lauschangriff (literally translated, ‘great listening attack’), a highly controversial100 method of monitoring and recording private words spoken within a private home.101 The measure may normally be used only against a suspect and his home(s). Other persons’ homes may be monitored only if there is reason to believe that the suspect is present there and that monitoring his home alone will not be sufficient for the effectiveness of the investigation. The fact that other

94

See, eg, BVerfGE 106, 28; BGHSt 27, 355; 31, 296. The criteria may change from provision to provision; an extensive and detailed description of the complex cross-reference system was omitted here for reasons of space. 96 For the precise definition of ‘telecommunication’, see MG § 100a Mn 6–7b. 97 BVerfGE 120, 274; BGHSt 51, 211. See also POGCL, 109, for a translation of the main findings of the BVerfG. 98 Potential partial overlaps are not sufficient to make the surveillance unlawful ex ante, but the core material is then subject to exclusion as evidence; MG § 100a Mn 24a. 99 MG § 100a Mn 24–24a. 100 See, on its development, MG § 100c Mn 1. Its approval in a ballot by a large majority of her party base led the then (and at the time of writing present) Federal Minister of Justice, Sabine Leutheusser-Schnarrenberger, of the Liberal Democrats (FDP), to resign her office in protest on 17 January 1996; see her CV on the website of the Ministry of Justice at . 101 This may include offices and any space (fixed or mobile) which has been made the basis for human activity and is not generally accessible; MG § 100c Mn 3 and § 201(1) 1st sentence No 1 StGB. 95

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Intrusive Measures During Investigation persons are unavoidably affected by the measure does not make the monitoring unlawful. The order is unlawful if there is a likelihood that conversations from the core area of human privacy will be caught; conversations in offices and about offences committed or being prepared do not form part of that core area (§ 100c(4)). As soon as the conversation turns to such a core area, the monitoring and recording must stop, and any recordings made are inadmissible in evidence102 and must be deleted immediately. The prosecution must in such a case immediately request the decision of the court on the admissibility or not of any recordings; the decision of that court ruling the recordings inadmissible is binding for the entire proceedings. The provision also contains regulations regarding persons who have a right to refuse testimony because of professional or family privilege, and depending on the nature of the privilege the recordings may not be used at all, or only if on a balancing of the interests the public interest in an effective prosecution outweighs the private interest.103 However, data obtained under § 100c may be used in other proceedings for an offence listed in § 100c, or for preventive policing purposes to avert a danger to life, limb, liberty or a very important common public good (§ 100c(5) Nos 1 and 2). c) Section 100f provides for the monitoring and recording of the privately spoken word outside of the home under similar conditions. d) Section 100g(1) 1st sentence allowed the use of connection data culled from the prophylactic storage of such data by telecommunications service providers under § 113a TKG (Vorratsdatenspeicherung), which in turn was based on the European Directive 2006/24/EC.104 However, this procedure was declared unconstitutional to that extent by the BVerfG in March 2010105; at the time of writing the law had not been amended yet. For all other connection data, the provision remains operational; together with § 100i on so-called ‘IMSI catchers’, it allows the police especially to establish the location of mobile phones at given times. e) Lastly, § 100h gives the police the power to make pictures of suspects and other persons, or to use other technical means for their observations,106 for example ‘low-jacking’ a car, tracking a person via GPS, use of motion sensors, etc.107

102 The practice of the courts is very strict. Any facts gleaned from the conversation that fall under the core area are excluded from the proceedings and also excluded as lead or trace evidence to obtain other, admissible pieces of evidence; see BVerfGE 109, 279; BGH NJW 2009, 3448. If the court ordering the measure violated the rules, all the evidence gained from such a surveillance is inadmissible; see MG § 100c Mn 17. 103 MG § 100c Mn 22a—24. 104 OJ L 105, 54. 105 BVerfG NJW 2010, 833. 106 See also, for long-term police observations, § 163f. 107 MG § 100h Mn 2–3.

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Pre-trial Investigation Undercover agents (Verdeckte Ermittler) After many years of uncertainty, in a 1992 Act aimed at combatting the drug trade and organised crime108 the legislator regulated the criteria for the use of undercover agents in §§ 110a–110c.109 An ‘undercover agent’, as that term is used in § 110a(2), is always a police officer with German civil servant status110 who uses a pseudonym as part of a permanently111 adopted false identity, for which false documentation may be produced, amended and used.112 The typical police agent provocateur, who poses as a buyer for drugs, etc but does so only occasionally, is thus not covered by this provision and falls under the general procedural principles relating to police operations.113 External police informers from among the criminal milieu (commonly known as ‘grasses’ or ‘squeals’), or foreign police officers, are not ‘undercover agents’ in the sense of the provision, either.114 Undercover agents may be used in cases of serious drugs, weapons and currency offences, and offences against national security or organised crime in general, if otherwise the investigations would be seriously impeded; and may also be used in cases of general felonies (Verbrechen), if there is a danger of repeat offences, the gravity of the offence requires their use and other means of investigation seem pointless. The use of undercover agents requires the consent of the prosecution and, if the investigation is aimed at a particular suspect or involves the agent entering a dwelling not accessible to everyone, of the court (§ 110b(1) and (2)). The identity of undercover agents may be kept secret even after their operations have ended, but the prosecution and the court who decide on their use in the first place may require their identities to be disclosed to them; otherwise § 96 applies, especially if there is a danger to the life or limb of the particular agent, or if his future usefulness in undercover operations might be jeopardised. Section 110c makes it clear that an agent who enters a dwelling by use of his false identity does not commit a burglary under § 123 StGB; however, he must not make any other false representations to the effect that he has a right to access, for example by claiming to be the ‘gas man’ who has come to check the gas mains, etc.115 In all other aspects, the conduct of the agent must be guided by the laws of

108

KK-Nack § 110a Mn 1. The Länder have introduced undercover agent regulations for the preventive policing under administrative law, for which they have primary jurisdiction; see KK-Nack § 110a Mn 2. 110 This is based on the strict chain of command and disciplinary regime for civil servants as opposed to public employees; MG § 110a Mn 3. 111 Police practice appears to classify someone as an undercover agent under this provision once they have had more than three external relationships with suspects; MG § 110a Mn 2. 112 § 110a(3). 113 MG § 110a Mn 4. 114 BGH NStZ 2007, 713. 115 MG § 110c Mn 1. It is unclear whether § 110c applies by analogy to police officers who investigate under cover without falling within § 110c; see BGH NStZ 1997, 448 and MG § 110c Mn 2 with references. 109

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Intrusive Measures During Investigation his service and general legislation such as the StPO and StGB. There are, however, a few controversial exceptions based on the very nature of the undercover investigation. For example: a) the agent need not give a suspect the equivalent of a Miranda warning when the latter tells him incriminating facts; b) any statements so obtained remain admissible in evidence as long as the agent does not prompt a suspect who remains silent in a manner similar to an interrogation.116 The agent must not commit any criminal offences in the course of the undercover operation, or risk any evidence obtained through the operation becoming inadmissible, although in some instances he may have a defence under §§ 32, 34 or 35 StGB (self-defence, necessity or duress).117 Interrogation of the suspect General issues In practice, interrogation of the suspect during the investigation phase occurs at the police station. The prosecution and the courts are not typically involved. Nonetheless, §§ 133–136a of the StPO proceed from the basic scenario of the judicial interrogation and extrapolate from there to the examinations by prosecution and the police. One might wonder whether the historical German model of the investigating judge in the old inquisitorial procedure (gerichtliche Voruntersuchung)118 is not responsible for that: the previous and now repealed §§ 178–197 still appear under that heading. The main provisions which run through all interrogation scenarios at any stage of the proceedings are §§ 136, 136a, to which we shall turn in a moment. The judicial interrogation119 is regulated in §§ 133–135 which lay down the technicalities regarding the written summons, the duty of the suspect to attend120 116 So BGHSt 40, 211; 42, 139; 52, 11. For the critical voices in this controversy, see the references in MG § 110c Mn 3. 117 MG § 110c Mn 4; and POGCL, 108 at fn 212. 118 See, on the Voruntersuchung, T Vormbaum, Einführung in die moderne Strafrechtsgeschichte 2nd edn (Berlin, Springer, 2010) 96. 119 § 44 JGG demands that in the case of juveniles (not young adults), the prosecutor or the presiding judge of the prospective trial court shall typically interview the suspect even before an indictment is filed. The provision does not impose a strict duty, however, (the law uses the word soll = should, rather than shall in English terms) and is for logistical and pragmatic reasons thus largely ignored in practice; EB § 44 Mn 2, 6. 120 This applies regardless of the gravity of the (criminal) offence, and even if the suspect has already indicated that she will make use of her right to remain silent; LG Krefeld MDR 1968, 68; LG Nürnberg-Fürth NJW 1967, 2126 and the dissenting decisions on the latter issue by LG Hannover NJW 1967, 691; LG Köln NJW 1967, 1873.

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Pre-trial Investigation and the instrument of the Vorführungsbefehl, ie an order to bring the suspect to the interrogation by force should she not obey the first summons voluntarily, or immediately if the preconditions for an arrest warrant exist. If such an order is made, the suspect must be brought before the judge and examined by him immediately, and informed of the charges121 against her. She must be released once the interrogation is finished, and in any event no later than by the end of the day following the day of the Vorführung. Section 168c complements these provisions by regulating the right of attendance and the right to ask questions. The prosecution may attend any judicial examination, regardless of whether the examinee is the suspect, a co-suspect, a witness or an expert. All of these rights apply to the suspect and defence counsel, too, with one major exception: the defence (suspect and counsel122) have no right to attend the examination of a co-suspect, which is, of course, a highly controversial rule, based on an interpretation of the provision rather than a clear regulation, but it has been sanctioned as constitutional (§ 168c(1) and (2)).123 The suspect may be excluded if her presence might jeopardise the investigation, especially if there is reason to believe that a witness might not make a truthful statement in her presence (§ 168c(3)). Section 168e allows for an interview via the use of a live video link in the case of a witness whose well-being would be endangered were he to be examined in the direct presence of the parties entitled to attend; nevertheless, their rights to participate, ie to ask questions124 etc, remain unaffected. Section 168c(5) requires the court to notify those persons entitled to attend of the date and time of the interview(s), unless such notification would jeopardise the investigation. The parties entitled to attend have no right to an adjournment if they are prevented from attending. A violation of the duty to notify under § 168c(5), regardless of any negligence by the court, makes the entire record inadmissible as evidence at trial vis-à-vis the suspect concerned under § 251(2), and also excludes hearing the judge as a witness in relation to the statement, unless the defendant and her counsel consent.125

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The alleged conduct and the applicable provisions. However, if the suspect is in custody, she has a right to have her counsel present only if the interview is held at a court in whose district the detention facilty has its seat; § 168c(4). If it is likely that the suspect will fall under one of the mandatory representation categories (§ 141(3)), she must be assigned counsel before the interview; BGHSt 46, 93. 123 BVerfG NJW 2007, 204. 124 Witnesses under the age of 18 are questioned by the judge alone (§ 241a, which is applicable via § 168e 5th sentence). The parties may give the judge a list of questions they wish to be asked, and the judge may at his discretion allow them to ask them directly if no concerns exist with regard to the well-being of the witness; he may always reject inappropriate questions (§§ 241a(2) and (3), 240(2)). 125 BGH NJW 2003, 3142; BGHSt 26, 332; 51, 150; MG § 168c Mn 6. There are controversial exceptions that allow: (i) the reading of the record as a non-judicial document under § 251(1) (BGH NStZ 1998, 312), the problematic nature of which is to some extent defused by the requirement of consent by the defence and prosecution in most but not all of these cases (see 122

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Intrusive Measures During Investigation The prosecution may also interrogate the suspect under § 163a(3), which declares §§ 133–136a, and (only) 168c(1) and (5) applicable mutatis mutandis, which means that the suspect may also be forced to attend but that defence counsel has a right to be present only for the interview of his client. Even this restricted reference is missing in § 163a(4) which regulates the interrogation by the police, where the duty to inform the suspect of the charges126 is stated separately in § 163a(4) 1st sentence, and which makes reference only to §§ 136 and 136a; the police can therefore not force a suspect to attend an interview unless she has been arrested or is being held under other provisions, but it also means that defence counsel has no right to be present at the police interview of his client or any other person. However, a suspect can, of course, force the police to admit counsel by refusing to make a statement in the absence of counsel.127 Section 136 Section 136 requires the court, the prosecution and the police to inform the suspect of the charges against him. He must be cautioned128 that he a) b) c) d)

may remain silent; may request to speak to counsel of his choice at any time129; may request certain evidence to be taken in his defence; and may, in appropriate cases, make a written statement.

The suspect shall also be informed, where appropriate, of the availability of victim–offender mediation schemes. He must be given the opportunity to refute § 251(1) No 1); (ii) the use of the record to make a so-called Vorhalt, ie to confront the defendant, etc with a previous statement ( BGHSt 34, 231); and (iii) the use of the record vis-à-vis a co-defendant (BGHSt 53, 191). 126 Only the conduct, not the applicable law, because the legal characterisation may be too difficult for the average police officer at such an early stage of the proceedings; MG § 163a Mn 4. 127 It is, however, obvious that this requires some fortitude on the part of the suspect, and research has shown that many suspects waive the right just to get out of the police station; see, on this and the corresponding need for duty solicitor schemes, M Bohlander, Verteidigernotdienst im strafprozessualen Ermittlungsverfahren (Frankfurt am Main, Peter Lang, 1992). 128 If any aspect of this provision is violated and the suspect makes a statement, the mistake may be remedied by repeating the interview after giving a so-called ‘qualified caution’ (qualifizierte Belehrung) to the effect that anything or part of what the suspect had said before may be inadmissible in evidence, and that he may choose to remain silent now or alter his statement; BGHSt 53, 112; OLG Hamm StV 2010, 5. The suspect may, of course, simply refer to his previously recorded words and affirm that he stands by them after the new caution. 129 If the suspect wishes to speak to counsel immediately, the interview must not be started or continued before he has had the opportunity to do so; BGHSt 38, 372. The interview may not be continued without counsel unless the suspect has been cautioned again, waives his right and all practical efforts were made to provide the suspect with counsel; BGHSt 42, 15—but see BGHSt 42, 170, which allows for a continuation without counsel if efforts at contacting counsel would appear useless because of the ‘midnight hour’.

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Pre-trial Investigation the grounds for suspicion against him and to put forward any facts in his favour. The first interrogation shall also establish his personal circumstances. However, the proof of the pudding, as it were, is in the eating: these duties are worthless unless their violation triggers an evidential exclusion (Verwertungsverbot).130 The courts131 have so far held as follows: a) A violation of the caution about the right to silence makes the statement in principle inadmissible; the BGH in 1992 finally abandoned its previous stance that in this context § 136 was merely a procedural order regulation (Ordnungsvorschrift), and followed in essence the US Supreme Court’s Miranda approach.132 However, the exclusion is not triggered: i) if it can be established that the suspect knew his right to silence in any event, so that the violation may be considered a harmless error133; or ii) if the defendant who is represented by counsel consents or does not object to the statement’s use at trial.134 If it cannot be proven that the suspect was properly cautioned, the statement remains inadmissible.135 The statement is also inadmissible if the suspect could not understand the consequences of making a statement based on his mental state,136 or because of drunkenness or shock137 at the time of the caution. If the suspect made a spontaneous statement before he could be cautioned, the statement remains admissible.138 The violation has no effect in proceedings against another defendant where the suspect who was not cautioned is merely a witness,139 or in proceedings against a co-defendant, because it is the rights or the legal

130 Note that the BVerfG has controversially held that from the point of view of the constitutional law and against the background of the search for the material truth on the one hand and the public interest in an effective prosecution of criminal offences on the other, any evidential exclusion is an exception that needs to be justified; BVerfG NJW 2010, 287 and at 2937. This seems counterintuitive in that it would appear to be more logical to require adherence to the law as the rule and the sanction of any evidence obtained in violation of that law as an exception in need of justification. It is in principle a dangerous argument that juxtaposes the functions of a State governed by the rule of law against the rights of individuals which make up the heart of the rule of law, even if it uses the necessities of government as a methodological vehicle in the interpretation of the ambit of those rights. See also the critical references at MG Einl Mn 55. 131 It seems fair to say that most of these have to some degree or other received controversial commentary in the academic literature; see the overview at MG § 136 Mn 20 ff. 132 BGHSt 38, 214. 133 BGHSt 38, 214 at 224. 134 MG § 136 Mn. 20. 135 BGH JR 2007, 125. Note that this now contradicts the BGH’s earlier stance in BGHSt 38, 214. 136 BGHSt 39, 349. 137 BezG Meiningen DAR 1992, 393. 138 BGH NJW 1990, 461. 139 BayObLG NJW 1994, 1296.

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Intrusive Measures During Investigation sphere of the defendant who was not properly cautioned that are protected, not those of the other defendant (Rechtskreistheorie 140).141 After initial uncertainty, the BGH has now held that witness statements obtained in another country (within the ambit of the European Convention on Mutual Assistance in Criminal Matters of 1959) without proper caution are admissible if the law of that country (see Art 3(1) of the Convention) does not provide for a duty such as in § 136.142 This leaves open the question about the outcome if such an existing duty was violated: the logic of the decision should militate for an exclusion. b) A violation of the duty to caution the suspect about the right to counsel143 or the refusal to allow access to counsel after a request144 always trigger an exclusion. c) The violation of the other duties regarding information mentioned above does not lead to the evidence becoming inadmissible.145 Note that in this context, a violation at the investigation stage or at trial may be healed unless the defendant, who is represented by counsel, objects to the use of evidence obtained on its basis until the time when he is asked to comment on a particular piece of evidence just taken or heard (§ 257(1)—so-called Widerspruchslösung developed by the BGH).146 Section 136a Section 136a is the central provision in the StPO on forbidden interrogation techniques, and is an emanation of the right to human dignity under Art 1(1) GG, which forbids making a suspect into a mere object of the proceedings, and also of various human rights aspects under the ECHR, etc.147 It applies only to interrogations as official acts aimed at getting information from a suspect.148

140

See MG Einl Mn 55. BGH NStZ 1994, 595; wistra 2000, 311. 142 BGH NStZ-RR 2002, 67. 143 BGHSt 47, 172. 144 BGHSt 38, 372. 145 MG § 136 Mn 21. 146 See, on the situation in England and Wales, where this problem becomes linked with that of ineffective assistance of counsel, Archbold, Criminal Pleading, Evidence and Practice (London, Sweet & Maxwell, 2011) at para 7–74, according to which failure of counsel to object to the admission of inadmissible evidence will not necessarily be fatal to an appeal; the chances of success increase with the degree of incompetence displayed by counsel. Compare the cases of Ullah [2001] Cr App R 351; Boodram [2002] Cr App R 12 and Thakrar [2001] EWCA Crim 1096. I thank Mr Geoffrey Mercer QC, Walnut House Chambers, Exeter, for his comments as a practitioner on this issue in a private communication. 147 BGHSt 5, 332; 14, 358. 148 MG § 136a Mn 4. This causes the problem of distinguishing the preliminary phase, ie before the person moves from being a witness or other ‘uninvolved’ person, to being a suspect. 141

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Pre-trial Investigation Section 136a(1) and (2) state that official authorities involved in criminal proceedings must not, when interrogating the suspect, use or exploit any means or methods which violate the freedom of will of the suspect, such as: a) b) c) d) e) f) g) h)

maltreatment149; fatigue150; physically invasive measures151; administering substances152; torture153; deception154; hypnosis; threatening him with unlawful measures155;

The basic rule is that § 136a does not apply to this preliminary phase, unless the protections of § 136a are intentionally circumvented; BGHSt 42, 139; NJW 2009, 3589. 149

Physical and mental maltreatment, such as beating, kicking, glaring lights in the interrogation room, systematic interruption of sleep, loud noise, hunger and extreme cold; MG § 136a Mn 7. 150 Regardless of who caused the fatigue, BGHSt 1, 376; 12, 332. The case law does restrict the application to extreme cases, eg, with 24 hours’ lack of sleep being lawful (BGH NStZ 1984, 15) and over 30 hours being unlawful (BGHSt 13, 60). The authorities must not exploit the fatigue intentionally and drive the suspect to the brink of collapse, but in some cases lengthy interrogations may be unavoidable; BGHSt 12, 332; 38, 291. The BGH has held that holding a trial at night violates § 136a; BGHSt 12, 332. 151 Any measures that have a direct impact on the body of the suspect may also fall within other categories of § 136a; MG § 136a Mn 9. 152 Regardless of the means of ingestion and who initiated the ingestion—that may even have been the suspect herself, as long as the interrogator notices the effect and exploits it. § 136a forbids in particular the use of truth serum. Suspects under the influence of alcohol may be interrogated as long as they still have their wits about them; see, for references to literature and case law, MG § 136a Mn 10. 153 Apart from the human rights meaning of torture under Art 3 ECHR, this covers any permanent or recurrent treatment involving the causing of physical or mental pain, eg, through degrading treatment, being kept in darkness, causing feelings of fear and despair, etc; see MG § 136a Mn 11. It has been held to constitute torture to lead a suspect to the victim’s corpse; BGHSt 15, 187. 154 Although not every tactical criminalistic ruse is forbidden, eg vague explanations or double entendres during the interrogation. However, the typical examples of the police telling the suspect that a co-suspect has already confessed, or that devastating and incriminating evidence has been found, are prohibited; BGHSt 35, 328; MDR 1954, 17; LG Freiburg StV 2004, 647. The provision does not cover unintentional deceptions about facts; however, deceptions about questions of law are always considered as triggering the prohibition; MG § 136a Mn 13. The ambit of permissible conduct is significantly wider in the area of omissions, ie not informing the suspect of certain facts, unless their disclosure is required by law; BGHSt 39, 335. Secret recordings of the suspect are inadmissible; OLG Frankfurt NJW 1977, 1547. See, on all this, MG § 136a Mn 12–18. 155 Such as, eg, threatening to lift the stay of an arrest warrant unless the suspect makes a confession (BGH StV 2004, 636), or the unwarranted disclosure of the suspect’s homosexuality (OLG Naumburg StV 2004, 529). For the famous Gäfgen/Daschner case, see POGCL, 106 at fnn 200 and 201. Similarly, it is unlawful to threaten the suspect with a wide divergence between the

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Intrusive Measures During Investigation i) j)

promising illegal benefits156; measures affecting the memory or intellectual ability of the suspect.157

The list is not exhaustive and also covers similarly serious and intrusive acts.158 Force may be used only to the extent permitted by law. Section 136a(3) declares the consent of the suspect to the use of such methods irrelevant, and makes any159 evidence obtained through160 such means161 inadmissible, regardless of whether the defendant consents162 to its use. Section 136a is directed primarily against official authorities and forbids them to use, or allow others who act on their behalf to use, such methods, for example by putting a suspect in a cell with another prisoner who is instructed to gain information from him.163 The rule of thumb is that unless private persons are acting on the instructions or on behalf of an official authority, or use means that are gross violations of the suspect’s rights, the provision does not have any ‘horizontal effect’ (Drittwirkung) on the relationship between the suspect and other individuals.164 This became virulent, for example, in the recent Liechtenstein affair, where German intelligence authorities obtained CDs containing the data of tax evaders that had been illegally obtained by a private person and then minimum and maximum sentence in the case of a plea bargain versus a full trial should he not confess—the so-called Sanktionsschere (sanction scissors) under § 257c; BGHSt 50, 40; NStZ 2008, 170. 156 Such as, eg, promising a sentence that is no longer within the permissible frame for the actual degree of guilt of the offender, or the promise of a lesser but legally incorrect charge; BGH StraFo 2003, 97; NStZ 2007, 655. See generally MG § 136a Mn 23. 157 This alternative has little practical relevance compared to the other categories; MG § 136a Mn 25. 158 BGHSt 5, 332. The previous case law of the BGH did, for example, hold that a polygraph test was inadmissible for constitutional reasons. After the decision in BGHSt 44, 308 this view has been modified and the test is now mainly seen as an unreliable procedure. There is, however, a discussion about its use in order to exclude the suspect from the range of potential offenders; see MG § 136a Mn 24. 159 According to some authorities this applies even to exculpatory evidence, which seems counterintuitive and ultimately unacceptable given that the provision is meant to protect the suspect; MG § 136a Mn 27. 160 The courts have not subscribed to a ‘fruit-of-the-poisonous-tree’ doctrine; BGHSt 34, 362. The topic is highly controversial, and the majority of the commentators would appear to support a balancing approach between the degree of violation and the gravity of the offence; MG § 136a Mn 31. 161 Causality or lack of certain proof of absence of causality is required; this causality may be lacking if the suspect, eg, recognised the deception but made a statement anyway; MG § 136a Mn 28. 162 Violations of § 136a may, however, be healed by repeating the interrogation in the proper form after a qualified caution, as in the case of § 136; MG § 136a Mn 30. 163 ECtHR StV 2003, 257. 164 This includes an interpreter who acts on his own motion (MG § 136a Mn 3) and defence counsel (BGHSt 27, 355). An exceptional horizontal or vicarious effect is acknowledged if the private individual is using methods that represent gross violations of the suspect’s human dignity, such as torturing or incarcerating him; OLG Celle NJW 1985, 640; OLG Hamburg NJW 2005, 2326.

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Pre-trial Investigation offered for sale to national governments.165 It is also relevant to conversations which a private person has with a suspect on the instructions of the authorities without disclosing this background: the Great Criminal Senate of the BGH has taken a middle path and held that such evidence may be admissible, on a balancing exercise, if the offence is a very serious one and if the investigations would otherwise prove to be fruitless.166 The BGH has also held that the provision does not apply to the mere use 167 of agents provocateurs or police informers.168

165 The prevailing opinion in the literature seems to be that their use to make suspects confess is unlawful, but there is no case law as yet; see the references at MG § 136a Mn 3a. Note, however, that the BVerfG decided on 9 November 2010—docket no 2 BvR 2101/09, online at —that the search of a suspect’s dwelling based on information gleaned from such a CD does not violate the Constitution. The Court did rely heavily on its established practice to defer to the lower courts’ interpretation of the criminal law unless that interpretation was entirely arbitrary; it did not pronounce on the lawfulness of the acquisition of the CD but held that, even assuming it was unlawful, there was no room for an exclusion of its use to gather further evidence in this context. 166 BGHSt 42, 139. But note that the evidence will be inadmissible if there is an active deception by an agent after the suspect had declared his intention to remain silent, is questioned further nonethless and then goes on to make a statment; MG § 136a Mn 4a. 167 This must be distinguished from the question of what happens when such persons use forbidden means in their investigations; in those cases the above comments about persons acting on behalf of or under the instruction of the authorities will apply. 168 BGH GA 1975, 333.

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5 From the Decision to Prosecute to Judgment at First Instance INTRODUCTION

Once the prosecution has finished1 their investigations, they must decide what to do with the suspect. In the typical scenario for adult offenders they basically have four2 choices, depending on their evaluation of the evidence (see also below): a) b) c) d)

discontinuance for lack of proof or established innocence3; discontinuance with or without a condition in minor cases; applying for a Strafbefehl in less serious cases; and filing an indictment.

If the suspect is a juvenile or a young adult (and substantive juvenile law is applied to him), the prosecution may also choose to: a) discontinue the prosecution under § 45 JGG, with or without the consent of the trial court and with or without conditions; or 1 The recently added § 160b formally acknowledges the previous practice of meetings and communications between the prosecution and other parties about the state of the proceedings and possible ways forward, in other words, whether a plea agreement of some sort can be reached. A similar procedure is now available for the stage in the proceedings when the court decides on the admission of an indictment, §202a. 2 Leaving aside the separate Sicherungsverfahren procedure for mentally ill offenders, etc under §§ 413 ff and the expedited procedure (beschleunigtes Verfahren) under §§ 417 ff, both of which will be looked at in the section entitled ‘Special Procedures’ below. 3 In this case, but not in the cases of discontinuances for minor gravity under §§ 153 ff mentioned in § 172(2) 3rd sentence, nor in cases where the offences concerned are exclusively of a nature for which the victim could initiate a private prosecution, there is a limited possibility under §§ 172 –177 for the victim to obtain an order from the OLG instructing the prosecution to prosecute (Klageerzwingungsverfahren); the prosecution, if so instructed, are free to choose the method of prosecution and may, for example, apply for a Strafbefehl, yet this might seem problematic because the judge will usually have concerns about using this procedure given the history of the case and set a date for trial anyway. After an order by the OLG the prosecution must not choose to discontinue the proceedings under the provisions for minor cases listed in § 172(2) 3rd sentence. The success rate for this procedure is very low and we shall not look at it in detail; see KK-Schmid § 172 Mn 1 and § 175 Mn 6–7.

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From the Decision to Prosecute to Judgment at First Instance b) initiate simplified juvenile proceedings under §§ 76–78 JGG.4 However, they may use neither the Strafbefehl procedure5 nor the general expedited procedure (beschleunigtes Verfahren) of the StPO against juveniles; the latter procedure may be used against young adults (§§ 79(2), 109(2) JGG) even if substantive juvenile law is applied, but because the procedure still requires the extensive investigation of the offender’s personal circumstances it can hardly be used properly, and thus should not be initiated.6 We shall be looking at the Strafbefehl procedure in the section entitled ‘Special Procedures’ later in this chapter; suffice it to say that for all practical purposes, at this point the request to the court for a Strafbefehl has the function of an indictment (§ 407(1) 4th sentence). We begin by looking at the varieties of discontinuance and the indictment, as well as at the specificities under the JGG in this regard.7 Note at this stage that the suspect does not have the right to elect trial at the AG or LG; this decision is solely for the prosecution to make, with the exception of the potential judicial referral procedure for lack of jurisdiction mentioned in chapter three. Once an indictment has been filed and admitted for trial, according to § 156 the prosecution may no longer withdraw it. The court in turn has the following8 options: a) discontinuance under a condition in minor cases; b) discontinuance because of a procedural bar9 (Prozeßhindernis);

4

Also covered in the section entitled ‘Special Procedures’ below. Although if used and issued without an objection, it is not normally void and will become enforceable; see U Eisenberg, Jugendgerichtsgesetz, 14th edn (hereafter ‘EB’) (Munich, CH Beck, 2010) § 79 Mn 6. 6 EB § 79 Mn 3a–3b. 7 The expedited juvenile procedure will be addressed in the section entitled ‘Special Procedures’ below. 8 We shall not look at the rarely applied Absehen von Strafe, or discharge, eg, in § 60 StGB, in cases where the defendant would have incurred a sentence not exceeding one year and where he himself suffers from the consequences of his actions to an extent that an additional penalty would clearly be inappropriate (eg, if a father by minor negligence killed his only child in a car accident when reversing out of the garage). 9 There is also the alternative, which we shall not address, of discontinuing the case if the law is changed after admission of the indictment but before the judgment, and an act that was an offence under the law before the amendment is now no longer unlawful; § 206b. Such cases may have occurred, eg when the former § 175 on male homosexual acts was abolished. The provision is the procedural concretisation of the rule in § 2(3) StGB about the lex mitior; see M Bohlander, Principles of German Criminal Law (hereafter ‘POGCL’) (Oxford, Hart Publishing, 2009) 26. It has been criticised as dogmatically insupportable because the consequence of § 2(3) StGB under substantive law should be an acquittal, not a discontinuance. It is furthermore out of step with the consequence of § 354a StPO during the Revision which is an acquittal. A decision under § 206b is therefore to be treated for all effects and purposes as an acquittal, also triggering, eg, the ban on double jeopardy; L Meyer-Goßner, Strafprozessordnung mit GVG und Nebengesetzen, 53rd edn (hereafter ‘MG’) (Munich, CH Beck, 2010) § 206b Mn 1 and 6 and § 354a Mn 6. 5

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The Decision to Prosecute c) acquittal; or d) conviction. In juvenile cases, § 47 JGG provides a specific discontinuance rule for the court. The court cannot discontinue a case for lack of proof once it admits it for trial; at trial that function is performed by the acquittal. The court may, however, refuse to admit the indictment under § 204 if in its view the dossier of the prosecution does not support a sufficient degree of likelihood of a conviction (see further below). German indictments and judgments follow a very strict pattern, based partly on the law and partly on longstanding tradition, that is noticeably distinct from the English approach. An example of an indictment to the LG—Schwurgericht—and two judgments, one of a trial court and one of an appellate court (Revision at the BGH), are included as separate annexes at the end of this book. At both the prosecutorial decision stage and at the trial stage, plea agreements (Absprachen) may play a role.

THE DECISION TO PROSECUTE

General rules under § 170 The basic provision informing the prosecution’s decision to prosecute or not is § 170(1), which requires the prosecution to file an indictment with the trial court as soon as the investigations give ‘sufficient cause’ (genügenden Anlass). Unless they indict the suspect, the prosecution must discontinue10 the proceedings and inform the suspect if she was examined as such, if an arrest warrant was put out for her, if she has requested notification or if she has a special interest in being notified (§ 170(2)). The concept of ‘sufficient cause’ has several aspects: a) The prosecution must, in its discretion,11 be of the view that based on the evidence as collected in the dossier,12 the suspect is likely to be convicted (hinreichender Tatverdacht)13; this is more or less the same as the ‘prima facie case’ test in some common law systems. Absolute certainty is not required, neither is it forbidden to leave some uncertainties in the evidence for the court at trial,14 such as, for example, when it is only the word of the suspect

10 Which may also be a partial discontinuance if several indivdual cases were joined in one investigation; MG § 170 Mn 8. 11 BVerfG NStZ 2002, 606; BGH NJW 1970, 1543. 12 BGHSt 23, 304. 13 BGH StV 2001, 579. 14 BGH NJW 1970, 1543. Compare to this the Anfangsverdacht necessary for the initiation of an investigation explained in ch 4 above.

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From the Decision to Prosecute to Judgment at First Instance against the word of the victim (Aussage gegen Aussage).15 The in dubio principle does not as such apply at this stage.16 b) There must, in the view of the prosecution, be no procedural obstacles17 to prosecution.18 c) The prosecution may, instead of indicting the suspect, request the court’s consent to a discontinuance under the ‘opportunity’ principle pursuant to §§ 153 ff (see further below). A discontinuance under § 170 does not trigger the double jeopardy bar; the investigations may be reopened at any time, and the case may be reprosecuted if necessary. There is no need for new evidence to emerge.19 Indictment and admission for trial The prosecution files an indictment by sending the document of indictment (Anklageschrift) together with the complete20 dossier to the trial court (§ 199(2)). Section 200 regulates the contents and structure of an indictment, which must show: a) b) c) d)

the identity of the accused; the facts of the offence with which he is charged, the time and place of its commission; the legal elements of the offence and the applicable provisions.

These four elements form the so-called Anklagesatz or ‘operative core’ of the indictment. However, the indictment must also provide information about: a) the evidence supporting it, including the names and addresses21 of witnesses and a statement if the identity of any witnesses is meant to be kept secret; b) the court of trial; c) defence counsel;

15

OLG Düsseldorf StV 2008, 511. OLG Bamberg NStZ 1991, 252; see further ch 2. 17 The decision not to declare a public interest in the prosecution for offences which are otherwise liable to private prosecution is such an obstacle; the victim is typically referred to that avenue together with the notice about the discontinuance; MG § 170 Mn 7. 18 MG § 170 Mn 1. 19 RGSt 67, 315; OLG Hamm VRS 1958, 33. 20 The prosecution must not retain any incriminating or exculpatory material, and has no right to select which materials they present to the court at this stage; BGH StraFo 2009, 338. This includes files and dossiers from other investigations and/or proceedings in so far as they are of relevance to the suspects’s case; BGHSt 30, 131. 21 These do not have to be complete with street and house number, and may be further restricted if the interests of the witness require it or in cases of § 96 (government ban on access to evidence for reasons of national security). 16

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The Decision to Prosecute d) the essential result of the investigations, unless the case comes before the single judge at the AG, in which case this requirement may be dispensed with. The exact description of the conduct underlying the offence is extremely important because it defines the ambit of the court’s activity at trial and, more to the point, the reach of the double jeopardy bar on the basis of § 264.22 Nonobservance of the requirements may have direct and dire procedural effects for the prosecution and the trial court, as follows: a) If the indictment fails sufficiently to specify the accused or the facts of the offence, the trial court will return it to the prosecution for amendment,23 unless the necessary facts can be gleaned from the essential result of the investigations.24 b) If the amendment is insufficient, the indictment will be returned again.25 c) Should the prosecution refuse to make an amendment, the court will reject the indictment.26 d) If the error is not remedied before or after admission of the indictment, nor during the trial, the indictment and the decision admitting of the indictment will be considered void and the proceedings will be discontinued on appeal because of a serious procedural error.27 Other formal mistakes in the structure of the indictment cannot normally lead either to its being void or to a mandatory return, although there is some controversy about the proper course to be taken to remedy any deficiencies.28 Once the indictment has been filed in the proper form, it is then, on the order of the presiding judge of the trial panel, sent to the accused29 and his defence counsel (§ 145a(1) and (3)), as well as to any private prosecutor who has joined or has the right to join the prosecution (Nebenkläger). The accused must be given an adequate deadline, commensurate with the gravity of the charges and the complexity and size of the dossier, by which30 he may make representations about whether he wishes to have any evidence taken before the decision on admission, or whether he has any objections to its admission (§ 201(1)). The trial panel decides on any representations and objections made, and whether they merit

22

MG § 200 Mn 7. BGH NJW 1954, 360. 24 BGHSt 5, 227; 10, 137; NJW 2010, 308. 25 LG Potsdam NStZ-RR 1999, 55. 26 OLG Frankfurt NStZ-RR 2003, 146. 27 BGH NJW 1991, 2716; NStZ 1992, 553. 28 See the references at MG § 200 Mn 27. 29 In juvenile proceedings, also to the parents or other carers and legal representatives; § 67(2) JGG. 30 The deadline, which should always be at least one week, does not have exclusionary character; any motions made after it has lapsed but before the court decides will be taken into account; MG § 201 Mn 4. 23

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From the Decision to Prosecute to Judgment at First Instance further investigations or impact upon the preliminary merit of the indictment; at this time its decision cannot be appealed (§ 210(2)), but the representations and objections may be repeated after admission and at trial (§§ 219, 244(3)), and thus be saved for the appeal if necessary.31 The trial court may proprio motu at any time after the filing of the indictment order additional investigations under § 202 if it appears necessary for the purpose of clarification of the facts in the indictment. Section 202a recognises the previous practice praeter legem to have preliminary plea agreement talks between the court32 and the parties against the background of a possible plea at trial under § 257c, or to agree certain matters in the proceedings as uncontentious and not in need of proof, etc; these talks are covered by § 202a only if the court intends to admit the indictment, because otherwise there is no need for discussion. Section 202a also applies to the period after admission of the indictment (§ 212). Once the court is satisfied that no further investigation is needed or will prove fruitful, it must decide33 whether to admit the indictment or not. The standard for admission under § 203 is a sufficient likelihood of conviction based on the evidence in the dossier and any further facts unearthed by the court in the intermediate stage,34 parallel to the standard for issuing an indictment under § 170(1); note that as with the decision to prosecute, the in dubio principle does not apply at this stage. The court is not bound by the views or motions of the prosecution (§ 206): it may admit the indictment, for example, with a different legal characterisation. For example, if the prosecution indicted for aggravated murder under § 211 StGB, the court may admit the case as simple murder under § 212 StGB, or vice versa. The court cannot, however, extend the ambit of the case beyond the facts of the indictment; for example, if the prosecution charges the accused with a theft on 26 June 2010 and the dossier provides clear evidence that he also committed a theft on 25 June 2010, the court cannot include the latter in its admission order.35 There is no requirement to give the parties advance notice of this before the admission is ordered.36

31

MG § 201 Mn 9. Only the professional judges, not the lay judges; the latter will be consulted at trial under § 257c when the actual binding agreement will be made; see MG § 202a Mn. 4. 33 A controversial recent strain of jurisprudence appears to allow for this decision to be made at the trial hearing if it was omitted during the intermediate stage, BGHSt 29, 224; 50, 267. 34 BGHSt 23, 304. 35 In the trial, this scenario is regulated by § 266. 36 KK-Schneider § 206 Mn 1–3. The situation is thus different from that of a change in legal characterisation during the trial under § 265. A communication from my former colleague, Judge Wolfgang Feld-Gerdes, presiding judge of the Schwurgericht at the LG Meiningen, of 16 November 2010 confirmed that common practice still is to give such a notice only in the admission order; it is felt that this does not disadvantage the defendant or the prosecution because there is usually enough time between the admission and the start of the trial for the parties to adapt to the new situation. 32

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The Decision to Prosecute The order admitting the indictment must comply with the requirements of § 207, indicating: a) whether the indictment has been admitted with amendments and, if so, which ones; b) whether separable parts of the indictment were rejected or discontinued provisionally under § 154a; c) whether the legal characterisation was changed, etc. If separable parts were rejected and no appeal under § 210(2) is lodged, or if it has been finally dismissed, the prosecution must file an accordingly amended indictment; the court also decides whether any form of pre-trial detention is to continue. Serious errors and flaws in the admission order may make the admission invalid and void.37 Once the indictment has been admitted38 for trial, it may no longer be withdrawn (§ 156), with a few exceptions set out in the discussion of discontinuances under §§ 153 ff below. If the court is not satisfied of a likelihood of conviction, it must reject the indictment under § 204, and must also indicate whether it does so for reasons of law or for reasons of fact. The first alternative means that the facts presented in the dossier, even if taken at their highest, do not disclose an offence known to German law or give rise to a procedural bar; the second alternative means that the evidence as presented in the dossier, even if taken at is highest, does not create a sufficient suspicion with regard to the facts necessary for supporting a likelihood of conviction of the alleged offence.39 In effect, § 204 is thus the pre-trial equivalent of the common law submission of ‘no case to answer’ and its tests reminiscent of the two prongs of the Galbraith 40 test. The prosecution may appeal the rejection of the indictment (§ 210(2)); however, the defendant cannot appeal its admission (§ 210(1)) but must undergo the trial and hope to refute the charges through an acquittal. Once a rejection has become final, an indictment in the same matter may be filed only on the basis of new facts or new evidence (§ 211).41 If there are grounds, either in law or fact, that prevent the listing of the case for trial for a certain—but not permanent—longer period, such as the absence of the accused, diplomatic or parliamentary immunity, etc, the court may order a

37 For an overview over the case law, also with regard to the question whether an error can be healed ex post, see MG § 207 Mn 11−12. 38 The order admitting the indictment and the amended indictment under § 207 must be served on the defendant no later than with the order setting the date for trial; § 215. 39 MG § 204 Mn 2 and 3. 40 [1981] 1 WLR 1039. 41 That is why it is not permitted to use a double justification for rejection under § 204 both on law and facts; the consequences of § 211 require the court to choose one, even if both alternatives are fulfilled. Nothing prevents the court, however, from stating that it rejects the indictment on one ground and offering a clearly so-marked subsidiary opinion (Hilfsbegründung) that it could also done so on the other ground; see MG § 204 Mn 4.

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From the Decision to Prosecute to Judgment at First Instance provisional discontinuance under § 205,42 which may, however, be lifted at any time proprio motu.43 In the case of such an order, the presiding judge orders the preservation of any evidence for the future trial. If the obstacles become permanent—for example, if the defendant dies—after the admission of the indictment, or if there are remaining doubts,44 § 206a allows the court to discontinue the proceedings permanently. Discontinuances other than under § 170: §§ 153 ff and §§ 154 ff The StPO provides for a number of ways to discontinue proceedings based on the ‘opportunity’ principle related to discretionary prosecutions, under §§ 153 ff, or if another sanction is sufficient to punish the offender and defend the public interest, under §§ 154 ff. The overall idea behind these possibilities of (provisionally) terminating proceedings is either that the offence in and of itself is of such a minor nature that it may be dealt with in a manner other than a full prosecution and trial, or that compared to other offences with which the suspect is also charged it appears to be of minor relevance. There are, of course, many special issues arising under each of the provisions, but for the purposes of this introduction an overview will suffice. Sections 153 ff Section 153 allows for a discontinuance by the prosecution or the court without conditions before45 or after46 an indictment has been filed, if the matter is a misdemeanour (Vergehen) of a minor nature and there is no public interest in prosecuting the offender. Section 153a extends the ambit of § 153 to scenarios where there is a public interest in prosecution but where the imposition of certain conditions or instructions is sufficient to satisfy the public interest in sanctioning the offender, and where the gravity of the offender’s guilt does not militate against a discontinuance. Such conditions or instructions may include: a) making restitution; b) paying a fine; c) community service; 42 The provision is the expression of a general procedural principle and is interpreted widely, as well as being applicable by way of analogy; MG § 205 Mn 3 with references. 43 MG § 205 Mn 5. 44 MG § 206a Mn 7. 45 Usually with the consent of the trial court, except in cases of a misdemeanour without an increased minimum sentence (ie above the general statutory minimum) and very minor damage when consent is not needed; § 153(2). 46 With the consent of the prosecution and the accused, the latter only unless one of the procedures under §§ 231(2), 232 or 205, ie in the self-imposed absence of the accused, is being used.

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The Decision to Prosecute d) paying maintenance; e) achieving reconciliation with the victim and making efforts at restitution; or f) attending a road traffic training seminar. The prosecution sets deadlines for the offender to comply; if she does not, the proceedings may be continued. If she complies with the order or instruction, the offence may no longer be prosecuted as a misdemeanour (but may be prosecuted as a felony). The discontinuance requires the consent of both parties and the court. Section 153b allows for a discontinuance in cases where the court could order a discharge (Absehen von Strafe).47 Before an indictment is filed the prosecution needs the consent of the trial court; after the indictment has been filed and before the trial has begun the court may discontinue the case with the consent of the prosecution and the accused. Section 153c covers certain less serious offences committed abroad, cases where the offender has already been sentenced and served a sentence abroad for the same offence (unless, of course, specific international ne bis in idem rules48 apply that prevent a prosecution entirely), and cases where the prosecution would not be in the national interest of the Federal Republic of Germany. Interestingly, even after the filing of an indictment the prosecution may withdraw the indictment and discontinue without the consent of the court. It is openly acknowledged in the literature that the reason for this is the need for political considerations in such cases,49 and an uncontrollable independent court may be an undesirable factor in such circumstances. Section 153d provides for the power of the Generalbundesanwalt (Federal Prosecutor General) to discontinue proceedings at any stage before and after an indictment for a number of offences against the State and national security if the prosecution would pose a serious threat to Germany’s national interests or other important public interests. No judicial consent is needed. Section 153e introduces a power of the Generalbundesanwalt to discontinue proceedings in the same offence categories as in § 153d, but this time with the consent of the OLG,50 if the offender had made efforts to avert danger to national security before he knew his plans had been discovered, or if he turned Crown Evidence by disclosing his knowledge of plans to commit such offences. Lastly, § 153 f(1) which refers to § 153c(1) Nos 1 and 2 allows for a discontinuance or withdrawal of the indictment in the case of offences under the Code of International Criminal Law (Völkerstrafgesetzbuch), ie genocide, crimes against humanity and war crimes, if they were committed abroad and the 47

See the list at MG § 153b Mn 1. See on this, W Schomburg, O Lagodny et al (eds), Internationale Rechtshilfe in Strafsachen, 4th edn (Munich et al, C H Beck, 2006) Mn 67–73a. 49 MG § 153c Mn. 1. 50 Because the criterion for the discontinuance is no longer a purely political question; MG § 153e Mn 2. 48

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From the Decision to Prosecute to Judgment at First Instance offender is not found on German territory; the same applies if, even in the case of his being German, he is being prosecuted before an international criminal court or another State on whose territory the offence was committed or a citizen of which was affected. § 153 f(2) allows for a discontinuance if neither the suspect nor the victim is German, no suspect is present on German territory and the offender is being prosecuted before an international criminal court or by another State on whose territory the offence was committed or a citizen of which was affected. In the case of a foreigner, this also applies if extradition to the foreign State or surrender to an international court is admissible and envisaged. No judicial consent is required. In the cases where the consent of the accused is required for a discontinuance, the prosecution may also withdraw the indictment under § 156 before it has been admitted for trial, and then discontinue the proceedings under § 153(1)—where applicable—in order to circumvent the need for the consent of the accused under § 153(2). This is controversial but generally considered acceptable, because the accused is not robbed of the substance of his protection and he may, if he is determined to have a full acquittal on the merits, try to convince the court to withhold its consent.51 It has, however, been held to be a violation of the accused’s right to a predetermined judge if the prosecution withdraws the indictment from the Schöffengericht at the AG and re-files it before the single judge at the AG, because the presiding judge of the former may have indicated in the intermediate procedure that she was not convinced of the indictment’s chances of success.52 Sections 154 ff Section 154 is the first of a number of provisions (§§ 154–154f) that allow for a reversible but not conditional discontinuance based on a lack of seriousness in direct comparison with other offences with which the offender is or has been charged. It gives the prosecution the power to discontinue the prosecution of an offence if the sanction to be expected is of no significant weight compared to the sanction the offender has suffered in a previous conviction or is expected to suffer in another pending proceeding; for example, it makes little sense to prosecute someone for a minor theft that would lead to a mere fine if that person has just been sentenced to life imprisonment for murder. The same applies if there is no likelihood of a trial for that offence soon, and where the other sanction appears to be sufficient to impress the offender and to defend the legal order. After an indictment has been filed, the court may order the discontinuance upon request of the prosecution. If the expectation underlying the discontinuance falls away later, for example if the sanction imposed for the other offence is

51 52

KK-Schoreit § 156 Mn 3. BGHSt 14, 11.

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The Decision to Prosecute of a much less severe nature than expected, the proceedings for the discontinued case may be resumed, unless the charge has become barred by the statute of limitations. Section 154a extends the principle of § 154 to the scenario of separate and distinct parts of one, for example continuous, offence, or one or more legal characterisations of a certain course of conduct. Section 154b provides for a provisional discontinuance if the offender is extradited to another State, or surrendered to an international criminal court or deported from Germany. Section 154c allows the discontinuance, in cases where a person is being blackmailed with the threat of disclosing an offence committed by the blackmail victim, for that offence if the offence becomes known in the course of the investigation of the blackmailer, unless the seriousness of the blackmail victim’s offence requires a sanction. Under § 154d, the prosecution has the power to set a deadline for the parties to litigate a matter of administrative or private law that has a prejudicial effect on criminal proceedings for a misdemeanour; if the deadline lapses without result, the proceedings may be discontinued permanently.53 This is meant to avoid the prosecution having to engage in complex investigations if one of the parties to the dispute is using the criminal investigation merely as an apparatus to exert pressure on her opponent or to prepare a civil suit.54 Section 154e allows the prosecution or the court to discontinue a case of false accusation or libel, if the act which forms the basis of the accusation or libel is itself the object of criminal or disciplinary proceedings, in order to avoid parallel trials about identical matters. Lastly, § 154f extends the rule in § 20555 about a provisional discontinuance into the pre-admission stage, in the event that there are grounds, either in law or fact, that prevent for a certain—but not permanent—longer period the listing of the case for trial. Juvenile proceedings—§§ 45 and 47 JGG Based on the principle that in juvenile proceedings the education and not the punishment of the offender is the paramount goal, the JGG provides for two separate ways of discontinuing a case: § 45 JGG for the prosecution; and § 47 JGG for the court.

53 However, the prosecution are not bound by the discontinuance and may reopen the proceedings at any time within the statute of limitations, eg, if after the final decision in civil proceedings between the parties it becomes evident that the suspect had committed an offence; BGH NJW 2008, 2939. 54 MG § 154d Mn 1. 55 See the text accompanying n 42 above.

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From the Decision to Prosecute to Judgment at First Instance Section 45 JGG Section 45(1) JGG first empowers the prosecution to discontinue the proceedings without the consent of the judge if the criteria in § 153 are fulfilled (see above). In theory this precludes the use of § 153 in juvenile proceedings,56 as § 45(1) JGG actually extends the powers of the prosecutor, because under § 153 the consent of the trial judge is normally required.57 Secondly, the prosecution shall discontinue a case under § 45(2) JGG if the suspect has already been subject to an educational measure or will enter one soon; the offender’s efforts at reconciliation with the victim, not the actual reconciliation, are deemed equal to such a measure. Lastly, § 45(3) JGG allows the prosecutor to discontinue a case if the suspect has made a confession, the judge orders educational measures and the suspect fulfils them. If these criteria are fulfilled, the offence may be reprosecuted only on the basis of new facts or evidence (§§ 45(3) 3rd sentence, 47(3) JGG). Section 47 JGG Section 47(1) JGG concerns cases after an indictment has been filed with the juvenile court. It permits the judge to discontinue the case if: a) the conditions of § 153 are fulfilled (see above); or b) an educational measure under § 45(2) JGG has been carried out or initiated; or c) the defendant has made a confession and the judge orders educational measures under § 45(3) JGG; or d) the defendant is not criminally responsible because of lack of maturity. This alternative of the provision is somewhat counterintuitive, given the situation in adult criminal law described above, because lack of maturity will normally lead to an acquittal once an indictment is admitted for trial; however, the

56 EB § 45 Mn 10. Eisenberg (ibid, at Mn 10a) nevertheless supports the use of § 153 instead of § 45(1) JGG if the consent of the court has actually been given, to circumvent the fact that a discontinuance under § 45(1) JGG is entered into the Education Register (Erziehungsregister), whereas a discontinuance under § 153 is not entered into the adult criminal records register (Bundeszentralregister). This is a questionable approach that does, in my view, overemphasise the vulnerability of juveniles to registration of such facts and undervalue the need of a prosecutor and a judge to know if a juvenile defendant has previously been given a lenient way out of a prosecution. The increasing dangerousness of many juvenile offences these days, and the often impervious attitude of juvenile offenders to the courts and the legal system in general, would appear to support, from a practitioner’s view, a somewhat more stringent approach in this context; see, eg, the personal experience report by a juvenile court judge from Neukölln, one of the major problem areas of Berlin, K Heisig, Das Ende der Geduld (Freiburg, Verlag Herder, 2010). (Judge Heisig committed suicide in July 2010 for reasons as yet unknown to the public before her book was published.) 57 On the question of the relationship of § 45 JGG to the general rules of §§ 153a ff, see EB § 45 Mn 11–15.

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The Trial legislator introduced it to avoid putting a juvenile through the ordeal of a trial if an acquittal was the most likely outcome.58 The discontinuance requires the consent of the prosecution. Once an order has been made, the offence may not be reprosecuted except on the basis of new facts or evidence (§ 47(3) JGG).

THE TRIAL

Preparation for trial After admission of the indictment, the trial court will prepare the hearing(s) and set a date; this is not done by the court administration but by the panel’s presiding judge59 (§ 213). In complex cases this will, for practical reasons,60 usually happen only after consultation with the parties, counsel, experts, etc. The principle of a speedy trial requires the court to set a date as soon as possible,61 especially if the defendant is in custody.62 The presiding judge will also order the sequence of witnesses and experts, and the examination of other evidence as set out in the prosecution dossier or based on the additional investigations before the admission of the indictment; the prosecution may summon their own witnesses, as may the defence (§ 214). It is very important to note, however, that German trial procedure is not divided into a prosecution case and a defence case. It is not the parties who present their evidence, it is the court who summons and examines the witnesses, experts, etc. There is no prescribed sequence of evidence, and there is consequently no submission of ‘no case to answer’ at the trial stage. For example, if the defence has named an alibi witness and asked for her to be heard, the court may in theory decide to hear her first. In effect, once the case is with the court, the witnesses are the court’s and no longer the parties’ evidence. This is also evidenced by the fact that the parties do not have to present their own evidence at trial but can and mostly do ask the court for evidence to be taken under its duty to find the material truth of the case (§ 244) by making evidentiary motions (Beweisanträge). We shall take a closer look at the law of evidence in the next chapter, but a few basic issues may be mentioned here:

58

See EB § 47 Mn 12. The administration only executes the presiding judge’s orders. 60 MG § 213 Mn 5–6. 61 However, there must be at least one week between receipt of service of the summons for trial and the date of the trial, otherwise the defendant may request a recommencement of the trial (Aussetzung) until the moment when the court starts questioning her about the facts of the case, § 217. 62 BGH NStZ 2006, 513. 59

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From the Decision to Prosecute to Judgment at First Instance a) There is no defence disclosure prior to trial other than the duty to disclose, in a timely fashion,63 the names and places of residence of any witnesses and experts (intended to be) summoned or brought directly to the trial by the defence under § 222(2) so that the prosecution and court may make enquiries. b) There is no duty on the defence to inform the court or the prosecution about the contents of their prospective testimony.64 c) Section 222(2) does not apply to witnesses named in evidentiary motions which are regulated by §§ 244(2) and 246: a motion may not be rejected because it is filed too late, as long as it filed before the judge starts pronouncing the judgment. It may be rejected if it is made only for the purpose of stringing out the trial (Prozessverschleppung)—a criterion that has been notoriously difficult to establish. d) Section 222(1) requires the court to inform the parties of all witnesses and experts summoned by it, and of their places of residence. e) The defence are not under any duty to show their hand before the court has heard the evidence otherwise available; in practice it may, however, be a question of professional diligence in the best interests of the client for counsel to identify any exculpatory evidence as soon as possible. See also § 219, which allows the defence to make evidentiary motions during the preparation stage, and § 220 which states the defence’s right to summon witnesses directly, especially if the court refuses to do so upon a motion under § 219. This freedom of the defence to proceed, in effect, by ambush has led to phenomena such as the infamous ‘conflict defence’ (Konfliktverteidigung),65 where the aim of the defence strategy is to wear down the court through dozens and sometimes hundreds of Beweisanträge, recusal motions, etc. It is characterised by an almost complete lack of preparedness to recognise the court and to abide by the spirit of the rules of procedure. An especially notorious defence tactic for some time was to make motions for summonses of numerous witnesses allegedly living abroad, if at all possible in countries with whom there existed no mutual legal assistance agreements; this tactic has hence become known among judges and prosecutors under the moniker ‘The Phonebook of Ankara’. We shall see in the next chapter to what extent the present law allows the court to counter such tactics. If the trial takes place before the LG or OLG, the court must, under § 222a, also inform the parties of the composition of the panel no later than at the start of the first hearing; usually this has already been done with the summons for trial. The parties through their counsel may in certain circumstances inspect the case

63

Otherwise the other party may ask for a recommencement under § 246(2). RGSt 67, 180; MG § 222 Mn 9. 65 See, on this practice, M Bohlander, ‘A Silly Question?—Court Sanctions against Defence Counsel for Trial Misconduct’ [1999] Criminal Law Forum 467. 64

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The Trial allocation plan of the court to make sure the right judges sit on the case. If the parties do not object to any potential errors before the first defendant is questioned on the facts of the indictment, they forfeit their right to raise the issue on any appeal on points of law66 by way of Revision (§§ 222b, 338 No 1). This has been held not to violate the constitutional right to a predetermined judge.67 Outline of the trial proceedings As in any system, the structure of a trial is a fairly basic affair; the problems lie in the manifold issues that can and will arise in practice, exposing lacunae in the rules governing the trial, etc. In this section, we take a very general look at the regulations underlying the German trial structure at first instance. The hearing of an appeal on facts, Berufung, is a (partial) trial de novo, and any differences from the first instance setting will be explained in chapter eight on appeals. The provisions governing the trial are found in §§ 226 ff and partly in the GVG,68 and in the JGG for juvenile courts. Section 226(1) states that all those judges who will decide on the merits of the case must be present at all times in the hearing —with the exceptions mentioned above for the beauftragter and ersuchter Richter, who may take evidence on behalf of the trial court in the (partial) absence of the trial judges.69 The same requirement applies to the prosecution, though not necessarily demanding the presence of the same prosecutor,70 and the clerk of the court, again not necessarily the same one.71 A defence counsel72 must73 be present in cases of mandatory representation (§ 145(1) 1st sentence). There may be more than one defence counsel (of one defendant) and prosecutor participating in the trial (§ 227), and they may divide their functions and responsibilities among themselves.

66 There is no appeal on facts against trial judgments of the LG or OLG, argumentum e contrario from § 312. 67 BVerfG NStZ 1984, 370; BGHSt 33, 126. This constitutional principle (the Gesetzlicher Richter) is discussed further in ch 2. 68 We have already looked at §§ 169 ff GVG regarding open justice in ch 2 on basic concepts. 69 See ch 2, text attached to nn 104—109. A reserve judge (Ergänzungsrichter) may replace a trial judge who falls ill or has to step down from the panel for other reasons, but only if she was present at all times prior to the exit of the panel member; BGH NJW 2001, 3062. 70 BGHSt 13, 337; 21, 85. 71 BGHSt 21, 85. 72 There may be several defence counsel acting consecutively, as with the prosecution and the clerk of the court; BGHSt 13, 337. 73 If counsel is absent in the event of § 145(1)1st sentence, ie mandatory representation, the defendant may ask for a recommencement of the hearing; § 228(2). See ch 2 for the concentration principle (Konzentrationprinzip) and § 229.

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From the Decision to Prosecute to Judgment at First Instance The defendant74 must also be present throughout the trial; there is in general75 no trial76 in absentia, unless the defendant has himself wilfully caused his absence and the law specifically allows a case to proceed77 despite it (§ 230(1)). If the trial concerns multiple defendants, they must all be present at all hearings, even if the discussion on a particular day relates to only one of them,78 unless § 231c is triggered, which allows the court to grant leave, upon request, to defendants and their mandatory counsel to be absent from certain parts of the trial if the evidence, etc on a particular day does not concern them at all. That permission may be revoked at any time. If the defendant absents himself without good cause, he may be ordered to be brought before the court by the police, or an arrest warrant may be issued (§ 230(2)). If he has appeared at the beginning of the trial and then absents himself, the trial may be continued without him if he has already been heard on the charges in the indictment and the court considers his further presence unnecessary (§ 231). This provision is to be interpreted narrowly, and the court must do everything in its power to ensure the defendant’s attendance.79 74 For juvenile proceedings, see §§ 50–51 JGG, which refer to the law under the StPO unless specific juvenile-related rules apply, such as, for example, those relating to parents, carers, guardians, the juvenile court service and the probation service, etc, who typically have a right to be present. The court may, eg, also exclude the juvenile from the hearing if the discussion of certain matters would be detrimental to her education; and parents, etc may be excluded if their presence might impair the willingness of the defendant or witnesses to make a truthful statement, or present a danger to the defendant’s or a witness’s or other person’s life and limb or future development in the wider sense etc. See, for more detail, the commentary in EB on § 50–51 JGG. 75 A first major exception for minor offences is § 232, which allows for a trial without the defendant if he was correctly summoned and put on notice that the trial might go ahead without him; this applies only in cases where the penalty does not exceed a fine of 180 daily units or other non-custodial sanctions. The defendant may within one week from service of the Urteil ask for a reinstatement (§ 235) if he was unable to attend; if granted, it removes the Urteil and the trial resumes. A second exception under § 233 is to allow a defendant at his request to absent himself if the expected maximum penalty does not exceed six months’ imprisonment. The defendant must in this case be heard about the charges in the indictment by a commissioned or requested judge. In any case when the trial proceeds without the defendant, he may ask to be represented by a privately retained counsel (§ 234), who then has the powers to make declarations for the defendant as set out in § 234a, except in the case of § 233; see for details MG § 234a Mn 3. 76 The procedure available against absent suspects under §§ 276–295 is not a trial (see § 285(1) 1st sentence) but allows for proceedings to secure evidence in the event that the suspect will stand trial at a later date. If there are reasons to issue an arrest warrant against an absent suspect, the court may freeze all his assets located in the territory of the Federal Republic of Germany until such time as an indictment is admitted for trial, unless the reasons for the freezing order cease at an earlier date (§§ 290, 293(1), 294). The court may grant safe conduct to the accused under § 295, but this has effect only for the offence (§ 264) with which he is being charged in the individual proceedings; however, this power exists outside the ambit of the special procedure at any stage of the proceedings; see MG § 295 Mn 1–2, 6. 77 See, for such instances, MG § 230 Mn 2. 78 BGH StV 1987, 189. 79 MG § 231 Mn 4 ff.

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The Trial It is obvious that astrict presence requirement would create serious potential for abuse by the defence. For this reason, § 231a, in contrast to the previous provisions, requires80 the court to continue the hearing even before the defendant has been heard if he intentionally puts himself in a state of unfitness to plead knowing that this will disrupt the trial, unless his presence is considered vital by the court. This option may be used only if the defendant has had the opportunity to make a statement before the court or a requested judge after the indictment was admitted. If the defendant regains his fitness to plead before the Urteil is being pronounced, the presiding judge must inform him of the essential content of what happened at trial. The court must hear a medical expert on the fitness to plead; as soon as it it considers the possibility of moving ahead in the defendant’s absence it must appoint counsel to an unrepresented defendant (§ 231a(4)). Section 231b allows the court to exclude an obstreperous defendant temporarily if his presence would seriously disrupt the proceedings; once he is readmitted, he must be informed of what has gone on in his absence. The defendant must, however, always be given an opportunity first to make representations about the charges in the indictment; if he uses this opportunity for obstruction, the court will terminate his statement and is then no longer under any duty to provide an opportunity for him to make a statement.81 The court does, however, retain the power in all cases to order the attendance of the defendant even if it had previously decided to proceed in his absence (§ 236). It may be helpful at this point to look at the course of the average trial in the form of a flowchart (see Figure 5.1 below); note again that there is no division into a prosecution and a defence case. It is not customary for the defence to make an opening statement, either at the start of the trial or when witnesses named and summoned directly by the defence start being heard, although in some (mostly high-profile) cases this does happen. Figure 5.1 Simplified outline of an adult trial at first instance Step 1 Court formally + opens the hearing + introduces the panel and + establishes the identity of the defendant, counsel, prosecutor and other parties + any witnesses already present in the courtroom are welcomed, cautioned82 and sent out again.

80

There is no discretion not to apply § 231a once the criteria are fulfilled; see BGHSt 26,

228. 81

MG § 231b Mn 8.

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From the Decision to Prosecute to Judgment at First Instance

Step 2 Prosecutor + reads out the indictment + omitting, however, the essential result of the investigations. Step 3 Court + cautions the defendant about his right to silence and + asks him to make an uninterrupted statement if he so wishes + it then proceeds to question him, followed by prosecution, defence counsel and other parties in that order83; note that the defendant is not a witness and his statement not evidence in the strict sense + in Step 3 (or 4) the defendant’s prior criminal record is usually introduced in so far as relevant (§ 243(5)). Step 4 Court + opens the phase of taking of evidence + proceeds to examine witnesses, experts, documents, etc, usually followed by other parties in the order mentioned in Step 3 + asks the defendant after each piece of evidence whether he wishes to make comments + closes the phase of taking of evidence. Step 5 Court +

invites the prosecution, defence and other parties to make closing statements; usually the defence should speak after all prosecuting parties have spoken84

+

asks the defendant, who has the last word, whether he wishes to add anything and

+

retires for deliberation.

Step 6 Court +

pronounces judgment

+

cautions the defendant (if convicted) about avenues of and time-limits for appeal

+

closes the hearing.

82 This depends a lot on individual judicial practice: some judges caution every witness only before their actual testimony, regardless of whether they were present at this stage or not. 83 This sequence is, however, not as strict as it seems, and the court may at any time allow a party to ask questions out of turn. A co-defendant may not directly examine another defendant; § 240(2) 2nd sentence. 84 See MG § 258 Mn 8 for more detail.

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The Trial Individual issues We shall not dwell on the more technical aspects of the trial here but look at some of the central issues that relate to the substantial principles and are of interest to lawyers from common law systems. Matters relating to evidence will be addressed in the next chapter. Role of the judge and the parties Section 238(1) leaves the running of the trial85 in the hands of the presiding judge; this also encompasses the questioning of the defendant and the taking of evidence. The parties do not have the same roles in a German trial as they do in an adversarial system such as, for example, that in England and Wales. Their task, if the court is properly prepared, is more akin to checking on the court’s conduct of the trial, to object to questions by the court or other parties they consider inadmissible (§ 242), and to fill in the gaps left after the court has finished its questioning, etc. It is thus, in a way, the reverse of the adversarial system, where the court is a mere arbiter and checks on the actions of the parties and fills the gaps, if any, after the parties have conducted their examinations. As a consequence of this approach, § 238(2) allows the parties to challenge any decision of the presiding judge that impacts negatively on their position by requesting a decision of the full panel. The jurisprudence of the BGH, however, has turned this right to challenge into a duty: unless a decision of the presiding judge has been challenged at trial by invoking § 238(2), any procedural error made by the presiding judge can, for example, no longer be used as a ground for appeal by the defence, if the defendant was represented by counsel.86 This does not apply if the presiding judge violates non-derogable ex officio 87 duties of the court or provisions that do not leave him any discretion.88 The curious provisions of § 239 on cross-examination (Kreuzverhör) by prosecution and defence of the witnesses or experts named or summoned and presented by them, are artefacts in the German system and have no practical relevance. They require a joint application by both prosecution and defence, and this never happens. Section 239 has long been ripe for repeal, in part because it is at the discretion of the presiding judge anyway to allow questions by the parties 85 For the contempt power of the presiding judge and the full court, see §§ 175 ff GVG. German courts have nowhere near the same powers of contempt as common law courts. 86 Not if he was unrepresented, because the knowledge of § 238(2) cannot be imputed to the layman; see MG § 238 Mn 22 for details and references to the case law. 87 This becomes highly problematic in the context of the use of evidence which may be inadmissible, if defence counsel does not object to its use: § 244(2) states the duty of the court to ascertain the truth; nonetheless the courts have extended the approach under § 238(2) to a duty of counsel to object to such use, etc—the so-called Widerspruchslösung, about which more in ch 6 on evidence. 88 BGHSt 38, 260; 42, 73; 45, 203.

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From the Decision to Prosecute to Judgment at First Instance immediately after a witness or expert has given her coherent and uninterrupted initial report, ie a so-called ‘informal cross-examination’.89 Plea agreements—Absprachen im Strafprozess Because of § 244(2) and the inquisitorial principle, for a long time German law had been averse to any kind of bargaining, because it was seen as not fitting into the overall structure of a procedure directed at ascertaining the material truth and not the truth as put forward by the parties, as is, for example, the case in civil procedure under § 288 ZPO, where a confession by the defendant of facts as set out in the plaintiff ’s pleadings typically makes any evidence relating to those facts superfluous. This has changed to some extent, with the introduction of the new central90 provision of § 257c in 2009. German law still does not subscribe to a guilty plea as understood in many common law jurisdictions, namely, a procedural declaration by the defendant which obviates the entire need for a trial and moves the proceedings straight to the sentencing stage. However, before 2009 the necessities created by overloaded dockets and long trials, partly because of uncooperative defence counsel, partly because of a shortage of judicial personnel, had already led to a de facto bargaining culture, which took the form that the court could indicate to the enquiring defendant a maximum sentence it would not exceed in the event of a believable confession. Although in practice such requests were often put to the court based on previous negotiations between defence and prosecution, in theory the consent of the prosecution, in the sense of a proper plea agreement, was strictly speaking not necessary.91 This is no longer true since the coming into force of § 257c, which in § 257c(1) 1st sentence now envisages an agreement between the court, the prosecution92 and the defence based on a proposal made by the court; other parties, such as the Nebenkläger, may comment on the agreement but their consent is not required.93 The agreement may be reached at any time, even—and especially—before the evidential stage of the trial, which an agreement will often be meant to avoid,94

89

See MG § 239 Mn 1–6 for details. But see also §§ 160b and 202a for the pre-trial and intermediate stage. 91 However, there is some uncertainty, because some decisions of the BGH held that it was necessary, some left the issue open. Compare BGHSt 50, 40; BGH StV 2003, 481; NStZ 2006, 708. See also MG § 257c Mn 1–2. 92 Because § 257c(3) 4th sentence requires the consent of the prosecution, some commentators express concerns about the constitutionality of the provision based on the judicial independence rules in Arts 92 and 97(1) GG; see the references at MG § 257c Mn 5. This is not entirely understandable, however, because the existing law already requires the consent of the prosecution for a number of judicial decisions, eg, some discontinuances under §§ 153 ff. 93 MG § 257c Mn.24. 94 MG § 257c Mn 1. 90

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The Trial and may also cover the further procedural conduct of the parties.95 To this end, the agreement typically requires the defendant to make a confession as part of the bargain (§ 257c(2) 2nd sentence). An agreement may only address the penalty to be imposed on the defendant; it is unlawful to negotiate a charge96 bargain (§ 257c(2) 3rd sentence), even if this is done merely by dropping sentencing-based qualifications,97 such as, for example, by convicting the defendant of the basic form of theft under § 242 StGB instead of aggravated theft pursuant to §§ 242, 243(1) No 1 StGB, in a case where the defendant broke into a dwelling: the conviction must be entered under the latter provisions.98 A distinct sentence allegedly cannot be agreed upon, either, much like under the previous practice, and according to some commentators the court may, under § 257c(3) 2nd sentence, indicate only a minimum and maximum sentence.99 Because the agreement may refer only to the defendant’s personal guilt, aspects of public safety cannot be bargained away, which is why measures of rehabilitation and incapacitation also cannot be made the subject of an agreement. Section 257c(1) 2nd sentence makes explicit reference to § 244(2) to ensure that there is no free-wheeling bargaining unconnected to the actual guilt of the defendant and the gravity of the offence; but how much will remain of this in practice is open to question. The bargaining of an appeal waiver, which formed a major part of the pre-2009 practice, has been explicitly excluded by § 302(1) 2nd sentence. The BGH has already emphasised that the reference to § 244(2) may be more than paying lip service to a traditional procedural paradigm.100

95 Serious concerns have been voiced in relation to this facet of the agreement, because in theory it allows the court to arrange an agreement that the defence waive any further evidential motions (Beweisanträge) in return for a lower sentence. While the materials accompanying the legislation state that this would be an unlawful condition to include in the agreement, the wording of the law allows it, and in practice that will often be one of the main interests of the court and the prosecution. See on this, with further references, MG § 257c Mn 14–15. 96 It is open to question whether the previous stance of the courts, that it was unlawful in juvenile cases to agree the application of juvenile or adult criminal law to a young adult (BGH NStZ 2001, 555; NStZ-RR 2006, 187), is still applicable under the new law; MG § 257c Mn 7 considers this to be lawful now because § 257c has extended the ambit of possible agreements and does not explicitly prohibit such an agreement. 97 See, on the function and treatment of the sentencing factors in § 243 StGB under substantive law, POGCL, 35, 215 f. 98 MG § 257c Mn 4. 99 See, eg, the view of L Meyer-Goßner in MG § 257c Mn 11, who on the one hand finds this curious under a bargaining paradigm, but on the other hand approves of the Government’s reluctance to take this last step from a general criminal law and a constitutional perspective, although he admits that the legislative materials accompanying the new law do not mention this issue at all. The mere wording of § 257c(3) is not really supportive of this view, however, because it states that the court may ‘also’ indicate a minimum and maximum sentence, which under a merely literal and grammatical interpretation would leave ample space for a distinct sentence to be bargained. However, his view finds some support in § 257c(4) 1st sentence, which speaks only of a bandwidth indication between a minimum or maximum sentence. 100 BGH StV 2010, 60.

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From the Decision to Prosecute to Judgment at First Instance The binding force of the agreement ceases if and when before judgment legally or factually relevant circumstances surface or are found to have been overlooked that mandate a different view of the defendant’s guilt or the gravity of the offence, or if the conduct of the defendant after the agreement is in contrast to what the court expected. Any confession made by the defendant must in that case not be used in the further proceedings (§ 257c(4) 3rd sentence). The defendant must be cautioned about the possibility and consequences of a deviation from the agreement in such circumstances (§ 257c(5)). The negotiations and the agreement, or the fact that no such agreement was made, must be entered into the trial record and are made known in open court (§ 273(1) 2nd sentence; (2)). Any ‘deals’ made in secret and not properly recorded are not binding.101 Changes in the legal or factual basis of the charge during trial—§§ 265, 266 Section 264 makes it clear that the possible ambit of the judgment of the court is circumscribed by the charge in the indictment in its admitted form, as it presents itself after the hearing. The court is not bound by its previous evaluation when it admitted the indictment. If it admitted the case, say, as a basic murder under § 212 StGB, but after hearing the evidence is considering treating it as an aggravated murder under § 211 StGB, it can do so. However, moving from § 212 StGB to § 211 StGB means moving from a sentencing frame of five to 15 years, or exceptionally life, to a mandatory life sentence. It is obvious that natural justice demands that the defendant be given an opportunity to adapt his defence to this new development to counter this drastic change in outlook. Similarly, the evidence at trial may have brought to light that the defendant committed not just one robbery on 3 February 2010 but four others on different dates as well, but which were not part of the indictment and can thus not form the basis of the judgment. Must the prosecution opt for a new trial on these, or can it try to combine the new offences with the ongoing trial? If so, can they do so without the consent of the defence? These questions are answered by the complex provisions of §§ 265, 266, of which we will give only an overview here. Section 265(1) protects the defendant by requiring the court, not the prosecution, to put him, not only his counsel,102 on notice if it considers changing the legal characterisation of the same facts, and to give him the opportunity to adapt his defence by specifying the reasons for a potential change as clearly as possible.103 This applies not only where there are changes to a more serious offence or mode of commission, but also where there are changes to less serious offences or lesser forms of guilt, for example if liability for negligence instead of intentional commission, attempt instead of completed offence, § 212 StGB 101 BGHSt 43, 195; BGH NStZ 2001, 555; StV 2001, 554; NStZ-RR 2009, 1 and further MG § 257c Mn 31. 102 BGH NStZ 1983, 35; 1993, 200. 103 BGHSt 13, 320; 18, 56.

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The Trial instead of § 211 StGB seems possible.104 There are, of course, borderline cases where giving a notice seems superfluous from a ‘harmless error’ point of view, for example if only an aggravating factor falls away, such as in a conviction for basic theft under § 242 StGB instead of theft using a weapon under § 244 StGB.105 The reason for this exception is the lack of a material disadvantage to the defence strategy in such scenarios. Similarly, a warning is required under § 265(2) if the law attaches a higher penalty to certain factors, for example the unintentional but negligently caused lethal result of an assault, or if the trial has given rise to considerations which might justify the imposition of measures of rehabilitation and incapacitation, for example where the defendant is an alcohol addict and might be detained in custodial addiction treatment under § 64 StGB. The provision is applicable by way of analogy to changes in the factual basis of the charge that do not necessarily change the legal characterisation, such as, for example, a different date and time of the offence106 or a substantially wider period during which the offences were committed,107 changes in the person of the victim108 or the addition of another victim.109 It is obvious that the envelope of the charge as indicted under § 264 can be stretched very far in this context, and that the danger of a conceptual overlap with an additional offence, as in § 266, requiring a new indictment (see below), is not out of the question. The consequence of such a change in the legal or factual basis is that the defendant may file a motion with the court for a full recommencement of the trial, not merely an adjournment110 (§ 265(3)). The court has a discretion only with regard to the question whether the triggering criteria under § 265(1) and (2) are fulfilled; it cannot refuse the motion because it thinks the defendant is capable of mounting a proper adapted defence without a recommencement.111, if the court considers it necessary to safeguard an adequate defence, it may under § 265(4) order a recommencement or an adjournment 112 proprio motu, or upon request in other cases not explicitly mentioned by § 265(1) or (2), such as, for example, late disclosure of evidence by the prosecution during the trial.113 Section 266 allows the prosecution to extend the indictment (Nachtragsanklage) orally, but to the same standard as a written indictment,114 to other offences of the defendant that cannot be caught under § 265 because they are

104 105 106 107 108 109 110 111 112 113 114

See the case law at MG § 265 Mn 8a–15a. BGH NJW 1970, 904. BGHSt 19, 88. BGH NStZ-RR 2006, 316. OLG Schleswig SchlHA 1974, 183; OLG Stuttgart MDR 1967, 233. BGH GA 1962, 338. BGHSt 48, 183. MG § 265 Mn 35–37. BGHSt 48, 183. See the examples at MG § 265 Mn 42. MG § 266 Mn 5–6.

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From the Decision to Prosecute to Judgment at First Instance outside the ambit of the original indictment pursuant to § 264, for the purposes of a speedy trial, if the trial court has jurisdiction to try them. This is evidenced by the fact that the extension is not possible unless the defendant115 consents to it in open court. The declaration of consent is irrevocable and must be noted in the court record.116 Lack of consent presents a procedural bar to the extension which must be taken into account ex officio at any stage of the proceedings; however, the prevailing opinion in the case law,117 curiously enough, does not view it that way and requires an objection by the defendant which leads to a discontinuance on appeal. This view is clearly wrong, because a mere objection is of no effect unless it discloses an underlying material issue that leads to the discontinuance and the prevailing view voids the consent requirement of substance.118 The defendant must be given an opportunity to adapt his defence, and may upon a request that is not vexatious or dilatory119 be given an adjournment; a recommencement is not normally required.120 The new offences need not have any connection to those in the original indictment, nor be of a similar nature,121 and thus the procedure is only superficially reminiscent of the English practice122 of having other offences ‘taken into consideration’ (so-called TICs).123 There are major differences from the treatment of TICs: unlike TICs, under German law the new offences are now pending as under a normal indictment, must be proved according to the normal procedure,124 and are fully usable in the sentencing process and do not merely allow an increase of the sentence for the originally indicted offence. Most importantly, the conviction or acquittal for the new offences, once final, triggers the full effect of autrefois convict or autrefois acquit, unlike in England and Wales, where a reprosecution is in theory possible and it is only a matter of prosecutorial discretion whether that happens. Any such TICs should also normally not be of a nature different from the offence with which the defendant stands charged.125

115 If counsel consents in the presence of the acquiescing client, the defendant’s silence will be taken to signify consent; conversely, the objection of counsel to a declaration of consent by the defendant herself cannot invalidate the consent (controversial). See MG § 266 Mn 11–12. 116 BGH NJW 1984, 2172. 117 BGH NStZ-RR 1999, 303. 118 Correct, therefore, MG § 266 Mn 14 with references to the literature. 119 MG § 266 Mn 22. 120 Ibid. 121 MG § 266 Mn 3. 122 Which does not have a statutory base; see Hungerford-Welch, 784. 123 Generally see P Hungerford-Welch, Criminal Procedure and Sentencing , 7th edn (hereafter ‘Hungerford-Welch’) (London, Routledge & Cavendish, 2008) 783–85. 124 The consent to the extension is not the equivalent to a guilty plea as it is in English law; see R v Miles [2006] EWCA Crim 256 at [10] and [11]. 125 See generally on these matters, R v Nicholson [1947] 2 All ER 535; R v Miles [2006] EWCA Crim 256.

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The Trial The court record Before we move on to an explanation of the process of arriving at a judgment and its overall form, a few words need to be said about the prima facie rather technical issue of the court record, which is prepared by the court clerk.126 The record is an extremely important document because of its role as a means of proof of compliance with the procedural requirements, and as a record of the court’s and the parties’ declarations at trial. It is an important tool for the appellate courts, especially on appeals on points of procedural law. Before the record has been formally finalised, dated and signed by the presiding judge127 and the clerk, the judgment must not be served on the parties (§§ 271, 273(4)), ie any time limits for appeals, etc calculated from the time of service of the Urteil will not run and service has to be repeated after finalisation of the record.128 The record contains, first, the formalities, such as place and date of the trial, and the names of the judges, assessors, prosecutor, counsel, etc, including a notice of whether and when the court sat in camera with the public being excluded (§ 272). Secondly, and more importantly, § 273 mandates that the record must contain documentation of the essential stages in the course of the trial and certify that all essential procedural formalities have been complied with, including documents read out or read under § 249(2), any motions made and the decisions thereupon, as well as the tenor of the Urteil (§ 273(1)). Any plea or other negotiations and agreements, or the absence thereof, must be recorded (§ 273(1) 2nd sentence, (1a)). In trials before the AG only, the record must normally also include the essential contents of the witness or expert testimony,129 which may be replaced by an audio recording of the testimony (§ 273(2)); German procedure does not operate a verbatim record as in English or US practice, and thus has no

126 Unlike in civil proceedings, where for some years now the judge has been able to sit without a clerk if she records all the formalities, the testimony, etc on a dictaphone, which are then subsequently transcribed by a court clerk (§§ 159, 160a ZPO); the legislator has so far (rightly) shied away from extending this model to criminal proceedings, despite the obvious potential for savings on staff costs. 127 If the presiding judge is unavailable for signature, the eldest professional judge of the panel signs the record; if the presiding judge is the only professional judge (at the AG, for example), the signature of the clerk is sufficient; § 271(2). 128 BGHSt 27, 80. 129 This has for some time caused confusion, because the appeal from the AG is usually the Berufung on fact and law to the LG and a (partial) trial de novo, where the witnesses are heard again; thus the record of what they said at the AG is rather unnecessary. There is no Berufung against trial judgments of the LG, only the appeal on points of law (Revision), where no further evidence on the merits is heard and where, if anywhere, the content of what a witness said at trial might be of relevance for certain grounds of appeal. Yet the LG record does not contain the statements of the witnesses, etc. Note, however, that the record at the AG does not provide proof of the substance of the testimony in the sense of § 274, only of the fact that the witness was heard, unless the testimony was recorded/taped verbatim, read out and approved under § 273(3)—in that case, the record/tape may be used to disprove opposing statements in the judgment; MG § 273 Mn 17 and 36; § 337 Mn 14.

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From the Decision to Prosecute to Judgment at First Instance court reporters. Statements or events that need to be recorded verbatim or in detail are entered into the record on the order of the presiding judge, and are then read out by the clerk and approved by the person concerned; if the judge refuses a motion to that effect, the party affected may request a decision by the court (§ 273(3)). The record may always be corrected for typos and obvious inaccuracies. In substance, it may be amended after finalisation and even after finality of the judgment—unless the section concerned is one recorded/taped, read out and approved under § 273(3)—if both the judge and the clerk agree that a matter has been incorrectly recorded, and after hearing the parties involved.130 The most important provision regarding the record is § 274, which states that only the trial131 record can prove the observance of the required procedural formalities in the same individual trial132 proceedings.133 The record of these formalities, unlike the contents of any testimony, may be challenged only by proving that it has been forged, with the burden of proof being on the person alleging the forgery.134 Even if all parties and the court are agreed that the record is wrong, or if the judgment itself expressly states so, this binding force cannot be removed.135 This provision is meant to facilitate the task of the Revisionsgericht, ie the court deciding an appeal on points of law, by exempting it from the duty to hear evidence on whether the formalities have been complied with.136 The force of proof is commonly divided into a positive and a negative aspect: anything that is recorded is considered as having taken place (positive), and anything that is not recorded is considered not to have taken place (negative).137 The force of proof is, however, destroyed if the record in and of itself contains major gaps or irreconcilable inconsistencies, which then allows the parties to offer evidence as to the true facts in the usual manner.138 The BGH has controversially139 held that defence counsel must not allege a procedural error based on the face of the record if she knows that the record is wrong and the trial court in fact acted correctly; the respective ground of appeal will be treated as inadmissible for abuse of process.140 A somewhat intricate consequence of the interplay between the force of proof and the possibility of correction of the record becomes apparent in the appellate process of the Revision, which was the object of a major shift in the BGH jurisprudence in 2007 on the so-called Rügeverkümmerung—literally translated 130

See generally MG § 273 Mn 21–26c. The provision cannot be extended to other judicial records; MG § 274 Mn 4. 132 And only for the trial hearing, not for any other part of the proceedings; RGSt 53, 176. 133 It does not provide proof in other proceedings or erga omnes; BGHSt 26, 281. 134 MG § 274 Mn 20. It is, however, sufficient if the complainant provides facts or leads pointing to evidence which the court must then follow up on its own. 135 BGHSt 2, 125; 8, 283; 13, 59; 22, 278 and MG § 274 Mn 3. 136 MG § 274 Mn 1–2. 137 MG § 274 Mn 13–14. 138 See, for the details and the case law, MG § 274 Mn 15–18. 139 See the references to the critical literature at MG § 274 Mn 21. 140 BGHSt 51, 88. 131

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The Trial ‘atrophied ground of appeal’. Imagine that the defendant has filed an appeal arguing a procedural error based on the omission of a required act, as was apparent from the record in its exisiting form when the appeal was lodged. The appellate court considers the ground admissible and starts the appeal proceedings based on it. In the meantime, the presiding judge and clerk of the trial court carry out a correction of the trial record, which now states the exact opposite on this very issue and records the act as having taken place, thus retroactively pulling the rug from under the defendant’s pleadings on appeal. Until 2007, such a correction to the detriment141 of the appellant could not be taken into account in the appeals process,142 which meant the appeal would be successful regardless of the correction of the record if the ground in its form before the correction had merit. This changed with the decision of the Great Senate of the BGH on 23 April 2007,143 which now allowed the correction to have an ‘atrophying’ effect on the previously admissible ground of appeal under the following conditions: a) The court clerk and trial judge must first hear the appellant about the intended correction. b) If the appellant objects with substantiated arguments, other parties to the trial may have to be examined about the correctness of the particular part of the record. c) If the clerk and judge maintain their view, they must pass a fully reasoned decision about the correction which addresses the arguments of the appellant. d) The appellant cannot appeal the correction order as she could have done if there had been no appeal. e) The judgment need not be served on her again. f) The appellate court may itself hear evidence on whether the correction was justified. g) If the corrected record discloses new grounds of appeal, the appellant must be allowed to change her pleadings on appeal and be treated in effect as if the appeal time-limit ran only from service of the correction order.144 This decision of the BGH, which in essence allowed for a rehashing of the trial proceedings below the threshold of an allegation of forgery on an appeal against the judgment on the merits, something which § 274 was meant to avoid in the first place, has received vitriolic criticism from commentators, and from some judges of the BVerfG when that court had to decide on the constitutionality of

141 It had always been the case that corrections which benefitted the position of the appellant had to be respected by the appellate court and used in the decision on the appeal; BGHSt 51, 298 at 304. 142 BGHSt 34, 11. 143 BGHSt 51, 298. 144 See the overview of the different case law and literature voices at MG § 271 Mn 26a –26b, 28–29.

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From the Decision to Prosecute to Judgment at First Instance the BGH’s approach. By a 5:3 majority, the BVerfG upheld the BGH’s decision, but the three dissenting judges argued that the BGH had usurped legislative powers by substituting its own view for that of the clear wording of § 274.145 I am unsure whether that criticism is entirely justified: the BGH did not tamper with § 274, because it did not touch the force of proof of the record at all. On the contrary, it addressed the basis on which this force of proof operates, ie the record as approved by the trial judge and court clerk, and merely did away with the imbalance between beneficial and detrimental corrections based on previous and possibly one-sided notions of procedural fairness, which is consequent only if one allows the correction of the record at all, even after an appeal has been lodged, and that is where the real rub lies in my view. That the appellant cannot appeal the correction order separately is a critical point, but the solution is understandable because: a) the appeal would have gone to the OLG, not the BGH, thus creating potential for confusion and additional delay; b) from the point of view of the appeals proceedings, the correction may be seen as a decision which prepares the judgment, and such decisions cannot be appealed separately under § 305; c) the appellant is given the opportunity to address the correction, because the appellate court will hear evidence on whether it was justified, which would also have been the case had the separate appeal been heard by the OLG; and d) the appellant is allowed to address potential new grounds for appeal based on the corrected record. In any event, the situation is not ideal, and a clarifying word from the legislator on possible time limits for corrections and their treatment in appellate proceedings would be welcome.

THE JUDGMENT—THE URTEIL

Introduction As was pointed out above, the different models determining the triers of law and fact—professional judge versus judge and jury—have an impact on the form and function of the trial judgment. The judge in a jury context does not give reasons for the verdict because that is not his role; he will give reasons for the sentence, but very often that will be done on the record, not in a written and argued decision as on appeal. The appeal against a verdict must by its very nature be based on anything but the material jury decision, because (in England at least) the jurors do not give

145

BVerfGE 122, 248.

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The Judgment – The Urteil reasons for the verdict, only their overall voting tally is disclosed. In effect, it is thus the judge’s instructions to the parties and the jury during the proceedings that may have an impact on whether the proceedings are fair and the verdict ‘safe’. Those instructions are mostly given orally on the record during the trial. The judge, much like counsel, must sometimes make snap decisions when sustaining or overruling objections, etc, with the attendant potential for error. That is certainly one traditional reason why only experienced lawyers are eligible to be appointed to the bench of the superior courts in England and Wales, for example—which makes systemic sense because the education there is geared towards the profession of counsel, whereas in many Continental systems, and certainly in Germany, the model role towards which legal education strives still is that of the judge, despite some recent efforts to diversify legal education. In the German context, the judges, who are triers of both fact and law, must give explicit reasons for their decision on guilt or innocence, ie on the facts, in the Urteil. Any procedural errors they made during the trial remain, unless waived under the rules of § 238(2), as potential grounds for appeal, yet the most important document for the appellate court is the written judgment, not least because it also discloses the legal argument of the trial court about the liability of the defendant. There is no explicit verbatim court record, either, which would give an indication of what was said at trial. This crucial function of the Urteil has resulted in a very strict emphasis on formalities, as indicated above and exemplified by the Annexes at the end this book. Rambling first-person monologues expressing personal views, often also general moral as opposed to strictly legal attitudes as one not infrequently finds them in certain judgments of the Court of Appeal, House of Lords/Supreme Court, US Supreme Court, etc, are alien to the German approach. The person and opinions of the individual judge, an object of much veneration146 in common law systems, and the respect of such systems for ‘great judges’, are almost entirely irrelevant: there are no separate or dissenting opinions, save at the level of the BVerfG; the style of writing is de-personalised and detached; and the reader cannot and must not know which judge voted in which manner during the deliberations (and usually does not care, either). Anything said during the oral explanation of the verdict and sentence is of no consequence if it is not taken up in the written judgment. For all intents and 146 German judicial mentality tends to see too much personal publicity, even if positive, based on one’s judicial work as a questionable matter. However, German judges are just as prone to vanity as their foreign colleagues: if a judge wishes to acquire a reputation, she will usually contribute to academic writing, often to the major practitioner commentaries, and thus gain a personally attributable influence on the development of the law. In keeping with this, while German judges still enjoy a high social esteem with the public, there is nothing near the pomp and circumstance, deference and respect lavished upon judges of comparable courts in common law systems. Academic commentary and criticism of judicial decisions even of the highest courts, for example, do not usually contain the polite disclaimers ‘with respect’ and the like one finds so often in common law-based publications—on the contrary, if a German commentator exceptionally uses such a phrase, the reader can expect that the criticism following that phrase will in all likelihood be particularly vicious.

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From the Decision to Prosecute to Judgment at First Instance purposes, the Urteil is the only basis of any appeal, and as we shall see in the chapter eight on appellate remedies, especially the Revision, a well-drafted judgment is not easily unsettled. The law states that the trial ends with the pronouncement of the Urteil after deliberation147 (§ 260(1)). The verdict, in the strict sense of that word (Urteilsformel), must contain the precise legal characterisation of the offence, including the numbers of the relevant provisions, and the sentence (§ 260(4) and (5)). Any decision during the deliberations on conviction and sentence to the detriment of the defendant requires a two-thirds majority of the judges; however, the question whether the offence is barred by the statute of limitations is—for mere historical reasons148—not covered by this requirement (§ 263) and thus may be decided by simple majority (§ 196(1) GVG). Interestingly, § 195 GVG states that no judge may abstain from a deliberation on an issue because she was in a minority regarding a previous question which may possibly be prejudicial to a following item of deliberation. Form and essential components—an overview The Urteil is formally pronounced in the name of the People (Im Namen des Volkes—§ 268(1)), a reference to the constitutional provision of Art 20(2) 1st sentence GG stating that all State power emanates from the People.149 The verdict and sentence must always be pronounced first (§ 268(2) 3rd sentence) by reading out the formula previously written down by the judge; this is in order to avoid torturing the defendant with the uncertainty of the outcome of the case. The reading of the verdict is the essential part of the pronouncement. If the verdict is not pronounced in the hearing then there is no judgment in the legal sense, even if it has been written down.150 The typical case is pronouncement of the verdict and its main reasons ex tempore directly after the last hearing of the trial, but the court may, especially in complex cases, also reserve judgment for a separate date, which has to be set within the strict time limit of the eleventh day after the last hearing; if this deadline is not met, the trial must recommence.151 This deadline must be distinguished from that for the filing of the written judgment, which is extended based on the length of the trial (§ 275(1)): unless the entire judgment has been directly entered ex tempore into the record in final form, something 147

For the general rules on the course of the deliberations, see §§ 192–197 GVG. MG § 263 Mn 7. 149 However, this formula, which must in principle be used by the judge when pronouncing judgment, is a mere formality as far as the validity of the judgment is concerned; its omission is not a ground for appeal; MG § 268 Mn 1. Even for a German lawyer there is such a thing as too much formality. 150 BGHSt 8, 41; 15, 263. 151 § 268(3). There is no possibility of adjournment beyond this date except for reasons of illness of the judges (and/or the defendant) based on the reference to § 229(3) and (4) 2nd sentence; MG § 268 Mn 16. 148

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The Judgment – The Urteil which happens very rarely, the judges have, absent unforeseeable factors such as, for example, the illness of the only152 professional judge on the case or the unexpected death of the reporting judge153 in a panel,154 five weeks to draft and finalise the judgment; this time limit is extended by two weeks if the trial lasted for more than three days, and if it lasted for more than 10 days by an additional two weeks for every portion of another 10 days of hearings. The judgment must be signed by all the professional judges who sat on the case at the time of judgment; judges who sat at previous hearings but were then replaced by a reserve judge do not sign even if they were replaced only in the last hearing, neither do the lay judges (although they may).155 The judgment has to contain the dates and times of the trial hearings, as well as the names of the persons who attended (§ 275(2) and (3)). Although readers will be able to get a detailed impression from the Annexes at the end of this book, Figure 5.2 below gives a schematic outline of the main components of a trial judgment—but note that these differ for appellate judgments and Beschlüsse. Depending on whether all the parties waive their right to appeal or do not appeal within the time limits, and whether the defendant is convicted or acquitted, the judgment may be considerably abbreviated to the point of not containing much reasoning at all (§ 267(4) and (5)).

Figure 5.2 Simplified formal outline of a trial judgment Header In the Name of the People! Judgment

Rubrum156 Listing docket no, name of the defendant157 (‘In the matter of … ’), division of the court, dates and times of hearings and persons attending

152

OLG Koblenz GA 1976, 251. BGH NStZ-RR 2007, 88. This is because the reporting judge is usually in charge of drafting the judgment. 154 General organisational difficulties and docket overload that are or could be known to the court administration will not normally suffice; see MG § 275 Mn 12–17. 155 § 275(2). 156 So called because that part of the judgment used to be written in red in earlier times. 157 But note that decisions are never officially reported by the names of the parties in Germany. There is no tradition of calling a case ‘The State v Müller’, etc. If the decision is reported in a journal or an official case report, it will as a rule be anonymised and only the citation of that source will be used; otherwise, especially with the new online databases of the Federal Courts and commercial databases such as Jurisweb, citation is by docket no, date and—where available—by web link or URL. 153

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From the Decision to Prosecute to Judgment at First Instance

Verdict (Urteilsformel) Listing conviction/acquittal and sentence with provisions applied, as well as the costs decision Reasons (a) Facts (Tatbestand) as established to the persuasion of the court (b) Reasoning of the court leading to the findings under (a) (Entscheidungsgründe)—this contains — a description of the evidence on which the court based its conclusions under (a), — an analysis of how the evidence supports the conclusions, including such issues as witness credibility, etc — the legal evaluation of the facts and whether they give rise to an offence known to law — the sentencing considerations and — the decision as to costs. Signatures of the judges

It would take a book in itself to explain in detail what the individual parts listed in the outline set out in Figure 5.2 mean and where problems may arise in practice,158 yet this book, despite its occasional but necessary emphasis on technical issues, is not meant to be a manual for judicial training, and readers should in any event get a good indication from Annexes 2 and 3 below on judgments.159 Juvenile proceedings There are a few specialities in juvenile court trials, but overall trials in those courts are run in much the same way as adult trials. The major difference is that trials, including appellate160 hearings, conducted only against juveniles before the juvenile courts, including the pronouncement of the Urteil, are not public (§ 48(1) JGG). This rule may also be applied to young adults under § 109(1) 4th sentence JGG. If there are juvenile and adult co-defendants, the trial is as a rule 158 Such books are available for German lawyers training to be judges, or for judges newly appointed to a criminal bench; one of the most popular ones is L Meyer-Goßner and E Appl, Die Urteile in Strafsachen, 28th edn (Munich, CH Beck, 2008), from which two of the Annexes to this book are taken. 159 See, for a detailed commentary on the essential contents of the judgment under the central provision of § 267, MG § 267 Mn 1–38. 160 RGSt 59, 374; EB § 48 Mn 8.

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The Judgment – The Urteil held in public, but the court may exclude the public if this is necessary in the interests of the development and education of the juvenile co-defendants (§ 48(3) JGG). Section 48(2) JGG allows the victim and his representatives, the probation officer and similar persons, including lawyers in training, access to the hearing. The Juvenile Court Support Service (Jugendgerichtshilfe) has a right to be notified of the hearing, and to be present and be heard at the trial. A trial in the absence of the defendant is possible only if it was permissible for adult defendants (see above), special reasons exist and the prosecution consent (§ 50(1) JGG). The defendant may be excluded if the discussion of certain issues in his presence would not be conducive to his education and development (§ 51(1) JGG), Similarly, the court may, among other reasons, exclude the parents, carers, guardians, etc of the defendant if their presence would present a danger to the interests of the defendant, or if they are suspected of participation in the offence etc. (§ 51(2) JGG). Interestingly, § 54(2) JGG orders that the court may decline to serve the reasons for the judgment on the defendant if this would raise concerns with regard to his education and development; the right of the legal parents, carers, etc to receive a full copy is, however, not prejudiced by this.161 A few words on costs For our purposes, it would be pointless to go into any detail as far as the award of costs is concerned—it is an area of law that even judges dread to enter, and which is mostly inhabited by a special type of quasi-judicial officer, the Rechtspfleger, similar to a taxing master or costs judge in England and Wales.162 Because of some differences in approach from the law in England and Wales,163 it is nonetheless apposite to set out the major principles as regulated in §§ 464 ff. German law distinguishes between the costs of the proceedings (Kosten) and the necessary expenses of the parties (notwendige Auslagen). Section 464(1) contains an ex officio duty of the court, ie the judicial panel sitting on the case, to rule on the costs in any Urteil, Strafbefehl or other decision terminating an investigation; there is no discretion not to make a costs order. The decision on expenses must be made by the court issuing the Urteil or the Beschluss which terminates the proceedings (§ 464(2)). Section 464a defines ‘costs’ and ‘expenses’. It is needless to give these definitions in detail; suffice it to say that ‘costs’ (§ 464(1)) are in principle any sums incurred by the police, the prosecution and the administration of justice in its institutional capacity, and these are more closely defined in the Gerichtskostengesetz (Court (Costs) Act) and the annexes thereto (note that these costs include the honorarium of assigned mandatory 161 162 163

EB § 54 Mn 46. Hungerford-Welch, 723 ff. Ibid.

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From the Decision to Prosecute to Judgment at First Instance counsel under §§ 140 ff). The expenses under § 464a(2) include compensation for wasted time and the reasonable fees of privately retained counsel. The material principle on how costs are to be allocated is contained in § 465: the defendant pays the costs in so far as they have been caused by the offence of which he has been convicted; if there have been special investigative measures leading to separate costs, the court shall order them to be paid either wholly or partially out of central funds if the investigation turned out in the defendant’s favour. This applies mutatis mutandis to the defendant’s expenses. If the defendant is acquitted, the indictment not admitted for trial or if the proceedings are discontinued, the rule in § 467(1) is that both the costs and the expenses of the defendant are borne by central funds. Similarly to English law, there is an exception if the defendant had caused delay to the proceedings, or brought the proceedings upon himself in the wider sense (§ 467(2) and (3)). Interestingly, § 467(3) 2nd sentence No 2 allows for a discretion of the court not to award expenses out of central funds if the defendant is not convicted merely because a procedural obstacle existed, ie if his guilt had otherwise been established, for example if the offence was proved at trial but the court then discovered that it was already barred by the statute of limitations. Sections 471 and 472 include the expenses incurred by the Privatkläger and Nebenkläger into the amount recoverable in principle from the defendant. Lastly, for juvenile proceedings, § 74 JGG allows the court the discretion not to impose costs and expenses on juveniles and young adults,164 even if the defendant would have to bear them under the general rules. The reason for this is the obvious effect that being burdened with such a huge debt can have on the development of the juvenile offender, and the fact that it can transmogrify in its effects into a fine, which is a sanction not permitted against juveniles.165

SPECIAL PROCEDURES

Overview As was indicated previously, the classic trial structure has for quite a number of scenarios been augmented by partially streamlined approaches, in order to deal, for example, with mass crime, such as traffic offences, with mentally ill persons, or with juveniles and young adults, etc. The special procedures discussed briefly below are: a) the Strafbefehl procedure (§§ 407–412); b) the Sicherungsverfahren procedure (§§ 413–416); c) the expedited procedure (beschleunigtes Verfahren) (§§ 417– 420); and 164 165

If substantive juvenile law is applied to them, EB § 74 Mn 2. EB § 74 Mn 8–9 with references.

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Special Procedures d) the simplified juvenile procedure (vereinfachtes Jugendverfahren) (§§ 76–78 JGG). Two sorts of special proceedings have been omitted from closer examination: a) The procedure in cases of summary fines against corporations, companies and other legal persons (§ 444) is in effect one relating to proceedings for summary offences (Ordnungswidrigkeiten), and as such is not covered by the remit of this book. This scenario is relevant only if a criminal court must in an individual criminal case also decide on whether a summary fine is to be imposed on a legal entity as opposed to a natural person, because there are no criminal proceedings against non-natural persons. The legal entity must then be put on notice by the prosecution and be given an opportunity to be a party to the proceedings, much like an intervener.166 b) Similarly, the procedure for confiscation of proceeds of crime, etc (§§ 430–443) is a part of the sentencing law at which we shall look in chapter seven. The law set out in those provisions mainly deals with the procedure of how to include non-accused third parties whose properties and assets may be subject to confiscation, etc in the trial, or, if they were not party to the trial, in special proceedings ex post. 167 The Strafbefehl The Strafbefehl is based on the idea that in minor cases—but not necessarily only petty crime—it may be more efficient to give the defendant the choice of accepting a written penal order without a trial in lieu of a judgment after trial, to save her from having to undergo the ordeal of a public hearing and to economise on judicial resources. The prosecution may choose to send a request for a Strafbefehl to the AG, together with the full dossier, if the offence is a Vergehen, ie a misdemeanour, and the prosecution does not consider a full trial necessary. The request must name a specific penalty, eg, a fine of 120 day fine units at €50 each (§ 407(1)). The request must not be aimed at any penalties and/or measures other than: a) b) c) d) e) f) g) h) 166 167

a fine (§ 40 StGB); a warning combined with deferment (§ 59 StGB); a temporary driving ban (§ 44 StGB); a confiscation or deprivation order (§§ 73, 74 StGB); a destruction order (see, for example, § 74d StGB); publication of conviction (see, for example, § 103(2) StGB); a summary fine against a corporation or company (§ 30 OWiG); an absolute discharge (see, for example, § 60 StGB); or

MG § 444 Mn 4. See on this procedure MG Vor § 430 ff.

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From the Decision to Prosecute to Judgment at First Instance i)

a driving disqualification order not exceeding two years (§ 69 StGB).168

If the defendant is represented by counsel, the penalty may also include a suspended sentence of imprisonment not exceeding one year (§ 407(2)). The court will have to decide whether the request meets the prima facie charging standard discussed above, and if it does not, the request will be denied (§ 408(2)). If the judge does not agree with the legal characterisation of the offence adopted by the prosecution or with the requested penalty, or if she feels that the case does not lend itself to written proceedings, she will set a date for trial and serve a copy of the prosecution request to the defendant, omitting the requested penalty. From then on the trial runs as described above. If the judge agrees with the prosecution’s approach, she will sign the requested Strafbefehl and serve it on the defendant169; the exact contents of the order are listed in § 409. If she passes a custodial sentence, she must at the same time assign counsel to the defendant, unless he already has counsel (§ 408b). The defendant can either accept the Strafbefehl, in which case it will acquire the force170 of a final Urteil (§ 410(3)), or he can file an objection (Einspruch) with the issuing court within two weeks of service. The objection may be restricted171 to parts of the order; for example, the defendant may accept that he committed the offence but object against the severity of the sentence imposed.172 Once an objection has been lodged in time and in the prescribed form, the proceedings move to the normal trial model described above, otherwise the objection is denied as inadmissible (§ 411(1)). The defendant may choose not to attend the hearing, however, if he is represented by counsel (§ 411(2)); if neither he nor his counsel appears, the objection will be dismissed (§ 412). If he merely objected to the amount of the day unit of a fine, he may consent to a decision by Beschluss without a hearing, if the prosecution also agrees; the court may not deviate to the detriment of the defendant from the penalty as set out in the Strafbefehl, if it chooses to follow that procedure (§ 411(1) 3rd sentence). However, if the case moves to the full trial model, the court is bound neither by the requested penalty, nor by the legal characterisation of the offence, which is expressly mentioned in

168

These penalties will be explained in ch 7 on sentencing and enforcement. There is also the possibility of moving to a Strafbefehl after an indictment has been admitted in the normal procedure, and even at the hearing itself, if the prosecution so request and the defendant is absent or there are other serious reasons, eg if a vital witness cannot be reached (§ 408a). See also MG § 408a Mn 3–4. 170 This had been controversial before the amendment of the StPO in 1987, because the previous case law allowed a reprosecution if a legal aspect had been overlooked which led to an increase in liability; see BGHSt 28, 69 and the pre-1987 restriction of that approach by the BVerfG in BVerfGE 65, 377. 171 Which may happen even after the hearing on the objection has begun, argumentum ex § 411(3). 172 The restriction as to sentence is, however, void if the facts set out in the order with regard to the offence are so scant that they do not provide a proper basis for the sentencing decision; MG § 410 Mn 5 with references to the case law. 169

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Special Procedures § 411(4). The defendant can escape this consequence, to which the court should alert him under fair trial aspects,173 by withdrawing his objection, which may be done up until the time when judgment is about to be pronounced. However, after the hearing has begun, he may withdraw only with the consent of the prosecution, which may or may not be forthcoming (§§ 411(3), 303). The judgment after trial upon objection replaces the Strafbefehl and is subject to appeal, as it would be if a full trial had taken place upon indictment. The Sicherungsverfahren In some cases it is apparent quite early on that a defendant will likely be found to be insane under § 20 StGB or permanently unfit to plead, and that initiating a ‘normal’ trial will be pointless because a conviction is unlikely. Nonetheless, such offenders may still pose a serious danger to the public and there may be a need to restrict their activities. For these cases,174 §§ 413 ff provide the Sicherungsverfahren—literally translated, ‘incapacitation procedure’—because it is aimed at imposing so-called ‘measures of rehabilitation and incapacitation’ (Maßregeln der Besserung und Sicherung) on the offender under §§ 61 ff StGB. Those measures generally include, according to § 61 StGB: a) b) c) d) e) f)

mental hospital orders; custodial addiction treatment orders; detention for the purpose of incapacitation; supervision orders; disqualification from driving; disqualification from exercising a profession.

The measures applicable in the Sicherungsverfahren are strictly speaking not penalties, because they do not typically require that the offender acted in a blameworthy fashion but merely that he fulfils the offence description (Tatbestand), acted unlawfully and is dangerous; no moral judgment or stigma is involved (but see below). They are thus an expression of the Zweispurigkeit (two-track nature) of German sentencing law, as we shall see later in chapter seven. The procedure requires either a certainty that at least a high degree of diminished responsibility exists, or that permanent175 unfitness to plead cannot be excluded.176 However, the nature of the procedure as being based on lack of moral responsibility precludes the imposition of those measures, such as the detention for the purpose of incapacitation (Sicherungsverwahrung) and the supervision 173

MG § 411 Mn 11. BGHSt 22, 1. 175 If the unfitness is likely to be only temporary, the proceedings would merely be stayed under § 205 until the condition improved. 176 MG § 413 Mn 4–5. 174

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From the Decision to Prosecute to Judgment at First Instance order (Führungsaufsicht), which require a dangerous and blameworthy offender. The Sicherungsverwahrung was the subject of heated controversy between Germany and the ECtHR in late 2010 and early 2011,177 resulting in a declaration of incompatibility of the ex-post variant of this measure with the ECHR, and finally in a declaration of inconstitutionality of the entire law on incapacitation orders by the BVerfG on 4 May 2011, about which more in the chapter seven. Just as with an indictment, however, there must be a prima facie case that the criteria of § 413 regarding insanity or unfitness to plead are met, and overall there must be a likelihood that the measure will actually be imposed.178 The prosecution is not under an obligation to initiate the procedure as they would normally be according to the mandatory prosecution principle in § 152(2); they retain a discretion based on the need of the public for protection from the dangerous offender.179 Conversely, the mere fact that the offender has already been sequestered in a mental hospital, etc under general mental health law does not in itself preclude the availability of the Sicherungsverfahren. 180 Section 414 makes the provisions on criminal proceedings applicable to the incapacitation procedure unless specific regulations make exceptions. The indictment is replaced by an application which must, however, conform to the requirements of an indictment and has the same effect as an indictment as far as the matter of lis pendens is concerned. In the pre-trial proceedings, an expert shall be given the opportunity to prepare the report for the trial hearing, ie to examine the offender, who is incidentally called Beschuldigter, not, as in regular criminal proceedings, Angeklagter, even after admission of the application (§ 415). Section 415(1) allows for a hearing in the absence of the offender if his physical or mental condition militates against his appearance, or if there is a concern that he would seriously disrupt the proceedings and thus present a danger to public safety.181 In such a case, § 140(1) No 7 mandates representation by counsel throughout the entire proceedings.182 In this scenario, the offender must be examined by a judge before the hearing, in the presence of an expert; the offender, defence counsel and the prosecution must be informed of the date, time and place of the examination—the presence of the last two is, however, not required (§ 415(2)). If the criteria under § 415(1) are not met but for other reasons related to the condition of the offender it becomes necessary to continue

177 See the cases of M v Germany, App no 19359/04, judgment of 17 December 2009; Haidn v Germany, App no 6587/04, judgment of 13 January 2011; Schummer v Germany, Apps nos 27360/04 and 42225/07, judgment of 13 January 2011; Mautes v Germany, App no 20008/07, judgment of 13 January 2011; Kallweit v Germany, App no. 17792/07, judgment of 13 January 2011—all available online via the ECtHR’s search engine HUDOC. 178 MG § 413 Mn 6. 179 MG § 413 Mn 10. 180 BGHSt 24, 98. 181 In cases not covered by these criteria, the normal rules for the absence of the defendant apply; MG § 415 Mn 1 and 8. 182 MG § 415 Mn 1.

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Special Procedures the hearing in his (partial) absence, the court may do so once the offender has been examined on the facts of the case (§ 415(3)). If the offender is absent, his previous statements in judicial records may be read in court; the statement made to the judge in the pre-trial proceedings must be read (§ 415(4)). An expert must be heard at trial about the condition of the offender; this will usually be the one who examined him pre-trial, but may also be another expert who must first, however, be given an opportunity to examine the offender herself (§ 415(5)). Should the Sicherungsverfahren hearing come to the conclusion that the offender is actually neither insane nor unfit to plead, the court may order the proceeding’s transition to a normal criminal trial. Depending on jurisdiction, the court may either refer the case to the proper court, or continue with the case itself, after giving the offender an opportunity to adapt his defence. Any parts of the hearing that were previously held in the absence of the offender must be repeated in his presence (§ 416). The expedited procedure (Beschleunigtes Verfahren) Sections 417 ff provide for a sort of summary procedure that is based, first, on the idea that punishment is more effective because and when it follows the offence on the spot, rather than by being particularly harsh. A second reason for its introduction was to reduce the burden on the courts by providing them with a tool that allows them to hold speedy trials. Consequently, the expedited procedure does away with many safeguards usually found in the context of criminal trials. It has been severely criticised by commentators as violating basic principles of the rule of law under the GG and the ECHR. Judges do not seem to be happy with it, and thus its application has not been as widespread183 as the Government had hoped when it introduced the new procedure.184 Section 417 allows185 the prosecution to raise the indictment,186 either in writing or orally before the AG, if the matter appears to be straightforward either because the facts are simple or because the evidence is overwhelming,187 and to apply for the expedited procedure to be used.188 If the prosecution chooses to

183 Its frequency of use, as compared to all types of criminal proceedings, has even declined from 4% to about 2.8% in recent years; see MG Vor § 417 Mn 7 with references. 184 MG Vor § 417 Mn 1–7. 185 In theory, the prosecution must use the expedited procedure if they deem the criteria in § 417 to be fulfilled and § 419(1) 2nd sentence with its penalty restrictions does not apply. However, choosing a Strafbefehl may be the more efficient method, and in any case there is no real monitoring mechanism for the prosecutor’s discretion to use or not to use this tool, other than perhaps the disciplinary regime by the chief prosecutor of that district, so again theory and practice are not entirely congruent; see MG § 417 Mn 10. 186 However, there is no need for a formal indictment as described above, and the contents of the charge may be dictated into the court record; § 418(3). 187 The procedure is not available against juveniles; § 79(2) JGG. 188 If that application is missing, the case will be discontinued; MG § 417 Mn 9.

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From the Decision to Prosecute to Judgment at First Instance apply for an expedited proceeding, the hearing shall be held at once or as soon as possible, but usually not later than within six weeks189 (eg, if the police have arrested a pickpocket, and after consulting with the prosecutor in charge have brought him directly to the court). There is no need for a decision admitting the indictment; the application for an expedited procedure may be rejected even after the hearing has begun (§ 419(2)). If the court denies the prosecution’s motion outright but thinks there is a prima facie case against the defendant, it may admit the case for regular trial proceedings, but may proceed with the case directly only if the same judge actually also has jurisdiction for that type of proceeding under the court’s case allocation plan.190 If the court rejects the motion and does not admit the case for regular trial, the dossier is returned to the prosecution; unless a written indictment had already been presented, the prosecution must now either serve a formal written indictment, or apply for a Strafbefehl or discontinue the case—they cannot repeat the motion for expedited proceedings.191 The defendant is formally served with a summons only if she does not present herself at the court anyway or has been brought there by the police, etc; in such a case the summons period is 24 hours, the summons also contains the charges. If the defendant does not attend, the case may be transferred into the Strafbefehlsverfahren (§§ 418(3) 2nd sentence, 408a). Section 419(1) restricts the court’s sentencing powers in this procedure to imprisonment not exceeding one year; measures of rehabilitation and incapacitation other than disqualification from driving must not be imposed. If a sentence of imprisonment of more than six months is to be expected, the court must assign counsel to the defendant (§ 418(4)). Section 420 contains the most controversial provision—that for the course of the trial, § 420(1) allows the reading out of previous statements and documents written by witnesses, experts and co-defendants in substitution for their interrogation viva voce; § 420(2) extends the use of offical written statements beyond the ambit of § 256, which is described in more detail below in chapter 6 on evidence. However, according to § 420(3), which is a verbatim copy of the provision of § 77a(1) OWiG from the summary fine procedure, this modus operandi requires the consent of the prosecution, the defendant and defence counsel, if they are present. The provision does not abrogate the rules on witness privilege, which must be observed. The most far-reaching exception to the regular trial is § 420(4), which in so many words says that the single judge192 (Strafrichter) at the AG can determine the taking of evidence at her discretion and is only bound by

189 Which is, of course, a pointlessly long period if a speedy trial is what is desired. In practice, the expedited procedure works only if the court organisation provides for a duty judge roster, special secretarial and administrative support, etc. See also MG § 418 Mn 5. 190 MG § 419 Mn 9. 191 OLG Hamburg NJW 1964, 2123; MG § 419 Mn 9. 192 Not if the case is tried before the Schöffengericht, MG § 420 Mn 10.

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Special Procedures the general duty to ascertain the truth under § 244(2). This means that she can deny evidential motions without being bound by the rules under § 244(3) and (4). In sum, this procedure has rightly been given short shrift by most judges, as it is a typical example of political meddling with the criminal justice system aimed at putting expediency over due process. The simplified juvenile procedure (Vereinfachtes Jugendverfahren) Sections 76–78 JGG allow the prosecution and the juvenile judge at the AG193 to react in a speedy manner to crimes committed by juveniles194 that are too serious for the procedure under §§ 45 ff JGG explained above, but not serious enough for a trial with the full array of juvenile sanctions. This resembles the expedited procedure just described, in that the prosecution may orally or in writing submit a motion to the court to use the simplified procedure, and this motion replaces the indicment (§ 76 JGG). The motion may be made only if the expected sentence does not exceed the use of: a) educational directions (Weisungen) (§ 10 JGG); or b) educational assistance (Hilfe zur Erziehung) by a social worker under § 12 No 1 JGG; c) corrective measures (Zuchtmittel) (§ 13 JGG); d) a temporary driving ban (§ 44 StGB); e) a driving disqualification order for a period not exceeding two years (§§ 69, 69a StGB); or f) confiscation or deprivation (§§ 73 ff StGB). The juvenile judge will deny the motion if she thinks that more serious or intrusive sanctions are required (but see below), or if the case is complex on the evidence (§ 77(1) JGG). If the court denies the motion, the prosecution must file a proper indictment if it wishes to pursue the matter (§ 77(2) JGG). The language of § 77(2) JGG sounds more restrictive than it is in practical application, because according to the general view the prosecution is not obliged to indict the offender but may discontinue195 the case instead, refer it to another prosecution service196 or proceed under § 45 JGG if other measures, for example by the family court, have made the simplified procedure moot.197

193

This procedure does not apply to any other juvenile court, or to courts for adult offenders if and when they try juveniles; EB § 76–78 Mn 1 and 3. 194 But not to those committed by young adults; § 109 JGG. 195 According to some, the prosecution may even discontinue if the court denies the motion under § 76 JGG at a stage in the proceedings when it could no longer have been withdrawn by the prosecution; EB § 76–78 Mn 17. 196 BGHSt 12, 184. 197 EB § 76–78 Mn 17.

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From the Decision to Prosecute to Judgment at First Instance The juvenile judge, according to § 78(1) 1st sentence JGG, decides after an oral hearing by Urteil; however, § 78(1) 2nd sentence JGG states that she must impose neither custodial educational assistance under § 12 No 2 JGG nor a custodial addiction treatment order under § 64 StGB. This appears at first blush to be a counterintuitive and pointless restriction, because these sanctions are not part of those listed as trigger or threshold sanctions in § 76 in any event. The solution to this conundrum is that this simply means that the juvenile judge can, once the hearing is under way, make use of the full arsenal of juvenile sanctions that she would normally have at her disposal, including imprisonment.198 There is no need for the defence to consent to this in any way. The prosecutor does not have to be present at the hearing; if she does not attend, the law deems her irrebuttably to have waived the right to deny consent to a discontinuance or to object to a proceeding in the absence of the defendant (§ 78(2) JGG). Lastly, § 78(3) JGG contains a similar relaxation of the procedural rules as in the expedited procedure under §§ 417 ff, as long as the ascertainment of the truth is not jeopardised (see § 244(2)) and certain notification requirements (parents, carers, guardians, etc) are obeyed. As far as the use of the procedure in practice is concerned, from 1995–2008 it was applied each year in numbers ranging from a high of 22,600 to a low of 16,022; relative to the procedure under § 45 JGG, its use has declined considerably in recent years.199

198 199

EB § 76—78 Mn 30. See EB § 76—78 Mn 3 and § 45 Mn 17d–17e for details.

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6 Evidence INTRODUCTION

This chapter gives an overview of the main tenets underlying the German approach to establishing the facts on which the judgment on the merits after trial is based.1 Note that for interlocutory decisions, those outside the trial and those at the appellate stages of the proceedings, these requirements may not always be applicable with the same stringency (ie the difference between strict (Strengbeweis) and discretionary (Freibeweis) forms of proof2), notwithstanding the rule that the principle in dubio pro reo applies at any and all stages of the proceedings and that allowing a more relaxed use of the possible means of evidence does not translate into a relaxed application of the principles of evaluation of evidence. In addition to the basic procedural principles already set out in chapter two above, here we shall examine some of the more specific rules of the law of evidence and the means of evidence allowed at trial. In the previous chapters we saw that German law operates on an independent duty of the court to establish the truth (§ 244(2)) and not on the partisan presentation of the evidence by the parties; it is thus not really helpful to speak of 1

In the context of this work, of necessity this is only a very brief examination of the topic, concentrating on a few fundamental issues such as may be of special interest to a reader with a common law background; for details the reader is generally referred to the excellent commentary in U Eisenberg, Beweisrecht der StPO—Spezialkommentar, 7th edn (herafter ‘EBB’) (Munich, CH Beck, 2011). 2 German law distinguishes the so-called Strengbeweis, ie strict form of proof, from the Freibeweis, ie discretionary form of proof mainly applicable to procedural issues. The Strengbeweis procedure which governs the trial recognises only those means of evidence explicitly listed and regulated in the StPO, and applies to any question relating to the determination of guilt or innocence, and sentence. The non-statutory (but see the reference to the distinction related to guilt and innocence in § 251(3)) yet judicially developed and recognised Freibeweis procedure, which allows for wider and non-regulated means of taking evidence, such as, eg, a telephone call by the judge to gain information on a question of procedural relevance, is also available for taking evidence outside the trial. However, even the Freibeweis remains governed by the same standards of diligence and by § 244(2); BVerfG NJW 1986, 768. Matters which are relevant to both conviction and sentence and procedural matters (doppelrelevante Tatsachen) must be proved in the Strengbeweis procedure; BGH StV 1991, 149. On this distinction and the consequences (ambit of binding effect) for the appeal proceedings, see with further references EBB, Mn 35–41.

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Evidence the ‘prosecution proving its case’ or of the prosecution having a ‘burden of proof ’ in a German trial context. Once the case is admitted to trial and the hearings have begun, control is taken out of the hands of the prosecution and given to the court. In theory3 the court may initiate its own investigations as it deems fit, beyond what the prosecution and/or the defence may have presented in the dossier, any pre-trial motions or at trial. There is no mutual disclosure regime, ie no defence disclosure, as in English law. The exercise of the right to silence during the police investigation does not as such give rise to any adverse comment at the trial stage. Germany also has an extensive jurisprudence about unlawful means of obtaining evidence (see the previous explanations of §§ 136, 136a in chapter four) and their treatment at trial. The idea of fairness and equality of arms is somewhat different from that of the adversarial model underlying many common law systems. It is not so much about balancing the positions of the defence and the prosecution; rather, based on the realisation that the prosecution is always in a stronger position, the emphasis is on protecting the rights of the defence versus the prosecution and the court.4

MEANS OF EVIDENCE—STRICT FORM OF PROOF

German criminal procedure acknowledges four major types of evidence in the context of the strict form of proof or Strengbeweis: a) b) c) d)

witnesses; experts; documentary evidence; and inspection.

We shall define the ambit of each of those categories in turn before moving on to the evidential rules governing their use. It should be borne in mind, however, that 3 That this does not happen too often at trial for practical reasons does not detract from the truth of the above statement in principle. 4 It is, of course, a truism, as it is in other countries, that new forms of criminal activity such as, for example, organised crime, transborder crime and terrorism, have led the Government to introduce more and more instruments aimed at crime control, at the expense of due process guarantees as previously understood. The post-9/11 ‘culture of fear’ (see the tenth anniversary edition of the book of the same title by Barry Glassner (Basic Books, New York, 2010) and Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford, Oxford University Press, 2007)) is still being used to fend off concerns by human rights proponents that civil liberties are being curbed precipitously and that the curtailments, which ostensibly are often meant as specific and/or interim measures to fight the modern types of criminals, are here to stay, and may eventually be used against ‘ordinary’ offenders who were not meant to be the object of the measures when they were introduced. See, on this problem from a European perspective, the contributions in B Schünemann (ed), Risse im Fundament, Flammen im Gebälk: Zum Zustand des kontinentaleuropäischen Strafverfahrens (Freiburg i Br, iuscrim Verlag, 2010).

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Means of Evidence – Strict Form of Proof these categories can and often do overlap, as the following—exaggerated— example shows: G, a graphologist, who is also a renowned cryptographer, has found an old title deed in encrypted medieval Latin that states that a certain piece of property belongs to the defendant who is charged with stealing it. The court may: a) b) c) d)

inspect the deed; read it out in court as a document to establish its contents; hear G as a witness as to the circumstances of finding it; and examine G as an expert as to the meaning of the encrypted Latin.

Witnesses—Zeugen General definition and hearsay witnesses Sections 48–71 regulate the role and the process of examination of witnesses. They do not, however, define the concept of what being a witness means. The BGH has defined the witness as a person who is meant to give evidence in criminal proceedings not directed against herself, about facts from her own personal experiences (visual, acoustic, tactile)5 as far as they are relevant to the proceedings against the offender.6 This does include hearsay evidence, yet it is necessary to point out that hearsay (Hörensagen) has a different and more restricted meaning in German law from that in, for example, English law,7 a perennial cause of misunderstanding between the systems: it literally and only means that the hearsay witness gives evidence about what another person, who may or may not be the direct witness, has told her; the in-court/out-of-court distinction that lies at the root of the English hearsay concept is as such irrelevant.8 The definition of hearsay thus depends primarily on the source of the information, not the person of the witness: Witness W1 may testify that she was at the scene of the offence and watched the offender kill the victim, but she may also relate what another direct witness, W2, who was at the scene, told her afterwards; with regard to the former she is a direct witness, with regard to the

5 Opinions, conclusions, etc of a witness are usually irrelevant and should not be asked for. According to the (controversial) prevailing view in the jurisprudence, a witness may, however, exceptionally formulate her own conclusions if they are based on general socially-accepted and trusted parameters, such as for example, giving her opinion whether someone was drunk and to what degree, whether he is generally trustworthy or known to be a liar, etc; see EBB Mn 1003 with references to the case law. 6 BGHSt 22, 347. 7 See, eg, A Keane et al, The Modern Law of Evidence, 8th edn (Oxford, Oxford University Press, 2010) 268 ff. 8 EBB Mn 1027.

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Evidence latter a hearsay witness.9 The hearsay witness thus is a direct witness merely as to the fact and content of that communication, not to the accuracy or truth of the content of the communication. Whether and to what extent the court can use hearsay evidence to establish a conviction10 is a question of the evaluation of evidence under § 261 and the standard of proof; German law thus treats hearsay evidence not as a question of admissibility, but as a matter of probative value.11 Classic hearsay witnesses are, for example, police officers,12 examining judges, etc, who are regularly called to testify about the statements of the defendant or other persons before the trial etc.13 The defendant as witness? The defendant cannot be a witness in his own or a co-defendant’s cause, because the duty to tell the truth conflicts with the right to silence; it seems unfair, in the German view, to give the defendant only the stark choice between being silent or testifying, and then to expect her to speak the truth even if that means incriminating herself.14 This ban only applies to statements made in the same trial, however: in the case of co-defendants, it is possible to hear one of them as a witness in the (separate) case of another, especially as soon as he has been finally dealt with, which gives the court the added benefit that the co-defendant may no longer be able to rely on § 55 which gives witnesses the right not to answer questions if that would incriminate themselves or a relative. To this effect, courts sometimes sever proceedings (possibly even only temporarily) against a certain co-defendant and then hear him him as a witness in the remaining case of the previous co-defendant on counts in the indictment with which he has not been charged as being a party. 9 Clearly, in the latter context her hearsay evidence may be used to scrutinise the credibility of W2, if at trial W2 changes his testimony from his previous statement to the police. 10 It can—§ 250 does not militate against this conclusion as it merely enshrines the best-evidence rule in the relationship between hearing the witness viva voce or reading a previous statement; consistent jurisprudence of the BGH, see only BGHSt 36, 159 and EBB Mn 1029–1033 for details and further case law. 11 One reason for this difference in treatment is obviously the use of juries in many common law systems and the ensuing need to prevent bad evidence from going to the impressionable lay jurors in the first place; the same does not apply to a panel of professional judges, or to a mixed panel where the professionals can exercise a degree of control over the voting behaviour of the lay judges. 12 On the problematic issues of undercover agents (see ch 4) as witnesses, especially the question of their availability for questioning at trial, the Government’s non-justiciable prerogative to block such a witness under § 96 and the court’s duty to ensure to the best of its abilities such a direct examination instead of the testimony of the agent’s ‘handler’ or other surrogate evidence, see EBB Mn 1034–1054b. 13 EBB Mn 1028, who refers in particular to the procedural safeguard of the duty of these categories of people to create an accurate record of their conversations, whether in an official or unofficial capacity. 14 BGHSt 10, 10.

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Means of Evidence – Strict Form of Proof This practice is highly controversial, and the evaluation depends on whether one uses a substantive or formal concept of who is a ‘defendant’. Taking the substantive view, it is at the end of the day the factual position as a co-offender in the wider sense leading to a joint indictment in the first place, and the practice is seen by some of those proponents as a disgraceful manipulation (unwürdige Manipulation) aimed at the evasion of procedural safeguards for pragmatic reasons.15 The formal view adopted by the courts circumvents these concerns by emphasising the purely procedural position of the offender.16 Neither view, however, allows severance with the aim of hearing a co-defendant as a witness on issues in which he stands charged as being involved.17 The dispute may at the end of the day appear more serious in theory than its effects are in practice, because even the appellate courts, who follow the formal approach constantly and consistently, admonish trial judges to pay close attention to the material probative value of a statement given in a merely formal capacity as a witness by a co-defendant and to potential conflicts of interest.18 In other words, the mere fact that a co-defendant testifies as a witness is in and of itself no guarantee of a (more) truthful statement in court. Distinction from experts Experts (Sachverständige) are typically court-appointed aides to the judge, mainly called upon to give opinions about a particular question in a pending proceeding, because of their specialist knowledge; they are thus not witnesses, although they are de facto also relating mere facts in so far as they inform the court about the factual basis of their findings. German criminal procedure does not know the concept of an ‘expert witness’ provided by the parties in a partisan fashion as understood in common law systems, and, as a consequence, the connected phenomenon of the ‘battle of the experts’ does not arise,19 but it permits parties to retain experts privately and summon them to the trial (§§ 220, 245). It would, however, be incorrect, in my view, to equate these privately-retained experts with common law expert witnesses. To complicate matters further, there are also so-called sachverständige Zeugen (witnesses because of expert knowledge), ie persons not appointed as experts by the court or retained by a party, who were only able to notice certain facts, for example at the scene of the crime at the time or on the person of the offender, by chance because they have some form of special expertise (§ 85). 15

See the references at EBB Mn 933. BGHSt 24, 259; BGH NJW 1964, 1034; 1985, 76. 17 BGHSt 32, 102. 18 BGHSt 18, 241; 26, 62. 19 But see below, in the section entitled ‘Experts—Sachverständige’, the new trend in the jurisprudence to strengthen the position of the party-retained experts. 16

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Evidence Fitness to testify—protective measures for vulnerable witnesses There is no minimum age for a person to be a witness; children may be witnesses, depending on their mental and intellectual development, and maturity in the individual case.20 Similarly, the law does not exclude any class of person as generally unfit to give evidence, and thus in principle even severely physically or mentally disabled21 people can give evidence as witnesses, the problem arising in the areas of establishing what they wish to testify (eg, by the use of sign language) and of the evaluation of the content of their testimony. The law allows for special ways of taking the oath for hearing- or speech-impaired witnesses (§ 66). Sections 241a, 247a and 255a(2) contain special provisions for the protection of vulnerable and under-age witnesses, which in certain circumstances and/or for specific serious offence categories: a) restrict the right of the parties and the other judges to question such witnesses directly, requiring them to channel any questions through the presiding judge; b) allow testimony to be heard via video link; and c) permit the playing of audio-visual recordings of a previous statement of the witness instead of live testimony, with a discretionary possibility to have additional live testimony from the witness. Judges, prosecutors and counsel as witnesses Judges, prosecutors, counsel, etc may also be heard as witnesses in the proceedings in which they participate; however, for a judge, the consequence of testifying22 under § 22 No 5 is exclusion from the further proceedings, resulting in a recommencement if no reserve judge was lined up to provide for such a contingency. This also applies if the judge discloses private personal knowledge of the case in the trial; this turns him into a material witness, and he is excluded from sitting on the case any further.23 A mere motion by a party to hear a judge in the case as a witness does not have this consequence, for obvious reasons.24 According to the prevailing opinion, a judge who has been named as a witness participates in the decision on whether he should testify.25 Defence counsel may, purely procedurally speaking, continue to represent her client even if she has been heard as a witness, but to do so may give rise to a question of professional ethics.26 A prosecutor who has testified must not

20 21 22 23 24 25 26

EBB Mn 1002. BGHSt 2, 269; 43, 62. Which may have been at the pre-trial stage; see EBB Mn 1008 with case law references. RGSt 26, 272. BGHSt 7, 330. BGHSt 11,206. BVerfGE 16, 217; EBB Mn 1014–1016.

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Means of Evidence – Strict Form of Proof normally continue on the case, for the obvious reason that he will be unable to assess the value of his own testimony in his closing speech, unless his testimony pertains only to technical or administrative issues, or only one count related to one of a number of co-defendants and the use of an additional prosecutor for the closing speech means that he does not have to do that himself.27 Procedural issues—duty to testify, oath, contempt Section 48(1) states the fundamental duty of every person who has been summoned as a witness to appear before a court or the prosecution service (§ 161a(1) 1st sentence) and make a statement,28 regardless of whether that person is convinced she does not know anything about the matter, unless the law allows an exception, most importantly the right to refuse to testify (Zeugnisverweigerung)29 under §§ 52, 53, 53a, for personal (family relationships, etc) or professional reasons (eg, attorney–client and similar privileges), or the requirement under § 54 of obtaining official permission to testify for judges and civil servants, etc. Section 55 allows the witness to refuse to answer individual questions (Auskunftsverweigerung) if a truthful answer would potentially30 lead her to incriminate31 herself, but it does not give her a general right to refuse testimony. If a witness does not attend despite knowledge of the summons, and in the absence of good cause, she may face sanctions for contempt (a fine of up to €1,000 for each violation, or a term of imprisonment of up to six weeks32) and imposition of the costs caused by the delay under § 51, or she may be forcibly

27 The new approach supported by BGHSt 14, 267 and BGHSt 21, 90 is a relaxation of the stricter previous approach of the RG, which had held (RGSt 29, 236) that a prosecutor could in no circumstances continue to represent the State in the case, which was, of course, a problem that allowed the defence to bowl the prosecutor who was on top of the case out of the proceedings. However, these days, even if a prosecutor has testified, many prosecution services get around the problem by formally assigning another prosecutor to the trial and letting the excluded colleague join her at the prosecution table as an aide without his robe: see EBB Mn 1020–1022. 28 On the technicalities and psychological framework conditions of the course and form of the examination, see EBB Mn 1296–1361. 29 For detailed explanation and references, see EBB Mn 1211–1272. 30 Simple suspicion (Anfangsverdacht) is sufficient; there is no need for a higher degree of certainty or probability to be present before the protection of § 55 is triggered: BGH StraFo 2007, 199. 31 This includes incrimination and the ensuing danger of prosecution—possibly also abroad—in connection with summary offences (Ordnungswidrigkeiten), and, according to some commentators and courts (eg, OLG Köln StV 1987, 538), also covers cases of disciplinary sanctions in the civil service or the danger of a sanction by a professional body, such as the equivalent to the Bar Council or Medical Council; EBB Mn 1116 with references. 32 If the violation concerns a summons to appear before the prosecutor, the prosecution may issue a contempt fine and impose costs, but the power of incarceration is reserved to the examining judge (Ermittlungsrichter) who has jurisdiction under § 162; § 161a(2).

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Evidence brought before the court by the police (this being a potentially even more embarrassing instrument, because of the neighbourhood gossip value of a marked police car driven by uniformed officers stopping at the missing witness’s door and her being manhandled into the car). If the witness appears but refuses to testify (generally or to individual questions) without good cause, § 70(1) allows and requires the court, and via § 161a the prosecution, to impose costs and a fine or punitive detention. In addition, § 70(2) gives the court the power –reminiscent of the common law civil contempt—to order the detention of the witness for up to six months or until the end of the proceedings, whichever is the earlier, to force her to testify (Beugehaft). Section 70(4) makes it clear, in contrast to the punitive sanctions under § 51, that these contempt measures may not be repeated in the same proceedings once they have been exhausted; however, a controversial33 view in the case law34 exempts the Beugehaft sanction from the ambit of § 70(4) and allows repeated detention until the six-month time limit has been exhausted. Witnesses must in principle be prepared to take an oath, or to make an equivalent declaration having the same force if they do not wish to swear, for example for religious reasons, and may do so with or without the invocation of God (§§ 59, 64, 65). The law requires the court to use the oath sparingly and only if the testimony is crucial for the case, or if it deems it necessary to make the witness testify truthfully. The oath, unlike in most common law systems, is administered after the testimony has been given (§ 59(2) 1st sentence), but the witness is warned before testifying that she may have to take an oath afterwards. However, in my experience, hardly anyone testifies under oath these days, because the courts have all but given up any pretence of believing that taking an oath makes any difference as to whether a witness is truthful or not, and are very critical of the view that the threat of a prosecution for perjury has any deterrent effect on a witness who decides to lie intentionally.35 In my 13 years as a judge in both civil and criminal matters, I administered the oath to probably no more than 10 witnesses. Witnesses must to a certain degree (see §§ 81 ff and the explanations in chapter four above) submit to inspection of their bodies and other physical examinations, and take part in identity parades and other confrontations.36 Questions that may violate the intimate privacy, honour or natural shame of a witness or a close relative, for example about extra-marital relations with the defendant, or the previous criminal record of the witness, must be asked only if strictly necessary for the investigation of the charges by the court and establishing the witness’s credibility (§ 68a). Witnesses may have the assistance of counsel during their testimony, and if the court feels that the interests of the witness 33 34 35 36

See EBB Mn 1106. OLG Köln NStZ-RR 2007, 242. See also the criticism at EBB Mn 1133 at fn 101. § 58(2). See generally EBB Mn 1188–1196 with further references.

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Means of Evidence – Strict Form of Proof require such assistance, it must assign counsel to the witness (§ 68b(2)). Witnesses receive compensation for loss of earnings and expenses (§ 71).37 The specific problem of § 252—a privileged witness who testified previously uses her right to refuse testimony at trial It is not uncommon, for example, for relatives of the defendant, who at the time of the pre-trial investigation were incensed by the acts of their brother, husband, etc and made a statement to the police, prosecution or examining judge, to change their minds before they come to testify at trial and then make use of their right to refuse testimony. Sometimes the previous statements may be crucial to the decision whether to convict or acquit, and thus the prosecution will often be keen to keep them within the admitted evidence. The basic provision which regulates this particular conflict is § 252: any record of the witness’s prior statement, regardless of whether it was given in a formal38 interrogation39 or, controversially,40 as part of a voluntary spontaneous statement to the police or prosecution, or even to the trial court in an earlier hearing,41 must not be read in evidence and, if the previous testimony had already been given at trial, it must be disregarded by the court. The consent of all parties to reading the document is irrelevant.42 Whether the witness herself can waive the ban, ie refuse to testify at trial but allow the use of the prior statement, is controversial; the BGH appears to be in favour of allowing the waiver in principle but requiring the court to make sure the waiver is informed in the individual case.43 The ban is in principle triggered only if the witness actually exercises the right to refuse to testify, which is why the statement of a witness, if it is otherwise permissible to read it as evidence at all, may be read if the witness has died44 or become insane45 without making a prior declaration of refusal, according to a controversial view of the BGH even if she was not cautioned about her right.46 If a witness is of unknown abode at the time of trial, the BGH applies this principle by way of analogy.47

37

See, for the details, EBB Mn 1204—1210. This includes an informal police interview (informatorische Anhörung) which is aimed at establishing whether the person may be a suspect in the first place; BGHSt 29, 230. 39 BGHSt 20, 384—possibly even in a civil trial; BGHSt 17, 324. 40 The BGH is reluctant to subscribe to this view; BGHSt 29, 230. For a detailed explanation and further references, see EBB Mn 1275. 41 BGH MDR 1969, 18. 42 BGHSt 10, 77; BGH NStZ 1997, 96. 43 BGHSt 45, 203; BGH NStZ 2001, 50; and see EBB Mn 1273 for references to the opposing views. 44 BGHSt 22, 36. 45 RGSt 9, 91. 46 BGHSt 22, 36. For the critique, see EBB Mn 1278–1279. 47 BGHSt 27, 143. 38

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Evidence Despite the fact that § 252 mentions only reading the record of a prior statement, there is agreement that the provision is meant to prevent any use of the previous declaration by the witness, including reading substitute documents such as a judgment in which the statement was incorporated, or hearing the persons carrying out the interrogation as witnesses.48 This excludes hearing non-judicial persons unless the witness previously had been heard at trial, or it is absolutely certain that she will not exercise her right to refuse testimony.49 A major exception to the exclusion of the use of the statement is the rule developed by the BGH that allows the judge who recorded50 a prior judicial51 statement to be heard as a witness about the contents of the statement, and even to use the statement to refresh his memory, without reading it in its entirety52 but possibly sections53 of it, if no other way exists to help the judge remember, because it argues (questionably) that judges are more neutral qua office than police officers or prosecutors who may have an interest in securing a conviction.54 However, only the testimony of the judge at trial is relevant as evidence; and if he cannot remember55 despite such attempts at refreshing his memory, the contents of the statement remain inadmissible. Experts—Sachverständige In many cases, especially in a medical or psychological context,56 the court and the prosecution will lack the necessary expertise to find and/or to evaluate certain facts that are necessary in order to come to an informed decision, such as, for example, the question whether a certain wound was caused by the knife found in the defendant’s flat, whether a bullet found in the body of the victim was fired from the defendant’s gun, whether the semen found in the victim’s vagina matches the genetic code of the defendant, whether the defendant was insane or acting under diminished responsibility at the time, etc. Judges are typically not competent to answer these questions and need to employ persons with the necessary expertise to help them in the decision-making process. The expert is 48

EBB Mn. 1286 with references. BGHSt 2, 110; 7, 197. 50 Yet only after giving the witness a proper caution about her right to refuse to testify; BGHSt 32, 31. 51 Controversially even that before a civil judge; BGH StV 1998, 362. 52 BGHSt 10, 77. 53 BGH StV 2001, 386. 54 BGHSt 2, 99; 21, 218; EBB Mn 1288. 55 It is not enough if the judge (or any official witness for that matter) merely states that he took the statement and signed the record, that he is convinced that he followed procedures correctly and that therefore the record as such will be an accurate reproduction of the defendant’s communication at the time; EBB Mn 1287. 56 Yet there have also been cases of legal experts being appointed to ascertain the state of the laws of a foreign State or even domestic customary law; BGH NJW 1994, 3366; StV 1999, 244; 1999, 478; EBB Mn 1501. 49

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Means of Evidence – Strict Form of Proof called upon mainly to give an opinion and draw conclusions from facts, whereas a witness only relates facts, albeit facts that he may have been able to notice only because of some personal expert knowledge.57 Definition and terminology—court-appointed experts, privately-retained experts and witnesses because of expert knowledge Sections 72 ff provide for the appointment of experts by the court, or during the investigation stage by the prosecution58 (§ 161a(1) 2nd sentence), in a particular proceeding.59 Persons retained privately by the defence, or other parties retained for the purpose of giving evidence at the trial based on their expertise, are not strictly speaking experts in that sense, although the StPO does speak of the defence right to summon Sachverständige in §§ 220 and 245. However, the BGH has held that only court-appointed experts enjoy the special position based on the official and public-law based character of their appointment, especially vis-à-vis third parties, and are thus distinct from persons privately retained by a party; the BGH reached this conclusion also on the basis of the fact that § 245(2) does not mention the power to refuse a request for a further expert report as set out in § 244(4) 2nd sentence (see below). This view, however, strengthens the position of the defence to have their private expert heard as opposed to a mere motion by the defence for the appointment of another court expert.60 In sum, it appears that although the courts are moving towards a higher degree of recognition of the role of private experts, there still seems to be some uncertainty about their status61—and also as regards the question of who bears the costs of a privately-retained expert.62

57 The courts have thus also held that it is the substantive activity of the person which decides whether she is an expert or a witness, not what she is called in the summons or the judgment; BGH NStZ 1984, 465; 1985, 182. 58 BGHSt 44, 26. 59 EBB Mn 1510. 60 BGHSt 43, 171. 61 See, eg, EBB Mn 1510 and MG § 85 Mn 3, who both state that a privately-retained expert is not acting as an expert within the meaning of the StPO but must be heard by the court in the same way as an expert, with a civil law decision by the BGH in MDR 1974, 382 being cited by both as stating the opposite; yet this decision actually speaks of a sachverständiger Zeuge (see below), because the person in question was not interchangeable in the same manner that an expert normally is, neither was he appointed by the court nor retained by a party for the trial but recounted his observations made at a time before the trial because of his special expertise, and thus was a witness, not an expert. The use of this case as authority for the contentions by EBB and MG is therefore highly questionable. 62 There is still some dispute about whether the costs of a privately-retained expert are part of the reasonable expenses (notwendige Auslagen) of the party; see OLG Koblenz NStZ-RR 2000, 64; OLG Düsseldorf NStZ 1997, 511; LG Schwerin StraFo 2002, 304; OLG Celle StV 2006, 32; OLG Köln NJW 1992, 586; BVerfG NJW 2006, 28; BGH Rpfleger 2009, 117; LG Saarbrücken StraFo 2009, 174.

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Evidence As mentioned above, there is a third category—namely, the witness who was able to notice certain facts (at an earlier time) because he has a particular expertise, but without having been instructed to do so by either the court or a party (sachverständiger Zeuge) (§ 85)—who is treated and compensated like any other witness.63 These three categories present, among other things, a problem of terminology for the English translation, which I decided to solve as shown in Figure 6.1 below, by qualifying the types of ‘experts’ according to the reason for their involvement in the evidential process. Figure 6.1 Categories of ‘experts’

Persons with expert knowledge

Court-appointed

Privately-retained

Witnesses because of

experts

experts

expert knowledge

The use of the common law concept of ‘expert witness’ is misleading in the German context and has thus been avoided entirely. Role, selection and function of court experts Experts,64 as has been mentioned already, provide opinions and conclusions based on scientific or other expertise. In today’s highly diversified world the universal scholar is an extinct species. In other words, an expert may not possess even the knowledge necessary for a certain wider sub-category in his field of work, eg a neuro-surgeon may have no knowledge of neuro-psychiatric issues and vice versa. It is thus extremely important to employ great diligence in selecting the right expert. In the following sections we shall confine our discussion to the court-appointed expert, because the law does not in any way regulate whom the parties may retain privately as an expert.

63

MG § 85 Mn 1. On the rights and duties of experts generally, see EBB Mn 1566–1584. Experts may be subject to similar sanctions for contempt as witnesses. § 79(1) places the administration of the oath in the discretion of the court and § 79(3) allows experts who are already publicly sworn to refer to that general oath. 64

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Means of Evidence – Strict Form of Proof The law generally assumes that a court has the necessary expertise65 to evaluate all the evidence put before it. A judge should therefore not opt to hear an expert too easily; there has to be sufficient reason for an expert to be appointed.66 This is understandable because, no matter how one views the role of an expert and his relationship to the judge’s role in theory, in practice the judge is abdicating part of his power to decide that particular question alone. If it were otherwise the judge would not need an expert; but if he needs one, how can the judge be in a position to evaluate the substance of the expert’s opinion?67 The court is walking a tightrope here: if it wrongly arrogates an expertise to itself and omits to appoint an expert, it may have laid the foundation for a successful appeal based on a violation of § 244(2), the duty to ascertain the truth ex offico.68 Section 73 leaves the task of the selection of the expert69 with the court; § 73(2) states in particular that if there are publicly-registered experts for certain areas, the court should not appoint a non-registered expert unless there are good reasons to do so. This rule is based on the assumption that in order to be registered publicly, an expert must prove his expertise to the registering authority, and that the court can therefore be sure that it will be served with a reliable analysis and report.70 The law increases this quality assumption argument in § 256, in that it allows written reports71 by official authorities and, recently, generally publicly-sworn experts72 working in expert fields to be read in court, 65 Controversially (EBB Mn 1518), the BGH held in a case from 1959 that it is sufficient if one of a panel of judges has this expertise, and even if that judge informs the others only during the secret deliberations, thus depriving the parties of the chance to challenge the judge’s standard of expertise; BGHSt 12, 19. I have never seen a professional judge do this, however, and I would question how German judges, with their law-focused training and education, could normally achieve a degree of knowledge in any forensically relevant non-legal area that would merit the description ‘expertise’ beyond the level of a gifted amateur. In my experience, it is more often the lay judges (Schöffen) who may have special knowledge from their regular fields of work that may be useful in gauging the testimony of witnesses. 66 EBB Mn 1518–1522. 67 I remember raising that issue with the presiding judge of the senate of the BGH under whose jurisdiction my court was, at one of the regular meetings of the federal judges with the trial and lower appellate judges from their appellate district. The rather terse answer from the presiding judge was a mere repetition of the formal legal position that the judge has the final responsibility; however, during a coffee break one of the other senate judges confirmed my concerns and sympathised. 68 BGHSt 2, 164; 3, 173; BGH NStZ-RR 2006, 7. 69 However, the expert may use employees and the cooperation of colleagues from his institution without a court order to that effect, as long as he still has command of the entire analysis when presenting the report; BGH NStZ 1998, 610. He may not, however, appoint sub-experts unless he has been granted an order from the court to that effect; EBB Mn 1502. 70 MG § 73 Mn 16. To which extent that is true in practice is open to question; there are, eg, also wide differences in the standards of registering and the monitoring of qualifications across Europe. See the recent report for the Dutch Ministry of Justice by B Keulen et al, Het deskundigenregister in strafzaken—De beoogde werking, mogelijke neveneffecten en risico’s (Groningen, 2010). 71 As long as they are not records of interrogations of witnesses, etc; § 256(1) No 5. 72 MG § 256 Mn 1.

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Evidence instead of requiring an expert from that authority to attend in order to present the findings and be available for questions by the court and the parties.73 This has been the object of some criticism, based on the concern that a court may choose to give the task of compiling an expert report to an official authority74 for purely pragmatic reasons of procedural economy, even if the expertise of a privatelyemployed or freelance scientist may be much greater.75 Section 78 requires the court to guide the expert’s work by stating as clearly as possible the topic about which the expert is meant to give an opinion. Recusal of experts; right to refuse appointment Because of their crucial role in deciding/helping to decide questions of fact in a trial, the law has given the parties the tool of recusing experts. Section 74 allows for a recusal for the same reasons for which judges may be recused (see chapter three). The mere fact that an expert had previously been heard as a witness is not a ground for recusal. An alleged lack of expertise is not a ground for recusal, either, but may in certain circumstances and on a motion by one of the parties lead to the appointment of a new expert (§ 244(4)).76 In addition to the reasons set out in § 22 Nos 1–4, an expert may be recused for fear of bias, if a reasonable party would entertain such concerns. This has been accepted, for example, in the case of an expert who was suspected of having taken part in human experiments during the NS-Regime,77 an expert who, in a publication, had expressed his disdain for a certain category of criminals where the case at issue was brought against such a criminal,78 or where the expert was a police officer who was mainly involved in police work with the German equivalent of the FBI, the Bundeskriminalamt.79 The fact that the expert had already been involved in previous proceedings against the same defendant is not in and of itself a reason for recusal.80 However, if the expert acted in the interests of the other side or connected third parties, for example treating the victim as a doctor, writing a private report for the victim or its insurance company, etc, exclusions have been deemed appropriate.81

73 However, as with any issue of evidence, the viva voce testimony may be required under § 244(2); BGHSt 1, 94. 74 This term is interpreted widely and covers, eg, public hospitals (BGH NStZ 1984, 231), public health authorities (BGHSt 1, 97), university institutes of forensic medicine (BGH NJW 1967, 299), etc. See, for further examples, EBB Mn 1503. 75 EBB Mn 1503–1505. 76 EBB Mn 257 ff. 77 OLG Stuttgart StV 83, 361. 78 LG Köln StV 1981, 540. 79 BGHSt 18, 217. 80 BGHSt 8, 235. 81 BGHSt 20, 246; BGH StV 2002, 4; MDR 1972, 925.

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Means of Evidence – Strict Form of Proof An expert may refuse to accept an appointment for the same reasons that a witness might refuse to testify (§ 76 1st sentence) and for other reasons too, such as when the appointment would pose an unreasonable hardship for the expert because of his regular work load, or the need for a long vacation at the time of the prospective trial, etc.82 Documentary evidence General rules As does the law in in England and Wales and contrary to general belief about civil law systems, German law frowns in principle on the independent use of documents as evidence without the involvement of a human agent who introduces them into the trial record, ie if a certain document is to be used in evidence, it should in principle be accompanied by a witness and/or an expert who can testify as to its creation and reliability, unless one of the exceptions under the law applies. The basic provision for documentary evidence is § 249(1), which states that written documents are introduced as evidence through being read out at trial by the court; thus it presupposes the admissibility of documentary evidence in principle.83 The German wording of the law distinguishes between Urkunden (literally, ‘deeds’) and other Schriftstücke (literally, ‘written materials’) that may be used as evidence, yet it is accepted that the two are in fact synonymous, so that the general term ‘document’, denoting a written declaration with an ascertainable content and meaning that can be read as evidence,84 may be used in English translation. It is irrelevant whether these documents were drawn up for the purpose of being used in evidence or not.85 Section 249(1) uses as examples previous judgments, the criminal record, excerpts from church records or the official registry of births, deaths and marriages, as well as judicial records of an inspection. Because these documents can sometimes be very lengthy, § 249(2) allows the court to order the Selbstleseverfahren (literally, ‘self-reading procedure’), by which the judges, if need be during a recess or an adjournment, read the documents in their entirety (which in practice mostly means the lay judges because the professionals will have seen them before as part of the dossier), as long as the parties also have had the opportunity to read them. This procedure does not apply to the introduction of the records of the previous statements of witnesses and experts to refresh their

82 83 84 85

EBB Mn 1586. EBB Mn 2006. EBB Mn 2003. EBB Mn 2005.

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Evidence memories under § 253, and it cannot be used to introduce previous judiciallyrecorded statements of the defendant to prove a confession or to highlight discrepancies between a statement at trial and previous records under § 254. Those must always be read out or introduced otherwise than through § 249(2). Records of previous statements—Vorhalt Section 250, an expression of the best-evidence and confrontation rules, prohibits the use of documents, ie records of previous statements, if the proof of a fact rests on the personal observations of a person; that person must in principle be examined viva voce at trial, although that may be by video link if there exists a grave danger for the well-being of a witness if she testifies in open court in the presence of the defendant (§ 247a). The law does allow exceptions from that rule in § 251 but, as in other contexts, it is worth remembering that the overarching duty under § 244(2) may in and of itself require the viva voce examination.86 In other words, the court is not always allowed to do in the individual case what the law allows it to do in general. Section 251(1) Nos 1–3 permit the replacement of the live testimony of a co-defendant, witness or expert through reading out a document or any record of a previous statement (before the police, prosecution or judge) if: a) the defendant has counsel and i) the defendant, his counsel and the prosecution consent, and ii) there is no reason for exclusion of the statement regardless of consent, eg under § 136a87 (once the document has been read the consent can no longer be revoked88); b) the witness, etc has died, or for other reasons cannot be examined viva voce in the foreseeable future89; c) the document or the previous statement refer to the existence and/or amount of a financial loss or damage; this is meant mainly to avoid bringing in witnesses in mass cases such a traffic offences, where the only thing to which they can testify is the pecuniary amount of the damage from an accident, etc (but in difficult cases § 244(2) may again require live testimony).90

86

BGHSt 10, 186; MG § 251 Mn 8. BGHSt 42, 73 (for judicial records). 88 MG § 251 Mn 28. 89 Eg, because of serious illness; the courts have allowed the use of this alternative if the witness and/or his family would be in immediate, severe danger to life or limb if they testified in person (BGH NStZ 1993, 350), or if a witness started by giving live testimony and only then became seriously ill (BGHSt 51, 280). 90 MG § 251 Mn 12. 87

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Means of Evidence – Strict Form of Proof Section 251(2) Nos 1–3 contain separate exceptions for judicial91 records92 of previous statements if: a) the witness, expert or co-defendant cannot appear before the court because of serious illness, disability or similarly insuperable obstacles (this provision is more or less devoid of substance given the identical reasons in the reformed wording of § 251(1) No 2 above); b) given the importance of the case, the witness or the expert cannot reasonably be expected to travel long distances; c) the defendant, his counsel and the prosecution consent, unless there exists a reason for exclusion of an unlawfully obtained statement.93 In essence, the only real remaining difference between non-judicial and judicial statements is § 251(2) No 2 relating to long-distance travel. Section 251(3) allows the court to read any document or record of a previous statement if the purpose of the evidence is not related to establishing guilt or sentence, ie the areas of the so-called Freibeweis.94 Section 253(1) allows the reading of the record of their previous statements, whether a judicial or non-judicial record,95 if a witness or an expert who is present at the trial declares that he cannot remember a certain fact; in that case the relevant part of the record may be read. The same applies under § 253(2) if there are discrepancies between the testimony at trial and a previous statement, if the discrepancy cannot otherwise be cleared up without an adjournment. The reading of the record replaces the testimony of the person who created the record, ie it is hearsay, it does not replace that of the witness or expert.96 If the witness or expert, upon the reading of the relevant passage, can remember and make a live statement to that effect, that testimony remains, of course, valid and highly relevant. Before the court may use the procedure under § 253(1), it must try to refresh the memory of the witness by means of a Vorhalt from the record of the previous

91 Judicial records that were not properly drawn up according to the law, and are therefore excluded under § 251(2), may still be read out under § 251(1); MG § 251 Mn 15, 32. If the record itself makes reference to other documents or records, these may also be read (BGH NJW 1953, 35), but not those documents, etc to which the examined person merely referred to in his previous statement. There is an additional minefield when trying to introduce the view of the examing judge about the demeanour, or even guilt, of the suspect or witness; see MG § 251 Mn 31. 92 Which may also stem from previous unrelated criminal, civil or administrative proceedings; BGHSt 10, 186; RGSt 56, 257. 93 BGHSt 42, 73. 94 See above n 2 and MG § 251 Mn 37. 95 BayObLG NJW 1954, 363. 96 MG § 253 Mn 1.

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Evidence statement. The Vorhalt, an almost untranslatable term,97 is a means of interrogation developed praeter legem by the courts98 for scenarios where the exact wording of a document is not relevant but the substance of what it says is. Using the Vorhalt, the witness, expert or defendant is reminded of a previous statement, where there are instances of memory gaps or discrepancies, by being told the essence of what he said previously, or even by being read99 relevant portions from the record. The difference from § 253 is that the material read out or put to a person under a Vorhalt does not replace anything if the witness, expert or defendant cannot remember; this is also evidenced by the fact that a Vorhalt as such is not to be entered into the trial record.100 If the witness remembers anything, only the live testimony of the witness counts as evidence.101 Section 254 contains a similar provison for reading previous judiciallyrecorded102 statements of the defendant, if the court wishes to establish whether and, if so, to what extent the defendant had previously confessed to the charges in the indictment at hand and what the substance of the confession had been103 (§ 254(1)). A confession for the purpose of § 254(1) is any admission of the offence or of individual facts related to it, whether incriminating or exculpatory.104 If the defendant revokes his confession at trial, some older authorities argue that while the record may still be read, there is no further need to read out the record because a Vorhalt would suffice.105 Given that the reading of the record also establishes proof of the content of the earlier confession, it may be advisable in more complex scenarios to read it out nonetheless.106 Section 255a(1) declares the provisions of §§ 251, 252, 253107 and 255 applicable mutatis mutandis to the playing of audio-visual recordings of previous interrogations of witnesses, experts and co-defendants; the law recognises the 97 It is based on the verb jemandem etwas vorhalten, ie to put something to somebody in order to elicit a reaction. In colloquial terms, one might translate it as ‘pointer’, or maybe simply as ‘reminder’. 98 See generally MG § 249 Mn 28 with further references. 99 BGHSt 21, 285. 100 BGHSt 21, 285; BGH NStZ 1999, 522. 101 BGHSt 11, 159. 102 Other records, in particular police statements, are not covered by analogy to § 254 according to the prevailing opinion, not even with the consent of the defendant; in favour of such a possibility, see M Bohlander, ‘Zur Verlesbarkeit polizeilicher Protokolle von Beschuldigtenvernehmungen bei Zustimmung des Angeklagten’, NStZ 1998, 396. The BGH has expressly recognised the argument, but so far has not had an opportunity to decide whether a change in its jurisprudence would be warranted; see BGH of 25 April 2001, Docket no 5 StR 12/01, available online via . 103 Statements made in other proceedings are not covered by § 254(1)—unlike § 253; RGSt 54, 126. 104 BGH MDR 1977, 984. 105 RGSt 23, 58; 52, 243. 106 Both procedures under §§ 253, 254 are subject to specific formalities under § 255 as far as the trial record about the reading of the previous statements is concerned, if the prosecution or the defence so request. 107 But not § 254.

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Means of Evidence – Strict Form of Proof advance of technology since the times of the creation of the StPO. However, just as with the direct application of these provisions, the general best-evidence rule of § 250 remains applicable.108 Section 255a(2) allows for the playing of audiovisual recordings of the previous statements of witnesses who are under 18 at the time the recording is to be played109 instead of live testimony, if the indictment concerns certain offence categories such as sexual offences, homicide, abuse of trust and offences against personal liberty. A prerequisite to this is, however, that the defendant and his counsel had the opportunity to participate in the interrogation that led to the audio-visual recording. While the absence of counsel may be irrelevant if the defendant did not have counsel at the time, the absence of the defendant always triggers the exclusion of this procedure.110 The witness remains available for supplementary live testimony at the discretion111 of the court, and may have to be called if § 244(2) requires further exploration,112 or if a party alleges a new fact on which the witness had not been heard previously.113 The provision of § 256 that allows the reading of official documents, certificates etc from public authoritiesetc has been addressed above in the section on experts. Inspection General The last method for providing evidence is inspection. In its simplest form, an inspection involves nothing more than a direct appreciation of the qualities of an object (including persons, see §§ 81a ff), an event or a process, or certain conduct or behaviour, through use of the five senses of sight, hearing, taste, smell and touch, as long as it is not otherwise regulated under the provisions for witness, expert or documentary evidence.114 This may include site visits or the visual inspection of a witness’s tattooed arms etc. This type of evidence has the most relaxed115 procedural requirements. It is generally governed by § 244(2), ie the ex officio duty of the court to take the necessary evidence, and § 244(5) 1st sentence specifically states that a motion to take evidence by way of inspection may be denied if in the discretion of the court 108

BGHSt 52, 148. MG § 255a Mn 8. 110 BGHSt 49, 72 and MG § 255a Mn. 8a. 111 The BGH views this additional examination of the witness as an exceptional measure, based on the thrust of the protective provision; BGH NStZ-RR 2005, 45. 112 BGHSt 48, 268. 113 BGH StV 1995, 566. 114 BGHSt 18, 53. 115 There is, eg, no general prohibition on replacing an inspection by another means of evidence, especially if the trial would otherwise have to be adjourned or even recommence; EBB Mn 2223. 109

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Evidence is is not necessary for the ascertainment of the truth. However, as with any means of evidence, the court exercises its discretion at its own risk, and there may be scenarios where an inspection is obviously required despite other evidence being available, for example if the defence argues that the testimony of the witness about a certain locality is incorrect because the objective conditions are entirely different: the court may not deny that sort of motion with the argument that it believes the witness and finds him credible, because the very credibility and/or accuracy of the witness’s memory is being attacked by such a motion.116 An inspection may be taken directly by the trial court, or by a commissioned/ requested judge; it may be taken together with an expert; it may have been taken by the examing judge, the police or the prosecution during the pre-trial phase. The procedure for introducing any evidence taken out of court into the trial follows the principles set out above for the other three means of evidence.117 Introducing audio-visual media and technical records into the trial Classic examples of inspection objects (Augenscheinsobjekte) include audio-visual media such as tapes, where the problem is not so much introducing the tape as such but the essence of what was said on it, and ensuring authenticity of the tape. For audio tapes, it seems to be agreed that § 250 and the rules about the Vorhalt (above) apply by way of analogy,118 but the extension of § 251(1) is already controversial.119 This means more or less that the tape may be used only in addition to the testimony of the person who made it.120 Similar problems exist with regard to §§ 253, 254.121 As with any piece of evidence, the court must ensure that its use is not excluded because of a ban on admissibility, for example because it has been obtained unlawfully (but see below on § 257). For audio tapes, the BVerfG has held that there is a core area of intimate personal privacy that must never be breached; and if breached, any evidence gained from the breach must be excluded. Outside this core area the courts tend to employ a balancing theory, weighing the seriousness of the breach against the gravity of the offence and the public interest in effective prosecution.122 Balancing is not permissible either, if the production of the tape breaches § 136a (see chapter four), and indeed the person concerned has no power to consent to its use ex post facto.123

116

BGH NJW 1961, 280 and EBB Mn 2235. See on this generally, EBB Mn 2226–2281 with further references. 118 BGHSt 14, 310; 27, 137. 119 The BGH, eg, refuses to extend the ambit of § 251(1) to audiotapes, etc; BGHSt 14, 341; 36, 172. 120 EBB Mn 2289. 121 EBB Mn 2290–2291. 122 BVerfGE 34, 245; 80, 373; BGHSt 14, 358; 36, 167. 123 EBB Mn 2301. 117

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General Rules of Evidence Visual media may be used to provide evidence of the commission of an offence by their very production (eg, pornographic material) or if the commission of the offence has been filmed.124 However, as with audio tapes, the medium as such does not provide proof of its authenticity, and it may therefore be necessary to hear the person who made the images as to time, place, circumstances and authenticity.125 Similar rules about the exclusion of material obtained in dubious or unlawful circumstances as set out above apply. Technically-produced records such as tachograph printouts may be considered as inspection objects, but typically are too complicated to be the subject of inspection, because this would presuppose that the court could interpret them on its own; given that this is usually not the case, they are normally introduced via an expert.126

GENERAL RULES OF EVIDENCE

The fundamental rule in § 244 Having set out the categories of evidence admitted under the strict form of proof, and the relationship of each to the general rules and principles of evidence where necessary, it is now time to explain the fundamental rule that governs all evidential procedures and means of evidence, and which represents the greatest difference from the party-driven, adversarial model: § 244(2)–(5). It is helpful to set out those sub-sections of the provision verbatim127: (2) In order to establish the truth, the court shall ex officio extend the taking of evidence to all facts and means of evidence which are relevant to its decision. (3) A motion to take evidence shall be denied if the taking of the evidence is inadmissible. In all other cases, a motion to take evidence must not be denied unless the taking of such evidence is superfluous because the fact to be proved is subject to judicial notice, the fact to be proved is irrelevant to the decision or has already been proved, the evidence is entirely inadequate or unobtainable, the motion is made to delay the proceedings, or a relevant allegation which is to be proved to exonerate the defendant may be treated as if the alleged fact were true. (4) Unless otherwise provided, a motion to hear an expert may also be denied if the court possesses the necessary expertise. The court may refuse hearing a further expert if the opposite of the alleged fact has already been proved by the first expert report; this shall not apply if the expertise of the first expert is doubtful, his report is based upon incorrect factual premises or contains contradictions, or where the new expert has means of research at his disposal which appear superior to those of a previous expert. 124 125 126 127

BGH NJW 1975, 2075. EBB Mn 2305. EBB Mn 2321–2322. Translation by the author.

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Evidence (5) A motion to take evidence by inspection may be denied if the court in the proper exercise of its discretion deems the inspection irrelevant for establishing the truth. Under the same condition a motion to take evidence by examining a witness may be denied if the witness summons has to be served abroad.

While § 245128 allows the parties to summon and bring their own witnesses and experts to the trial, the main field of contention is § 244 based on the court’s official duty to find the material truth of the case, on which we shall concentrate in the rest of this chapter.129 Under this model, it is not necessarily for the parties to bring their own evidence, but they can move the court to adduce and hear additional evidence by the so-called Beweisantrag, or evidential motion. There are different forms of such motions, to which we turn now. Types of evidential motions—Beweisantrag, Beweisermittlungsantrag, prozessual bedingter Beweisantrag, Eventualbeweisantrag, Hilfsbeweisantrag The basic form of an evidential motion is the normal Beweisantrag: This motion must: a) clearly request the court to take evidence; b) as precisely as possible describe the factual allegation to be proved; and c) name the means of evidence that is meant to furnish that proof. It is in principle not necessary that the party making130 the motion is convinced of its accuracy or success; it is enough if he assumes it is accurate, or thinks the truth of the allegation is possible.131 A proper Beweisantrag, aimed at establishing

128 § 245 reads as follows (my translation): ‘(1) All witnesses and experts summoned by the court and present shall be heard in evidence and any other evidence adduced by the court or the prosecution pursuant to § 214(4) shall be taken unless the evidence is inadmissible. The examination of individual pieces of evidence may be waived if the prosecution, defence counsel and the defendant consent. (2) The court shall not be obliged to hear witnesses and experts present in court and who were summoned by the defendant or the prosecution, or any other evidence adduced, unless an evidential motion is made. The application shall be denied if the evidence is inadmissible. In all other cases it may not be denied unless the fact to be proved has already been proved or is subject to judicial notice, the fact to be proved is irrelevant for the judgment, the evidence is entirely inadequate, or the motion has been filed for the purpose of delaying the proceedings.’ 129 This is acceptable because the court may still request an evidential motion to hear any of the summoned witnesses of a party before it does so, and the reasons for denying a motion are similar to those in § 244, namely inadmissibility of the evidence, judicial notice, the alleged fact has already been proven, irrelevance for the judgment, inadequacy of the evidence or delay of the proceedings. The major difference, as pointed out above with respect to the hearing of another expert, is that § 244(4) 2nd sentence has no equivalent under § 245(2). 130 Note that the defendant and her counsel each has a separate and independent right to file (evidential) motions—they may in fact contradict each other, because counsel is independent and not bound by his client’s instructions. See RGSt 22, 335; BGH MDR 1977, 461; EBB Mn 168. 131 BGH StV 1981, 166; 1988, 185; NStZ 1987, 181; 1989, 334: 1993, 144; 2002, 383.

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General Rules of Evidence an alibi for the time between 9 and 11pm on a certain date, for example, would read like this: The defence requests the court to hear Mr Hans Kunze, Müllerstrasse 12, 98661 Oberwürtzingen, as a witness for the fact that on 1 July 2009, on the night of the murder, the defendant was not present at the scene of the murder at the time alleged in the indictment, because his car blew a tyre on the B13 at around 8.25 pm, half a mile outside Oberwürtzingen, that the witness, a jogger, who came to the scene of the accident at around 8.30 pm, helped the defendant change the tyre and was invited by the grateful defendant to a few drinks in the village pub ‘The Thirsty Wanderer’, from which they both left together at around 11.45 pm.

If the motion does not contain these elements132 it may be treated as a mere suggestion to the court (Beweiserbieten/-anregung) and as such not in need of a court ruling as a proper Beweisantrag would be (§ 244(6)); however, good practice would still seem to require a ruling by the presiding judge.133 A party may also ask the court to initiate investigations for the purpose of finding out whether additional evidence134 exists that might then be made the object of a Beweisantrag. These motions are called Beweisermittlungsantrag (motion to investigate evidence).135 They often contain the phrase ‘in order to establish whether’, ie they do not and cannot name either a specific allegation or a means of evidence. In our example above, a Beweisermittlungsantrag might read as follows, after the testimony of Mr Kunze established that there were three more guests at the pub until the time that he and the defendant allegedly left: The defence requests the court to instruct the prosecution to investigate the names of the patrons other than Mr Hans Kunze present at ‘The Thirsty Wanderer’ on the night of 1 to 2 July 2009 between 8.00 and 11.45 pm, to examine them and to make copies of their statements available to the defence.

Once the defence has the names, it may then file a proper Beweisantrag to hear them on the matter of the alibi. Beweisermittlungsanträge, which are mainly covered by the general rule under § 244(2), should also be ruled upon by the presiding judge and not the full court, although the BGH’s position is somewhat unclear about whether any ruling is required.136 Sometimes a party will use evidential motions depending on how another piece of evidence has played out, ie under a condition. This is in principle an admissible form of evidential motion. For example, if the defence is concerned that Mr Kunze, in our example, might deny the allegations by the defence or be 132

The court is, of course, required to interpret any communication to find out whether the essence of it constitutes a Beweisantrag, especially if the information about the means of evidence is apparent from another source known to the judges; MG § 244 Mn 24; EBB Mn 156. 133 EBB Mn 159. 134 Eg, by requesting an expert report on whether the defendant is mentally ill, etc; OLG Köln NStZ 1987, 341. 135 See EBB Mn 156. 136 BGHSt 6, 129; BGH NStZ 1982, 296; 2008, 109.

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Evidence unable to remember the events, they may make a motion straightaway when naming Mr Kunze, to the effect that if Mr Kunze fails to confirm the allegations, his neighbour Mr Hintze is to be heard to prove the fact that on the day after the arrest of the defendant Mr Kunze told him that he had been with the defendant at the pub the night before during the times mentioned and could not understand how the police could take the defendant for the murderer.

This is a motion under a procedural condition (prozessual bedingter Beweisantrag)137: if the condition does not materialise, the motion becomes moot. A variation on this theme is the so-called Eventualbeweisantrag, ie a motion that is made under the condition that the court arrives at a certain conclusion about a certain issue, such as, for example, the authenticity of a document, the credibility of the testimony of a witness or the mental capacity of the defendant138; the condition here is what the court thinks of a certain piece of evidence, not the content of that piece of evidence as such. In our murder case, defence counsel, after Mr Kunze confirmed the alibi and now having knowledge of the names of the other patrons of the pub on the night in question, might make a motion to the effect that should the court not be convinced of the truth of the testimony of Mr Kunze, the court is requested to hear Mr and Mrs Schulze [address], and Mr Bauer [address], as witnesses for the fact that … [alibi allegations].

In this way, a party can force the hand of the court on a certain piece of the evidence before the final deliberation and judgment, and adapt its trial strategy accordingly. If the court disbelieves the testimony of Mr Kunze, it must decide whether to hear the other witnesses, and unless the law provides another ground to deny the motion, will have to hear them. It should be remembered that § 246 states that there is no such thing as preclusion of evidence for being brought too late; the only consequence may be an adjournment or recommencement of the trial. A motion may be made up to the time when judgment is pronounced. This, together with the idea behind the Eventualbeweisantrag, is the setting for the category of evidential motions called Hilfsbeweisantrag, which are mostly used in the closing speech of the defence and are conditional on the anticipated decision of the court, be it conviction or sentence. This is one of the main instruments available to the defence to string out a case, because by the time the closing speeches are made, the court will very often have formed an opinion of the evidence, and during the conversations between the judges during recesses, etc, any ideas about the question of conviction and sentence will have been floated. By filing these motions so late in the

137 138

EBB Mn 162. Examples used by EBB Mn 163.

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General Rules of Evidence day—and not infrequently there are multiple139 motions—the party making them puts pressure on the court, because the court naturally has other cases scheduled too, and to continue the trial if the court disagrees with the thrust of the motion may wreak havoc on the remaining schedule. The court can deny the motions in the judgment, if there are sound reasons140 to do so; otherwise it must re-open the hearing and recommence the evidential stage of the trial (Beweisaufnahme). However, if the court wishes to deny the motion(s) because it considers them to have been made for the sole purpose of delaying the proceedings (Prozessverschleppung), it must rule on them before pronouncing judgment to allow the defence to refute the allegation of delaying tactics.141 Reasons for denying evidential motions—§ 244(3) to (5) Section 244(3) to (5) contain rules about denying motions for witnesses, documentary evidence, inspection and expert evidence, of which we shall give a brief overview. Section 244(3) 1st sentence states the basic rule that any sort of evidence must not be taken if it is inadmissible. This might be because the means of evidence is inadmissible, eg if defence counsel were to nominate the defendant as a witness142; it might be because the topic of the motion must not be made the subject of evidence in court, eg re-examining a final conviction143 or that a judge voted in 139 There have been cases where hundreds or even thousands of such motions have been filed; see M Bohlander, ‘A Silly Question?—Court Sanctions against Defence Counsel for Trial Misconduct’ [1999] Criminal Law Forum 467. 140 The German courts have so far resisted the creation of a general abuse of process exception; BGHSt 29, 149; BGH JR 1980, 218. However, the BGH has allowed a restriction of the right of the represented defendant to file her own motions if their sheer number makes impossible even a proper examination of the exclusion trigger of ‘intentional delay’; BGHSt 38, 111; BGH NStZ 1986, 371. The motions must then be filed by counsel; this appears to be a generally feeble attitude to the problem, because it is a rare defence counsel who will countermand the express instructions of his client, despite not being formally bound by them, and it is useless in cases of unrepresented defendants with sufficient knowledge of how to manipulate the system—which obviously will, of course, not be too many. The problem thus lies overwhelmingly with counsel, not the client. See, on the issue, M Bohlander, Gerichtliche Sanktionen gegen Anwälte wegen Mißbrauchs von Verfahrensrechten (Aachen,Shaker Verlag, 2001), contemplating the—in Germany across the board unpopular—alternative of sanctioning counsel for vexatious motions, etc as a means of general and specific future deterrence, instead of punishing his client through denial of the evidential motion. If the Beweisantrag obviously has no purpose related to the proceedings (verfahrensfremde Zwecke), eg because it is merely meant to make a political statement, some allow a separate judicially-created category of exclusion trigger, the so-called ‘Scheinbeweisantrag’, ie a motion made under the mere pretence of wishing to examine a certain piece of evidence, yet critics of this approach, and not without good cause, state that most of these ‘pretence motions’ may be denied under the existing statutory exceptions; see the references at EBB Mn 173. 141 BGHSt 22, 124; BGH NStZ 1986, 372; StV 1990, 394. 142 EBB Mn 203. 143 BGHSt 44, 119.

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Evidence the deliberations for reasons other than those set out in the written judgment144; or hearing the evidence may be inadmissible because doing so would violate an evidential prohibition (Beweisverbot), such as § 252 regarding witnesses who exercise their right not to testify (see above). Section 244(3) 2nd sentence contains a cluster of reasons for not taking evidence (but see the special provision of § 244(5) below for inspections and witnesses living abroad, which abrogates the general principles of § 244(3) 2nd sentence145): In all other cases, a motion to take evidence must not be denied unless the taking of such evidence is superfluous because the fact to be proved is subject to judicial notice, the fact to be proved is irrelevant to the decision or has already been proved, the evidence is entirely inadequate or unobtainable, the motion is made to delay the proceedings, or a relevant allegation which is to be proved to exonerate the defendant may be treated as if the alleged fact were true.

A fact is subject to judicial notice if it is common knowledge and as such not in need of proof (offenkundig). Judicial notice in this sense covers so-called allgemeinkundige facts, ie those that are common knowledge in the literal sense (eg, the Earth is a globe), and gerichtskundige facts, ie those that the judge(s) of the trial court safely know(s) based on their previous official (not private) activity; in the case of a collegiate panel, the knowledge of the majority of the judges is sufficient.146 Judicial notice, especially in the second form, is to be used restrictively, and is typically excluded as a means of proving facts that have a direct bearing on guilt or sentence, because they constitute, for example, the factual basis of an element of the offence charged.147 The judicial notice exception may also be used if the opposite of the alleged fact is common knowledge or known to the court148: this has in recent years been of special relevance for Holocaust denial cases, where motions to the effect that the Holocaust did not take place, or was significantly less serious than commonly assumed, were denied because the opposite of the alleged fact is common knowledge from a German point of view.149 A fact is irrelevant to the decision if it can have no discernible influence on either conviction or sentence, which may be for reasons of law, for example when

144

EBB Mn 204. EBB Mn 264. 146 EBB Mn 16–32. 147 MG § 244 Mn 51; EBB Mn 27. 148 EBB Mn 16. 149 BGHSt 40, 97; BGH NJW 2002, 2115. That other countries allow the publication of such literature, etc while German law treats Holocaust denial as an offence of incitement to hatred under § 130(3) and (4) StGB if the denial occurs in a manner capable of disturbing the public peace, is certainly a consequence of the singularity of German history in the 20th century, and for that very reason it may safely be said that almost any public expression of denial or downplaying of these events will be seen as capable of causing a disturbance of the public peace in Germany. 145

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General Rules of Evidence the defence name character witnesses in order to mitigate the sentence but where the court intends to acquit, or for reasons of fact, for example if the defence name a witness to prove that the 13-year-old victim of a violent gang rape was a Neo-Nazi follower.150 Note that the court must indicate in its decision denying the motion why it regards the alleged fact as irrelevant; this is another vehicle the parties can use to find out the direction the court is taking in its preliminary deliberations. Once the court has declared the fact irrelevant it is bound by this expressed view, especially for the judgment; should the court’s view change before judgment, it must, if necessary, re-open the evidential stage and hear the evidence.151 If an alleged fact has already been proved to the satisfaction of the court, further evidence is not required and a motion to that effect may be denied. The court must, however, take great care not to jump to conclusions and deny a motion because it thinks the opposite has already been proven—in that respect this alternative is different from the judicial notice exception explained above. The court must especially respect the independence of defendant and counsel: it may not deny a motion by counsel intended to exonerate the defendant, with the argument that the defendant had already made a full confession.152 The decision is binding for the judgment (see also above on irrelevant evidence).153 A means of evidence is entirely inadequate if the alleged fact cannot be proved, on either abstract or concrete grounds based on the individual scenario, by using this particular piece of evidence: for example, hearing a normal lay witness as to the blood–alcohol concentration of the defendant at the time of the offence, or an expert for the same alleged fact if there is no sufficient clarity what, how much and for how long the defendant had been drinking at the time, and what his body mass had been at the time, if he has lost a lot of weight since then; or if there is no known expert for the area of expertise required for the proof of the alleged fact; or if the intended expert method is scientifically clearly unreliable and unsound.154 A witness is also an inadequate means of evidence in this regard if she has declared that she will exercise her right to testify and there is no reason to believe that she will change her mind at trial. Obviously, naming a blind person for an alleged fact that had to be visually appreciated is another case of inadequacy.155 This category may also be triggered in certain circumstances if a witness is of unknown abode and cannot be reached despite the best efforts of the court.156

150 151 152 153 154 155 156

EBB Mn 209–212. EBB Mn 213–214. EBB Mn 214. BGH StV 1993, 234; 1995, 347. Eg, parapsychology; BGH NJW 1978, 1207. EBB Mn 215–234. BGH NStZ 1982, 78.

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Evidence The ground157 of delaying the proceedings requires an objective and a subjective component: objectively, the motion must, to the satisfaction of the court, be without a chance of success and delay the proceedings substantially; subjectively, it requires an exclusive intention to delay the proceedings, ie the party must not intend any real evidential result as such. This obviously causes the court an enormous argumentative amount of justification in a decision using this ground to deny the motion. In practice, it is therefore rarely used and, if it is, even more rarely successfully. The courts have accepted its application in cases of repeated identical motions if a previous motion had been withdrawn because of obvious lack of merit,158 if the defence strategy is changed constantly on the basis of contradictory statements,159 or if the defence refuse to explain a motion the topic of which appears to have been ‘snatched out of thin air’.160 If the court is of the ex ante opinion that the fact alleged will in all likelihood not be disproved during further examination of the evidence, it may deny the motion because it treats the alleged fact as if it was true. This alternative is thus different from the above-mentioned ground that the fact has already been proved. In practice, this ground is often confused with that of irrelevance and may create a wrong impression with the parties; the court must therefore not deny a motion based on this ground if in reality it views the fact as irrelevant.161 If, during the course of the trial, the court changes its mind and now views as irrelevant a fact it had previously treated as if it was true, it must, according to the BGH, inform the parties, especially if it was clear that because of this treatment of the motion no further motions were made at the time.162 In other words, the court must not engage in ‘judgment by ambush’, a principle that naturally applies to all grounds of denial and flows from the fair trial principle. As we saw above when looking at expert evidence, § 244(4) 1st sentence allows the court to deny a motion to hear an expert if the court has the necessary expertise, a decision which may be a two-edged sword on appeal. Section 244(4) 2nd sentence allows for a denial of a motion to hear a further expert if the court is, on the basis of the first expert report, convinced that the opposite of the fact alleged in the new motion is true. This alternative should be used restrictively, because it is a serious exception to the general prohibition on anticipation of evidential outcomes (Verbot der Beweisantizipation) and requires the court to show that is has obtained sufficient expertise to make such an assumption.163 The exception from the exception is triggered—with the consequence that a new expert must be appointed—if there are doubts about the level and accuracy of 157

See generally EBB Mn 235–240. BGH JR 1983, 35. 159 BGH NStZ 1992, 552; NJW 2001, 1956. 160 BGH StV 1989, 380 161 RGSt 65, 330; BGH NStZ-RR 2003, 269. 162 BGHSt 30, 385; see for the view of the literature that is in favour of a wider duty to inform the parties EBB Mn 244–246. 163 EBB Mn 256. 158

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General Rules of Evidence expertise of the previous expert, if the expert based his report on incorrect factual assumptions, or if the new expert possesses research methods and/or facilities superior to and more reliable than those of the first expert. These matters are largely self-explanatory.164 Lastly, § 244(5) allows the denial of an inspection if the court in the proper exercise of its discretion deems the inspection irrelevant for establishing the truth.165 On the same conditions, the court may deny a motion to hear a witness if the summons has to be served abroad. This provision thus considerably loosens the requirements for these two means of evidence if compared to § 244(3) 2nd sentence, and gives the court a wide discretion, although it remains subject to the overall ex officio duty under § 244(2).166 The court may still deny a motion based on the reasons listed in § 244(3) 2nd sentence, but if the inspection is specifically requested to test the reliability of a witness’s testimony, the court will not be in a position to exercise its discretion ‘properly’ unless it actually carries out the inspection.167 The denial of a motion to hear witnesses who have to be summoned abroad presents a serious inroad into the procedural position of the defence, who will mostly make such motions. It was introduced by the 1993 Rechtspflegeentlastungsgesetz (Administration of Justice (Reduction of Workload) Act) and was meant to take the pressure off the courts who previously had to use the ground of inadequacy because the witness could not be reached, and the onerous procedure that involved.168 It was probably also a child of the previous (perceived) abuse of such motions by defence counsel as a delaying tactic. It must be noted that in this context, the ex officio clause of § 244(2) assumes a greater relevance than under the specific grounds for denial in § 244(3), not least because the defendant does not have the same facilities for adducing the witness evidence himself under §§ 220, 38, 37, and too wide an application of § 244(5) may cause serious injustice, to a degree that Art 6(3) ECHR is triggered.169

164 165

For references to details and the case law, see EBB Mn 252–263. Eg, by looking at maps, photos or films of the location instead of going there; EBB Mn

265. 166 167 168 169

RGSt 47, 100. BGHSt 8, 181; BGH NStZ 1984, 565; StV 1994, 411. EBB Mn 267. See, for more detail, EBB Mn 264–268.

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Evidence Section 244(2) and its relationship to § 257(1) and (2)—the court’s ex officio duty to establish the truth and the parties’ duty to object (Widerspruchslösung) In the context of § 238(2), ie orders by the presiding judge in the trial setting, we have already seen that the courts may exclude objections on appeal unless they have been saved by an objection during the trial. As far as objections relating to the evidence are concerned, this doctrine has been extended by the courts170 to the ambit of § 257(1) and (2), which gives the defendant, his counsel and the prosecution the opportunity to comment after each piece of evidence, once it has been examined. If a party wishes to have certain evidence excluded, it must object to its use at that stage, ie it must enter a Widerspruch (objection), hence the name Widerspruchslösung (objection model). Unless an objection is made, the matter is excluded as a ground for appeal in the Revision. This applies even if the evidence would normally have to be excluded because it is inadmissible based on having been obtained unlawfully, unless the protection of § 136a was triggered (see the discussion of §§ 136 and 136a in chapter four above). For the defence, this rule applies only if the defendant is represented by counsel. The model is clearly an attempt by the courts to shift responsibility for observation of due process principles away from the court and onto the shoulders of defence counsel, by arguing spuriously that it is defence counsel’s inherent responsibility, and that he is best placed to spot potential reasons for the exclusion of evidence (Beweisverbot) and to decide whether it is in the interests of the defence to object to its introduction into the trial.171 Despite the fact that this practice has by now become part and parcel of German criminal procedure, it must be criticised as an artefact in a system based on the ex officio duty of the court to establish the truth, and is a violation of the letter and the spirit of the law.172 It can only lead to a loss of trust by people who seek access to justice in the criminal procedure context, and to a more aggressive and extensive exercise of the right/duty to object by defence counsel in order to avoid losing a point for the appeal. It is a curious expression of judicial ethics and integrity to disregard knowingly a violation of a defence right in the decision-making merely because defence counsel did not pick it up during the trial. These violations often concern civil liberties or human rights, the very thing judges are meant to protect. It is not going too far to call this model a corruption of the judicial role as it is seen in the German context.

170

BGHSt 38, 214; 39, 349. EBB Mn 427. 172 See, for further critical references and the lack of proper doctrinal deduction of the model by the courts, EBB Mn 429–430. 171

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General Rules of Evidence The defendant’s exercise of his right to silence—adverse inference? The law of England and Wales has for some time now allowed judges to make adverse comments to the jury when summing up, if the defendant had kept silent about an issue that it would have been in his interest to clear up at the earliest opportunity yet makes a statement at trial. The jury have a right to draw adverse inferences from silence in certain cases, and the judge is expected to give them guidance before they retire to deliberate their verdict.173 Are German judges allowed to draw adverse inferences from the defendant’s exercise of his right to silence as part of their overall evaluation of the evidence? The answer in principle is no, if the defendant remained silent in the proceedings.174 This includes: a) total silence throughout the proceedings; b) temporary silence, for example silence in the pre-trial phase and then electing to speak at trial; c) silence at different points of the procedure, for example at some interrogations but not at others; d) late disclosure of exculpatory facts.175 The treatment of partial silence, in the sense that the defendant chooses to answer certain individual questions but remains silent as to others, is controversial. First, it must be emphasised that the mere fact that a defendant is charged with multiple independent counts (within the meaning of § 264) in one indictment and elects to speak only to some of them, does not constitute partial silence but total silence with regard to that count, and an inference is inadmissible in toto.176 The BGH177 has permitted the drawing of inferences if the defendant refuses to answer individual questions related to one and the same count but answers others. Apart from the question of just what inference one can factually draw in the individual case (see below), this approach is seen by some as partially devaluing the right to silence, because the defendant is no longer free to determine the extent of his statement.178 It is always inadmissible to use nonverbal communications such as the gestures or facial expressions of the defendant, or the fact that he consulted with his counsel before answering a question, as an indication of the truthfulness of the answer or the lack thereof.179 However, if the defendant remained silent to a pertinent question before any proceedings were initiated, that silence arguably can be used; but the question, as with any inference, is: What inference can one draw? An example of the 173

See generally P Hungerford-Welch, Criminal Procedure and Sentencing, 7th edn (London, Routledge and Cavendish, 2008) 561–68. 174 EBB Mn 899. 175 See for the case law, EBB Mn 901–905. 176 EBB Mn 906. 177 BGHSt 20, 298. 178 See the references at EBB Mn 907–909. 179 BGH StV 1994, 413; NStZ 1994, 24.

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Evidence problematic consequences of this approach is given by a decision of the OLG Karlsruhe from 1988.180 There had been an explosion at a chemical plant where the defendant worked, which caused serious damage and financial loss. The directors of the company that ran the plant had a conversation with the defendant after the explosion, and the defendant told them that she had discovered that the equipment in a certain section, using a particular acid in the manufacturing process, had malfunctioned and the acid had caught fire. The directors then asked her whether she had added a certain other substance to the acid baths which was known to cause such a reaction, at which the defendant ‘became white as a sheet’, had to sit down and declined to answer the question. The trial court drew an adverse inference from this reaction, and the defence on appeal to the OLG argued that this situation should be treated identically to that already acknowledged by the BVerfG181 for the debtor in an insolvency, who was under a statutory duty pursuant to § 100 Konkursordnung (Insolvency Act) to answer questions even if the answer could materially incriminate him: the BVerfG had held that such answers given under the statutory duty in the insolvency proceedings were inadmissible as evidence in the criminal proceedings because their use would violate the prohibition against self-incrimination in the criminal case. The OLG, whilst acknowledging the psychological circumstances in which the defendant found herself, distinguished the case by arguing that the defendant was not under a similar (statutory) duty, even given the obligations arising from the contract of employment, to answer questions by the employer that might incriminate her. Because there was no duty, she had to bear the consequences of her decision whether to speak or to remain silent, and the trial court was thus entitled to use her silence against her.182 Whether one finds that convincing or not is open to question, yet the OLG still quashed the judgment and remanded the case back to the trial court, because the inference the trial court had drawn from the silence was inadmissible: the trial court had used a diffuse opinion about the general character and personality of the defendant, and argued that had she been innocent, her whole personality would have led one to expect a vigorous denial. The OLG first of all chastised the trial judges for the lack of factual basis upon which to found such a character analysis and, secondly, reminded them that psychological research had shown that people may have any number of reasons for remaining silent in such a situation, and that such a monocausal inference as the court had drawn, even if it was possible in theory, required much more by way of judicial reasoning than the trial court had provided and, indeed, been able to establish based on a two-day trial with many witnesses.

180

NStZ 1989, 287. BVerfGE 56, 37. 182 It is not quite clear what the OLG saw as the alternative—for the defendant to answer the question by lying? It cannot have meant the truthful answer, which would have immediately incriminated her. So what choice did the defendant actually have? 181

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7 Sentencing and Enforcement— An Overview INTRODUCTION

The law related to sentencing straddles the fence between substantive criminal law and procedural law. The sentencing factors, such as aggravating and mitigating circumstances, etc, are part of the former, while the rules on available sanctions and enforcement are more procedural ones, without there being a bright red line between them. Maybe even more than in the previous chapters, the views of the courts and other practitioners demand closer attention, and a certain soupçon of casuistry will be difficult to avoid, given the tendency of the practitioners to use the sentencing stage, rather than that of the conviction, for the purpose of providing justice in the individual case. This chapter, although the longest in this book by far, will provide only an overview of both branches of sentencing law, for adult and juvenile proceedings; it should go without saying that a full treatment requires a book in itself.1 A first major difference from the law in England and Wales, but also from US law, which we should get out of the way for the purposes of streamlining this discussion, is that Germany does not have anything like a Sentencing Council or Commission. The law on sentencing is laid down in the StGB, the JGG and the StPO, and demands application across the board. There are no offence-specific sentencing guidelines either. The codified rules are, as with any legislation, interpreted and concretised by the appellate courts; despite the absence of a doctrine of stare decisis, practice has shown that lower courts will, as a rule of pragmatic wisdom, abide by the jurisprudence of the appellate bench in sentencing matters, too. The principal matters at which we are going to look in this overview are: a) the general rules on sentencing in adult proceedings (eg, § 46 StGB) and juvenile proceedings (eg, §§ 2, 18(1) 3rd sentence JGG); 1 Indeed, the structure of this chapter relies heavily on the leading, even though partly dated practitioner text by G Schäfer, GM Sander and G van Gemmeren, Praxis der Strafzumessung, 4th edn (hereafter ‘SSvG’) (Munich, CH Beck, 2008).

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Sentencing and Enforcement – An Overview b) the calculation of sentences for multiple offences in adult2 proceedings (§§ 52 ff StGB); c) the two-track system (Zweispurigkeit) of criminal penalties and measures of rehabilitation and incapacitation; d) the arsenal of sanctions available to criminal courts and the early release mechanisms. Much more than the previous chapters, this chapter needs to set out extracts from the relevant provisions of the laws on sentencing, especially those under headings b)—d) above, and may thus acquire a more technical aspect, but it would be difficult, and to a certain extent also unhelpful, to paraphrase the provisions meaningfully, most of which are self-explanatory but some of which can be very complex, when not much is gained by condensing the more precise language of the law itself. Many of the more complex ramifications cannot be looked at here in the context of a mere overview and must be left for separate treatment at another time. This is especially true of the many issues surrounding the measure of the Sicherungsverwahrung (incapacitation order) under §§ 66 ff StGB; this has been a hotly-debated topic following a string of decisions by the ECtHR from late 2009 onwards3 on the ex post imposition or extension of such a measure when it had not been ordered in the convicting judgment. This resulted in a reform of the law by an Act of 22 December 2010, and the introduction of a new law on custodial therapy orders (Therapieunterbringung) if the offender suffers from a mental condition that makes him dangerous. On 4 May 2011, in an unprecedented landmark decision, the BVerfG declared the entire law on incapacitation orders unconstitutional, but left the provisions in force under a few restrictive conditions, and gave the Government and Parliament until May 2013 to pass a new law.4 We shall look at this decision and the new 2010 law, and at the concerns about whether the latter will withstand the scrutiny of the ECtHR, below. First, though, a brief overall introduction to the structure of German sentencing law is required to put the following, more detailed explanations into context: a) The sentencing arsenal is built upon a two-fold distinction: i) penalties (Strafen), which are mainly divided into fines and imprisonment; and ii) measures of rehabilitation and incapacitation (Maßregeln der Besserung und Sicherung). 2

This model does not apply in juvenile proceedings where the penalty is always fixed as a unified sentence (Einheitsstrafe). 3 M v Germany, App no 19359/04, 17 December 2009; Haidn v Germany, App no 6587/04, 13 January 2011; Schumer v Germany, Apps nos 27360/04 and 42225/07, 13 January 2011; Mautes v Germany, App no 20008/07, 13 January 2011; Kallweit v Germany, App no 17792/07, 13 January 2011. 4 BVerfG, Docket no 2 BvR 2365/09, judgment of 4 May 2011, online at .

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Introduction The former address the degree of blameworthiness in the stricter sense and are meant as a punishment as the term is normally understood; however, they are subject to considerations about guilt and future prevention, and are thus not merely a retributive affair. The measures of rehabilitation and incapacitation are based on certain qualities or the history of the offender, and centre on issues of dangerousness that require treatment of the offender to reform him or simply protection of the public by incapacitating him; they are not seen as punishments stricto sensu. This is the so-called Zweispurigkeit (two-track model) of the German approach to sanctions. b) German law provides for two types of imprisonment, fixed-term and life. The former has a minimum duration of one month and a maximum duration of 15 years; life imprisonment is always expressly threatened, but may be either mandatory, eg for aggravated murder in § 211 StGB, or discretionary in the circumstances, eg in the case of § 212(2) StGB for especially serious cases of (simple) murder that do not reach the gravity of § 211 StGB (see §§ 38 and 39 StGB).5 c) Each offence, unless it carries a mandatory life sentence, has its own sentencing frame (Strafrahmen), eg imprisonment from six months to 10 years, or has only a minimum threshold and is then capped at 15 years by the general rule in § 38 StGB. In many cases, an offence will have less serious or especially serious varieties, and specific provisions will provide for specifically tailored sentencing frames for these. In some cases, general principles of substantive law will lead to a shift in the available frame which may also affect otherwise mandatory sentences. This distinction does not apply to juvenile cases if and when substantive juvenile law is applied, as is the case with much of the above and the following, which sets out the situation in adult proceedings. Juvenile sentencing under the JGG, which is built upon education rather than (retrospectively motivated) punishment, will be dealt with in separate sections below. d) The sentencing frame of each offence as adjusted by the above-mentioned factors is the starting point for the sentence in an individual case: the court must first find the appropriate frame, which can be a difficult exercise to begin with. Once the court has identified the appropriate range, it must attribute the proper term to the offender based on her guilt or degree of blameworthiness (schuldangemessene Strafe). Once that term has been found, preventive considerations come into play that may determine

5 ‘§ 38 Term of imprisonment (1) Imprisonment shall be for a fixed term unless the law provides for life imprisonment. (2) The maximum term of fixed-term imprisonment shall be fifteen years, the minimum term one month. § 39 Determination of fixed-term imprisonment Imprisonment for less than a year shall be determined in full weeks and months, imprisonment for a longer period in full months and years.’

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Sentencing and Enforcement – An Overview whether the sentence may be suspended, etc.6 This also applies mutatis mutandis to fines. We shall look at the different approaches to what constitutes the adequate term later. If a defendant has violated more than one law by either the same act or several acts, the StGB provides for a method of calculating the combined or aggregate sentence. Sentences of imprisonment for under six months, whether immediate or suspended, are discouraged (§ 47 StGB); based on the detrimental and often secondary criminogenic effect of short-term imprisonment, the law emphasises that whereever possible the offender should not be sentenced to such a short term but a fine imposed instead:

e)

f)

§ 47 StGB Short terms of imprisonment as the exception (1)

(2)

The court shall not impose a term of imprisonment of less than six months unless special circumstances exist, either in the offence or the person of the offender, that strictly require the imposition of imprisonment either for the purpose of reform of the offender or for reasons of general deterrence. If the law does not provide for a fine and a term of imprisonment of six months or more is not to be imposed, the court shall impose a fine unless the imposition of a sentence of imprisonment is strictly required pursuant to subsection (1) above. If the law provides for an increased minimum term of imprisonment, the minimum fine in cases covered by the 1st sentence of this subsection shall be determined by the minimum term of imprisonment; thirty daily units shall correspond to one month’s imprisonment.

g) Sentences may be suspended, or in less serious cases their imposition as such may be suspended after a warning has been given to the defendant. We shall look at this more closely when reviewing the arsenal of sanctions in detail. h) The law provides for early release from imprisonment, with a distinction being made between fixed-term and life sentences; the latter carry a minimum term to be served of 15 years, unless the court in its judgment has held that the offender’s guilt was especially severe.7 The decision of early release in adult cases rests mainly with the specialised Strafvollstreckungskammer (literally ‘penalty enforcement chamber’), a division of the LG. i) Measures of rehabilitation and incapacitation are set out on § 61 StGB, and are subject to a strict test of proportionality (§ 62 StGB): § 61StGB Overview The measures of rehabilitation and incapacitation are 1.

mental hospital orders;

6

See on this SSvG Mn 487–493. However, note that German law does not allow the trial court to fix a specific minimum tariff above the minimum of 15 years stipulated by the StGB. See M Bohlander, ‘The Remains of the Day—Whole Life Sentences after Bieber’ (2009) 73 Journal of Criminal Law 30. 7

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Sentencing Principles under the Criminal Code – Adult Proceedings 2. 3. 4. 5. 6.

custodial addiction treatment orders; detention for the purpose of incapacitation; supervision orders; disqualification from driving; disqualification from exercising a profession.

§ 62 StGB Principle of proportionality A measure of rehabilitation and incapacitation must not be ordered if its use is disproportionate to the seriousness of the offence committed by or expected to be committed by the convicted person and to the degree of danger he poses to society.

SENTENCING PRINCIPLES UNDER THE CRIMINAL CODE—ADULT PROCEEDINGS

Let us begin our more detailed8 examination by looking at the core provision from the StGB, § 46 StGB, and two recent concretisations, §§ 46a and 46b StGB, which contain in a nutshell the modern German sentencing philosophy. Foundations of the sentencing decision: §§ 46–46b StGB The central provision setting out the material principles that underpin sentencing in the context of penalties, as opposed to the measures of rehabilitation and incapacitation, is § 46 StGB: § 46 StGB Principles of sentencing (1)

(2)

(3)

The guilt of the offender is the basis for sentencing. The effects which the sentence can be expected to have on the offender’s future life in society shall be taken into account. When sentencing the court shall weigh the circumstances in favour of and against the offender. Consideration shall in particular be given to the motives and aims of the offender; the attitude reflected in the offence and the degree of force of will involved in its commission; the degree of the violation of the offender’s duties; the modus operandi and the consequences caused by the offence to the extent that the offender is to blame for them; the offender’s prior history, his personal and financial circumstances; his conduct after the offence, particularly his efforts to make restitution for the harm caused as well as the offender’s efforts at reconciliation with the victim. Circumstances which are already statutory elements of the offence must not be considered.

8 Due to the nature of this chapter as an overview, this examination will nonetheless have to remain very superficial.

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Sentencing and Enforcement – An Overview Because of the perceived vagaries of any developing case law approach, the legislature added the following two provisions, § 46a and § 46b, which cover specific areas that might generally be caught under the heading ‘conduct after the offence’ in § 46(2), namely, efforts by the offender at reconciliation, restitution and aiding in the discovery or prevention of other (serious) offences—in other words, something similar to turning Crown Evidence—yet with a major restriction in that any sentence discount is precluded if the offender voluntarily9 discloses his knowledge only after10 the indictment against him has been admitted for trial (§ 46b(3)): § 46a StGB Reconciliation; restitution If the offender 1. 2.

in an effort to achieve reconciliation with the victim, has made full restitution or the major part thereof for his offence, or has earnestly tried to make restitution; or in a case in which making restitution for the harm caused required substantial personal services or personal sacrifice on his part, has made full compensation or the major part thereof to the victim,

the court may mitigate the sentence pursuant to section 49 (1) or, unless the sentence to be imposed on the offender is imprisonment of more than one year or a fine of more than three hundred and sixty daily units, may order a discharge. § 46b StGB Contributing to the discovery or prevention of serious offences (1)

If the perpetrator of an offence punishable by an increased minimum sentence of imprisonment or a sentence of life imprisonment, 1. has contributed to the discovery of an offence under section 100a(2) of the Code of Criminal Procedure by voluntarily disclosing his knowledge, or

9 § 46b StGB, somewhat counterintuitively, also applies if the offender was the victim of the disclosed serious offence; see BGHSt 55, 153, where the defendant had also testified as a witness (not in his own case) and disclosed that he had been the victim of an offence of blackmail and kidnapping. The trial court had considered this scenario as not being encompassed by the rule but was reversed on appeal, yet the BGH relied on a stark literal interpretation which merely required the disclosure of a serious offence. Similarly, the BGH did not share the trial court’s view that as a witness the defendant had been under a duty to testify and thus his disclosure had not been voluntary; the BGH argued that voluntariness will be excluded only if the person making the decision thinks he has no other choice but to do as he did, something which obviously is not the case in the average case of witness testimony. The BGH also pointed out that under the travaux préparatoires to the new law, the Government had expressly recognised that voluntariness would not be jeopardised even in cases of § 138 StGB which makes non-reporting of impending serious offences an offence in itself. The BGH revised the conviction based on other grounds, quashed the sentence in its entirety and remanded the case to the trial court for re-sentencing, with clear ‘sailing instructions’ related to § 46b StGB. 10 This is a more restrictive rule than under the previous case law, especially as related to the drugs offences provision of § 31 BtMG, and thus raises complex issues of the lex mitior principle under § 2(3) StGB. The BGH has categorised § 46 StGB as a provision of substantive law that is in principle capable of triggering § 2(3) StGB; see, for the details, BGH NStZ 2010, 523.

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Sentencing Principles under the Criminal Code – Adult Proceedings 2.

voluntarily discloses his knowledge to an official authority in time for the completion of an offence under section 100a(2) of the Code of Criminal Procedure, the planning of which he is aware of, to be averted,

the court may mitigate the sentence under section 49(1); a sentence of life imprisonment shall be replaced with a term of imprisonment over ten years. In order to determine whether an offence is punishable by an increased minimum sentence of imprisonment, only aggravations for especially serious cases but no mitigations shall be taken into account. If the offender participated in the offence, his contribution to its discovery must exceed his own contribution. Instead of a reduction in sentence the court may order a discharge if the offence is punishable by a fixed-term sentence of imprisonment only and the offender would not be sentenced to a term of more than three years. (2)

(3)

In arriving at its decision under subsection (1) above the court shall have particular regard to: 1. the nature and scope of the disclosed facts and their relevance to the discovery or prevention of the offence, the time of disclosure, the degree of support given to the prosecuting authorities by the offender and the gravity of the offence to which his disclosure relates, as well as 2. the relationship of the circumstances mentioned in No 1 above to the gravity of the offence committed by and the degree of guilt of the offender. A mitigation of sentence or a discharge under subsection (1) above shall be excluded if the offender discloses his knowledge only after the indictment against him has been admitted by the trial court (section 207 of the Code of Criminal Procedure).

Nevertheless, these two concretisations do not even begin to encompass the general complexity and richness of the principles of sentencing which the courts have over time drawn from the general clause of § 46 StGB. The very first clarification that the provision makes is that it is the degree of guilt displayed by the offender11 in committing the individual offence, ie violating its legal description (Tatbestand), that must be taken as the starting point for any punishment, not a diffuse notion of any general negative life choices (Lebensführungsschuld) the defendant may have made that might be seen as factors leading up to the offence.12 However, the concept of guilt so used in the context of sentencing is not entirely identical to guilt as a part of the tripartite offence model under substantive law but clearly encompasses a wider array of factors, such as the

11 This means also that the application of strict and rigid tariffs (Straftaxen) for certain offence categories, especially mass crime in the petty crime range (traffic offences, shoplifting, etc) is prohibited, yet it is useful for prosecutors to have guidelines established by the local or regional heads of prosecution services, which allow them to achieve a measure of consistency in charging and sentencing requests; see SSvG Mn 486 and Mn 850ff for examples of recurring offence-specific criteria. 12 SSvG Mn 311.

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Sentencing and Enforcement – An Overview behaviour of the offender before and after the offence.13 The BGH has nevertheless held, in consistent jurisprudence,14 that much like in the commission of an offence, there is always an element related to the severity of the consequences (Erfolgsunwert) and an element of blameworthiness or degree of responsibility for one’s conduct (Handlungsunwert) involved in the sentencing exercise, and one must not be disregarded at the expense of the other.15 This does, of course, immediately raise questions about remoteness: When are certain consequences of the offence too remote to be used as sentencing factors? Imagine the following example: Is the suicide of a woman who had been raped by the defendant and who could not live with the experience a legitimate factor? Does it make a difference whether the woman came from a secular, enlightened background, or whether she was a member of an ethnic community whose tradition attaches a stigma even to entirely innocent victims of rape? Does it make a difference in the second case whether the defendant knew of that tradition? The case law of the BGH suggests a clear awareness of this problem and a cautious approach, as we shall see. Severity of consequence—Erfolgsunwert As indicated above, the Erfolgsunwert rests on two factors: a) the violation of the definitional elements of the criminal law prescribing the offence on the one hand; and b) the extra-definitional factors bearing upon the blameworthiness of the offender on the other. In the context of the first, there is the added problem of the rule against double-counting elements of the offence in § 46(3) StGB, to which we shall come later. As far as the definitional severity factors are concerned, the meaning of the law may easily be ascertained if one thinks of different degrees of injury or damage: the severity is greater if you break the victim’s arm than if you merely give her a black eye; in both cases you commit an assault, although of course the law itself may take that into account to a certain extent by creating different qualified versions of a basic offence. Similarly, in theft it will make a difference whether you steal £5 or £500,000. If the offence remains in the attempt phase, this will usually result in a conclusion that the severity is of a lesser degree, but not necessarily: imagine an unsuccessful attempted murder by D of V1 by using a car bomb, which leaves V1, a sole parent, in a vegetative state for the rest of her life and causes permanent psychological trauma to her three young children who had

13 14 15

Ibid. BGHSt 20, 264; NStZ 1986, 162. SSvG Mn 312.

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Sentencing Principles under the Criminal Code – Adult Proceedings to watch the incident. The matter becomes less clear if the victim of a fraud offence loses his livelihood and commits suicide after killing his family, to avoid the disgrace of drastic social decline and exclusion: these consequences are clearly not envisaged as the typical damage caused by fraud. Conversely, the contributory responsibility of the victim or a third party who is responsible for causing and/or averting the consequence in its individual form may serve to reduce the Erfolgsunwert, as, for example, in the case of traffic offences, errors in cautioning witnesses before they give evidence for offences related to false testimony, use of agents provocateurs, etc.16 It may be useful to give a few examples of what appear to have become accepted definitional considerations related to specific offence categories17: a) Homicide offences. Because a life is a life, the only consequence-related aggravating factor here is the number of lives taken.18 In particular, it is not permissible to use arguments related to the age (‘innocent 3-year-old child’, ‘frail octogenarian’, etc) or other qualities (‘valuable member of the community’, ‘police officer who fearlessly served others’) of the victim. b) Offences against the person. Seriousness of the injury and the number of victims. c) Sexual assault/rape. Degree of use of force or threat (questionable: that may also be an element describing the conduct), or degree of the intrusion into the victim’s right to sexual self-determination (eg, was the victim forced to undress or not). d) Theft and other property offences. Nature and value of the property stolen, robbed or extorted; degree of use of force or threat in cases of robbery (but compare c) above). e) Fraud and embezzlement. Nature and amount of damage caused. f) False testimony. Weight of the testimony for the proceedings, for example was an action dismissed because of that testimony, or was it irrelevant to the outcome. g) Drug offences. Nature and quantity of the substance, import for private consumption or for distribution to others, transaction with an undercover agent followed by seizure of the substance (because then the danger inherent in the drugs could not manifest itself). h) Tax evasion. Amount of the tax withheld and whether it was permanent or only temporary. Extra-definitional factors may concern those that, while being part of an actus reus, are not covered by the complementary mens rea, or such facts as are not part of the actus reus and which may even arise only after the offence has been

16 17 18

See, eg, BGHSt 45, 321; NStZ 2008, 39; StraFo 2000, 240. Taken from SSvG Mn 318. BGH NStZ 1996, 129.

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Sentencing and Enforcement – An Overview completed.19 The above-mentioned case of the fraud victim who commits suicide is an example of the latter. There is still some uncertainty in the academic debate, yet the BGH has for some time now taken the position that the reference in § 46(2) StGB to the ‘attributable consequences’ (verschuldete Auswirkungen) of the offence require at the very least negligence with regard to the consequence, even though they need not be part of the typical consequences which were the basis for the criminalisation of the specific conduct (Schutzbereich der Norm); however, the BGH uses a very strict measure with respect to foreseeability in the context of the negligence criteria if the consequences were not typical in the above-mentioned sense.20 In other words, the likelihood of establishing negligence increases with the degree of typicality of the consequence. In this regard, the following instances have been held to be typical21: a) Homicide offences. Effects on the human environment of the victim (children lose parents; parents lose only child).22 b) Sexual offences. Psychological injury caused by the offence, especially if it exceeds the level typically connected to any sexual offence of a certain nature23; suicide of the victim because of the offence24; negative or disruptive effects with respect to future sexual relations of the victim25; secondary traumatisation through interrogation by police and examination as a witness in court because the defendant did not make a confession.26 c) Burglary. Because this is an offence of aggravated theft under German law, the criminal trespass element is usually consumed by the burglary as a qualified offence against property; nonetheless, the psychological distress 19

SSvG Mn.321. BGHR StGB § 46 Abs 2 Tatauswirkungen 1–3; BGH NStZ 1986, 85; 2002, 645; NStZ-RR 2006, 372. 21 Examples taken from SSvG Mn 325. 22 BGH NStZ 1993, 385. 23 BGHR StGB § 46 Abs 2 Tatauswirkungen 3, 7. 24 BGH StV 1987, 100. 25 BGHR StGB § 46 Abs 2 Tatauswirkungen 2. 26 BGHR StGB § 46 Abs 2 Verteidigungsverhalten 15, 18. This is a highly problematic approach because it may in effect force the defendant to confess as early as possible if he wishes to avoid an enhanced sentence because of secondary traumatisation by procedure, something that naturally conflicts with his right to remain silent. The rationalisation used by the courts, and supported in SSvG Mn 381, that it is not the omission of a confession which is held against the defendant but the causation of a traumatising procedure in general, regardless of whether it became necessary because of denial, silence or maybe even despite a confession, is close to sophistry. That is in effect no more than saying that the defendant may be sanctioned for the fact that in order to convict and sanction him, criminal proceedings must be conducted, because it is a banal necessity and a typical occurrence that in order to do that, witnesses, very often victims, will have to give evidence, and naturally this may traumatise them again. If the defendant does not have to confess, it is difficult to see where the added and legally relevant damage lies: the same argument could be made for victims of serious assault or burglary, because they are also often traumatised by having to face their abuser or the intruder in court. Care must be taken not to give sexual offences special treatment in that respect, which could violate general procedural safeguards. 20

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Sentencing Principles under the Criminal Code – Adult Proceedings typically caused by an invasion into the private sphere is a relevant factor, as is the loss of earnings if the offender steals a company car.27 d) Fraud. Economic consequences such as insolvency, loss of livelihood, etc.28 e) False testimony. The incorrect decision tainted by the testimony which it is meant to achieve.29 f) Offences related to causing a danger. For example, § 315c StGB (endangering road traffic), if the danger which is the reason for the criminalisation actually materialises.30 Degree of responsibility—Handlungsunwert Because this element of the sentencing decision is based on the question how far the defendant may be blamed for his actions, it is obvious that factors such as diminished responsibility (§ 21 StGB), which typically triggers a shift in the sentencing frame under § 49 StGB, but also lesser impairments of his faculties to understand that he was doing something wrong and to act accordingly, should have an impact on the sentence.31 A major field of application is the effect of alcohol, which can lead to § 21 StGB being triggered; however, the very same effect is also a prime example of the restriction based on voluntary creation of a state of impaired self-control: in consistent jurisprudence the courts have held that voluntary intoxication, especially if the defendant could foresee the risk of his committing unlawful acts (of a certain nature) while under the influence, may be a reason to deny the sentencing frame shift under § 49 StGB or any other mitigation.32 This reasoning is reminiscent of Majewski,33 but with the difference that it happens at the sentencing stage, not at the liability stage; the treatment of voluntary intoxication is thus not (primarily)34 a matter of mens rea in German law.

27

BGH wistra 2005, 457. SSvG Mn 325. 29 Ibid. 30 Ibid. 31 BGH NStZ 1992, 381. 32 BGHSt 49, 239. 33 DPP v Majewski [1977] AC 443. 34 There used to be a concept developed in the literature and the case law called actio libera in causa, which meant that if the defendant had intent, knowledge or risk awareness before he got intoxicated and then committed the offence, the pre-intoxication state of mind could be attributed to him for the time of the offence; this concept was for all practical purposes more or less removed from legal existence—even if expressly only for traffic offences—by one panel of the BGH (BGHSt 42, 235) which doubted its constitutionality (see M Bohlander, Principles of German Criminal Law (hereafter ‘POGCL’) (Oxford, Hart Publishing, 2009) 134), but there seem to remain other panels in the BGH which contemplate its continued use (see BGH NStZ 2007, 518). The matter continues to be unclear. I should like to thank my former colleague, Judge Wolfgang Feld-Gerdes, LG Meiningen, for confirmation of this view from his experience in current practice. 28

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Sentencing and Enforcement – An Overview In the same manner, the motives and aims of the offender may have an effect on the Handlungsunwert. This is apparent, for example, from provisions such as §§ 213, 216 StGB, which contain sentence mitigations for persons who kill out of compassion for a terminally ill victim at the latter’s request or because they have been provoked. Similarly, if someone kills another by using cruel methods, the law treats that as a case of aggravated murder under § 211 StGB, triggering a mandatory life sentence. A particularly controversial example, given its ethnic background and frequent link to adherents of one particular religion, is that of the so-called ‘honour killings’, where the BGH35 has clearly stated that the standard for the evaluation of motives is the consensus based on the values within German society, not that of traditions or ethnic groups36 that do not embrace such values. In fact, in the case of the murder of his wife by an Anatolian man, the BGH37 quashed the judgment of an LG which had not convicted the defendant for aggravated murder on account of base motives because of his cultural affiliation, and stated that honour killings may as such fall under § 211 StGB.38 As with the Erfolgsunwert, the rule against double-counting must be respected and specific intentions required by the offence (eg, the intent to enrich oneself in blackmail and robbery) must not be used as additional aggravating factors.39 Policy judgements made, for example, by the legislature in the General Part must also be considered carefully: if D successfully and voluntarily withdraws from the attempted murder of V but in the course of the attempt has already wounded him, the initial intent to kill must not be used as an aggravating factor for sentencing her under the assault offence, because that would counteract the public policy decision under § 24 StGB to allow a full acquittal from the attempt charge in the case of a voluntary withdrawal.40 The intensity of the criminal intention evidenced, for example by the defendant’s efforts at overcoming

35

NStZ 2006, 284. The general quality of being a foreigner or the argument of abusing the hospitality (Gastrecht) of the host country is not an admissible sentencing criterion; BGH NStZ 1982, 112. 37 NStZ 2004, 332. 38 But see BGH NJW 1980, 537; StV 1997, 565, which accepted that in extreme cases ingrained and culturally unchallenged ethnic behaviour patterns may lead to a denial of base motives in the context of § 211 StGB. This argument’s force, however, fades in direct proportion to the time a person has lived in Germany and has had the opportunity to acquaint himself with German societal and legal values; see BGH NStZ 1996, 80. This entire issue must also be seen in the context of the move in the jurisprudence of the courts to restrict the application of the mandatory life sentence under § 211 StGB. It also represents a serious problem in the area of immigration and integration policy. See generally on the topic of honour killings, A Grünewald, ‘Tötungen aus Gründen der Ehre’ NStZ 2010, 1. 39 SSvG Mn 333. 40 BGH NStZ 1989, 114. 36

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Sentencing Principles under the Criminal Code – Adult Proceedings obstacles and the degree of his planning, especially in order to avoid detection,41 may also impact on the sentence.42 Connected to the intensity of the criminal will is the modus operandi. This concept encompasses factors such as the time and place of the offence, its duration, the instruments and methods used, the offender’s actual conduct while committing the offence, and the relationship between defendant and victim; many of those will, however, already have been taken into account in the creation of qualified offences or offence-specific sentencing factors, and there is consequently again a danger of double-counting.43 The courts have also made it clear that the modus operandi must be morally attributable to the defendant, which may be difficult decision to make in the individual case if the defendant suffers from mental or emotional deficiencies.44 Nonetheless, even within the ambit of § 21 StGB, the offender remains responsible for her behaviour, and gross upward deviations from the ‘norm’ may be used as aggravating factors within the framework of overall diminished responsibility45; such issues will, however, play a lesser role—if at all—in cases of serious emotional overload (Affekt), even if the offender used a brutal manner of killing the victim, for example by stabbing her 50 times with a knife;46 Again, it will be helpful to look at a few specific offence categories and the related case law: a) Sexual assault/rape. The degree of force used47; humiliating treatment of the victim48; a previous relationship based on which the offender may or may not have expected reciprocation of his advances, including the breach of trust aspect.49 b) Theft. Degree of energy needed and employed to overcome obstacles and security installations; breach of trust by a person in charge of safeguarding the property.50 c) Robbery/blackmail. Nature and degree of force or threat used, and nature and degree of the threatened consequences in the event of non-compliance.51 d) Fraud. Nature and degree of deception, eg use of false documents; exploiting the good will and trust of the victim by prentending to be a priest or a

41

BGH NStZ 1989, 188. On the related issue of the degree of the violation of the offender’s legal obligations see SSvG Mn 343–347. 43 SSvG Mn 348. 44 SSvG Mn 352. 45 BGHSt 16, 360; NStZ 1992, 538. 46 BGH NStZ 1987, 321. 47 BGHR StGB § 46 Abs 3 Vergewaltigung 2, 3. 48 SSvG Mn 353. 49 Ibid. 50 BGHSt 29, 319. 51 SSvG Mn 353. 42

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Sentencing and Enforcement – An Overview messenger from a relative; exploitation of a long-standing and solid business relationship.52 The behaviour of the offender before and after the offence has already been addressed in part above in the context of §§ 46a, 46b StGB. The general problem is, however, how things that happened before or after the event may be relevant to sentencing. The BGH has consistently adopted the view that these earlier or subsequent factors must have a close connection to ‘guilt’ in the meaning of the tripartite structure, ie to the actual charge the defendant faces,53 which allows conclusions to be drawn about the offender and his attitude to the offence. There is a certain overlap with the motives and aims mentioned above; the factors include elements such as54: a) b) c) d)

whether the offence was based on a situation of conflict; a previous relationship; whether the defendant was acting under diminished responsibility; the defendant’s previous criminal record, especially if with respect to identical or similar offences, unless the entries already had been expunged from the criminal records central register or were due for deletion; e) destroying evidence and securing the proceeds, if done with above-average effort; f) behaviour during the proceedings if this expresses a particular disdain for the law and the interests, for example, of the witnesses and victims; g) a confession; h) commission of new offences since the one for which the defendant is standing trial; i) stabilisation of personal circumstances since the offence. Effect of the proceedings and punishment on the offender and considerations of fairness The courts have traditionally followed the principle that whether a punishment is fair and just depends not only on general societal convention but also on the individual offender and his or her sensitivity to punishment (Strafempfindlichkeit).55 More precisely, this may mean that the more sensitive a defendant is to, for example, incarceration, the more reason there may be to reduce the sentence from what may be regarded as the otherwise applicable tariff.56 Factors influencing such sensitivity may include the fact that the defendant is (going to be) a first-time prisoner, does not speak any German, has substantially impaired

52 53 54 55 56

SSvG Mn 353. BGH NJW 1979, 1835. See references to case law at SSvG Mn 357–390. BGHSt 7, 28; 35, 148. BGHR StGB § 46 Abs 1 Schuldausgleich 7, 13, 25.

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Sentencing Principles under the Criminal Code – Adult Proceedings sight, is of advanced age, or has a reduced life expectancy because of HIV infection or another serious disease etc.57 Sometimes, the defendant will have been affected seriously by his own offence, which will tend to occur mainly in the context of negligent behaviour, when it would appear unfair, and serve no preventive purpose either, to punish him. In those cases, § 60 StGB allows for an absolute discharge, unless the defendant has incurred a sentence of over one year: § 60 StGB Discharge The court may order a discharge if the consequences of the offence suffered by the offender are so serious that an imposition of penalties would be clearly inappropriate. This shall not apply if the offender has incurred a sentence of imprisonment of more than one year for the offence.

Such a case might exist, for example, if an otherwise law-abiding and doting father negligently ran over his only child when backing out of the garage in his car. The underlying policy principle has been extended by case law to cover any factors that disproportionately affect the defendant, which might include, for example, the loss of his job and livelihood by a defendant who is dependent on his driving licence, when considering the imposition and/or length of a driving disqualification under §§ 69, 69a StGB.58 Not only the punishment, but also the experience of the proceedings may have a profound effect on the defendant, especially first-time offenders, and may become a factor in mitigation.59 A particularly important aspect of this principle relates to cases of violations of the ECHR or domestic civil liberties, for example the right to a speedy trial and the other fair trial guarantees under Art 6 ECHR. However, in such circumstances the BGH,60 after previously viewing this as another sentencing factor (Strafzumessungslösung), now supports the so-called enforcement model (Vollstreckungslösung), which very simply put means that any such violation must be expressly mentioned in the operative part of the judgment as one element of fair compensation required under the ECHR, and if required, a particular portion of the sentence must be stated as being deemed to have been served, instead of reducing the sentence itself below what would be the otherwise just and adequate punishment.61 In extreme cases, especially when the sentencing stage can no longer provide sufficient compensation, the BVerfG has held that a discontinuance or a discharge may have to be considered under constitutional principles.62

57

See the references to the case law at SSvG Mn 412–423. See, for § 60 StGB and the extrapolated general principles with examples of the case law, SSvG Mn 424–432. 59 SSvG Mn 433–435. 60 BGHSt 52, 124. 61 For the steps to be observed by trial courts and the complex case law on the issue which cannot be analysed here, see the overview at SSvG Mn 436–444b. 62 BVerfG, Docket No 2 BvR 1089/09, Decision of 4 September 2009. 58

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Sentencing and Enforcement – An Overview The rule against double-counting Section 46(3) StGB states that facts which are subsumed under the elements of a statutory offence may not be used again in sentencing. However, it has been generally accepted that this rule also applies to facts that directly influence the sentencing frame from which the sentence is to be chosen and the general policy aspects for the offence’s criminalisation.63 Obviously, this does not preclude taking into account the different degrees to which such facts fulfil those elements or policy factors,64 as has been indicated above. Circumstances impacting directly on the sentencing frame are those which do, for example, justify the acceptance of a less serious or an especially serious case, such as §§ 213, 216, 243 StGB, etc.65 The rule against double-counting applies notably to mitigating circumstances too,66 especially those that may have an impact under the general mitigation rule in § 49 StGB (see further below). This is expressed in § 50 StGB: § 50 StGB Multiple mitigating circumstances A circumstance which alone or together with other circumstances justifies the assumption of a mitigated offence under the provisions of the special part and which is also a special statutory mitigating circumstance for the purposes of section 49, may only be considered once.

A problem is posed by the use of the concept of the so-called ‘typical consequences’ of an offence: the BGH, after an initially different attitude, shifted to the realisation that there is no such thing as the ‘normal’ average type of offence in any category.67 This was made clear with the example of rape (under the pre-1998 law). Previously, the BGH had held that the typical case of rape involved unprotected full penetration of the vagina until ejaculation.68 In BGHSt 37, 153, the court performed an about-turn and attached the offence-specific doublecounting bar only to the actual requirement for the actus reus of rape to be fulfilled, which was entering the vulva. Any other circumstances, such as whether the intercourse was unprotected, full penile pentration of the vagina, ejaculation, fear of becoming pregnant or HIV-infected, etc, could in principle still be used for enhancing the sentence, depending on the individual case. However, there still seems to exist a measure of disagreement and uncertainty between some panels of the BGH as to which factors may be used, and in exactly what way.69

63 SSvG Mn 391. It is not permissible, eg to increase a sentence with the argument that the victims of sexual offences, especially sexually-abused children, are in need of special protection: that factor had already been taken into account by the legislator when fixing the general sentencing frames; see BGH StV 1987, 62; 146. 64 BGHSt 37, 153 (unprotected intercourse). 65 SSvG Mn 400. 66 SSvG Mn 403. 67 BGHSt 34, 345. 68 BGH NStZ 1985, 215. 69 See, for more details, SSvG Mn 405–411.

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Sentencing Principles under the Criminal Code – Adult Proceedings The role of prevention Section 46 StGB also speaks of the ‘effects which the sentence can be expected to have on the offender’s future life in society’. This rather pithy reference has been interpreted to include considerations of prevention, ie influencing the offender, also called special prevention, or rehabilitation or re-socialisation (Spezialprävention), and the affirmation of the inviolability of the legal order for the benefit of the law-abiding citizens (positive Generalprävention or Integrationsprävention). The role of deterrence (negative Generalprävention) is being viewed more and more as a problematic issue, mainly based on criminological research over decades that has shown that the deterrent effect of punishment on third persons who are not law-abiding in any case has been seriously overrated, or may actually be non-existent.70 The flipside of rehabilitation is avoidance of social exclusion and secondary criminogenic effects, which is the reason underlying the precedence given to fines over short prison terms under § 47 StGB, as mentioned above. However, in recent years, the courts have felt that the hurdles they have to jump before imposing (suspended) short prison sentences may be too high in certain instances of white-collar crime, such as non-payment and misuse of wages and salaries, as well as social security contributions, by employers, etc, where it may appear desirable to set an example and send a message to the offenders that financial loss may not be the only consequence they will have to face.71 The problem in fixing an individual sentence is where considerations of prevention may legitimately come in. The ground rule is that such considerations must never lead to a sentence that is in excess of adequate punishment commensurate with the guilt of the offender (schuldangemessene Strafe).72 However, what is the level of adequate punishment? It is obvious, despite some theoretical approaches to the contrary in the literature,73 that it is impossible—at least in practice—to pinpoint a precise sentence (Punktstrafe—spot sentence) that could claim to be the only just and appropriate punishment. The BGH74 has therefore in consistent jurisprudence adhered to the so-called Spielraumtheorie or ‘margin model’: there is a certain (narrow) margin of adequate and just punishment, and only within that narrow margin may prevention come into play; it may in principle lead neither to a sentence lower than the minimum, nor to one higher than the maximum.75 Again, while this approach provides for more flexibility, it merely removes the uncertainty to another level, and trial courts are left with a

70 71 72 73 74 75

SSvG Mn 446–447. SSvG Mn 450. BGHSt 24, 132. See the references in SSvG Mn 453–460. BGHSt 7, 28; 20, 264; 24, 133. BGHSt 20, 264; 24, 132.

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Sentencing and Enforcement – An Overview large collection of casuistic jurisprudence which they have to approximate as best as possible.76 Within that framework, prevention aspects, and in particular deterrence, may be used as follows: a) Deterrence, despite its doubtful justification, is in principle a legitimate aspect of sentencing.77 b) However, the BGH has a tendency to quash sentences which are based too strongly on considerations of deterrence, and to remand the case for resentencing.78 c) The deterrent effect must be conceptually possible and fit the crime, which is unlikely in the context of offences committed because of emotional overload or in other exceptional situations,79 or in a case of § 21 StGB.80 d) Deterrence may legitimately be used if there is a palpable and specific danger of copycat offences, of if the commission of a certain category of offence is already noticeably on the rise.81 Examples include the increase in robberies of badly-secured banks in East Germany in the period directly after Unification,82 the rise of mafia protection rackets within Germany,83 xenophobic hate crime,84 evasion of tax on capital interest,85 etc. What these examples show is that merely general language about the need to deter others will not suffice, and a specific, although not necessarily statistically supported,86 argument as to the individual need and potential for deterrence must be made in each judgment. e) The Integrationsprävention, which figures in the StGB mainly under the heading of ‘defence of the legal order’ (Verteidigung der Rechtsordnung) in the law relating to suspended sentences (see below) where it may, in exceptional cases, prevent an otherwise indicated lenient and suspended sentence. The general concept will, however, work as a mitigating factor if the State, by using unlawful methods, undermines the trust of the population in the inviolability of the law. One example is the (illegal) use of agents provocateurs, where the idea is that the society can have no interest in punishing people too harshly for offences which the State through its agents has incited them to commit in the first place. Another example is where, of

76 See the examples listed by SSvG Mn 464 of sentences which the BGH considered as clearly excessive or too lenient. 77 BayObLG StV 1988, 530. 78 BGH NStZ 1983, 501. 79 SSvG Mn 467, fnn 540 and 541. 80 BGH NStZ 1992, 169. 81 BGH MDR 1989, 111; NStZ 1986, 358. 82 BezG Meiningen NStZ 1991, 583. 83 BGH NStZ 1992, 275. 84 SSvG Mn 467, fn 551. 85 SSvG Mn 467. 86 BGHR BtMG § 29 Strafzumessung 14, related to the rise of drug offences.

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Sentencing Principles under the Criminal Code – Adult Proceedings several potential co-defendants, only the small fry have been prosecuted and tried because one could not get at the big fish; in such cases—namely the so-called trials of the Mauerschützen (literally: ‘wall shooters’ ie border guards serving on the Berlin Wall) after the fall of the former German Democratic Republic—the BGH has held that mitigation was in order because their superiors, who bore far greater responsibility, could not always be prosecuted.87 The use of special prevention aspects based on the person of the offender as aggravating factors is questionable: this might be done in order to ‘educate’ a particularly resilient repeat offender, yet it is more likely that such an approach would overestimate the potential for influencing adult offenders.88 It is thus more likely that such considerations, if employed at all, will overwhelmingly have a mitigating character; there is a certain conceptual overlap with what was said above with regard to sensitivity to punishment etc.89

f)

The rule on special mitigating circumstances in § 49 StGB—Shifting the sentencing frame Section 49 StGB has been mentioned already several times above. It is an important tool in the context of mitigating a sentence, especially in finding the right sentencing frame, and is largely self-explanatory: § 49 StGB Special mitigating circumstances established by law (1)

(2)

87 88 89

If the law requires or allows for mitigation under this provision, the following shall apply: 1. Imprisonment of not less than three years shall be substituted for imprisonment for life. 2. In cases of imprisonment for a fixed term, no more than three quarters of the statutory maximum term may be imposed. In case of a fine the same shall apply to the maximum number of daily units. 3. Any increased minimum statutory term of imprisonment shall be reduced as follows: a minimum term of ten or five years, to two years; a minimum term of three or two years, to six months; a minimum term of one year, to three months; in all other cases to the statutory minimum. If the court may in its discretion mitigate the sentence pursuant to a law which refers to this provision, it may reduce the sentence to the statutory minimum or impose a fine instead of imprisonment.

SSvG Mn 468–472; BGHSt 39, 1; 146. SSvG Mn 474. SSvG Mn 475–576; Sch/Sch-Stree/Kinzig § 46 Mn 54 with references to the case law.

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Sentencing and Enforcement – An Overview We shall leave aside for the purposes of this introduction the intricacies90 of the distinction between § 49(1) and (2) StGB, and instead explain how the provision works by use of a simple example: D is charged with murder under § 212 StGB. During the trial it emerges that he acted out of serious provocation that would alone reach the threshold of § 213 StGB, and that he was also in a state of diminished responsibility because of involuntary intoxication sufficient to trigger § 21 StGB on its own. Note that offence-specific less serious cases which have themselves a reduced sentencing frame take precedence before general mitigating factors. This has the following consequences for the sentencing frame in our example: a) b)

Under § 212(1) StGB: 5–15 years. This frame is reduced to 1–10 years by the application of § 213 StGB based solely on provocation. c) Section 21 StGB refers to § 49(1) StGB. d) Because § 21 StGB in our case is based on a mitigating circumstance other than and unrelated to the one used for shifting the frame to § 213 StGB, § 50 StGB on double-counting does not apply and the frame may be reduced further. e) Section 49(1) No 2 StGB caps the maximum sentence to three-quarters of the statutory maximum, which in this case is to be taken from § 213 StGB: threequarters of 10 years = 71⁄2 years. f) Section 49(1) No 3 StGB reduces the minimum term of an increased minimum sentence of 1 year to 3 months. g) The available sentencing frame for D is thus between 3 months and 71⁄2 years. h) Within that frame, the court has to apply all the factors about Erfolgs- and Handlungsunwert and prevention, etc mentioned above to find the appropriate margin within which to set the individually adequate sentence.

Before the 1998 sentencing reform, the sentencing frame available under § 213 StGB had been from 6 months to 5 years. For our example, that would have meant that the minimum would have been the absolute minimum of 1 month and the maximum three-quarters of 5 years = 3 years and 8 months. The available frame at that time would thus have been from 1 month to 3 years 8 months. Time spent in custody As in most criminal justice systems, German law recognises the inherent problem of taking into account the time that a defendant may have had to spend on remand pending trial while still presumed innocent. Section 51 StGB makes provision for giving the convicted defendant credit for time so served:

90 See, on the details of the complex mechanics of the sentencing frame shifts, SSvG Mn 487–615.

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Sentencing Principles under the Criminal Code – Adult Proceedings § 51 StGB Effect of time spent in custody (1)

(2)

(3)

(4)

(5)

If a convicted person had been remanded in custody or otherwise been kept in detention because of an offence which is or was the object of the proceedings, any time spent in such custody or detention shall be credited towards a fixed term of imprisonment or a fine. The court may order for such time not to be credited in whole or in part if in light of the conduct of the convicted person after the offence this would be inappropriate. If in a later proceeding another sentence is substituted for a previously imposed sentence after that sentence had become final, time served under or credited towards the earlier sentence shall be credited against the new sentence. If a convicted person has already been sentenced abroad for the same offence, the foreign sentence, to the extent it has been served, shall be credited towards the new sentence. Subsection (1) above shall apply mutatis mutandis to any other detention suffered abroad. For the purpose of crediting a fine against time in detention, or vice versa, one day of detention shall correspond to one daily unit. If a foreign sentence or time in detention is to be credited, the court shall determine the rate as it sees fit. For the purpose of crediting a period of provisional disqualification from driving (section 111a of the Code of Criminal Procedure) against a driving ban under section 44, subsection (1) above shall apply mutatis mutandis. For this purpose, the provisional deprivation of a driving licence or its seizure (section 94 of the Code of Criminal Procedure) shall be equivalent to a provisional disqualification.

Note that while credit for time in custody is the rule, under § 51(1) 2nd sentence StGB the court may refuse to give credit if the behaviour of the defendant after the offence would make that inappropriate. This, according to the consistent case law, is in practice the case only if the defendant intentionally delayed the proceedings for reasons unconnected to the proper exercise of her procedural rights.91 Time in custody spent in foreign countries may be credited at a more beneficial rate, given that prison conditions can obviously vary widely from country to country.92 Multiple offences of adult offenders—calculation of the combined/aggregate term Often, an offender will not commit just one offence by his actions but violate several provisions by the same act (Tateinheit); conversely, he may be arrested only after having committed a number of distinct offences (Tatmehrheit). These concepts may, in addition, overlap. German law, in the case of adult offenders, does not utilise a system of concurrent and consecutive sentences as employed, for example, in many common law countries, but combines all violations that 91 BGHSt 23, 307. Actions of defence counsel that would by their nature qualify for a denial of credit may be used only if they can be attributed to instructions by the client; BGH NStZ 2002, 367. 92 See for details Sch/Sch-Stree/Kinzig, § 51 Mn 28–35 with case law references.

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Sentencing and Enforcement – An Overview may be adjudicated in a particular trial into one sentence. It does, however, subscribe to a concept similar to that under English law of having regard to the adequate totality of the sentence93: if it later transpires that a defendant could have been sentenced at an earlier trial for an offence committed before the previous conviction, and for which he is now standing trial separately, the second court must take this into account and fix a retrospective aggregate sentence. The main provisions regulating this process and taking up the totality principle are §§ 52–55 StGB94: § 52 StGB One act violating multiple laws or the same law more than once (1) (2)

(3) (4)

If the same act violates more than one law or the same law more than once, only one sentence shall be imposed. If more than one law has been violated the sentence shall be determined according to the law that provides for the most severe sentence. The sentence may not be more lenient than the other applicable laws permit. The court may impose an additional fine to any term of imprisonment under the provisions of section 41. ...

§ 53 StGB Multiple offences committed by multiple acts (1)

(2)

(3) (4)

If a person has committed more than one offence, all of which are to be adjudicated at the same time, and incurred more than one sentence of imprisonment or more than one fine, an aggregate sentence shall be imposed. If a term of imprisonment concurs with a fine, an aggregate sentence shall be imposed. The court may impose a separate fine; if fines are to be imposed for more than one offence, an aggregate fine shall to that extent be imposed. ... Section 52 (3) … shall apply mutatis mutandis.

§ 54 StGB Fixing of aggregate sentence (1)

(2)

If one of the sentences for the individual offences is imprisonment for life, an aggregate sentence of imprisonment for life shall be imposed. In all other cases the aggregate sentence shall be fixed by increasing the most severe individual sentence incurred and, in the case of different kinds of penalties, by increasing the sentence that is most severe in nature. The person of the offender and the individual offences shall be considered in their totality. The aggregate sentence shall be less than the sum of the individual sentences. It shall not, in the case of imprisonment for a fixed term, exceed fifteen years …

93

See P Hungerford-Welch, Criminal Procedure and Sentencing, 7th edn (hereafter ‘Hungerford-Welch’) (London, Routledge and Cavendish, 2008) 808–10, with references. 94 We are leaving aside the added complex issue of the concursus delictorum below the level described here, ie cases where one of two offences is a lesser included offence of the other, or when a particular offence is a typical companion offence to another and is said to be consumed by the main offence, etc (Gesetzeskonkurrenz). Suffice it to say that the rule is that issues of Gesetzeskonkurrenz must be solved before the exercise of §§ 52–55 StGB is engaged in; see, for an overview, SSvG Mn 494, 498–504a.

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Sentencing Principles under the Criminal Code – Adult Proceedings (3)

If an aggregate sentence is to be fixed based on a term of imprisonment and a fine, one daily unit shall correspond to one days imprisonment for the purpose of calculating the sum of the individual sentences.

§ 55 StGB Subsequent fixing of aggregate sentence (1)

(2)

Sections 53 and 54 shall also apply to a convicted person who has had a sentence imposed upon him by a final judgment which has neither been enforced, barred by the statute of limitations nor remitted, when that person is convicted of another offence which he committed before the previous conviction. That previous conviction shall be the judgment in those proceedings in which the factual findings underlying the new conviction could last have been examined. ...

One can immediately see that if and when the concepts of both Tateinheit and Tatmehrheit overlap, the exercise becomes rather convoluted. As with § 49 StGB, it is easier to demonstrate the effect of these provisions with a simplified example: Incident 1: On 21 September 2010, D robs V1, a private security guard working for a bank, of €50,000 after hitting him over the head with a baseball bat as V1 leaves the bank with the money. When he hits V1 over the head, D appreciates that V1 could die from the blow, but decides to hit him hard nonetheless to pre-empt any possible resistance. V1 survives, but with permanent brain damage that reduces him to a vegetative state without any hope for recovery. D makes off with the money. Incident 2: On 22 October 2010, D gets into a quarrel with V2 in a bar. V2 is not interested in pursuing this, pays his bill and leaves for home. D follows him. When V2 reaches his house and opens the front door, D pushes V2 through the door and follows him in, where he beats him up, breaking V2’s collar-bone. On 3 February 2011, D is tried before the LG Berlin for incident 1, convicted and sentenced. The judgment is not appealed. After this trial, D’s involvement in incident 2 comes to light. On 15 April 2011, D is tried before the LG Bonn for incident 2 and convicted. How will the courts go about sentencing D? The solution, simplified, is as follows: a)

95

In incident 1, D committed by the same act the following offences: i) Because attempts can under German law, as opposed to English law,95 be committed with dolus eventualis, ie conditional intent, for the volitive element, D may have committed attempted aggravated murder under § 211 StGB in the alternative ‘in order to facilitate or cover up another offence’. Threatened punishment: mandatory life sentence, with the possibility of reduction for attempt under §§ 23(2), 49(1) StGB to a sentence of 3–15 years.

POGCL, 141.

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Sentencing and Enforcement – An Overview ii)

b)

c)

The facilitated other offence is a case of aggravated robbery under §§ 249, 250(2) No 3 StGB. Threatened punishment: 5–15 years. iii) D will also have committed an offence of causing bodily harm by dangerous means (§ 224(1) No 2 StGB: 6 months–10 years) and, depending on the circumstances of his mens rea, knowingly causing grievous bodily harm (§ 226(1) No 3, (2) StGB: 3–15 years). In incident 2, D committed the following offences: i) Burglary (§ 123 StGB: maximum 1 year or a fine). ii) Causing bodily harm (§ 223 StGB: maximum 5 years or a fine). The offences in each incident have been committed in Tateinheit, ie for each of the incidents, a sentence must be found under § 52 StGB, yet because they are in a relationship of Tatmehrheit to each other and could have been tried at the same time, the second court must create an aggregate sentence (Gesamtstrafe) for both incidents, after giving an incidental sentence for each of them (Einzelstrafe). Thus: i) The court sentencing D for incident 1 will have to decide, first of all, whether it will give him any reduction for the fact that the homicide offence remained in the attempt phase. Given the serious consequences for V1, it may well decide not to, in which case D will receive a life sentence for that offence alone, and the other offences are automatically eclipsed as far as the final overall sentence is concerned. If the court gives credit for the attempt, the completed robbery offence suddenly becomes the most serious one, with a minimum sentence of 5 years. So the combined sentence must be taken from the frame of 5–15 years, and the fact that D violated not just § 250 StGB will naturally increase the concrete sentence substantially above the minimum. So let us assume, for argument’s sake, that D will get 7 years for incident 1. ii) In incident 2, both offences have the same minimum sentence, but § 223 StGB provides for a higher maximum, namely 5 years. Given D’s previous violent history as seen in incident 1, the court sentencing incident 2 may well decide to raise the sentence for the bodily harm offence to 18 months and deny a suspension. iii) This means that the second court must now proceed with the 7 years from incident 1, which is final because the judgment was not appealed,96 and the 18 months for incident 2. Sections 53, 54 StGB state that the aggregate sentence must not reach the sum of both incidental sentences and must not be lower than the most severe of them. This in turn, remembering that § 39 StGB says that sentences over 1 year in length are measured in years and months, leads to a frame for the aggregate sentence of 7 years–8 years 6 months.

96 The second court has no power to change the incidental sentences under § 54 StGB or sentences calculated under § 52 StGB, BGHSt 12, 99. However, if the previous sentence was already an aggregate sentence then that aggregate sentence becomes moot and is broken down again into the constituent incidental sentences, which are, however, in themselves final as explained above. Note that the court does not indicate incidental sentences in the case of Tateinheit under § 52 StGB, because the combined sentence is not an aggregate sentence but taken from the most severe frame.

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Sentencing Principles under the Juvenile Courts Act It is apparent from this very straightforward example that the potential for complication and error is substantial,97 for example, if each incident comprises several distinct offences in the meaning of § 53 StGB, and we have not even addressed the conundrum of what happens if some sentences have already been enforced, etc.98 Note that the conviction will mention all offences and specify whether they have been committed in Tateinheit or Tatmehrheit, that the overall sentence is an aggregate sentence and that it includes a previous judgment. The second court in our example may thus formulate the Tenor as follows: The defendant is guilty of attempted aggravated murder committed in the same transaction each with aggravated robbery, causing bodily harm by dangerous means and causing grievous bodily harm, and, in a separate transaction, of causing bodily harm committed in the same transaction as burglary. Under inclusion of the judgment of the LG Berlin of 3 February 2011—docket no 2 Ks 1 Js 2345/1099—he is sentenced to an aggregate sentence of imprisonment for life/of 8 years and 5 months.

SENTENCING PRINCIPLES UNDER THE JUVENILE COURTS ACT

It has been indicated previously that juvenile criminal law does not subscribe to the same rules as apply to adult offenders. In contrast, it emphasises that juveniles and young adults should, in principle, be educated and not punished. We shall briefly address the major differences below. General rule—education, not punishment The debate about the sentencing philosophy in adult criminal law focuses on issues such as deterrence, retribution, rehabilitation, etc, as we have seen above. The ideology of juvenile criminal law is entirely different: the aim is to educate the offender, not to punish him. Expressions of this approach are the reduced sentencing frames for imprisonment, and the primacy of educational and noncustodial corrective measures. In chapter five, on the procedure from indictment 97 This is one of the reasons why both academics and practitioners have for some time been arguing for the introduction of a unified sentence in adult criminal law, as it already exists in juvenile law. See Sch/Sch-Stree/Sternberg-Lieben, Vorbem §§ 52 ff Mn 7–8 with references. 98 See on this generally, Sch/Sch-Stree/Sternberg-Lieben, commentary on § 54 and § 55 StGB. 99 This docket number means, for the cognoscenti: 2nd chamber of the Schwurgericht (2 Ks) of the LG Berlin sitting on prosecution division 1’s dossier (1 Js) number 2345 of the year 2010. Prosecution division 1 at the LG Berlin may, in our example, be (one of) the division(s) dealing with homicide offences. Note that the subject-related number of the prosecution division in the case number does not necessarily equate to the number of actual divisions in the prosecution service office at a particular LG.

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Sentencing and Enforcement – An Overview to judgment, we also encountered the powers of the prosecutor and the judge to discontinue proceedings in less serious cases. This general attitude to juveniles and their offences is embodied in the central norm of § 2 JGG: § 2 JGG Aim of juvenile criminal law; application of general criminal law (1)

(2)

The aim of juvenile criminal law is first and foremost to prevent further offences by juveniles and young adults. To this end, the sanctions and the procedure shall be orientated primarily towards the idea of education with due regard for the parental right of education. General criminal law shall apply unless otherwise provided in this Act.

As we shall see when looking at the different instruments in the arsenal of juvenile law sanctions, the JGG also orders the non-applicability of the sentencing frames of the StGB or other laws that apply to adults. The case of juvenile imprisonment It is obvious that there will be cases when juveniles commit offences of extreme seriousness, where either the gravity of the offence and the corresponding blameworthiness of the offender, or his character as manifested in the offence require a more drastic approach, because there exist pernicious qualities of a more permanent nature in the character of the offender (schädliche Neigungen) which give reason for concern that he will commit further serious offences, and that without a longer period of intensive education these tendencies cannot be eradicated.100 In cases relating to the gravity of the blame,101 it becomes difficult in practice to maintain the educational philosophy of the juvenile law, and the JGG reflects this ambiguity to some extent when defining the nature and conditions of juvenile imprisonment. § 17 JGG Nature and conditions (1) (2)

Juvenile imprisonment shall consist of imprisonment in an establishment assigned for its enforcement. The court shall impose juvenile imprisonment if because of the juvenile’s harmful tendencies as expressed in the offence educational and corrective measures do not suffice for the purposes of education, or if the gravity of the juvenile’s guilt demands imprisonment.

Statistical research has shown that courts tend to emphasise the punitive aspect of this dichotomy by putting more weight on the seriousness of the offence or the persistent refusal of the offender in previous proceedings to engage properly with the administration of justice. While deterrence as such is not a legitimate aim of sanctioning juveniles, it can be and often is turned into an inverse education

100 101

See for the definitions EB § 17 Mn 18 ff. See EB § 17 Mn 29 ff.

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Sentencing Principles under the Juvenile Courts Act argument by stating that the severity of the crime and the fact that offenders have to answer for their acts need to be brought home to the juvenile.102 Not unsurprisingly, concerns of the general public about unwarranted leniency often surface in highly visible cases of serious crimes committed by juveniles or young adults, such as the recent muggings or worse of innocent passers-by or homeless people in Underground stations, etc, because the general public find it difficult to accept that education trumps punishment in juvenile law. Multiple offences by juvenile offenders—unified sentence As we have just seen, the task of finding the correct sentence window for adult offenders may involve mathematical exercises that belie the Latin legal maxim iudex non calculat. Because the general sentencing rules of adult criminal law have no application within the ambit of the JGG, such formal procedures make little conceptual sense on the one hand; on the other hand, the adult system may be too prescriptive and rigid to be of use for a style of sentencing aimed at finding the best fit from an educational point of view. This is why the JGG has opted for the Einheitsstrafe, or unified sentence, even if a juvenile commits several offences that would under substantive law be in a relationship of Tatmehrheit (see above). Section 31 JGG gives the judge a rather wide discretion: § 31 JGG Multiple offences by a juvenile (1)

(2)

(3)

Even if a juvenile has committed multiple offences, the judge shall impose a unified sentence of educational measures, corrective measures or juvenile imprisonment. To the extent that this Act so provides (§ 8), different types of educational or corrective measures may be ordered simultaneously, also with juvenile imprisonment. The maximum sentence for juvenile detention and imprisonment must not be exceeded. If a juvenile has been finally convicted or sentenced to an educational or corrective measure or juvenile imprisonment, which has not been fully enforced, served or become spent otherwise, the new judgment shall similarly and under inclusion of the previous judgment, make a unified order of measures or juvenile imprisonment. The judge may in his discretion allow credit for periods spent in juvenile detention when imposing juvenile imprisonment. If the aim of education so requires, the judge may refrain from including in the new judgment offences for which a previous conviction had already been imposed. He may declare educational and corrective measures spent if he imposes juvenile imprisonment.

Obviously, there is the problem of what to do if a person commits offences over a longer period of time and in the course of so doing moves from being a juvenile to being a young adult, in those cases where the court would apply general criminal law to offences committed after the age of 18, or if the person turns 21. 102

On the research see EB § 17 Mn 16–17 with further references.

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Sentencing and Enforcement – An Overview Section 32 JGG provides that if those offences are to be tried together in the same trial,103 the preponderance of the offences in the respective age category shall be dispositive of that issue, which may lead to general criminal law being applied to acts that if viewed separately would fall under juvenile law: § 32 JGG Multiple offences at different ages and stages of maturity If in the case of multiple offences tried at the same time, juvenile and general criminal law both would apply to portions of them, juvenile criminal law shall be applied to all offences if the preponderance lies with those offences to which juvenile criminal law applies. Otherwise, general criminal law shall apply to all offences.

Note that the preponderance is not a matter merely of counting the number of offences in each stage of development, but a question of examining the offences as part of a developmental curve and finding out whether there are, for example, early root events that may have triggered later offences as mere recidivist crimes, etc.104 The BGH has controversially105 held that if no preponderance of juvenilestage offences can be established, general criminal law applies to all offences.106 Young adults Section 105 JGG provides that the court shall apply substantive juvenile law to young adults if at the time of the offence either they are still at the developmental stage of a juvenile, or if they commit an offence which carries the character of a typical juvenile act.107 If the court does so, a number of provisions relating to juveniles will apply to the young adult as well, namely §§ 4–8, 9 No 1, 10, 11 and 13–32 JGG, some of which will be addressed later. As we shall also see below, similar points apply as regards procedural and sentencing issues.

THE ARSENAL OF PENALTIES AND EARLY RELEASE—ADULT AND JUVENILE PROCEEDINGS

Having briefly outlined the basic principles that guide the material sentencing exercise, it is now necessary to take a—very superficial—look at the instruments the courts may use to sanction criminal behaviour. Even more than above, this 103 There is a debate about whether § 32 JGG is applicable to cases that are not tried together and where their separate sentencing would lead to the undesirable parallel imposition of juvenile and adult sanctions. The BGH has held that such an extensive interpretation was not justified, and that any undue hardship arising from such a scenario should be taken into account when fixing the incidental sentences of an aggregate sentence under general rules; see, for references to the debate, EB § 32 Mn 7–9b. 104 EB § 32 Mn 10–14. 105 EB § 32 Mn 17. 106 BGHSt 12, 129. 107 See, for the definition and related criminological research in detail, EB § 105 Mn 7 ff.

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The Arsenal of Penalties and Early Release overview must restrict itself to reproducing the main provisions from the StGB and JGG, with a few interspersed commentaries. Adult proceedings We shall begin by looking at the sanctions available in adult proceedings. The sentence of immediate imprisonment as such is straightforward, and does not receive any additional coverage in what follows beyond what was said earlier in this chapter about the related sentencing principles. We shall, however, cover the sanctions that relate to imprisonment but allow a diversion from immediate incarceration, such as suspended sentences and deferment of sentence. Fines The basic and most widely-used general sanction in adult proceedings is the fine. As we saw above, it is calculated by multiplying the daily unit amount by the number of units, as explained in § 40 StGB: § 40 StGB Day fine units (1)

(2)

(3) (4)

A fine shall be imposed in daily units. The minimum fine shall consist of five and, unless the law provides otherwise, the maximum shall consist of three hundred and sixty full daily units. The court shall determine the amount of the daily unit taking into consideration the personal and financial circumstances of the offender. In doing so, it shall typically base its calculation on the actual average one-day net income of the offender or the average income he could achieve in one day. A daily unit shall not be set at less than one and not at more than thirty thousand euros. The income of the offender, his assets and other relevant assessment factors may be estimated when setting the amount of a daily unit. The number and amount of the daily units shall be indicated in the decision.

In certain scenarios relating to personal enrichment, § 41 StGB allows for an additional fine to supplement a sentence of imprisonment even if the law did not specifically provide for that sanction: § 41 StGB Fines in addition to imprisonment If the offender through the commission of the offence enriched or tried to enrich himself, a fine which otherwise would not have been provided for or only in the alternative may be imposed in addition to imprisonment if this appears appropriate taking into consideration the personal and financial circumstances of the offender. …

In many instances the defendant will be unable to pay the fine either immediately upon request or in one lump sum, because criminal activity is often accompanied by unemployment or lack of regular employment. Section 42 StGB makes

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Sentencing and Enforcement – An Overview allowance for that; however, if the offender does not pay up, he will be subject to imprisonment for default in lieu of the fine under § 43 StGB: § 42 StGB Allowing time for payment; instalments If a convicted offender, due to his personal or financial circumstances, cannot be expected to pay the full fine immediately, the court shall allow a certain time for payment or allow payment in specified instalments. The court may also order that the privilege of paying the fine in fixed instalments will be revoked if the convicted offender fails to pay an instalment in time. The court shall also allow for such conditions of payment if without them the restitution by the offender of any damage caused by the offence were to be substantially impaired; the court may require the offender to present proof of restitution. § 43 StGB Imprisonment for default of payment If the fine cannot be recovered, it shall be replaced by imprisonment. One daily unit shall correspond to one day of imprisonment. The minimum term of imprisonment for default of payment shall be one day.

The StGB recognises two ancillary sanctions, a temporary driving ban and loss of the ability to hold public office, to vote and be elected in public elections, in §§ 44 and 45 StGB. Temporary driving ban The temporary driving ban, which is a penalty as opposed to a measure of disqualification under § 69 StGB (see further below), does not extinguish a person’s driving licence but merely prevents him from using a motor vehicle, either of any class or of a specific class, for a period from one to three months, if he has been convicted of an offence related to the use of a motor vehicle. § 44 StGB Temporary driving ban (1)

(2)

(3)

If a person has been sentenced to imprisonment or to a fine for an offence committed in connection with the driving of a motor vehicle or in violation of the duties of a driver of a motor vehicle, the court may impose a ban prohibiting him from driving any class of motor vehicle or a specific class on public roads for a period of from one to three months. A driving ban shall typically be imposed in cases of a conviction under section 315c (1) No 1 (a), (3) or section 316 unless a disqualification order has been made under section 69. The driving ban shall take effect upon the judgment having become final. National and international driving licences issued by a German public authority shall be kept in official safekeeping for its duration. This shall also apply if the driving licence was issued by a public authority of a member state of the European Union or another signatory state of the Treaty on the European Economic Area if the holder is ordinarily resident in Germany. The driving ban shall be endorsed on any other foreign driving licences. ...

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The Arsenal of Penalties and Early Release Loss of ability to hold public office, to vote and be elected in public elections If a defendant is convicted and sentenced to a term of imprisonment of not less than one year, the law deems her unfit for public office and, depending on the offence, unfit for participation in the public political process of elections. § 45 StGB Loss of ability to hold public office, to vote and be elected in public elections (1)

(2) (3)

(4)

(5)

A person who has been sentenced for a felony to a term of imprisonment of not less than one year shall, for a period of five years, lose the ability to hold public office and be elected in public elections. The court may deprive a convicted person of the ability indicated in subsection (1) above for a period of from two to five years if the law expressly so provides. At the same time that the loss of ability to hold public office takes effect, the convicted person shall lose any corresponding legal positions and rights he may at that time hold. At the same time the loss of the ability to be elected in public elections takes effect, the convicted person shall lose any corresponding legal positions and rights he may hold unless the law provides otherwise. The court may deprive the convicted person of the right to take part in elections or to vote in public affairs for a period of from two to five years if the law expressly so provides.

Suspended sentences of imprisonment As with the development of the fine as a sanction of choice to avoid incarceration of minor or first-time offenders, the institution of the suspended sentence has experienced an ever-widening application in cases where a fine is either not applicable or no longer adequate to punish the offender. Section 56 StGB provides that sentences of up to two years may be suspended unless the sentence is higher than six months and reasons of deterrence demand its enforcement; for a sentence not exceeding one year suspension is the rule, for a sentence of between one and two years the court has a wider discretion. § 56 StGB Power of court to suspend sentence (1)

(2)

If a person is sentenced to a term of imprisonment not exceeding one year the court shall suspend the enforcement of the sentence for a probationary period if there are reasons to believe that the sentence will serve as s sufficient warning to the convicted person and that he will commit no further offences without having to serve the sentence. The court shall particularly take into account the character of the convicted person, his previous history, the circumstances of his offence, his conduct after the offence, his circumstances and the effects to be expected from the suspension. The court may, under the conditions of subsection (1) above suspend the enforcement of a term of imprisonment not exceeding two years for a probationary period, if after a comprehensive evaluation of the offence and character of the convicted person special circumstances can be found to exist. In making its

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Sentencing and Enforcement – An Overview

(3) (4)

decision, the court shall particularly take into account any efforts by the convicted person to make restitution for the harm caused by the offence. The enforcement of a sentence of imprisonment exceeding six months shall not be suspended when reasons of general deterrence so require. The suspension must not be limited to a part of the sentence. It shall not be excluded by any crediting of time served in custody on remand or any other form of detention.

The law provides for an operational period of suspension from two to five years. During that time, the defendant may be subjected108 to directions and conditions, including being placed under the supervision of a probation officer, aimed at ensuring his rehabilitation and the prevention of re-offending. The relevant provisions are set out in §§ 56a–56d StGB. § 56a StGB Operational period (1) (2)

The court shall determine the operational probationary period. This must not exceed five years nor be less than two years. The operational period shall commence when the decision to suspend the sentence becomes final. It may subsequently be reduced to the minimum or prolonged to the maximum before its expiration.

§ 56b StGB Conditions (1)

(2)

The court may impose conditions on the convicted person directed at repairing the harm caused. No unreasonable demands shall be made from the convicted person. The court may order the convicted person 1. to make restitution to the best of his ability for the harm caused by the offence; 2. to pay a sum of money to a charitable organisation if this appears appropriate in light of the offence and the character of the offender; 3. to perform community service; or 4. to pay a sum of money to the public treasury.

The court shall not impose a condition pursuant to the 1st sentence of this subsection Nos 2 to 4 unless the fulfillment of the condition does not impair the restitution for the harm caused. (3)

If the convicted person offers to perform appropriate services for the purpose of repairing the harm caused, the court shall typically preliminarily refrain from imposing conditions if it is to be expected that the offer will be fulfilled.

§ 56c StGB Directions (1)

108

The court shall impose directions for the duration of the operational period, if the convicted person requires such assistance to abstain from committing offences. No unreasonable demands should be imposed on the convicted person’s lifestyle. Under § 56e StGB such orders may also be made separately after the judgment.

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The Arsenal of Penalties and Early Release (2)

(3)

(4)

The court may, in particular, direct the convicted person 1. to follow instructions which relate to his residence, education, work or leisure, or to the ordering of his financial affairs; 2. to report at certain times to the court or another authority; 3. not to make or maintain contact with the victim, or certain persons or persons from a certain group who may induce him to commit further offences, nor to employ, train or harbour them; 4. not to possess, carry or entrust to another for safekeeping, particular objects which could induce him to commit further offences; or 5. to meet maintenance obligations. A direction 1. to undergo medical treatment of an invasive nature or treatment for addiction; or 2. to reside in a suitable home or institution may only be given with the consent of the convicted person. If the convicted person gives assurances relating to his future conduct, the court shall typically refrain provisionally from issuing directions if it is to be expected that the assurances will be fulfilled.

§ 56d StGB Supervision order (1)

(2)

(3)

(4) (5)

The court shall place the convicted person under the supervision and guidance of a probation officer for all or part of the operational period if this appears necessary to prevent him from committing offences. The court shall typically issue an order pursuant to subsection (1) above if it suspends a sentence of imprisonment of more than nine months and the convicted person is less than twenty-seven years of age. The probation officer shall offer assistance and care to the convicted person. In cooperation with the court he shall supervise the fulfilment of any conditions and directions as well as of any offers and assurances. He shall report on the way the convicted person is conducting himself, at intervals determined by the court. He shall inform the court as to serious or persistent violations of the conditions, directions, offers or assurances. The probation officer shall be appointed by the court. It may give him instructions concerning his functions under subsection (3) above. The functions of the probation officer shall be exercised on a full-time official or honorary basis.

If the defendant commits a new offence or violates the directions or conditions imposed for the duration of the operational period, the court will order the sentence to take effect under the criteria in § 56f StGB. If no violation or new criminal offence occurs, the court will under § 56g StGB order the remission of the sentence; this order may, however, be rescinded within one year if the defendant is convicted of an intentional offence committed during the operational period.

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Sentencing and Enforcement – An Overview § 56f StGB Order for suspended sentence to take effect (1)

The court shall order the suspended sentence to take effect if the convicted person: 1. commits an offence during the operational period showing that the expectation on which the suspension was based, has been disappointed; 2. grossly or persistently violates directions or persistently evades the supervision and guidance of the probation officer, thereby causing reason for fear that he will re-offend; or 3. grossly or persistently violates conditions.

No 1 of the 1st sentence of this subsection shall apply mutatis mutandis if the offence was committed in the interim period between the decision suspending the sentence and its becoming final; it shall also apply in cases of the subsequent fixing of aggregate sentences if the offence was committed in the period between the decision on the suspension of a judgment included in the aggregate sentence and the date when the aggregate sentence became final. (2)

The court shall not order the suspended sentence to take effect if it is of the opinion that it would suffice 1. to impose further conditions or directions, in particular to place the convicted person under the supervision of a probation officer; or 2. to prolong the operational period or period of supervision.

In cases pursuant to No 2 above the operational period must not be prolonged for more than one-half of the originally imposed period. (3)

The convicted person shall not be compensated for services rendered in fulfilment of conditions, offers, directions or assurances. If a suspended sentence is put into effect the court may credit services which the convicted person has rendered in fulfilment of conditions under section 56b (2) 1st sentence Nos 2 to 4, or related offers under section 56b (3) towards the sentence.

§ 56g StGB Remission of sentence (1)

(2)

Unless the court orders the suspended sentence to take effect, it shall remit the sentence after expiration of the operational period. Section 56f (3) 1st sentence shall apply. The court may revoke the remission if the convicted person has been sentenced to imprisonment of not less than six months for an intentional offence committed during the operational period. The revocation may only be declared within one year after the expiration of the operational period and six months after the new judgment has become final. Section 56f (1) 2nd sentence and (3) shall apply mutatis mutandis.

Early release One very important part of the general probation regime are the cases of early release from prison. The law distinguishes between release from fixed-term imprisonment and release from life imprisonment. 208

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The Arsenal of Penalties and Early Release Release from fixed-term imprisonment Depending on the length of the sentence109—up to two years, or more than two years—and the question of whether the defendant is a first-time prisoner or shows exceptional circumstances, conditional early release may be granted after one-half to two-thirds of the term imposed. Generally, the presumption is in favour of release after two-thirds of the sentence has been served, unless public security interests militate against it. There is no similar presumption in favour of release after one-half of the term. Release after one-half of the sentence is restricted to sentences not exceeding two years with a minimum term of six months to be served, and first-time imprisonment or to cases of exceptional circumstances. A close examination of the character of the prisoner is required, which may in many cases lead the court to appoint a psychological or psychiatric expert. The central provision, § 57 StGB, also makes reference to the abovementioned law on suspended sentences, and to the directions and conditions that may be imposed during the operational period. § 57 StGB Conditional early release—fixed-term imprisonment (1)

The court shall grant conditional early release from a fixed-term sentence of imprisonment under an operational period of probation, if 1. two thirds of the imposed sentence, but not less than two months, have been served; and 2. the release is appropriate considering public security interests; and 3. the convicted person consents.

The decision shall particularly consider the personality of the convicted person, his previous history, the circumstances of his offence, the importance of the legal interest endangered should he re-offend, the conduct of the convicted person while serving his sentence, his circumstances and the effects an early release are to be expected to have on him. (2)

After one half of a fixed-term sentence of imprisonment, but not less than six months, have been served, the court may grant conditional early release, if 1. the convicted person is serving his first sentence of imprisonment, the term not exceeding two years; or 2. a comprehensive evaluation of the offence, the personality of the convicted person and his development while in custody warrant the acceptance of special circumstances,

and the remaining requirements of subsection (1) above have been fulfilled. (3)

Sections 56a to 56g shall apply mutatis mutandis; the operational period, even if subsequently reduced, must not be less than the remainder of the sentence. If the convicted person has served at least one year of his sentence before conditional

109 § 58 StGB provides that in cases of aggregate sentences, the length of the aggregate sentence determines the time of release.

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(4) (5)

(6) (7)

early release is granted the court shall typically place him under the supervision and guidance of a probation officer for all or a part of the operational period. ... Section 56f and section 56g shall apply mutatis mutandis. The court shall also revoke the early release if the convicted person, in the period between his conviction and the decision about the early release, has committed an offence which could for factual reasons not be taken into account by the court when deciding on the early release and which would have led to a denial of early release, had it been known at that time; the conviction shall be the judgment in those proceedings in which the underlying factual findings could last have been examined. ... The court may fix a term not exceeding six months before the expiry of which an application by the convicted person for early release shall be inadmissible.

Release from life imprisonment Following heated public controversy and a constitutional challenge in the 1970s to the so-called ‘lifer regime’ then prevailing, the BVerfG110 in 1977 held that life prisoners had a constitutional right to a hope of release at some stage, and that the system in place at the time, which operated solely on the basis of discretionary governmental pardon, was unconstitutional and that a legally regulated procedure was required. This led to the introduction in 1981 of § 57a StGB, which was later amended111 to its present form: § 57a StGB Conditional early release—life imprisonment (1)

The court shall grant conditional early release from a sentence of imprisonment for life under an operational period of probation, if 1. fifteen years of the sentence have been served; 2. the particular seriousness of the convicted persons guilt does not require its continued enforcement; and 3. the requirements of § 57(1) 1st sentence Nos 2 and 3 are met.

Section 57 (1) 2nd sentence and (6) shall apply mutatis mutandis. (2) (3)

(4)

Any detention suffered by the convicted person as a result of the offence shall qualify as a sentence within the meaning of subsection (1) 1st sentence No 1 above. The operational period shall be five years. Section 56a (2) 1st sentence, section 56b to 56g and section 57 (3) 2nd sentence and (5) 2nd sentence shall apply mutatis mutandis. The court may fix terms not exceeding two years, before the expiration of which an application by the convicted person for early release shall be inadmissible.

Similarly to the issue of ex post orders for the extension or imposition of an incapacitation order discussed below, the law initially provided that the decision 110

BVerfGE 45, 187. See my contribution, ‘The Remains of the Day—Whole Life Sentences after Bieber’ (2009) 73 Journal of Criminal Law 30, for an outline of the development. 111

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The Arsenal of Penalties and Early Release on the particular seriousness which prevented release after 15 years was to be taken by the Strafvollstreckungskammer at the time when the prisoner applied for release or the ex officio release procedure was triggered. This was held to be unconstitutional, and now the trial court must state whether such seriousness exists; it is, however, not German practice to fix minimum tariffs. The decision about whether, despite such a seriousness, release is acceptable at the relevant time remains with the Strafvollstreckungskammer. Warning combined with deferment of sentence This is a sanction that may be used for offenders in minor cases where the use of an immediate fine is unnecessary in order to impress the defendant. It is thus an expression of the constitutional proportionality principle discussed in chapter two. The effect of a deferment order is that the defendant is convicted but not sentenced, unless she violates the conditions imposed in the order or re-offends in the operational period. For all practical purposes, the procedure is in the other aspects almost identical to a suspended sentence. § 59 StGB Conditions for warning and deferment (1)

If a person has incurred a fine not exceeding one hundred and eighty daily units, the court may warn him at the time of conviction, indicate the sentence and defer its imposition if 1. it can be expected that the offender will commit no further offences without the immediate imposition of the sentence; 2. a comprehensive evaluation of the offence and the personality of the offender warrant the existence of special circumstances which obviate the imposition of a sentence; and 3. reasons of general deterrence do not demand the imposition of a sentence.

Section 56 (1) 2nd sentence shall apply mutatis mutandis. (2)

Ancillary orders for confiscation, deprivation or destruction may be imposed in addition to a warning. A warning with deferment shall not be considered alongside measures of rehabilitation and incapacitation.

§ 59a StGB Operational period, conditions and directions (1) (2)

The court shall determine the length of the operational period. It may not exceed two years nor be less than one year. The court may direct the convicted person 1. to make efforts at reconciliation with the victim or otherwise make restitution for the harm caused by the offence; 2. to meet his maintenance obligations; 3. to pay a sum of money to a charitable organisation or the public treasury; 4. to undergo outpatient medical treatment or outpatient treatment for addiction; or 5. to participate in road traffic training.

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Sentencing and Enforcement – An Overview No unreasonable demands should be imposed on the convicted person’s lifestyle; the conditions and directions under the 1st sentence of this subsection Nos 3 to 5 must not be disproportionate to the significance of the offence committed by the convicted person. Section 56c (3) and (4) and section 56e shall apply mutatis mutandis. § 59b StGB Order for deferred sentence to take effect (1) (2)

Section 56f shall apply mutatis mutandis to the order for the deferred sentence to take effect. If the deferred sentence is not brought into effect the court shall, upon expiry of the operational period, declare that no further action will be taken.

Juvenile proceedings Juvenile proceedings, as was explained before, operate on the basis that the primary aim of the sanction is the education of the defendant, not her punishment. This is reflected in the array of available penalties which leaves the court with much more discretion and creativity than is available in adult proceedings. The basic provisions may be found in §§ 5–8 JGG. Section 5 JGG lists the staggered catalogue of sanctions, which are educational measures (Erziehungsmaßregeln), corrective measures (Zuchtmittel) and juvenile imprisonment (Jugendstrafe). Section 6 JGG restricts the use of § 45 StGB on loss of public office, etc, while § 7 JGG regulates the use of measures of rehabilitation and incapacitation. Note, however, that the entire law on incapacitation orders, both in the StGB and in the JGG, was declared unconstitutional by the BVerfG on 4 May 2011, and remains applicable only for an interim period and under strict conditions until 31 May 2013; this issue is dealt with in detail below in the context of adult proceedings. Lastly, § 8 JGG states the permissible combinations of the different sanctions. § 5 JGG Sanctions for offences by juveniles (1) (2) (3)

A criminal offence committed by a juvenile may be sanctioned by educational measures. If educational measures are insufficient, corrective measures or juvenile imprisonment may be imposed. Corrective measures or juvenile imprisonment shall not be imposed if a mental hospital or custodial addiction treatment order makes a punishment unnecessary.

§ 6 JGG Ancillary sanctions (1) (2)

The court may neither order the loss of the ability to hold public office, to vote and be elected in public elections nor the publication of the conviction. There shall be no automatic loss of the ability to hold public office, to vote and be elected in public elections (§ 45(1) StGB).

§ 7 JGG Measures of rehabilitation and incapacitation (1)

The court may make a mental hospital order, a custodial addiction treatment order, a supervision order, or order disqualification from driving as measures of

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The Arsenal of Penalties and Early Release

(2)

rehabilitation and incapacitation under general criminal law (§ 61 Nos 1, 2, 4 and 5 StGB). If a person has been sentenced to at least seven years’ juvenile imprisonment because or also because of a felony 1. against life and limb or sexual self-determination, or 2. under section 251 of the Criminal Code, also in conjunction with section 252 or section 255 of the Criminal Code, which caused the victim to suffered severe emotional trauma or physical injury or exposed the victim to the danger thereof, facts become known prior to the end of the execution of the juvenile imprisonment which indicate that the convicted person poses a considerable danger to the public, the court may make a subsequent incapacitation order if the overall evaluation of the convict, his offence or offences, and of his development prior to the date of the decision shows that he is highly likely to commit such offences again.

(3)

If pursuant to section 67d (6) of the Criminal Code a mental hospital order made for an offence under subsection (2) above has been declared moot because the condition causing insanity or diminished responsibility on which the order was based did not exist at the time of that declaration, the court may subsequently make an incapacitation order 1. if the mental hospital order pursuant to section 63 of the Criminal Code was made based upon more than one of such offences or if the person had either previously been sentenced to a term of juvenile imprisonment of not less than three years or had a mental hospital order made against him because of one or more such offences having been committed by him prior to the offence leading to the mental hospital order pursuant to section 63 of the Criminal Code, and 2. if a comprehensive evaluation of the person, his offences and his development until the date of the decision indicate a high likelihood of his committing offences under subsection (2) above.

§ 8 JGG Combination of measures and juvenile imprisonment (1)

(2)

(3)

Individual or multiple educational and corrective measures may be ordered in combination. Juvenile detention may not be combined with an order for educational assistance under section 12 No 2. In combination with juvenile imprisonment the court may only impose directions and conditions and educational support. If the juvenile is under probation because of a suspended sentence, any existing educational assistance order shall be stayed until the end of the probationary period. In combination with educational and corrective measures and juvenile imprisonment the court may impose ancillary penalties and measures provided for under this Act.

Educational measures The (conceptually) least intrusive level of juvenile sanction is that of the educational measure. The ambit of that sanction is defined in §§ 9–12 JGG. From 213

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Sentencing and Enforcement – An Overview the text of the provisions it is easy to infer that those are mainly instruments intended to influence the general lifestyle and development of the juvenile during an operational probationary period to be fixed by the court, and are not geared towards punishment. However, violation of the measures may have consequences that are somewhat more punitive in nature, namely, the imposition of juvenile detention, itself a corrective measure, of up to four weeks under § 11(3) JGG. § 9 JGG Types of measure ‘Educational measures’ shall consist of 1. 2.

directions, the order to accept educational assistance within the meaning of section 12.

§ 10 JGG Directions (1)

(2)

Directions shall consist of instructions and prohibitions meant to guide the juvenile’s life and thereby to foster and safeguard his education. No unreasonable demands on the juvenile’s lifestyle shall be made. The court may in particular ask the juvenile 1. to comply with instructions relating to his place of residence, 2. to live with a family or in a residential home, 3. to accept a training or employment contract, 4. to perform certain services, 5. to submit to the care and supervision of a specific person (carer), 6. to attend a social skills training course, 7. to attempt reconciliation with the victim (offender-victim mediation), 8. to refrain from contacting certain persons or frequenting bars, restaurants or other entertainment venues or 9. to attend a road-traffic training course. With the consent of the parent, guardian or other legal representative, the court may also require the juvenile to undergo therapy with an expert or addiction treatment. If the juvenile is over sixteen years of age, his consent should be obtained.

§ 11 JGG Operational period of and subsequent amendments of directions; consequences of failure to comply (1)

(2)

(3)

The court shall determine the operational period of the directions. It may not exceed two years; in the case of a direction pursuant to section 10(1) 3rd sentence No 5 it should not exceed one year; in the case of an instruction pursuant to section 10, subsection 1, third sentence, No 6, it should not exceed six months. The court may amend directions, lift them or, prior to their expiry, extend their operational period to no more than three years if this appears necessary for educational purposes. If the juvenile without good cause fails to comply with directions, juvenile detention may be imposed if he had previously been cautioned as to the consequences of such non-compliance. The period of juvenile detention so imposed may not exceed a total of four weeks. The court shall dispense with the

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The Arsenal of Penalties and Early Release enforcement of the detention if the juvenile complies with the direction after the detention has been ordered.

A specific form of juvenile supervision order is that of educational assistance (Erziehungsbeistandschaft) by an education support officer under § 12 JGG. This may be custodial or non-custodial, and the non-custodial form in particular is meant to leave the juvenile in his usual environment as much as possible.112 § 12 JGG Educational assistance After hearing the juvenile welfare office the court may, under the conditions set out in the Eighth Book of the Social Code, require the youth to accept educational support 1. 2.

in the form of educational assistance within the meaning of section 30 of the Eighth Book of the Social Code, or in a 24-hour institution or another form of supervised accommodation within the meaning of section 34 of the Eighth Book of the Social Code.

Corrective measures One level up from the educational measure are corrective measures. Section 13 JGG makes it clear that these was seen by the legislator as a sort of last stop before juvenile imprisonment. However, if one looks at the first two measures, cautions and conditions, there does not seem to be a significant increase in severity from the level of educational measures, as the cautions and conditions can be very similar in effect to educational measures, and educational assistance in a custodial setting will typically be experienced as a much more intrusive sanction than a caution, which may be seen by some defendants as nothing more than judicial finger-wagging. This doubt about the efficacy of this measure is enhanced by the fact that a caution must first be pronounced generically as the sanction for the offence; the actual caution for the individual defendant may be carried out only once the judgment is final, which may be after a lengthy appeal process.113 Nonetheless, the caution appears to be the second most-employed juvenile sanction after the imposition of conditions under § 15 JGG.114 § 13 JGG Types of measure and application (1)

(2)

112 113 114

The court shall impose corrective measures if juvenile imprisonment is not necessary but his responsibility for the offence needs to be impressed upon the juvenile. ‘Corrective measures’ shall consist of 1. a caution, 2. the imposition of conditions, 3. juvenile detention.

EB § 12 Mn 7. EB § 14 Mn 8. EB § 14 Mn 3.

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Sentencing and Enforcement – An Overview (3)

Corrective measures shall not have the same effect as a penalty.

§ 14 JGG Cautions The purpose of a caution is to impress upon the juvenile the wrongfulness of his actions. § 15 JGG Conditions (1)

The court may require the juvenile 1. to make reparation to the best of his ability for the damage caused by the offence, 2. to apologise in person to the victim, 3. to perform certain services, or 4. to pay a sum of money to a charitable organisation.

In so doing no unreasonable demands shall be made of the juvenile. (2)

(3)

The court shall not order payment of a sum of money unless 1. the juvenile committed only a minor offence and it is to be expected that he will pay the sum from money at his own disposal, or 2. the proceeds which the juvenile gained from the offence or the payment which he received for its commission are to be reclaimed from him. The court may subsequently vary conditions or dispense with their completion either in full or in part if this is necessary for educational purposes. Section 11(3) shall apply mutatis mutandis if the juvenile without good cause fails to comply with conditions. If juvenile detention has been enforced, the court may declare conditions moot either in full or in part.

The sanction that comes closest to actual imprisonment is the juvenile detention order (Jugendarrest), which is also staggered as regards severity. It begins with detention during leisure time, which is usually the weekend from Friday evening/ Saturday morning to Monday morning; practice varies according to court districts.115 The next step is a continuous period of short-term detention, leading up to the maximum term of permanent detention of four weeks. § 16 JGG Juvenile detention (1) (2) (3)

(4)

115

Juvenile detention shall be either detention during leisure time, short-term or permanent detention. Detention during leisure time shall encompass the juvenile’s weekly leisure time and shall be imposed for one or two periods of leisure time. Short-term detention shall be imposed in lieu of detention during leisure time if a continuous period of enforcement appears useful for the purposes of education and neither the juvenile’s training nor employment are adversely affected. A two-day period of short-term detention shall be deemed equivalent to one leisure period. Permanent detention shall last a minimum of one week and not exceed four weeks. It shall be fixed in entire days or weeks. EB § 16 Mn 25.

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The Arsenal of Penalties and Early Release Section 87(1) JGG provides that a sentence of juvenile detention cannot be suspended. Juvenile imprisonment The most drastic sanction for juvenile offenders is juvenile imprisonment. The criteria for its imposition were discussed above under the general sentencing principles pursuant to the JGG. Juvenile imprisonment is enforced in specific juvenile institutions, but the educational influence and character of the sanction are highly controversial. Practical experience would appear to show that the reality of enforcement is very different from the JGG’s aims, that there is little difference in the structure of daily life between adult prisons and juvenile prisons, and that the educational character of the latter may be more of a myth than reality.116 Section 18 JGG excludes life imprisonment for juveniles. § 17 JGG Nature and conditions (1) (2)

Juvenile imprisonment shall consist of imprisonment in an establishment assigned for its enforcement. The court shall impose juvenile imprisonment if because of the juvenile’s harmful tendencies as expressed in the offence educational and corrective measures do not suffice for the purposes of education, or if the gravity of the juvenile’s guilt demands imprisonment.

§ 18 JGG Duration of juvenile imprisonment (1)

(2)

The duration of juvenile imprisonment shall be no less than six months and shall not exceed five years. If the offence is a felony for which the general criminal law threatens a maximum sentence exceeding ten years’ imprisonment, the maximum shall be ten years. The sentencing frames of the general criminal law shall not apply. Juvenile imprisonment shall be calculated so as to facilitate the necessary educational influence.

Suspended sentence of juvenile imprisonment Much like in adult proceedings, the JGG provides for the use of suspended sentences if the term imposed does not exceed two years; however, unlike in the adult procedure, under the JGG the suspension of a sentence of between one and two years is also the rule, unless educational reasons speak against suspension. The maximum operational period is shorter than under adult law, namely, three years instead of five, unless it is a case of subsequent extension to four years under § 22(2) 2nd sentence JGG.

116

EB § 17 Mn 6.

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Sentencing and Enforcement – An Overview § 21 JGG Suspended sentence (1)

(2)

(3)

Sentences of juvenile imprisonment not exceeding one year shall be suspended if it can be expected that it will have a warning effect on the juvenile and that he will abstain from further offending without serving the sentence based on the educational influenced during the operational period. Particular notice shall be taken of the juvenile’s character, his previous conduct, the circumstances of the offence, his conduct after the offence, his environment and the likely effects on him of the suspended sentence. Under the criteria set out in subsection (1) above the court shall also suspend a sentence not exceeding two years unless its enforcement is necessary with regard to the juvenile’s development. The suspension must not be limited to a part of the sentence. It shall not be excluded because of credit for detention on remand or another custodial measure.

§ 22 JGG Operational period (1) (2)

The court shall set the operational period; it must not exceed three years nor be less than two years. The operational period shall commence on the date the decision to suspend the sentence becomes final. It may subsequently be reduced to one year or, prior to its expiry, be extended to a maximum of four years. However, in the cases of section 21(2), the operational period must not be reduced to less than two years.

If the court orders the suspension of a sentence of juvenile imprisonment, it may and typically will impose directions and conditions, or place the defendant under the guidance of a probation officer. § 23 JGG Directions and conditions (1)

(2)

The court shall influence the juvenile’s conduct during the operational period by issuing directions. It may also impose conditions. It may make, vary or revoke such orders subsequently. Sections 10, 11(3) and 15(1), (2) and (3) 2nd sentence shall apply mutatis mutandis. If the juvenile gives assurances concerning his future conduct or offers to make adequate amends for his unlawful acts, the court shall typically refrain preliminarily from imposing directions and conditions if compliance with the assurances or offers is to be expected.

§ 24 JGG Supervision (1)

(2)

For a maximum of two years of the operational period, the court shall place the juvenile under the supervision and guidance of a full-time probation officer. The court may also place the juvenile under the supervision of an honorary probation officer if this appears useful for educational reasons. Section 22(2) 1st sentence shall apply mutatis mutandis. The court may vary or revoke an order made under subsection (1) above before the operational period has expired; it may also issue a renewed supervision order during the operational period. In these cases the maximum term under subsection (1) 1st sentence above may be exceeded.

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The Arsenal of Penalties and Early Release (3)

The probation officer shall offer assistance and care to the juvenile. In cooperation with the court he shall supervise the fulfilment of any directions, conditions, assurances and offers. The probation officer shall foster the juvenile’s education and, wherever possible, cooperate in mutual trust with the juvenile’s parent, guardian or other legal representative. In the exercise of his office he shall have the right of access to the juvenile. He may require the juvenile’s parents, guardian or other legal representative, his school or his training instructor to provide information about his conduct.

As in adult proceedings, the court will revoke the suspension and order the sentence to take effect if the defendant re-offends, or seriously violates the directions or conditions imposed upon him. § 26 JGG Order for suspended sentence to take effect (1)

The court shall order the suspended sentence to take effect if the juvenile: 1. commits an offence during the operational period showing that the expectation on which the suspension was based has been disappointed, 2. grossly or persistently violates directions or persistently evades the supervision and guidance of the probation officer, thereby causing reason for concern that he will re-offend, or 3. grossly or persistently violates conditions. No 1 of the 1st sentence of this subsection shall apply mutatis mutandis if the offence was committed in the interim period between the decision suspending the sentence and its becoming final.

(2)

(3)

The court shall not order the suspended sentence to take effect if it is sufficient 1. to impose further conditions or directions, 2. to extend the operational period or period of supervision to a maximum of four years, or 3. to renew the order for the supervision by a probation officer before the expiry of the operational period. The juvenile shall not be compsendated for services rendered in fulfilment of directions, conditions, assurances or offers (section 23). If a suspended sentence is put into effect the court may credit services rendered by the juvenile in fulfilment of conditions or related offers towards the sentence.

Deferment of sentence Although the title of this sanction sounds similar to that under adult law (§ 59 StGB), it is an entirely different concept. Under the JGG, a deferment only applies to cases where it is uncertain whether juvenile imprisonment is warranted or not. If the court is convinced of the guilt of the defendant but uncertain about whether he displays harmful tendencies117 that would trigger the need to use the most drastic sanction in its arsenal, it may make a declaration of his guilt and 117 § 27 JGG cannot be used if the gravity of the offence requires juvenile imprisonment; see EB § 27 Mn 9.

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Sentencing and Enforcement – An Overview defer the decision on the sentence. Under §§ 28 and 29 JGG, the court will place the offender under the guidance of a probation officer and impose appropriate directions and/or conditions during the operational period. If the juvenile misbehaves seriously during the probationary period, and thus displays harmful tendencies, the court will enter the sentence it would have used at the time of the deferment had it been aware of the harmful tendencies then; if no violation occurs, the declaration of guilt is expunged (§ 30 JGG). § 27 JGG Conditions for deferment If after exhausting all avenues of investigation it is uncertain whether harmful tendencies of the juvenile manifested themselves in the commission of the offence to such a degree as to require the imposition of juvenile imprisonment, the court may make a declaration as to the juvenile’s guilt and suspend the decision of whether to impose juvenile imprisonment for an operational period to be set by the court.

Early release Due to the educational paradigm of the JGG, the rules on early release are also more relaxed than those for adults and allow the juvenile enforcement authority a much wider discretion, as may be seen from § 88 JGG. The JGG uses the word ‘Vollstreckungsleiter’ (here translated as ‘enforcement authority’), which sounds somewhat stilted and overly generic, even in German; in reality, these decisions are always taken by a juvenile judge118 (§§ 82(1) 1st sentence, 83(1) JGG), so the law could also have called him ‘Vollstreckungsrichter’. There is one exception, namely once the convicted person turns 24, when the enforcement jurisdiction may be transferred to the adult jurisdiction (prosecution service and Strafvollstreckungskammer) under § 85(6) JGG, if and only if the sentence of juvenile imprisonment was already being enforced under adult law pursuant to § 89b JGG, ie if the convicted person was over 18, not suitable for the juvenile prison environment and the juvenile judge had ordered enforcement under adult law. § 88 JGG Conditional early release (1)

(2)

(3)

118

The enforcement authority may order conditional release from juvenile imprisonment if the convicted person has served part of the sentence and release is justifiable with respect to the development of the juvenile and the security interests of the general public. Conditional release must not be ordered before six months have been served unless there is exceptionally good cause to do so. In the case of juvenile imprisonment exceeding one year release must not be ordered unless the convicted person has served at least one third of the sentence. In the case of subsections 1 and 2 above, the enforcement authority shall take the decision sufficiently ahead of time so that the necessary measures may be taken to prepare the convicted person for his life after release. The decision may be On the different jurisdictions, see §§ 84, 85 JGG.

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(4)

(5) (6)

rescinded prior to the release of the convicted person if based on new or previously unknown facts the release is no longer justifiable with respect to the development of the juvenile and the security interests of the general public. The enforcement authority shall hear the prosecution service and the prison warden. The convicted person shall be given the opportunity of a viva voce hearing. The enforcement authority may set a term not exceeding six months prior to the expiry of which a request for release by the convicted person will be inadmissible. If the enforcement authority orders conditional release from juvenile imprisonment, section 22(1), (2) 1st and 2nd sentences as well as sections 23–26a shall apply mutatis mutandis. The trial judge shall be replaced by the enforcement authority. Sections 58, 59(2)–(4) and 60 shall apply mutatis mutandis to the procedure and to appeals. The appeal by the prosecution service against an order for conditional release shall stay its enforcement.

Young adults If the court considers a young adult as still being at a juvenile stage of development, or his offence as being a typically juvenile act, as we saw above, § 105 JGG orders the application of a number of substantive juvenile-specific provisions. This also applies to the procedural law, where some juvenile-specific rules are applicable regardless of the characterisation of the young adult under § 105 JGG,119 and at the sentencing stage, where § 110 JGG declares §§ 82(1), 83–93a JGG applicable to young adults. Section 106(1) JGG allows the court to reduce a life sentence against a young adult to a fixed-term sentence of 10 to 15 years even if the young adult was tried under adult criminal law. Section 106(3)–(6), 81a JGG restrict the use of the Sicherungsverwahrung (incapacitation order—see below).

THE TWO-TRACK SANCTIONS MODEL (ZWEISPURIGKEIT)—MEASURES OF REHABILITATION AND INCAPACITATION

The idea of the two-track model and the measures available under § 61 StGB were explained at the beginning of this chapter. We shall be looking at those measures in turn, with the necessary brevity. Two general provisions need examining before we embark on that study, namely §§ 71, 72 StGB that allow for independent and joint measures, the former especially relevant under the Sicherungsverfahren procedure pursuant to §§ 413 ff:

119 See, for the details, the intricate structure of §§ 107–109 JGG, which cannot be explained here for reasons of space.

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Sentencing and Enforcement – An Overview § 71 StGB Independent orders (1)

(2)

The court may make an independent mental hospital order or a custodial addiction treatment order if criminal proceedings are impracticable because the offender is insane or unfit to plead. The same shall apply to driving and professional disqualification orders.

§ 72 StGB Orders for joint measures (1)

(2) (3)

If the conditions for more than one measure are fulfilled but the intended purpose can be achieved through individual orders from among their number, only those individual measures shall be ordered. Priority among a number of suitable measures shall be given to those which pose the least burden on the offender. In all other cases, measures shall be ordered concurrently unless the law provides otherwise. If more than one custodial measure is imposed the court shall determine the sequence of their enforcement. …

Mental hospital and custodial addiction treatment orders If the offence—or rather the unlawful act, because the third tier of guilt may be missing—was committed in a state of insanity or diminished responsibility, § 63 StGB allows for the imposition of a mental hospital order: § 63 StGB Mental hospital order If a person has committed an unlawful act in a state of insanity (section 20) or diminished responsibility (section 21) the court shall make a mental hospital order if a comprehensive evaluation of the offender and the act leads to the conclusion that as a result of his condition, future serious unlawful acts can be expected of him and that he therefore presents a danger to the general public.

If the cause of the offence was drug addiction in the wider sense, regardless of whether it affected guilt or not, the court may make a custodial addiction treatment order under § 64 StGB: § 64 StGB Custodial addiction treatment order If a person has an addiction to alcohol or other drugs and is convicted of an unlawful act committed while he was intoxicated or as a result of his addiction, or is not convicted only because he has been found to be insane or insanity cannot be excluded on the evidence, the court shall make a custodial addiction treatment order if there is a danger that he will commit future serious unlawful acts as a consequence of his addiction. Such order shall not be made unless ab initio there is a sufficiently certain prospect of success that the person can be healed by way of custodial addiction treatment or that a relapse into addictive behaviour and the commission of serious unlawful acts caused by that addiction can be prevented for a substantial period of time.

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The Two-track Sanctions Model – Rehabilitation and Incapacitation Incapacitation order The basic concept As has been stressed repeatedly above, this area of law underwent massive reform in 2010, following the 2009 decision of the European Court of Human Rights in the case of M v Germany,120 where the Court declared the ex post extension of an incapacitation order to be in violation of the ban on retroactive punishment under Arts 5(1) and 7(1) ECHR. The ECtHR found that the German measure was to be considered as a penalty for the purposes of Art 7 ECHR, which triggered the ban, and that the ex post increase of the detention period also violated Art 5 ECHR for lack of a sufficient nexus to the conviction. As a consequence, the German Parliament reformed the entire area of law in late 2010. There is uncertainty about whether the new law will stand the scrutiny of Strasbourg, so anything said below may already be moot by the time this book is published. In addition, as was indicated at the beginning of this chapter, the BVerfG struck down the entire law on incapacitation orders in its judgment of 4 May 2011 and gave the Government until May 2013 to reform it. The provisions of the StGB are nevertheless still in force, and in order to understand the problem it is necessary to set out the law as it stands. Let us first look at the basic concept of the Sicherungsverwahrung, set out in § 66 StGB in its forms before and after the 2010 reform, and then take a look at the 2011 decision of the BVerfG: § 66 StGB Detention for the purpose of incapacitation [pre-2010] (1)

(2)

If a person has been sentenced for an intentional offence to a term of imprisonment of not less than two years, the court shall make an incapacitation order in addition to the term of imprisonment if 1. the convicted person has already been sentenced twice, each time to a term of imprisonment of not less than one year for intentional offences which he committed prior to the offence now at trial; 2. as a result of one or more of these prior offences he has served a term of imprisonment or detention under a measure of rehabilitation and incapacitation for a total term of not less than two years; and 3. a comprehensive evaluation of the convicted person and his offences reveals that, due to his propensity to commit serious offences, particularly of a kind resulting in serious emotional trauma or physical injury to the victim or serious economic damage, he poses a danger to the general public. If a person has committed three intentional offences for each of which he incurred a sentence of imprisonment of not less than one year and has been sentenced to a term of imprisonment of not less than three years for one or more

120 M v Germany, App no 19359/04, 17 December 2009; see also more recently in the same vein Haidn v Germany, App no 6587/04, 13 January 2011; Schumer v Germany, Apps nos 27360/04 and 42225/07, 13 January 2011; Mautes v Germany, App no 20008/07, 13 January 2011; Kallweit v Germany, App no 17792/07, 13 January 2011.

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(3)

(4)

of these offences, the court may, under the conditions indicated in subsection (1) No 3 above, make an incapacitation order in addition to the sentence of imprisonment notwithstanding that there was no prior detention (subsection (1) Nos 1 and 2 above). If a person is sentenced to a term of imprisonment of at least two years for a felony or an offence under sectionsection 174 to 174c, section 176, section 179 (1) to (4), section 180, section 182, section 224, section 225 (1) or (2), or section 323a as long as the act committed while intoxicated is a felony or one of the aforementioned offences, the court may make an incapacitation order in addition to the sentence if the offender had already been sentenced to imprisonment of at least three years for one or more of those offences committed prior to the new offence, and if the requirements indicated in subsection (1) Nos 2 and 3 above are fulfilled. If a person has committed two of the offences listed in the 1st sentence of this subsection for each of which he has incurred a sentence of imprisonment of not less than two years and if he is sentenced for one or more of these offences to a term of imprisonment of not less than three years, the court may, under the conditions indicated in subsection (1) No 3 above, make an incapacitation order in addition to the sentence even in the absence of a prior sentence of imprisonment or detention (subsection (1) Nos 1 and 2). Subsections (1) and (2) above shall remain unaffected. Within the meaning of subsection (1) No 1 above an aggregate sentence shall be deemed a single sentence. If time spent in custody on remand or other detention is credited against any term of imprisonment it shall be deemed as time served for the purposes of subsection (1) No 2 above. A previous offence shall not be considered if a period of more than five years has passed between its commission and the subsequent offence. Any term during which the convicted person was kept in detention by order of a public authority shall not be included in that period. An offence adjudicated abroad shall be equivalent to an offence adjudicated in the Federal Republic of Germany as long as it would be an intentional offence under German criminal law, or, in cases under subsection (3) above, it would be one of the offences listed in subsection (3) 1st sentence above.

This fundamental provision now has the following wording: § 66 StGB Detention for the purpose of incapacitation [post-2010] (1)

The court shall make an incapacitation order in addition to the term of imprisonment if 1. a person has been sentenced for an intentional offence to a term of imprisonment of not less than two years, and a) the offence was directed against life or limb, personal freedom or sexual self-determination, b) the offence falls under Chapters One, Seven, Twenty or Twenty-Eight of the Special Part, or under the Code of International Criminal Law or the Drugs Act, and the maximum sentence threatened is no less than ten years’ imprisonment, or c) violates § 145a insofar as the supervision order was made on the basis of an offence under a) or b) above, or if it violates § 323a insofar as the

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The Two-track Sanctions Model – Rehabilitation and Incapacitation offence committed in the drunken state was one of those mentioned under a) or b) above. 2. the offender had been convicted for offences under No 1 above, committed before the present offence, at least twice to a term of imprisonment of no less than one year each, 3. the offender had for at least one of these offences before the present offence served at least two years in prison or under a custodial measure of rehabilitation and incapactitation, and 4. a comprehensive evaluation at the time of the present conviction of the convicted person and his offences reveals that, due to his propensity to commit serious offences, particularly of a kind resulting in serious emotional trauma or physical injury to the victim or serious economic damage, he poses a danger to the general public. § 12(3) shall apply mutatis mutandis for the classification of an offence as one falling under the 1st sentence No 1 (b) above, and § 68(1) 4th sentence for the termination of the supervision mentioned under the 1st sentence No 1 (c) above, (2) If a person has committed three offences under subsection (1) 1st sentence No. 1 above for each of which he incurred a sentence of imprisonment of not less than one year and has been sentenced to a term of imprisonment of not less than three years for one or more of these offences, the court may, under the conditions indicated in subsection (1) 1st sentence No. 4 above, make an incapacitation order in addition to the sentence of imprisonment notwithstanding that there was no prior detention (subsection (1) 1st sentence Nos 2 and 3 above). (3) If a person is sentenced to a term of imprisonment of at least two years for a felony, which fulfils the criteria under subsection (1) 1st sentence No 1 (a) or (b), or an offence under sections 174 to 174c, section 176, section 179 (1) to (4), section 180, section 182, section 224, section 225 (1) or (2), or for an intentional offence under section 323a insofar as the offence committed in the drunken state is one of the aforementioned offences, the court may make an incapacitation order in addition to the sentence if the offender had already been sentenced to imprisonment of at least three years for one or more of those offences committed prior to the new offence, and if the requirements indicated in subsection (1) 1st sentence Nos 3 and 4 above are fulfilled. If a person has committed two of the offences listed in the 1st sentence of this subsection for each of which he has incurred a sentence of imprisonment of not less than two years and if he is sentenced for one or more of these offences to a term of imprisonment of not less than three years, the court may, under the conditions indicated in subsection (1) 1st sentence No. 4 above, make an incapacitation order in addition to the sentence even in the absence of a prior sentence of imprisonment or detention (subsection (1) 1st sentence Nos 2 and 3). Subsections (1) and (2) above shall remain unaffected. (4) Within the meaning of subsection (1) 1st sentence No 2 above an aggregate sentence shall be deemed a single sentence. If time spent in custody on remand or other detention is credited against any term of imprisonment it shall be deemed as time served for the purposes of subsection (1) 1st sentence No 3 above. A previous offence shall not be considered if a period of more than five years has passed between its commission and the subsequent offence; in the case of offences against sexual slf-determination the period shall be fifteen years. Any term during

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Sentencing and Enforcement – An Overview which the convicted person was kept in detention by order of a public authority shall not be included in that period. An offence adjudicated abroad shall be equivalent to an offence adjudicated in the Federal Republic of Germany as long as it would be an offence under subsection (1) 1st sentence No 1 above under German criminal law, or, in cases under subsection (3) above, it would be an offence listed in subsection (3) 1st sentence above.

The main changes in substance are found in § 66(1) 1st sentence Nos 1 and 4 StGB [post-2010]: the reasons for these changes, according to the draft of the parliamentary groups of the CDU/CSU (conservatives) and FDP (liberal democrats) of 26 October 2010,121 were the restriction on the use of the incapacitation order for only the most serious and not all kinds of intentional offences, the clarification of the point in time when the evaluation of the offender’s character is to be made and the extension of the statute of limitations for sexual offences.122 The special case of the ex post extension of the Sicherungsverwahrung and the ECHR The real rub in the case law of the ECtHR that led to the 2010 reform is that pertaining to an ex post extension of an incapacitation order, at that time a consequence of the post-1998 version of § 67d(3) StGB which allowed the Strafvollstreckungskammer instead of the trial court to declare a prolongation of the incapacitation order even if the previously strict maximum period of 10 years had elapsed, if the court considered the prisoner to be a continuing risk to public safety. The German legislator had removed that maximum cap in 1998, and § 67d(3) StGB123 now allowed the Strafvollstreckungskammer to extend the order

121

Bundestagsdrucksache [BT-Drs] 17/3403. Ibid, 14–15. 123 Note that this subsection was not amended —other than by removing the words ‘due to his propensity’ in the 1st sentence —or repealed in the 2010 reform, which was problematic given that it was the casus belli for the ECtHR. If § 67d(3) StGB had remained operational it would still have allowed the extension of the order in other old cases with the strict 10-year maximum pre-1998 not caught by the decision in M v Germany, which has effect, of course, only inter partes, not erga omnes. The explanatory notes to the draft legislation (BT-Drs 17/3403, 35) do not refer to the issue as such. This conundrum was picked up by the courts, and a major controvery erupted about how to treat other old cases: the HansOLG, in its decison of 24 January 2011—Docket no 3 Ws 8/11—actually argued that the legislator in the 2010 reform intentionally disregarded the ECtHR’s view by leaving § 67d(3) StGB as it stood. The 5th Senate of the BGH, on 9 November 2010 (NJW 2011, 240), ie before the new law was enacted, sent a request to the other Senates of the court in which it asked for their views on the matter, itself intending to decide, against the 2nd Senate’s view, that the jurispudence of the ECtHR was not another ‘law’ within the meaning of § 2(6) StGB prohibiting a retroactive application of a measure as opposed to a penalty. This is problematic in that the other law clearly can be seen in Arts 5(1) and 7(1) ECHR in their authentic interpretation by the ECtHR, which was also the view of the 4th Senate (NStZ 2010, 567). The other Senates have not all agreed with the view of the 5th Senate expressed in its request: see the decisions following the request by the 5th Senate, of the 1st Senate of 15 December 2010, Docket no 1 ASr 22/10; of the 2nd Senate of 22 122

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The Two-track Sanctions Model – Rehabilitation and Incapacitation beyond 10 years even for cases where the order had been made under the pre-1998 reform, something which under German law was feasible under § 2(6) StGB which expressly exempts measures of rehabilitation and incapacitation from the lex mitior principle of § 2(3) StGB. The ECtHR did not subscribe to the view of the German Government that there was still a sufficient nexus between the conviction and the measure’s prolongation, thus declaring it to be a violation of Art 5(1) ECHR. The Court’s arguments in M v Germany are worth reproducing in some detail in order to put the human rights issues in context—note that the Court calls the incapacitation order ‘preventive detention’, and the measures of rehabilitation and incapacitation ‘measures of correction and prevention’: 96. The Court is satisfied that the applicant’s initial preventive detention resulted from his ‘conviction’ by the sentencing court in 1986. The latter found him guilty of attempted murder and ordered his preventive detention, a penalty or other measure involving deprivation of liberty. It notes that in the Government’s view, preventive detention is not fixed with regard to an offender’s personal guilt, but with regard to the danger he presents to the public … It considers that pursuant to Article 66 § 1 of the Criminal Code, an order of preventive detention is nevertheless always dependent on and ordered together with a court’s finding that the person concerned is guilty of an offence … The applicant’s placement in preventive detention was thus initially covered by sub-paragraph (a) of Article 5 § 1. The Court would add, however, that, contrary to the Government’s submission, the decisions of the courts responsible for the execution of sentences to retain the applicant in detention do not satisfy the requirement of ‘conviction’ for the purposes of Article 5 § 1 (a) as they no longer involve a finding of guilt of an offence. 97. In order to determine whether the applicant’s preventive detention beyond the ten-year period was justified under Article 5 § 1 (a), the Court needs to examine whether that detention still occurred ‘after conviction’, in other words whether there

December 2010, Docket no 2 ASr 465/10; of the 4th Senate of 18 January 2011, Docket no 4 ARs 27/10 and of the 3rd Senate of 17 February 2011, Docket no 3 ARs 35/10 (all decisions available online via the BGH’s database at . As far as new cases after the repeal of the strict 10-year maximum were concerned, the situation appeared to be as follows: after the change in the law in 1998 when the 10-year cap was removed, there was now a sufficient causal nexus between the conviction and the extension beyond 10 years, the argument being that the order was now indeterminate at conviction and the later court would merely refuse to terminate it. This could have been based on the reference in M v Germany to Kafkaris: ‘101. … In Kafkaris [the Court] found that there was a sufficient causal connection between the applicant’s conviction and his continuing detention … Mr Kafkaris’ continuing detention beyond the twenty-year term was in conformity with the judgment of the sentencing court, which had … expressly stated that the applicant had been sentenced to imprisonment for the remainder of his life … and not for a period of twenty years … By contrast, the preventive detention of the applicant in the present case beyond the ten-year point was not ordered in the judgment of the sentencing court read in conjunction with the provisions of the Criminal Code applicable at the time of that judgment.’ Yet the decision of the BVerfG of 4 May 2011 made most of these considerations into maculature.

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Sentencing and Enforcement – An Overview was still a sufficient causal connection between the applicant’s conviction by the sentencing court in 1986 and his continuing deprivation of liberty after 8 September 2001. 98. The Court notes that according to the Government, the sentencing court had ordered the applicant’s preventive detention without reference to any time-limit and that it was for the courts responsible for the execution of sentences to determine the duration of the applicant’s preventive detention. As Article 2 § 6 of the Criminal Code permitted the abolition of the maximum duration of a first period of preventive detention with immediate effect, the courts responsible for the execution of sentences had the power to authorise the applicant’s continued preventive detention beyond the ten-year period, following the change in the law in 1998. The Government argued that therefore, the amendment of Article 67d of the Criminal Code did not break the causal link between the applicant’s conviction and his continued detention. 99. The Court is not convinced by that argument. It is true that the sentencing court ordered the applicant’s preventive detention in 1986 without fixing its duration. However, the sentencing courts never fix the duration, by virtue of the applicable provisions of the Criminal Code (Articles 66 and 67c-e of the Criminal Code … ); as the Government themselves submitted, the sentencing courts have jurisdiction only to determine whether or not to order preventive detention as such in respect of an offender. The courts responsible for the execution of sentences are subsequently called upon to decide on the detailed arrangements for execution of the order, including the exact duration of the offender’s preventive detention. However, the courts responsible for the execution of sentences were competent only to fix the duration of the applicant’s preventive detention within the framework established by the order of the sentencing court, read in the light of the law applicable at the relevant time. 100. The Court observes that the order for the applicant’s preventive detention was made by the sentencing court in 1986. At that time a court order of that kind, read in conjunction with Article 67d § 1 of the Criminal Code in the version then in force … , meant that the applicant, against whom preventive detention was ordered for the first time, could be kept in preventive detention for a maximum period of ten years. Thus, had it not been for the amendment of Article 67d of the Criminal Code in 1998 … , which was declared applicable also to preventive detention orders which had been made—as had the order against the applicant—prior to the entry into force of that amended provision … , the applicant would have been released when ten years of preventive detention had expired, irrespective of whether he was still considered dangerous to the public. Without that change in the law, the courts responsible for the execution of sentences would not have had jurisdiction to extend the duration of the applicant’s preventive detention. Therefore, the Court finds that there was not a sufficient causal connection between the applicant’s conviction by the sentencing court in 1986 and his continued deprivation of liberty beyond the period of ten years in preventive detention, which was made possible only by the subsequent change in the law in 1998. … 102. The Court shall further examine whether the applicant’s preventive detention beyond the ten-year point was justified under any of the other sub-paragraphs of Article 5 § 1. It notes in this connection that the domestic courts did not address that

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The Two-track Sanctions Model – Rehabilitation and Incapacitation issue because they were not required to do so under the provisions of the German Basic Law. It considers that sub-paragraphs (b), (d) and (f) are clearly not relevant. Under sub-paragraph (c), second alternative, of Article 5 § 1, the detention of a person may be justified ‘when it is reasonably considered necessary to prevent his committing an offence’. In the present case the applicant’s continued detention was justified by the courts responsible for the execution of sentences with reference to the risk that the applicant could commit further serious offences—similar to those of which he had previously been convicted—if released … These potential further offences are not, however, sufficiently concrete and specific, as required by the Court’s case-law … as regards, in particular, the place and time of their commission and their victims, and do not, therefore, fall within the ambit of Article 5 § 1 (c). This finding is confirmed by an interpretation of paragraph 1 (c) in the light of Article 5 as a whole. Pursuant to paragraph 3 of Article 5, everyone detained in accordance with the provisions of paragraph 1 (c) of that Article must be brought promptly before a judge and tried within a reasonable time or be released pending trial. However, persons kept in preventive detention are not to be brought promptly before a judge and tried for potential future offences. The Court notes in this connection that criminological experience shows that there is often a risk of recidivism on the part of a repeatedly convicted offender, irrespective of whether or not he or she has been sentenced to preventive detention … 103. The Court has further considered whether the applicant could have been kept in preventive detention beyond September 2001 under sub-paragraph (e) of Article 5 § 1 as being a person ‘of unsound mind’. While it does not rule out the possibility that the preventive detention of certain offenders may meet the conditions of that ground for detention, it observes that, according to the decision of the Frankfurt am Main Court of Appeal in the instant case, the applicant no longer suffered from a serious mental disorder (see paragraph 22 above). In any event, the domestic courts did not base their decisions to further detain the applicant on the ground that he was of unsound mind. Therefore, his detention cannot be justified under Article 5 § 1 (e) either. 104. The Court further observes that the present application raises an issue in terms of the lawfulness of the applicant’s detention. It reiterates that national law must be of a certain quality and, in particular, must be foreseeable in its application, in order to avoid all risk of arbitrariness … It has serious doubts whether the applicant, at the relevant time, could have foreseen to a degree that was reasonable in the circumstances that his offence could entail his preventive detention for an unlimited period of time. It doubts, in particular, whether he could have foreseen that the applicable legal provisions would be amended with immediate effect after he had committed his crime. However, in view of the above finding that the applicant’s preventive detention beyond the ten-year period was not justified under any of the sub-paragraphs of Article 5 § 1, it is not necessary to decide this question. 105. Consequently, there has been a violation of Article 5 § 1 of the Convention.

The ECtHR did not accept the German contention, either, that a measure of rehabilitation and incapacitation was not a penalty for the purposes of Art 7(1) ECHR, and stated that there had been a violation in that respect as well:

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Sentencing and Enforcement – An Overview 123. [T]he applicant’s preventive detention was prolonged with retrospective effect, under a law enacted after the applicant had committed his offence—and at a time when he had already served more than six years in preventive detention. 124. The Court, having regard to the criteria established in its case-law, therefore needs to determine whether the applicant’s preventive detention constitutes a ‘penalty’ within the meaning of the second sentence of Article 7 § 1. … 125. As to the characterisation of preventive detention under domestic law, the Court observes that in Germany, such a measure is not considered as a penalty to which the absolute ban on retrospective punishment applies. The findings of the courts responsible for the execution of sentences to that effect in the present case were confirmed by the Federal Constitutional Court in a thoroughly reasoned leading judgment … Under the provisions of the German Criminal Code, preventive detention is qualified as a measure of correction and prevention. Such measures have always been understood as differing from penalties under the long-established twin-track system of sanctions in German criminal law. Unlike penalties, they are considered not to be aimed at punishing criminal guilt, but to be of a purely preventive nature aimed at protecting the public from a dangerous offender. … 126. However, … the concept of ‘penalty’ in Article 7 is autonomous in scope and it is thus for the Court to determine whether a particular measure should be qualified as a penalty, without being bound by the qualification of the measure under domestic law. It notes in this connection that the same type of measure may be and has been qualified as a penalty in one State and as a preventive measure to which the principle of nulla poena sine lege does not apply in another. … 127. The Court … notes at the outset that, just like a prison sentence, preventive detention entails a deprivation of liberty. Moreover, having regard to the manner in which preventive detention orders are executed in practice in Germany, compared to ordinary prison sentences, it is striking that persons subject to preventive detention are detained in ordinary prisons, albeit in separate wings. Minor alterations to the detention regime compared to that of an ordinary prisoner serving his sentence, including privileges such as detainees’ right to wear their own clothes and to further equip their more comfortable prison cells, cannot mask the fact that there is no substantial difference between the execution of a prison sentence and that of a preventive detention order. … 128. Furthermore, having regard to the realities of the situation of persons in preventive detention, the Court cannot subscribe to the Government’s argument … that preventive detention served a purely preventive, and no punitive purpose. It notes that, pursuant to Article 66 of the Criminal Code, preventive detention orders may be made only against persons who have repeatedly been found guilty of criminal offences of a certain gravity. It observes, in particular, that there appear to be no special measures, instruments or institutions in place, other than those available to ordinary long-term prisoners, directed at persons subject to preventive detention and aimed at reducing the danger they present and thus at limiting the duration of their detention to what is strictly necessary in order to prevent them from committing further offences.

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The Two-track Sanctions Model – Rehabilitation and Incapacitation 129. The Court … finds that there is currently an absence of additional and substantial measures—other than those available to all long-term ordinary prisoners serving their sentence for punitive purposes—to secure the prevention of offences by the persons concerned. ... 132. Finally, as to the severity of preventive detention—which is not in itself decisive … —the Court observes that this measure entails detention which, following the change in the law in 1998, no longer has any maximum duration. Moreover, the suspension of preventive detention on probation is subject to a court’s finding that there is no danger that the detainee will commit further (serious) offences (see Article 67d of the Criminal Code, paragraph 53 above), a condition which may be difficult to fulfil … Therefore, the Court cannot but find that this measure appears to be among the most severe—if not the most severe—which may be imposed under the German Criminal Code. It notes in this connection that the applicant faced more far-reaching detriment as a result of his continued preventive detention—which to date has been more than three times the length of his prison sentence—than as a result of the prison sentence itself. 133. In view of the foregoing the Court, looking behind appearances and making its own assessment, concludes that preventive detention under the German Criminal Code is to be qualified as a ‘penalty’ for the purposes of Article 7 § 1 of the Convention. 134. The Court further reiterates that it has drawn a distinction in its case-law between a measure that constitutes in substance a ‘penalty’—and to which the absolute ban on retrospective criminal laws applies—and a measure that concerns the ‘execution’ or ‘enforcement’ of the ‘penalty’ … It therefore has to determine whether a measure which turned a detention of limited duration into a detention of unlimited duration constituted in substance an additional penalty, or merely concerned the execution or enforcement of the penalty applicable at the time of the offence of which the applicant was convicted. 135. The Court observes that in the Government’s submission the sentencing court had ordered the applicant’s preventive detention without stating a time-limit. They argued that the prolongation of that measure therefore merely concerned the execution of the penalty imposed on the applicant by the sentencing court. The Court is not convinced by that argument. As it has found above … , at the time the applicant committed his offence, the sentencing court’s order for his preventive detention, read in conjunction with Article 67d § 1 of the Criminal Code in the version then in force, meant that the applicant could be kept in preventive detention for a maximum period of ten years. The prolongation of the applicant’s preventive detention by the courts responsible for the execution of sentences following the change in Article 67d of the Criminal Code therefore concerns not just the execution of the penalty (preventive detention for up to ten years) imposed on the applicant in accordance with the law applicable when he committed his offences. It constitutes an additional penalty which was imposed on the applicant retrospectively, under a law enacted after the applicant had committed his offence. ...

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Sentencing and Enforcement – An Overview 137. In view of the foregoing, the Court concludes that there has been a violation of Article 7 § 1 of the Convention.

The 2009 decision in M v Germany was followed by four others in January 2011 that dealt with a) the questions of whether a Bavarian state law on detention of mentally-ill persons, which had been declared unconstitutional on grounds of lack of legislative competence of the state but to be further applied for an interim period by the BVerfG, could be used to support the detention of offenders (it could not)124; and b) three repeat situations of M v Germany 125 which were based on the previous § 67d(3) StGB, all with the same result. The provisions of §§ 66a and 66b StGB have so far not been examined by the Court in Strasbourg. Yet the same principles will apply, which is why these provisions were also amended by the 2010 legislation. Section 66a StGB is, in a way, not as open to criticism by the ECtHR as § 66b StGB, because it is based on the idea that the defendant is put on notice by the trial court that a measure may be imposed depending on his development. Accordingly, it was not changed much in substance. The same cannot be said for § 66b StGB, which was a blanket authorisation for ex post orders; it was severely cut, and is now in effect coupled with a new federal law of 22 December 2010 on custodial therapy orders for mentally-ill violent offenders.126 The key issue of this new law is the removal of the jurisdiction for making such an order from the criminal courts and placing it within the civil courts’ family law jurisdiction. We shall look at this new law, which was made before the Haidn decision, below. Let us first highlight the changes to §§ 66a and 66b StGB: § 66a StGB Deferred incapacitation order [pre-2010] (1)

(2)

If on conviction for one of the offences listed in section 66 (3) 1st sentence it cannot be established with sufficient certainty whether the convicted person presents a danger to the general public within the meaning of section 66 (1) No 3, the court may make a deferred incapacitation order if the remaining conditions of section 66 (3) are fulfilled. The court shall decide on making an incapacitation order no later than six months before the date when the convicted person becomes eligible for early conditional release under section 57 (1) No 1, section 57a (1) 1st sentence No 1, also in conjunction with section 454b (3) of the Code of Criminal Procedure. It shall make the order if a comprehensive evaluation of the person, his offences and

124

Haidn v Germany, App no 6587/04, 13 January 2011. Schumer v Germany, Apps nos 27360/04 and 42225/07, 13 January 2011; Mautes v Germany, App no 20008/07, 13 January 2011; Kallweit v Germany, App no 17792/07, 13 January 2011. 126 Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter— Therapieunterbringungsgesetz (ThUG), BGBl I 2010, 2300, 2305. 125

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his development in custody indicate that he is likely to commit serious offences resulting in serious emotional trauma or physical injury to the victims. Any decision regarding early conditional release must not be made before the decision under subsection (2) 1st sentence above has become final. This does not apply in cases where the conditions of section 57 (2) No 2 are clearly not met.

The 2010 legislation amended § 66a StGB as follows: § 66a StGB Deferred incapacitation order [post-2010] (1)

(2)

(3)

The court may make a deferred incapacitation order if 1. a person is convicted of one of the offences in § 66(3) 1st sentence, 2. the remaining criteria of § 66(3) are fulfilled, with the exception of the reference to § 66(1) 1st sentence No 4, and 3. it is not sufficiently certain but probable that the criteria of § 66(1) 1st sentence No 4 are met. The court may also make a deferred order if 1. a person is convicted to a term of imprisonment of not less than five years for at least one felony directed against life or limb, personal freedom, sexual self-determination, under Chapter Twenty-Eight or under §§ 250, 251, also in conjunction with § 252 or 255, 2. the criteria of § 66b are not fulfilled and 3. it is sufficiently certain or at least probable that the criteria of § 66(1) 1st sentence No 4 are met. The court shall decide on making an incapacitation order deferred under subsections (1) or (2) above no later than the date when the prisoner shall have served his sentence in full; this shall apply mutatis mutandis if the prisoner had been granted conditional early release and the remainder of the sentence is being enforced. The court shall make the order if a comprehensive evaluation of the prisoner, his offences and also his development until the date of the decision indicate that he is likely to commit serious offences resulting in serious emotional trauma or physical injury to the victims.

The legislature was thus clearly in favour of extending the use of this particular sanction, especially by reducing the trigger criterion from certainty to probability, extending the ambit to first-time offenders, and extending the period between the deferred order and the date by which a decision on the incapacitation order must be taken, stating expressly that it did not see § 66a StGB as being under threat from the Strasbourg position under M v Germany. 127 However, the ECtHR’s jurisprudence on § 67d(3) StGB had a serious effect on § 66b StGB, which was cut down considerably: § 66b StGB Subsequent incapacitation order [pre-2010] (1)

127

If prior to the end of a term of imprisonment imposed on conviction for a felony against life and limb, personal freedom or sexual self-determination, or a felony pursuant to section 250 and section 251, also in conjunction with section 252 or

BT-Drs 17/3403, 15.

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(2)

(3)

section 255, or for one of the misdemeanours in section 66 (3) 1st sentence, evidence comes to light which indicates that the convicted person presents a significant danger to the general public, the court may subsequently make an incapacitation order if a comprehensive evaluation of the convicted person, his offences and his development in custody indicate a high likelihood of his committing serious offences resulting in seriously emotional trauma or physical injury to the victim and if the remaining conditions in section 66 are fulfilled. If making the order at the time of conviction was impossible under law, the court shall, for the purpose of the 1st sentence of this subsection, also take into account any facts that were already evident at that time. If evidence of facts of the kind listed in subsection (1) above comes to light after a sentence of imprisonment of a term of not less than five years has been imposed for one or more felonies against life or limb, personal freedom, sexual selfdetermination or pursuant to section 250 and section 251, also in conjunction with section 252 or section 255, the court may subsequently make an incapacitation order if a comprehensive evaluation of the convicted person, his offence or offences and his development in custody indicate a high likelihood that he will commit serious offences resulting in serious emotional trauma or physical injury to the victims. If pursuant to section 67d (6) a mental hospital order has been declared moot because the condition causing insanity or diminished responsibility on which the order was based did not exist at the time of that declaration, the court may subsequently make an incapacitation order 1. if the mental hospital order pursuant to section 63 was made based upon more than one of the offences set forth in section 66 (3) 1st sentence or if the person had either previously been sentenced to a term of imprisonment of not less than three years or had a mental hospital order made against him because of one or more such offences having been committed by him prior to the offence leading to the mental hospital order pursuant to section 63, and 2. if a comprehensive evaluation of the person, his offences and his development during detention under the measure indicate a high likelihood of his committing serious offences resulting in serious emotional trauma or physical injury to the victims.

After the 2010 reform the following fragment was left, subsections (1) and (2) having been repealed in their entirety: § 66b StGB Subsequent incapacitation order [post-2010] If pursuant to section 67d (6) a mental hospital order has been declared moot because the condition causing insanity or diminished responsibility on which the order was based did not exist at the time of that declaration, the court may subsequently make an incapacitation order 1.

if the mental hospital order pursuant to section 63 was made based upon more than one of the offences set forth in section 66 (3) 1st sentence or if the person had either previously been sentenced to a term of imprisonment of not less than three years or had a mental hospital order made against him because of one or more

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such offences having been committed by him prior to the offence leading to the mental hospital order pursuant to section 63, and if a comprehensive evaluation of the person, his offences and his development until the date of the decision indicate a high likelihood of his committing serious offences resulting in serious emotional trauma or physical injury to the victims. This shall apply mutatis mutandis if after serving an order under section 63 a term of imprisonment imposed at the same time is to be enforced in its entirety or in part.

The Government argued that the measure under § 66b StGB had not been used a lot in the first place, stating that since its introduction in 2004 the BGH had upheld only about a dozen such orders on appeal, whereas up until 2008 it had quashed about 100 of them.128 The ECHR was mentioned in only one paragraph of the explanatory materials, and only by reference to general concerns of compatibility.129 The new law contains consequential amendments for the StPO, the GVG, JGG and EGStGB130 which we cannot examine in detail for reasons of space. As a direct consequence of M v Germany, and to prevent as much as possible the release of highly dangerous offenders currently under Sicherungsverwahrung pursuant to the pre-1998 law, who could not be caught by the reformed §§ 66, 66a, 66b StGB and whose continuing detention under § 67d(3) StGB was highly problematic, the Violent Offenders (Custodial Therapy) Act 2010131 (ThUG) was passed as an initial interim measure.132 It removed the imposition of custodial therapy orders from the jurisdiction of the criminal courts, giving exclusive jurisdiction to the (full)133 civil chambers of the Landgerichte under family law procedure. Section 1 ThUG is basically a referral to § 66(3) 1st sentence StGB and the added criterion that the continuing retention of the person in incapacitation detention is barred by the ban on retroactivity, yet subsection (2) uncouples the imposition of the therapy order from the question of whether the prisoner still is in detention or has already been released, clearly something designed to allow the recall of some of those already released after M v Germany, in a form that withstands scrutiny under Art 5(1) ECHR, and which will require careful handling after Haidn v Germany where theECtHR said: 91. The Court will further examine whether … the applicant’s detention was justified under sub-paragraph (e) of Article 5 § 1 as detention of a person ‘of unsound mind’. Under the Court’s well-established case-law … this requires, firstly, that the applicant be reliably shown to be of unsound mind; that is, a true mental disorder must have 128

Ibid, 15. Ibid, 16. 130 § 316e EGStGB in particular contains regulations for the transitional period and the application of the lex mitior principle. 131 Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter— Therapieunterbringungsgesetz (ThUG), BGBl I 2010, 2300, 2305. 132 BT-Drs 17/3403, 19. 133 § 4(1) ThUG forbids the delegation of the proceedings to the single judge. 129

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Sentencing and Enforcement – An Overview been established before a competent authority on the basis of objective medical expertise. The Court notes that the Bayreuth Regional Court based its decision, upheld on appeal, to order the applicant’s placement in prison for an unlimited period of time after consulting two experts (a psychological expert and a psychiatric and psychotherapeutic expert … ) on the applicant’s dangerousness, as prescribed by section 4 of the Bavarian (Dangerous Offenders’) Placement Act … These experts had confirmed that the applicant currently posed a serious threat to the sexual self-determination of others. In that connection, the medical experts had found that the applicant suffered from an organic personality disorder which led to a continuous decomposition of his personality, owing to which he was no longer able to reflect on his possibly deviant sexual behaviour. 92. In view of the foregoing, the Court considers that there was objective medical expertise to show that the applicant suffered from a personality disorder. As for the authority before which that disorder was established, the Court notes, however, that in the German legal system, a difference is made between the placement of dangerous offenders in a prison for preventive purposes and the placement of mentally ill persons in a psychiatric hospital. This is illustrated by Articles 66 and 63 of the Criminal Code, a Federal law, and apparently also by the distinction made between the Bavarian (Dangerous Offenders’) Placement Act on the one hand, and the Bavarian (Mentally Ill Persons’) Placement Act, on the other. Under section 1 § 3 of the Bavarian (Dangerous Offenders’) Placement Act, an order for a person’s placement in prison was not to be made if that person was placed in a psychiatric hospital under the Bavarian (Mentally Ill Persons’) Placement Act … Thus, it is clear that dangerous persons diagnosed with a mental illness were to be placed in a psychiatric hospital by the competent courts. In the applicant’s case, the competent authorities had, however, refused to request the applicant’s placement in a psychiatric hospital under the Bavarian (Mentally Ill Persons’) Placement Act … 93. Having regard to the foregoing, the Court is not convinced that a ‘true mental disorder’, for the purposes of Article 5 § 1 (e) of the Convention, had been established in respect of the applicant. It further doubts that such a mental disorder could have been ‘established before a competent authority’ under German law, as the courts dealing with the execution of sentences in the present case were not called upon to examine under the Bavarian (Dangerous Offenders’) Placement Act whether the applicant was to be detained as a mentally ill person, but had to determine whether the applicant represented a particular danger to the public, irrespective of his mental health. As a consequence, the medical experts who examined the applicant were equally not called upon to establish whether the applicant suffered from a true mental disorder, but whether he currently posed a serious risk for the sexual self-determination of others, again irrespective of his mental condition. 94. Moreover, under the Court’s case-law, the ‘detention’ of the applicant as a mental health patient could only be ‘lawful’ for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution … In the present case, the applicant was placed in an ordinary prison until 28 July 2004. For the execution of his placement, the rules for the execution of preventive detention orders made under the Criminal Code applied by analogy (section 6 of the Bavarian (Dangerous Offenders’) Placement Act … ). As the Court concluded in its recent judgment in

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The Two-track Sanctions Model – Rehabilitation and Incapacitation the case of M v Germany … , there is no substantial difference in practice between the execution of a (long) prison sentence and that of a preventive detention order. As shown above, it is the psychiatric hospitals which are considered under German law to be the appropriate institutions to provide conditions of detention adapted to mentally ill persons. Therefore, there was no sufficient relationship between the alleged detention of the applicant as a mental health patient and his placement and conditions of detention in prison. 95. Having regard to the foregoing, the Court finds that the applicant’s detention was not covered by sub-paragraph (e) of Article 5 § 1 either.

Other provisions of the 2010 Act are as follows: a) § 2(3) ThUG requires separation from any prison context as far as facilities and organisation are concerned; b) § 7 ThUG makes assistance by counsel mandatory for the proceedings until they are concluded by final order; c) § 8 ThUG requires a direct examination of the person by the panel, not in the way of judicial assistance, for example, through another judge; d) § 9 ThUG requires an examination by two independent experts, neither of whom may be chosen from among those professionals who at some stage have treated the person as a patient; e) § 12 ThUG restricts the custody period to 18 months, unless it is extended before expiry, which then triggers the same procedure as for a first-time order, with a relaxed requirement as regards the experts in that only one report needs to be submitted; f) § 13 ThUG requires the court to lift the order ex officio once its prerequisites no longer apply; g) §§ 14, 15 ThUG allow the court to make an interim provisional custody order in emergency cases, with or without hearing the person depending on the degree of urgency; h) § 17 ThUG restricts the appeals process to one appeal (Beschwerde) to the OLG and excludes a further or a leapfrog appeal on points of law (Rechtsbeschwerde), which § 18 ThUG replaces by a procedure before the BGH reminiscent of an advisory opinion or preliminary ruling on issues of law in cases where an OLG wishes to deviate from the case law of another OLG or the BGH, but with the power of the BGH to decide on the merits instead of the OLG. It remains to be seen whether the change of label from criminal to family law proceedings will keep the ECtHR from applying the same close scrutiny as before, given that the Court looks at the genotype, not the phenotype, of a sanction to decide whether it is punitive in nature or not.

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Sentencing and Enforcement – An Overview The decision of the BVerfG of 4 May 2011 Having been seized of the constitutional complaints of a number of inmates already serving incapacitation orders, the BVerfG was expected to rule on the issues of the ex post imposition outlined above. Instead, it quashed all the provisions of the StGB and the JGG that deal with incapacitation orders, and declared them unconstitutional.134 The Government now has until 31 May 2013 to reform the law. The decision was all the more surprising because the court had previously ruled that the institution of the incapacitation order was lawful as such. This would normally have given rise to the estoppel of res judicata, but on the basis of the rulings of the Court in Strasbourg, the BVerfG saw a significant change in the legal environment which allowed it to revisit its previous judgments; more to the point, res judicata no longer presented a bar to the complainants’ cause. The court reaffirmed its previous case law which considered the ECHR as strong guidance for the interpretation of the GG, almost to the point that it is binding unless the protection under the GG is more extensive,135 which is also the position under Art 53 ECHR. The court went on to say that the legislator may use non-punitive sanctions such as the incapacitation order only if there is a clear difference in the actual practice of its enforcement and that that any custodial element must be an absolutely necessary corollary to achieving the primary therapeutic goal of the measure; the measure must be aimed at facilitating the eventual release, not the permanent incarceration, of the offender. Prison and incapacitation detention must be clearly distinguishable in that respect (so-called Abstandsgebot, ie ‘distinction’ requirement).136 The court found that the current law and practice did not meet this high threshold. The ex post imposition of an incapacitation order was acceptable only if the requirements of strict proportionality were complied with and if there was a danger to overriding constitutionally protected interests (höchste Verfassungsgüter). Consequently, the court restricted the application of the ex post incapacitation orders for the interim period until 2013, to cases of extreme danger that the offender might commit new offences in the most serious categories of violent and sexual offences and where he suffers from a mental disorder as set out in § 1(1) No 1 ThUG. The court further ordered all courts dealing with the enforcement of sentences (Vollstreckungsgerichte) to examine immediately after the pronouncement of the BVerfG’s judgment whether these criteria applied to offenders detained under such orders in their jurisdictions, and if they did not, to release those offenders no later than 31 December 2011. It also reduced the regular review periods from two years to

134 BVerfG, Docket no 2 BvR 2365/09, Judgment of 4 May 2011, online at www. bundesverfassungsgericht.de/entscheidungen/rs20110504_2bvr236509.html. 135 BVerfGE 74, 358; 111, 307. 136 BverfGE 109, 133.

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The Two-track Sanctions Model – Rehabilitation and Incapacitation one year in the case of § 67e(2) StGB for adults (see below), and from one year to six months under § 7(4) JGG for the juvenile courts. General rules on duration, sequence and transfer of measures, etc Sections 67 ff StGB provide the groundwork for questions relating to the duration and termination of measures of rehabilitation and incapacitation, the sequence of their enforcement, especially in relation to the additional term of imprisonment, and transfers from one measure to another. The rules are very technical and reproduction of the relevant excerpts from the post-2010 text of the provisions must suffice for our purposes: § 67 StGB Sequence of enforcement (1)

If custodial orders for measures under section 63 and section 64 are made in addition to a sentence of imprisonment, the measures shall be served before the sentence of imprisonment. (2) The court shall order that all or part of the sentence be served before the measure, if the purpose of the measure will thereby be better facilitated. … (3)–(5) . . . § 67a StGB Transfer to another measure (1)

If a mental hospital order or a custodial addiction treatment order have been made the court may subsequently transfer the convicted person to serve the other of those measures if this would improve the chances of re-socialisation of the convicted person. (2) Under the condition of subsection (1) above the court may subsequently transfer a person subject to an incapacitation order to one of the measures listed in subsection (1). This applies also if the person is still serving a sentence of imprisonment and the conditions of section 20 or section 21 are met by that person. (3)–(4) . . . § 67b StGB Immediate order for suspended measure (1)

(2)

If the court makes a mental hospital order or a custodial addiction treatment order it shall suspend the measure for an operational probationary period if special circumstances justify the expectation that the purpose of the measure may be achieved in this manner. A suspension shall not be ordered if the person is to serve a sentence of imprisonment imposed at the same time as the measure and which has not been suspended. The order for suspension shall automatically lead to the person being subjected to supervision.

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Sentencing and Enforcement – An Overview § 67d StGB Duration of detention (1)

(2)

(3)

(4)

(5)

(6)

Detention under a custodial addiction treatment order may not exceed a period of two years. This term shall run from the commencement of the detention. If a custodial measure is enforced before a sentence of imprisonment imposed at the same time, the maximum period shall be extended by the length of the term of imprisonment to the extent the time spent in the measure is credited towards the sentence. If no maximum period has been provided or the period has not yet expired, the court shall suspend the measure for an operational probationary period if it can be expected that the person subject to the measure will not commit any more unlawful acts if released. The order for suspension shall automatically lead to the person being subjected to supervision. If ten years of an incapacitation order have been served, the court shall declare the measure terminated and order the release if there is no danger that the person under placement will commit serious offences resulting in serious emotional trauma or physical injury to the victims. The order for release shall automatically lead to the person being subject to supervision. If the maximum period has expired the person shall be released. The measure shall thereby be terminated. The release shall automatically lead to the person being subject to supervision. The court shall declare the custodial addiction treatment order terminated if the conditions of section 64 no longer exist. The release shall automatically lead to the person being subject to supervision. If, after the enforcement of a mental hospital order has begun, the court finds that the conditions for the measure no longer exist or that the continued enforcement of the measure would be disproportionate, the court shall declare it terminated. The release shall automatically lead to the person being subjected to supervision. The court shall waive supervision if it can be expected that the person will not commit any further offences without it.

§ 67e StGB Review (1)

(2) (3)

(4)

The court may review at any time whether the further enforcement of the custodial measure should be suspended or the measure be declared terminated. It must perform the review within specified periods. The specified periods shall be six months for a custodial addiction treatment order; one year for a mental hospital order; two years for incapacitation orders. The court may reduce the period. It may also set dates within the statutory limits for review before the expiration of which an application for review shall be inadmissible. The period shall run from the commencement of the detention. If the court denies suspension or termination the period shall commence anew with that decision.

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The Two-track Sanctions Model – Rehabilitation and Incapacitation Supervision order Another non-custodial measure, involving, since the above-mentioned 2010 reform, the use of electronic monitoring devices, is the so-called Führungsaufsicht, a kind of general supervision order meant to ensure that the offender does not commit new offences. It was amended extensively in the 2010 legislation, and we shall look at only a few central provisions, given the measure’s relatively problematic nature from a criminological point of view137 and the lack of real enforcement mechanisms apart from prosecution for a minor offence under § 145a StGB.138 Supervision may arise from separate judicial order, or directly as a consequence of another measure imposed on the basis of another provision. Much as with conditions under a suspended sentence, the convicted person may be subject to certain directions with which he must comply during the supervision period. Refusal to comply may result in an indeterminate supervision period. The provisions are fairly self-explanatory: § 68 StGB Conditions of supervision (1)

(2)

If a person has incurred a fixed-term sentence of imprisonment of not less than six months for an offence in relation to which the law specifically provides for the availability of a supervision order, the court may make such an order in addition to the sentence if there is a danger that the person will commit further offences. The statutory provisions providing for supervision (section 67b, section 67c, 67d (2) to (6) and section 68f) remain unaffected.

... § 68b StGB Directions (1)

The court may, for the duration of the supervision or for a shorter period, direct the convicted person 1. not to leave his place of domicile or his residence or a specified area without the permission of the supervising authority; 2. not to frequent specified places which may induce him to commit further offences; 3. not to make or maintain contact with the victim, or certain persons or persons from a certain group who may induce him to commit further offences, nor to employ, train or harbour them; 4. not to engage in particular activities which in certain circumstances may be exploited for criminal purposes;

137

Sch/Sch-Stree/Kinzig, § 68 Mn 1–4. ‘§ 145a Violating the directions of a supervision order Whosoever violates a particular direction as indicated in section 68b (1) during the operational period of a supervision order and thereby endangers the objective of the measure, shall be liable to imprisonment of not more than one year or a fine. The offence may only be prosecuted upon the request of the supervising authority (section 68a).’ 138

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7. 8. 9. 10.

11. 12.

not to possess, carry or entrust to another for safekeeping particular objects which could induce him to commit further offences; not to possess or drive motor-vehicles or particular types of motor-vehicles or other vehicles, which in certain circumstances may be misused by him for criminal purposes; to report at particular times to the supervising authority, to another public authority or to the probation officer; to report promptly every change of residence or employment to the supervising authority; to report in the case of unemployment to the Public Employment Agency or to another authorised employment agency; not to consume alcohol or other drugs, if based on certain information there is reason to believe that their consumption will contribute to the commission of future offences, and to undergo alcohol and drug tests of a non-invasive nature; to present himself at certain times or at certain intervals to a doctor, a psychotherapist or the forensic ambulance service, or to carry the technical instruments necessary for the electronic monitoring of their whereabouts in working order with them at all times and not to tamper with them.

... (2)

The court may, for the duration of the supervision or for a shorter period, give directions to the convicted person, particularly in relation to education, employment, leisure, ordering of financial affairs, or the fulfilment of maintenance obligations. The court may direct the convicted person to undergo psychiatric, psycho- or sociotherapy (therapy direction). Section 56c (3) shall apply mutatis mutandis, also for the direction to undergo invasive alcohol or drug tests. (3) No unreasonable demands may be made in the directions on the lifestyle of the convicted person. (4)–(5) . . . § 68c StGB Duration (1) (2)

(3)

The period of supervision shall last no less than two and no more than five years. The court may reduce the maximum duration. The court may make an indeterminate supervision order exceeding the maximum in subsection (1) 1st sentence above if the convicted person 1. does not consent to a direction under section 56c (3) No 1; or 2. does not comply with a direction to undergo medical treatment or addiction treatment or a therapy direction and if a danger to the general public through the commission of further serious offences is to be expected. If the convicted person subsequently consents, the court shall fix the further duration of the supervision. Section 68e (3) shall apply. The court may make an indeterminate supervision order exceeding the maximum in subsection (1) 1st sentence above if 1. in the case of a suspended mental hospital order under section 67d (2) there is reason to believe that the convicted person is otherwise about to lapse into a state under section 20 or section 21 resulting in a danger to the general public by the commission of further serious unlawful acts, or if

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a)

the convicted person has, for an offence listed under section 181b, been sentenced to a single or aggregate term of imprisonment of not less than two years or a mental hospital order or a custodial addiction treatment order, or b) the supervision came into effect under the conditions of § 68b(1) 3rd sentence No 1 and the single or aggregate term of imprisonment or the custodial measure were imposed for at least one felony directed against life or limb, personal freedom or pursuant to sections 250, 251, also in conjunction with section 252 or section 255, and if the violation of directions under section 68b (1) or (2) or other facts give reason to believe that there may be a danger to the general public by the commission of further serious unlawful acts. (4) . . .

... § 68f StGB Supervision after serving full sentence (1)

(2)

If a single or aggregate sentence of imprisonment of not less than two years has been imposed for intentional offences, or not less than one year for an offence listed in section 181b, has been fully served, supervision shall commence upon the release of the convicted person. This shall not apply if a custodial measure of rehabilitation and incapacitation is enforced immediately afterwards. The court may waive supervision if there is reason to believe that the convicted person will not commit further offences without supervision. …

Disqualification from driving In today’s world, the use of a motor vehicle is an almost indispensable facet of the average person’s life, especially in the work environment. Prohibition of that use may constitute a much more incisive sanction than a suspended sentence or a fine. Section 44 StGB provides for a short-term driving ban which is meant as a punishment, as we saw above; the offender does retain his licence. However, if someone has committed an offence in connection with the use of a motor vehicle, and has shown that he is unreliable and thus a danger to the other road users, §§ 69 ff StGB allow the court to take away his licence and impose a period before the expiry of which the offender is not allowed to apply for a new licence. Section 111a gives the court the power to order a provisional disqualification before judgment. § 69 StGB Disqualification order (1)

If a person has been convicted of an unlawful act he committed in connection with the driving of a motor-vehicle or in violation of the duties of the driver of a motor-vehicle, or has not been convicted merely because he was proven to have acted in a state of insanity or his having so acted could not be excluded, the court shall make a driving disqualification order if the act shows that he is unfit to drive a motor-vehicle. A further examination pursuant to section 62 shall not be required.

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(3)

If the unlawful act under subsection (1) above is one of the following misdemeanours: 1. endangering road traffic (section 315c); 2. driving while under the influence of alcohol or drugs (section 316); 3. leaving the scene of an accident without cause (section 142) although the offender knows or should have known that a person was killed, seriously injured or significant damage to the property of another was caused in the accident; or 4. committing offences in a senselessly drunken state (section 323a), if the offence committed is one of the offences in Nos 1 to 3 the person shall typically be deemed unfit to drive motor-vehicles. The driving licence shall cease when the judgment becomes final. A driving licence issued by a German public authority shall be subject to a deprivation order in the judgment.

§ 69a StGB Order for period before new licence may be issued (1)

(2)

(3) (4)

(5)

(6)

(7)

If the court makes a disqualification order it shall at the same time order that no new driving licence shall be issued for a period from six months to five years (ban). The court may order a permanent ban if there is reason to believe that the statutory maximum period will not suffice to avert the danger posed by the offender. If the offender has no driving licence only a ban shall be imposed. The court may exempt particular types of motor-vehicles from the ban if spe cial circumstances justify the assumption that the purpose of the measure will not be put at risk. The minimum ban shall be for a period of one year if during the last three years before the offence a ban had been ordered against the offender. If the offenders driving licence had been provisionally seized because of the offence (section 111a of the Code of Criminal Procedure), the minimum ban shall be reduced by the time during which the provisional deprivation was in effect. In no case shall the ban be less than three months. The ban shall commence when the judgment becomes final. The time of a provisional deprivation ordered because of the offence shall be credited towards the period of the ban to the extent it has run following the date on which the judgment in those proceedings in which the factual findings underlying the measure could last have been examined was pronounced. For the purposes of subsections (4) and (5) above the provisional seizure of a driving licence or its seizure (section 94 of the Code of Criminal Procedure) shall be equivalent to a provisional disqualification. If there is reason to believe that the offender is no longer unfit to drive motor-vehicles the court may terminate the ban. This termination may not be ordered unless the ban has been in effect for three months, or a year in cases pursuant to subsection (3) above; subsection (5) 2nd sentence and subsection (6) above shall apply mutatis mutandis.

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The Two-track Sanctions Model – Rehabilitation and Incapacitation Disqualification from exercising a profession In the context of white-collar crime, it may sometimes be more sensible to take the offender out of circulation in the business or professional environment in which she used to engage, as it were, even if she receives only a suspended sentence or a fine. Section 70 StGB provides for a fixed-term or permanent disqualification. Violation of such an order is punishable under § 145c StGB with a term of imprisonment not exceeding one year or a fine. Again, there is a provisional disqualification under § 132a. § 70 StGB Order for professional disqualification (1)

(2)

(3)

(4)

If a person has been convicted of an unlawful act he committed in abuse of his profession or trade or in gross violation of the attendant duties, or has not been convicted merely because he was proven to have acted in a state of insanity or his having so acted could not be excluded the court may make an order disqualifying him from engaging in that profession, branch of profession, trade or branch of trade, for a period from one year to five years, if a comprehensive evaluation of the offender and the offence shows that by further engagement in the profession, branch of profession, trade or branch of trade there is a danger that he will commit serious unlawful acts of the kind indicated above. The disqualification order may be made in permanence if there is reason to believe that the statutory maximum period will not suffice to avert the danger posed by the offender. If the offender had been provisionally disqualified from engaging in a profession, branch of profession, trade or branch of trade (section 132a of the Code of Criminal Procedure), the minimum term of disqualification shall be reduced by the time during which the provisional disqualification was in effect. In no case may it be less than three months. For the duration of the disqualification the offender must neither engage in the profession, branch of profession, trade or branch of trade on behalf of another nor have a person who is subject to his instructions engage in it on his behalf. The disqualification shall commence when the judgment becomes final. Any period of a provisional disqualification imposed because of the act shall be credited to the disqualification period to the extent it has run following the date on which the judgment in those proceedings in which the factual findings underlying the measure could last have been examined was pronounced. Any period during which the offender was kept in detention by order of a public authority shall not be so credited.

Confiscation (Verfall), deprivation (Einziehung) and destruction orders These instruments139 in the criminal justice armoury are among the most important when it comes to white-collar and business crime in general. More 139 There is debate about whether they are actually purely measures or not also at least in part penalties, see Sch/Sch-Eser, Vorbem § 73 Mn 12 ff. They are a development based on the reform of the law on fines which no longer allowed the assets gained from an offence to be taken into account when fixing the amount of the fine; see SSvG Mn 240.

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Sentencing and Enforcement – An Overview than a fine or a sentence of imprisonment, of which the latter may often not be imposed immediately because of the previously good character of the defendant or for other, non-legal reasons, confiscation of the proceeds of crime is a sharp weapon. The difference between Verfall and Einziehung in a nutshell is that the former is aimed at assets of a financial value arising out of an offence, properly so-called ‘proceeds of crime’, and also allows their forfeiture against participants and third parties; whereas the latter is geared towards the instrumenta sceleris and objects created by the offence,140 also applicable if someone acted as an organ of or a representative for a company, etc (§ 75 StGB). In both cases a surrogate monetary value may be claimed instead of an object under certain conditions. Instead of deprivation, which is subject to a specific proportionality requirement under § 74b StGB, the destruction of objects may be allowed (§ 74b(2) StGB), such as in the case of publication media under § 74d StGB. The expropriation order under § 43a StGB, while still not removed from the text of the StGB, was declared unconstitutional by the BVerfG in 2002 and is thus void, because the decision of the BVerfG had the force of an Act of Parliament under § 31 BVerfGG.141 § 73 StGB Conditions of confiscation (1)

(2)

(3)

(4)

If an unlawful act has been committed and the principal or a secondary participant has acquired proceeds from it or obtained anything in order to commit it, the court shall order the confiscation of what was obtained. This shall not apply to the extent that the act has given rise to a claim of the victim the satisfaction of which would deprive the principal or secondary participant of the value of what has been obtained. The order of confiscation shall extend to benefits derived from what was obtained. It may also extend to objects which the principal or secondary participant has acquired by way of sale of the acquired object, as a replacement for its destruction, damage to or forcible loss of it or on the basis of a surrogate right. If the principal or secondary participant acted for another and that person acquired anything thereby, the order of confiscation under subsections (1) and (2) above shall be made against him. The confiscation of an object shall also be ordered if it is owned or subject to a right by a third party, who furnished it to support the act or with knowledge of the circumstances of the act.

§ 73a StGB Confiscation of monetary value To the extent that the confiscation of a particular object is impossible due to the nature of what was obtained or for some other reason or because confiscation of a surrogate object pursuant to section 73 (2) 2nd sentence has not been ordered, the court shall order the confiscation of a sum of money which corresponds to the value of what was

140 141

See Sch/Sch-Eser, Vorbem § 73 Mn 4–5 for details. BVerfG NJW 2002, 1779; SSvG Mn 220–221.

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The Two-track Sanctions Model – Rehabilitation and Incapacitation obtained. The court shall also make such an order in addition to the confiscation of an object to the extent that its value falls short of the value of what was originally obtained. § 73d StGB Extended confiscation (1)

(2) (3)

(4)

If an unlawful act has been committed pursuant to a law which refers to this provision, the court shall also order the confiscation of objects of the principal or secondary participant if the circumstances justify the assumption that these objects were acquired as a result of unlawful acts, or for the purpose of committing them. The 1st sentence shall also apply if the principal or secondary participant does not own or have a right to the object merely because he acquired the object as a result of an unlawful act or for the purpose of committing it. Section 73 (2) shall apply mutatis mutandis. If the confiscation of a particular object has, after the act, become impossible in whole or in part section 73a and section 73b shall apply mutatis mutandis. If after an order of confiscation pursuant to subsection (1) above, due to another unlawful act which the principal or secondary participant committed before that order, a decision must again be taken as to the confiscation of objects of the principal or secondary participant, the court in doing so shall take into account the previous order. Section 73c shall apply mutatis mutandis.

§ 73e StGB Effect of confiscation (1)

(2)

If the confiscation of an object is ordered title to the property or the right confiscated shall pass to the state once the order becomes final if the person affected by the order has a right to it at the time. The rights of third parties in the object remain unaffected. Prior to its becoming final the order shall have the effect of a prohibition to sell within the meaning of section 136 of the Civil Code; the prohibition shall also cover dispositions other than sales.

Deprivation is regulated in §§ 74 ff StGB; note that unlike § 73(1) StGB on confiscation, § 74(1) StGB talks about an intentional offence, not an unlawful act,142 which means that confiscation under § 73, but not deprivation under § 74, may in theory also be imposed for negligent offences.143 § 74 StGB Conditions of deprivation (1)

(2)

If an intentional offence has been committed objects generated by or used or intended for use in its commission or preparation, the court may make a deprivation order. A deprivation order shall not be admissible unless

142 This creates problems in itself, as an unlawful act, according to § 11(1) No 5 StGB, does not require the presence of guilt in the defendant, a consequence that clashes with the general requirement of blameworthiness that is the foundation of the law’s intention to allow the syphoning off of the gross amount of the proceeds by way of confisaction; some commentators therefore argue that an unlawful act without guilt may require application of the net amount principle; Sch/Sch-Eser, § 73 Mn 4. 143 Sch/Sch-Eser § 73 Mn 4.

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Sentencing and Enforcement – An Overview 1.

(3) (4)

the principal or secondary participant owns or has a right to the objects at the time of the decision; or 2. the objects, due to their nature and the circumstances, pose a danger to the general public or if there is reason to believe that they will be used for the commission of unlawful acts. Under the provisions of subsection (2) No 2 above the deprivation of objects shall also be admissible if the offender acted without guilt. If deprivation is prescribed or permitted by a special provision apart from subsection (1) above, subsections (2) and (3) above shall apply mutatis mutandis.

§ 74a StGB Extended conditions of deprivation If the law refers to this provision, objects may be subject to a deprivation order as an exception to section 74 (2) No 1 if at the time of the decision the person who owns or has a right to them 1. 2.

at least with gross negligence contributed to the property or the right being the object of or being used for the act or its preparation; or acquired the objects dishonestly with knowledge of the circumstances that would have allowed their deprivation.

§ 74b StGB Principle of proportionality (1)

(2)

(3)

If deprivation is not otherwise prescribed it may not be ordered in cases under section 74 (2) No 1 and section 74a if it is disproportionate to the significance of the act committed and the blameworthiness of the principal or secondary participant or of the third party in cases of section 74a. In cases under section 74 and section 74a the court shall defer the deprivation order and impose a less incisive measure if the purpose of a deprivation order can also be attained thus. Particular consideration shall be given to instructions 1. to destroy the objects; 2. to remove particular fittings or distinguishing marks from or otherwise modify the objects; or 3. to dispose of the objects in a specified manner. If the instructions are carried out the deferment order shall be rescinded; otherwise the court shall subsequently order the deprivation. If deprivation is not otherwise proscribed it may be limited to a part of the objects.

§ 74c StGB Deprivation of monetary value (1)

(2)

If the principal or secondary participant has used, particularly disposing of it or consuming it, the object which he owned or had a right to at the time of the offence and which could have been subject to deprivation, or if he has otherwise obstructed the deprivation of the object, the court may order the deprivation from the principal or secondary participant, of a sum of money no greater than the amount equivalent to the value of the object. The court may also make such an order in addition to the deprivation of an object or in place thereof, if the principal or secondary participant has, prior to the decision on the deprivation, encumbered it with the right of a third party, the extinguishment of which cannot be ordered without compensation or could not

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(3) (4)

be ordered in the case of deprivation (section 74e (2) and section 74f); if the court makes the order in addition to the deprivation, then the amount of the surrogate value shall be assessed according to the value of the encumbrance. The value of the object and the encumbrance may be estimated. As to conditions of payment section 42 shall apply mutatis mutandis.

§ 74d StGB Deprivation and destruction of publication media (1)

(2)

(3)

(4)

(5)

Written materials (section 11 (3)) of a content every intentional dissemination of which with knowledge of the content would fulfil the elements of a criminal provision, shall be subject to a deprivation order if at least one copy was disseminated through an unlawful act or was intended for such dissemination. At the same time the equipment used for or intended for the production of the written material, such as plates, frames, type, blocks, negatives or stencils, shall be destroyed. The deprivation shall extend only to those copies which are in the possession of the persons involved in their dissemination or preparation or which have been publicly displayed or, if they were sent for dissemination, have not yet been distributed to the recipient. Subsection (1) above shall apply mutatis mutandis to written materials (section 11 (3)) of a content the intentional dissemination of which with knowledge of the content would fulfil the elements of a criminal provision only under additional circumstances. Deprivation and destruction shall not be ordered unless 1. the copies and the objects indicated in subsection (1) 2nd sentence above are in the possession of the principal or secondary participant or another on whose behalf the principal or secondary participant acted, or are intended by these people for dissemination; and 2. the measures are required to prevent any unlawful dissemination by these persons. Dissemination within the meaning of subsections (1) to (3) above shall also mean providing access to written material (section 11 (3)) or at least one copy of it to the public by putting it on display, putting up posters, performances or other means. Section 74b (2) and (3) shall apply mutatis mutandis.

§ 74e StGB Effect of deprivation (1) (2)

(3)

If the deprivation of an object is ordered, title to the property or the right ordered deprived shall pass to the state once the order becomes final. The rights of third parties in the object remain unaffected. The court shall order the cessation of these rights if it bases the deprivation on the fact that the conditions of section 74 (2) No 2 are met. It may also order the cessation of the rights of a third party if no compensation is due to him pursuant to section 74f (2) Nos 1 or 2. Section 73e (2) shall apply mutatis mutandis to the order of deprivation and the order deferring deprivation before they have become final.

As a specific provision aimed at combatting corporate crime and the use of legal entities in commerce, § 75 StGB transfers or extends liability from the agent to the person or corporation represented: 249

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Sentencing and Enforcement – An Overview § 75 StGB Special provision for organs and representatives If a person commits an act 1. 2. 3. 4.

5.

in his capacity as an organ authorised to represent a legal entity or as a member of such an organ; in his capacity as a director or member of board of directors of an association lacking independent legal capacity; as a partner authorised to represent a partnership with independent legal capacity; or as an authorised representative with full power of attorney or in a management position as general agent or authorised representative, with a commercial power of attorney, of a legal entity or association listed in Nos 2 or 3 above; or as another person acting in a responsible capacity for the management of the business or enterprise of a legal entity or association listed in Nos 2 or 3 above, including the supervision of the management of the business, or other exercise of controlling powers in a senior management position,

which in relation to him and under the other conditions of sectionsection 74 to 74c and section 74f would allow the deprivation of an object or its surrogate value or justify the denial of compensation, his act shall be attributed and these provisions applied to the person or entity represented. Section 14(3) shall apply mutatis mutandis.

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8 Appeals and Post-conviction Review INTRODUCTION

When we looked at terminology at the beginning of this book, we saw that German law uses specific expressions for each type of appeal in criminal proceedings: — Berufung is an appeal on fact and law from a judgment on conviction and/or sentence; — Revision is an appeal on points of law only, again from conviction and/or sentence; and — Beschwerde is a general appellate remedy, mainly for ancillary or interlocutory relief, but not against conviction and/or sentence. These three forms of appeal are called Rechtsmittel; the other forms of remedies, such as the Einspruch against a Strafbefehl, are so-called Rechtsbehelfe. Only the Berufung and the Revision have the effect of both directly moving the appeal to the next tier of the court hierarchy (Devolutiveffekt – devolutive effect) and of preventing the judgment from entering into effect or becoming final (Suspensiveffekt- suspensive effect).1 Once a judgment is final, it may be attacked only through the review procedure (Wiederaufnahme des Verfahrens). In this chapter we shall be looking at the three appellate remedies mentioned above,2 and at the review procedure.

1 L Meyer-Goßner, Strafprozessordnung mit GVG und Nebengesetzen, 53rd edn (hereafter ‘MG’) (Munich, CH Beck, 2010) Vor § 296 Mn 2. 2 Note that there are other remedies in the OWiG procedure and in the prison and parole context, etc, which will not be treated here. For an overview, see MG Vor § 296 Mn 1 ff.

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Appeals and Post-conviction Review APPEALS—GENERAL RULES

Form and interpretation In earlier chapters we addressed certain incidental issues such as, for example, the Rügeverkümmerung in the context of the function of the court record,3 as well as the question of what happens if the court uses the wrong form of decision and a party lodges the correct form of appeal for that form, but not for the form the court should have used.4 Section 300 provides for the reverse situation, ie when the court has used the right form of decision but the party has lodged the wrong remedy, and orders that an error in the name or type of the remedy chosen is irrelevant and that the remedy is to be interpreted as the correct and admissible remedy. This is a consequence of the right to an effective judicial remedy under Art 19(4) GG, although the applicability of that article to a review of all judicial decisions is questionable5 because it could lead to an endless circle of review.6 Section 300 does not allow for exchanging one remedy for another once the appellant has made a deliberate choice and designated one of a number of available remedies7, for example between Berufung and Sprungrevision (leap-frog appeal on points of law), which is regulated by § 335. If there are several possible appellate remedies against one decision, the notice of appeal is to be interpreted in a manner that allows for the maximum chances of success and the widest remit of review; the same applies if the notices of appeal filed separately by the defendant and his counsel differ in their designation of the remedy sought.8 In case of doubt, the appellant must be given an opportunity to explain herself.9 Right to appeal; waiver and withdrawal Appeals are as of right, with the exception of the special case of the Berufung against a fine not exceeding 15 daily units, a deferred fine of not more than 15 units, a summary fine (Geldbuße) or an acquittal if the prosecution had not asked for a fine exceeding 30 daily units; these cases require, untechnically speaking,10 3

Ch 5, text connected with n 140. Ch 2, text connected with n 24. 5 The prevailing opinion is that neither Art 19(4) GG nor the principle of the Rule of Law (Rechtsstaatsprinzip) under Art 20(1), (3) GG grants such a right; see BVerfGE 11, 232; 28, 21; 40, 272; 41, 23. 6 BVerfGE 35, 263; 40, 272; MG § 300 Mn 1. 7 MG § 300 Mn 1; § 335 Mn 9 ff., both with references. 8 See, eg, BGH NJW 1956, 756; OLG Koblenz VRS 65, 45; OLG Düsseldorf MDR 1993, 676. 9 BGHSt 2, 63. 10 § 313(2) makes it clear that this is not an additional requirement for an appeal because the ‘leave’ must be granted unless the appeal is obviously without merit, in which case it shall be dismissed by written procedure as unzulässig, ie inadmissible. In other words, the law does not introduce a leave requirement but merely allows the court to dispose of the appeal based on its 4

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Appeals – General Rules the ‘leave’ of the appellate court (§ 313). German law permits appeals against conviction, sentence and acquittals, as well as against other decisions, to both the defence and the prosecution; the prosecution may even appeal on behalf of the defence if11 a decision is to the defence’s detriment (§ 296), but even if it appeals to his disadvantage the appeal may lead to a revision of the appealed decision in the defendant’s favour (§ 301).12 The defendant’s consent is not necessary for an appeal in his favour,13 but such appeals do not happen often in practice in any event. Once the prosecution has lodged an appeal in his favour, however, it may not withdraw the appeal without the defendant’s consent (§ 302(1) 3rd sentence). The defendant and counsel have separate rights of appeal, yet counsel must not appeal a decision against the express instructions of her client (§ 297). Similarly, the defendant’s parent, guardian or legal representative, etc has a separate right to appeal independent of the defendant’s consent (§ 298). Parties14 may waive or withdraw their (right to) appeal, unless the judgment is based on a plea bargain under § 257c, in which case waiver is expressly excluded by § 302(1) 2nd sentence. The latter provision is the consequence of the previous practice before July 2009, when the law changed, under which plea bargains often contained a waiver as part of the ‘deal’, which was criticised by the BGH as unduly restricting the rights of the defendant, especially if the waiver was declared immediately after the judgment had been pronounced. The Great Criminal Senate of the BGH required a specific warning to be given without which the waiver was deemed void.15 The new law went even further than that and banned waivers outright.16 Once the hearing on an appeal that has to be decided on the basis of an oral hearing, ie Berufung and—with exceptions— Revision, has begun, the appeal may be withdrawn only with the consent of the

paper form, and to dispense with a hearing. This provision was politically motivated based on budgetary and staffing constraints in the judiciary, and is widely regarded as a systemic artefact and is probably inapplicable in juvenile proceedings. It has the clear potential for misuse by both judges and prosecutors by encouraging them to dispose of a case, eg, by reducing the number of daily units and increasing the amount of the daily unit instead, because the latter is not a criterion for § 313. See MG § 313 Mn 2 with further references. 11

And only if; see RGSt 42, 399. However, the effect applies only within the remit of the prosecution’s appeal: it is not possible to quash the conviction if the prosecution appealed only against sentence; see MG § 301 Mn 1. 13 MG § 296 Mn 14. 14 Defence counsel needs a specific authorisation for waiver or withdrawal; this follows from § 302(2) for the withdrawal, and from the extrapolating case law for the waiver, see MG § 302 Mn 29–30. 15 BGHSt 50, 40. 16 This creates the counterintuitive result that a defendant who has bargained a sentence and gets exactly that sentence cannot waive the appeal, whereas a defendant who fought his trial and is convicted can. The new rule also imposes a heavy logistical burden on judges at the AG with their heavy case load: they will now have to wait until the appeal notice period of one week has elapsed before they can write a shortened judgment under § 267(4). See on this MG § 302 Mn 26a–26e with references. 12

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Appeals and Post-conviction Review opposing party, with the exception that a withdrawal by the defence does not need the consent of a private prosecutor who joined the prosecution as a Nebenkläger (§ 303). No appeals before a decision or under a condition; no appeal out of time An appeal cannot be lodged before a decision has been handed down, quasi pre-emptively17; neither must it be filed under a condition,18 unless the condition is a legal qualification (eg, a certain kind of appeal is filed in the event that another one already filed is inadmissible,19 that a waiver was void20 or that a previous motion for re-instatement was ill-founded on the merits21). In case of doubt about the nature of the condition, the presumption is against admissibility.22 German law does not recognise a court’s discretion to allow appeals out of time, unless the appellant missed the deadline for reasons beyond his control. If the latter was the case, the appellant will be reinstated under § 44 to a position as if the appeal had been lodged in time (Wiedereinsetzung in den vorigen Stand). Grievance The test of admissibility23 for an appeal requires that the appellant has suffered a grievance, ie an infringement of his rights, the so-called Beschwer. 24 It is only the verdict, not the reasons for the judgment, which can produce grounds for the grievance: for example, if the defendant is acquitted but the court states in the reasons that it nonetheless considers the defendant to have a ‘deplorable attitude to the legal order and a deeply immoral character’, the defendant cannot use the appeal to have these words expunged as a violation of his human rights.25 The prosecution is in a different position, because in theory it is not a mere party to the case, as under the adversarial model, but has a general oversight function, to ensure that the procedure is conducted in a lawful manner.26 The prosecution may therefore appeal a verdict even if it is precisely what the prosecutor had asked for at the trial.27 In practice, however, the prosecution mostly acts very 17 Regardless of whether the appellant thinks that the decision has already been issued, MG Vor § 296 Mn 4. 18 MG Vor § 296 Mn 5. 19 OLG Köln NJW 1963, 1073. 20 BayObLG wistra 1997, 359. 21 OLG Schleswig SchlHA 73, 188. 22 BGHSt 5, 183. 23 BGHSt 16, 374; 28, 327. 24 MG Vor § 296 Mn 8 ff. 25 MG Vor § 296 Mn 11. 26 RGSt 48, 26. 27 RGSt 48, 26.

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Individual Modes of Appeal much like a party and uses a pragmatic approach, and such appeals are rare. However, even the prosecution cannot appeal on the grounds that the reasons rather than the verdict provide a grievance.28 Moot appeals An appeal may become moot because, for example, the cause of the grievance ceases: prime examples are cases of searches and seizures, or remands in custody, which may be contested by way of the Beschwerde. Once the search is over, the seized item returned or the suspect released, the grievance ends. What becomes of an appeal lodged while the activity was still going on, ie while the grievance existed, or even after it had ended? For a long time the courts had in principle taken the technical view that once a grievance ended, an appeal became inadmissible and had to be rejected; exceptions were recognised for cases where there was a clear and present danger that the measure might be repeated, or when the interest of the appellant in establishing the unlawfulness was ongoing, eg after a contempt fine or detention had been enforced.29 However, in recent years the BVerfG has modified its stance on these issues and now allows for an appeal with the aim of a declaration of unlawfulness (Feststellung der Rechtswidrigkeit), even if there is no continuing impact as under the previous case law but when there has been a serious impact on the appellant’s rights, and if it was factually impossible for him to obtain legal redress while the grievance lasted because of the typical delays experienced in any judicial process.30 The appellant will nonetheless run the risk of being denied a remedy if he waits too long after the grievance has ended: periods of over one year31 after the grievance has lapsed would normally attract a verdict of a lack of a recognised need for judicial protection (Rechtsschutzbedürfnis). Section 101(7) 2nd sentence, for example, now expressly provides for an ex post avenue for an appeal even if the grievance has ceased.32

INDIVIDUAL MODES OF APPEAL

We shall now proceed to look at the three avenues of appeal indicated above: Berufung, Revision and Beschwerde.

28

MG Vor § 296 Mn 16. KG NStZ-RR 2000, 145; OLG Düsseldorf NJW 1992, 1712. 30 BVerfG NJW 1997, 2163; 1998, 2131; 1999, 273; 2006, 40; 2007, 1345; StV 1999, 295; StraFo 2006, 20. 31 See, eg, BVerfG NJW 2003, 1514 (two years); NStZ 2009, 166 (one year); LG Saarbrücken NStZ-RR 2008, 113 (four to six years). 32 See MG Vor § 296 Mn 18b. 29

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Appeals and Post-conviction Review Berufung The Berufung is an appeal by way of (partial) re-trial; it is admissible only against judgments of the AG by either the single judge or the Schöffengericht. Trial verdicts of the LG and OLG at first instance are subject only to Revision (§§ 312, 333—see below). We have already addressed the question of ‘leave’ for a certain number of scenarios above; suffice it to add that § 313(2) provides that leave has to be granted unless the appeal is manifestly ill-founded on the merits (offensichtlich unbegründet); otherwise it must be rejected as inadmissible. Leave must be granted under § 313(3) in those cases where the appeal is against a fine for a summary offence (Ordnungswidrigkeit) tried in criminal proceedings, if the Rechtsbeschwerde, ie the appeal on points of law, was admissible under the OWiG. The Berufung must be lodged, either in writing or with the clerk of the court whose judgment is being appealed (iudex a quo), within one week after pronouncement in open court, or after service if the defendant was not present and none of the special cases exists when counsel with a special power of attorney was present instead (§ 314); it may but need not be justified by an appellate brief setting out the grounds of appeal33 (§ 317). The appeal stays the effects of the judgment to the extent that it has been attacked (§ 316(1)). It may be restricted to certain points, for example the sentence; unless that has been done and/or if no grounds for appeal have been pleaded, the entire judgment is subject to review by the appellate court (§ 318). If the appeal is filed out of time, the iudex a quo must reject it as inadmissible; the appellant can apply for review of that decision by the appellate court within one week (§ 319). Once the appeal and justification periods have lapsed, the court sends the dossier to the prosecution who then proceeds to submit it to the prosecution office at the appellate court, which in turn must submit the dossier to the appellate court within a week; if the appeal was lodged by the prosecution it must serve the notice of appeal and the brief on the respondent (§§ 320, 321). If the appellate court is not satisfied that the procedure for the appeal has been followed, it may reject it as inadmissible without a hearing; that decision is itself subject to appeal to the OLG by sofortige Beschwerde. Leave to appeal under § 313 is granted or rejected without a hearing; the decision on leave cannot be appealed either way, the rejecting Beschluss requires reasons to be given, in departure from the usual rule under § 34 that unappealable decisions require no reasons. Unless the court takes one of these two paths, it must decide the appeal after a hearing by Urteil (§§ 322, 322a). Section 323 regulates the preparation of the appeal hearing, and refers in particular to §§ 214, 216 to 225 on summonses, evidence notification and 33 The prosecution are normally obliged to plead grounds of appeal under the subordinate regulations of No 156(1) RiStBV; see MG § 318 Mn 1. Failure to do so will not, however, invalidate the appeal.

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Individual Modes of Appeal objections to the panel’s composition, etc as before the trial court at first instance. The defendant must be formally warned of the consequences should he not attend the hearing, under § 329 (see below). All witnesses and experts must be heard again unless their testimony is irrelevant for the examination of the appeal; the court must take into account those persons named by the defendant to support his appeal. Audio recordings made at first instance may be transcribed if necessary; if they are, the transcripts must be served on the parties—who may contest them and prove incorrect transcription—and may be read in evidence at the hearing. New evidence is admissible. The hearing itself follows the normal rules, with the exception that after the preliminaries the reporting judge for the case (Berichterstatter)34 gives an outline of the proceedings so far, in the absence of the witnesses. Unless the parties waive it, the trial judgment is then read out in court in so far as relevant for the appeal (§ 324(1)), followed by the examination of the defendant and the taking of evidence (§ 324(2)). Section 325 allows for a more relaxed use of documentary evidence during the report, but the professional judge(s) must take great care not to give the lay assessors the impression that this is already part of the evidential stage.35 Records of statements made by witnesses and experts at trial level may be read as evidence even if not normally permitted under §§ 251 and 253 at the trial stage, in all other cases only with the consent of the prosecution and the defendant if the witnesses or experts had been summoned to the appeal hearing, or if the defendant had filed a relevant motion to that effect in good time before the hearing. The general provision of § 244(2) may require the personal examination of a witness in any event; it applies just as much at appellate level as it does at trial level, because the Berufung is a re-trial. After the evidential stage, the closing statements are heard. Section 326 provides for a sequence of statements different from that at trial: a) the appellant(s) go(es) first in the order of the scope of the attack on the trial judgment, with the appellant with the widest scope going first, ie an appellant who attacks a conviction would precede an appellant who attacks only the sentence;36 b) in case of equal scope the general rule under § 258(1) is triggered and the prosecution goes first followed by the defendant; c) otherwise the appellant is followed by the respondent, but the defendant himself always has the last word. If neither the defendant as appellant nor his counsel appears at the hearing without good cause, § 329(1) provides for drastic consequences: the appeal will 37 be rejected by Urteil without a hearing, unless the hearing occurs after the case was remanded to the LG following a successful Revision to the OLG, because the 34 35 36 37

Note that the reporting judge will in practice usually also write the judgment. MG § 325 Mn 1. MG § 326 Mn 1. The court has no discretion in this once the criteria are fulfilled; MG § 329 Mn 2.

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Appeals and Post-conviction Review law does not want to hold even the absent defendant to an interim decision that had been held to be wrong by the OLG.38 However, this rule has an exception based on interpretation by consistent case law: if the previous rejection in the Berufung which was then overturned in the Revision had already rejected the appeal under § 329(1), the rationale for the restriction does not apply, because the defendant is in the same position as he would be in if it were the first time he appealed. In such a case, after a clear warning about the exception, the court may proceed again under § 329(1),39 unless the OLG also decided on the merits of the case in some form, or if a judgment by the LG on the merits was overturned for purely procedural reasons40—then the exception from the exception, ie the rule, applies. The LG has the power to fix a new aggregate sentence if the conviction for some of the offences in the trial judgment has become moot, for example because of a discontinuance under §§ 153 ff; under no circumstances must it amend the individual sentences for the remaining offences.41 Similarly, upon a Berufung by the prosecution, the court may under § 329(2) hold the hearing in the absence of the defendant if the criteria for § 329(1) are fulfilled, again unless the hearing occurs after a remand from the OLG. The prosecution may also withdraw its appeal without the consent of the defendant. Under § 329(3) the defendant may apply for re-instatement within week of service of the judgment. Unless the court proceeds under § 329(1) or (2), it orders the compulsory attendance by police arrest of the defendant at the next hearing or remands her in custody, unless it can be expected that she will attend without such measures (§ 329(4)). There is a wide consensus that this provision must be construed extremely restrictively, as it obviously raises concerns within the context of Art 6 ECHR.42 Section 327 restricts the appellate court’s scope for examination to the extent to which the trial judgment has been appealed, ie it must not review the conviction if only the sentence has been appealed; failure to abide by this rule leads to a reversal of the appeal judgment in the Revision. 43 If the court finds the appeal justified on the merits, it must revise the sentence as appropriate; it may

38

MG § 329 Mn 4. BGHSt 27, 236. 40 OLG Stutgart NStZ-RR 2005, 241; OLG Oldenburg StraFo 2009, 114. See, for more references, MG § 329 Mn 4. 41 MG § 329 Mn 32. 42 BGHSt 17, 188; it has been held to be compatible with Art 6 ECHR by BVerfG StraFo 2007, 190 and BayObLG NStZ-RR 2000, 307. 43 MG § 327 Mn 6–9. There is an exception if the defendant was acquitted because of insanity under § 20 StGB but a measure under § 64 or § 69 StGB was imposed: the appellate court must then, without being bound by the trial judgment, examine whether there was an unlawful act and whether the defendant was insane under § 20 StGB, because these factors are then distinct requirements for the sanction itself; BGH NStZ 1989, 84. 39

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Individual Modes of Appeal remand the case back to the proper court at trial level only if the trial court had incorrectly assumed that it had jurisdiction (§ 328).44 Section 331 contains an important rule that runs through the entire appellate45 process: if the appeal has been lodged only in favour of the defendant, and it is irrelevant by whom, the court must not increase any aspect of the sentence, except that it may make a mental hospital or custodial addiction treatment order which is based on the defendant’s dangerousness and the need for therapy, and not on punitive considerations. This rule is called the ban against the reformatio in peius. The reformatio rule must be respected in the entire proceedings after an appeal as well, so if, for example, the case is exceptionally remanded to the trial level again, the new trial judgment must not be more severe than the one quashed.46 However, this rule does not prevent an increase in the sentence in entirely new proceedings, for example if the appellate court discontinued a case because of a procedural bar to prosecution47 and the case is then reprosecuted after the error has been remedied. Neither does it prevent changes in the conviction unless the appeal has been restricted to the sentence.48 This would in theory allow for the absurd situation that a defendant who was convicted of negligent manslaughter and sentenced to a fine or suspended sentence, but who is found to have killed the victim intentionally within the ambit of aggravated murder under § 211 StGB on his sole appeal, could have his conviction changed to aggravated murder but would evade the mandatory life sentence. The prosecution could not avoid this result by then filing a Revision based on this discrepancy, because the judgment by the court in the Berufung would not be wrong if only the defendant had lodged the Berufung. Note also that an exchange of the type of sanction to a type more severe in theory but less severe in practice is not permitted, For example, a large fine must not be replaced by a suspended prison sentence, regardless of the fact that the fine is immediately enforceable with the potential consequence of imprisonment in case of non-payment, and may hurt the defendant much more than a suspended prison sentence. Special problems exist when aggregate sentences are involved.49

44

On exceptions and potential complications, especially in cases of limited appeals, see MG § 328 Mn 5a. 45 Note that under § 411(4) this does not apply to the objection against a Strafbefehl, as explained previously. 46 MG § 331 Mn 4. 47 See, for the intricate details, MG § 331 Mn 4a with references. 48 BGHSt 14, 5; 21, 256; 29, 63. 49 On the details see MG § 331 Mn 13–20a.

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Appeals and Post-conviction Review Revision Procedural aspects Revision, as an appeal on points of law only, lies against judgments of the LG at trial and Berufung level, and against trial judgments of the OLG. There is no Berufung against LG trial judgments (§ 333). Section 335 allows a leap-frog Revision appeal (Sprungrevision) from the AG to the OLG. If one party files a Berufung and the other a leap-frog Revision, the latter will be treated as a Berufung too, until and unless the Berufung of the other party is withdrawn or rejected as inadmissible; however, the party filing the Revision must comply with all the formal requirements of the Revision procedure. The judgment on the Berufung may then be appealed as normal via Revision (§ 335(3)).50 Note that the prosecution cannot use the Revision based on a violation of procedural51 rules which exist only52 for the benefit of the defendant, in order to achieve a reversal to his detriment (§ 339): for example, the prosecution may not base an appeal on a violation of the defendant’s right to counsel under § 14053 in order to have an acquittal reversed. The courts have extended the rule under § 339 to a general principle that one cannot base an appeal to the disadvantage of an opponent on a violation of any procedural rule, if the proper application of that rule could have had only a beneficial effect on the opponent54; this includes appeals by the prosecution to the detriment of the defendant.55 Like the Berufung, the Revision must be filed with the iudex a quo within a week of the judgment or service of the same (§ 341); the appeal also has the effect of staying the judgment and of moving the procedure to the next judicial tier (§343). The appellant must state the nature of the remedy sought (Revisionsanträge) (§ 344(1)). The Revision, as opposed to the Berufung, must be justified within a further month (§ 345) by a proper appellate brief (Revisionsbegründung), drafting of which is an art form in itself, unless the appeal is based on errors of substantive law (Sachrüge): in the latter case, all the appellant has to plead is literally, ‘I appeal on a violation of substantive law’ (Ich rüge die Verletzung sachlichen Rechts) (§ 344(2)). An appeal on substantive grounds allows the

50 The courts have allowed an appeal to be filed without naming its type, in extension of § 335, because often the appellant will only know after obtaining the written judgment what kind of appeal will be helpful. To a certain extent, the appellant may also switch from one type of appeal to another within the time limits provided by law; see, on the complex details, MG § 335 Mn 2–13. 51 MG § 339 Mn 3. 52 This does not apply to rules which also are meant to protect the public interest in a proper administration of justice, such as the rules on recusal and the composition of the court; see RGSt 59, 267; BGHSt 37, 249. 53 MG § 339 Mn 4. 54 BGH NStZ 1995, 610. 55 MG § 339 Mn 6.

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Individual Modes of Appeal appellate court to scrutinise the entire judgment for any errors of substantive law, regardless of whether the appellant attacks certain issues or merely files such a general appeal.56 If the appellant attacks procedural errors (Verfahrensrüge), he must jump the high hurdle of a proper presentation of his arguments in the appeal brief, which is where many appeals founder, before the court ever looks at the merits of the pleadings.57 For the defendant, who can file the notice of appeal himself, the brief must be filed by counsel (§ 345(2)). If the notice of appeal or the brief is filed out of time or lacks the proper form, the iudex a quo must reject the appeal as inadmissible; the appellant may, however, request a decision of the appellate court, the iudex ad quem, within a week (§ 346). If the notice and brief have been filed in time, they are then served on the respondent, who may reply in writing within a week; the defendant as the respondent does not need defence counsel to file a reply (§ 347). If the appellate court thinks58 that another court has jurisdiction59 for the Revision, it must declare its own lack of jurisdiction and refer the case to the correct court; the decision cannot be appealed and is binding60 as far as the jurisdictional issue is concerned61 for that court, even if it is wrong (§ 348). This applies even in relation to an OLG which considers that the jurisdiction of the BGH has been triggered; the general rule that the higher court typically has the last word does not apply.62 Once the appeal has reached the correct Revision court, § 349 allows the court to dispose of it without a hearing in certain circumstances. If it thinks that the

56 BGHSt 1, 44. Legally incorrect statements about the substantive law in the appeals brief will not affect the chances of the appeal; § 352(2). See MG § 352 Mn 8. 57 Strangely enough, there exists a separate caste of appellate lawyers at the BGH in civil matters, and no-one may file an appeal in civil proceedings without using one of them; however, in criminal cases any defence counsel may file the appeal, despite the fact that the proceedings may be just as difficult as in civil appeals. 58 Note that if a Revision court which actually lacks jurisdiction for the Revision in the particular case decides it nonetheless, its judgment cannot be appealed and is final; see MG § 348 Mn 4 with references. The only possible avenue could be a constitutional complaint based on a violation of the right to the pre-determined judge under Art 101(1) 2nd sentence GG, but given the general practice of the BVerfG it would probably have to be a case of egregious error or evident arbitrariness. That complaint would not be open to the prosecution, of course, because the civil liberties under the GG do not apply to public authorities if they are acting in their basic capacity qua officio and exercise unilateral State authority, as opposed to engaging in private commerce on an equal footing with their trading partners, eg, in the area of procurement, where violations especially of property rights by other State authorities are conceptually imaginable. 59 There is disagreement over whether § 348 covers all forms of jurisdiction or only those ratione materiae. In the former sense, see KK-Kuckein § 348 Mn 1 who, has the BGH on his side; for the latter view, see MG § 348 Mn 1 and 4. 60 There is uncertainty whether this also applies in cases of clear arbitrariness by the referring court—the BGH has so far left the issue open; see BGHR § 348 Zuständigkeit 3. 61 Not for anything else (RGSt 35, 157), especially not any legal view expressed by the referring court, even if that view was the basis for the referral in the first place; KK-Kuckein § 348 Mn 3. 62 MG § 348 Mn 1.

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Appeals and Post-conviction Review provisions about the filing of the notice or the brief have not been complied with, it may reject the appeal under § 349(1) as inadmissible by Beschluss. Note that these provisions also include § 337 (see below) on the general grounds for appeal: § 337 allows only for errors of law to be raised. If the appellant merely points out that he disagrees with the evaluation of the evidence in the judgment, or argues that the judgment contains logical errors or that the reasons are otherwise factually incorrect, the appeal will already be inadmissible, not merely unfounded.63 An even greater power is given by § 349(2) and (3), which allow the court to dismiss an appeal by unanimous Beschluss without a hearing, but after giving the respondent the opportunity to comment, as manifestly ill-founded,64 if and only if the prosecution65 makes an application66 to that effect. Due to its sheer case load, the BGH uses this procedure in about 80 per cent of the cases that come before it.67 Nothing stops the court, however, from using the full procedure involving a hearing and reasoned judgment, even in hopeless cases, if it feels that it would be in the public interest for a detailed reasoning to be publicised,68 although the mere media value or the length of the sentence would not appear to be sufficient reasons to trigger such a public interest.69 Section 349(4) provides for the reverse case, that an appeal that was lodged only in favour of the defendant, regardless by whom, is unanimously considered to be justified by the appellate panel; the judgment under appeal may be amended or quashed as appropriate70 by Beschluss, an application by the defence 63

BGHSt 25, 272. The criteria for that assessment are whether it is obvious to any expert in the law, without the need for extended reflection, which questions of law are relevant, how they are to be answered and that the grounds for appeal do not help the appeal to succeed. The courts have a wide margin of discretion in that respect; BVerfG NStZ 2002, 487. The number of grounds for appeal or the length of the brief are irrelevant; BGH NStZ-RR 2000, 295. It is apparent, based on that definition, that there is not much of a distinction between an ill-founded and a ‘manifestly’ ill-founded appeal; in essence the BGH adopts the stance that the procedure under § 349(2) is justified if all the questions of law can be answered without any residual uncertainty, and if there is no expectation that a hearing would provide any new arguments which could put the evaluation arrived at on the paper form in doubt; BGH NJW 2001, 85. 65 Note that this provision also applies to an appeal by the prosecution, because although it is the prosecution office attached to the court whose judgment is being appealed that lodges the appeal, the proceedings before the BGH or the OLG are ultimately represented by the prosecution offices attached to those courts, and they may make an application under § 349(2) if they think that the prosecution appeal is hopeless, unless they either can persuade the appealing prosecution office to withdraw the appeal or, if they have the power, they withdraw it themselves. See BGH StV 2005, 596 and MG § 349 Mn 8. 66 This application to use § 349(2) is an essential requirement; if the court proceeds under § 349(2) without it, it will violate the rule against arbitrary treatment under Art 3(1) GG; BVerfGE 59, 98; the court is especially prevented from ‘teasing out’ such a motion by indicating to the prosecution in advance what its view of the law is; BVerfG StV 2001, 151, not followed by OLG Zweibrücken NJW 2001, 2110. 67 MG § 349 Mn 7 with further references. 68 BGHSt 38, 177. 69 MG § 349 Mn 7. 70 See, for examples, MG § 349 Mn 29. 64

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Individual Modes of Appeal to that effect is not required. The BGH controversially71 extends the application of § 349(4) to appeals by the prosecution or the joint private prosecutor to the defendant’s detriment, if the appeal leads to an improvement for the defendant under the general rule in § 301 (see above) that any appeal to the detriment of the defendant may lead to to a revision of the appealed decision in the defendant’s favour.72 In the scenarios under both § 349(2) and (4), the court does not need to give reasons for its decison, although in practice it is often done out of courtesy to the parties, but mostly in an abbreviated fashion.73 Unless the court proceeds under any of those avenues, it must hold a hearing and decide by full judgment (§ 349(5)). It will summon the parties according to § 350. Note that the defendant does not have to be present and may be represented by counsel; if he is in detention, he has no right to be present at the hearing74 (§ 350(2) 2nd sentence). Strictly speaking, no one but the prosecution has to be present at the hearing, unless it is a case of mandatory representation where the court assigned counsel for the hearing because the defendant is in detention and has not privately retained a lawyer (§ 350(3)), or if privatelyretained counsel indicated his intention to attend but then does not, unless in that case the defendant is at liberty or is produced before the court from his place of detention.75 The hearing starts with a report by the reporting judge, followed by statements from the prosecution and defence, etc, the appellant always going first. As always, the defendant has the last word (§ 351). Section 352 restricts the ambit of the appellate court’s examination to the remedies sought (Revisionsanträge) and, as far as alleged procedural errors are concerned, to the supporting facts pleaded by the appellant.76 However, if the facts pleaded by the appellant are insufficient for the specific procedural error he alleged, but support another procedural error not alleged, the court may re-interpret the pleadings as covering that error.77 Grounds for appeal and judgment Often, the alleged errors which lead to an appeal are not merely those based on the evaluation of the evidence or the legal opinion of the lower court in its final judgment. Sometimes there are decisions during the trial phase that then

71

MG § 349 Mn 28. BGH NStZ 1997, 379. 73 MG § 349 Mn 20. 74 This has been held not to violate the defendant’s right to be heard under Art 103(1) GG; see BVerfGE 54, 100; 65, 171. 75 BVerfGE 65, 171. 76 BGHSt 17, 337; 18, 214. 77 BGH MDR 1978, 805. 72

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Appeals and Post-conviction Review determine the further course of the case and consequently influence what the judgment is based on. Section 336 makes it clear that the appellate court may also look at those prior decisions, and not just at the judgment, unless the decisions are either themselves unappealable or can be appealed by sofortige Beschwerde, ie an interlocutory appeal. The idea behind this is obvious: if a decision cannot be appealed as such, it serves no purpose to allow a party to use it as a ground for an appeal against judgment; similarly, if the law allows you to challenge a decision within strict time limits even while the trial is still ongoing, thus risking delay to the trial, you may be barred from raising the issue later unless you chose to challenge it there and then. This corresponds to § 305, which states that decisions of trial courts prior to a judgment are not normally subject to normal interlocutory appeal (Beschwerde) but are to be examined together with the judgment, unless they concern serious issues demanding immediate resolution, such as, among others, orders for remand in custody, provisional detention in a mental hospital or custodial addiction treatment under § 126a, seizure orders and preliminary driving disqualification, as well as all decisions affecting third parties.78 The law operates on the basis that decisions before the admission of the indictment for trial (Eröffnungsbeschluss) are not suitable grounds for appeal,79 unless the error from the pre-trial stage has had effects throughout the subsequent proceedings, such as, for example, the omission to assign counsel in time80 before a judicial examination of an important prosecution witness. Decisions that fall under § 336 are, for example, those about joinder and severance,81 or the rejection of a motion to assign mandatory counsel under § 140(2) or an omission to decide such a motion at all.82 The decisions must stem from the same proceedings; decisions from previous trials which were then recommenced and not merely adjourned are as a matter of principle not examined in the Revision. 83 The most important provisions relating to the grounds of appeal are §§ 337 and 338. Section 337 contains the general rule, the so-called ‘relativer Revisionsgrund’ (relative ground of appeal), which may be rebutted by establishing the harmless error exception, and § 338 the ‘absoluter Revisionsgrund’ (absolute ground of appeal), which does not allow the exception to be pleaded. However, things are not as clear-cut as the wording of § 338 might suggest, as we shall see below. The provisions read as follows: § 337 [Relative grounds of appeal] (1) (2)

78 79 80 81 82 83

The Revision may only plead that the judgment is based on a violation of the law. The law is violated if a legal provision has not or has been incorrectly applied.

KK-Kuckein § 336 Mn 1. BGHSt 6, 326; 15, 40. BGHSt 46, 93; 47, 172. BGHSt 18, 238. BGHSt 6, 199; 43, 153. See further KK-Kuckein § 336 Mn 4–7. BGH NStZ 2006, 234, but see also differently BGHSt 31, 15.

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Individual Modes of Appeal § 338 [Absolute grounds of appeal] A judgment is always presumed to be based on a violation of the law 1. if the panel was incorrectly constituted; if notice of the panel’s composition was required under § 222a the Revision may only plead incorrect composition insofar as a) the provisions on the notice were violated, b) the timely and formally correct objection against the composition of the panel was not ruled upon or rejected, c) the trial was not adjourned pursuant to § 222a(2) to allow for the examination of the composition or d) the court decided in a composition the unlawfulness of which it had itself declared pursuant to § 222b(2) 2nd sentence; 2. a judge or lay assessor participated in the judgment who was excluded by law from exercising judicial office; 3. a judge or lay assessor participated in the judgment after he had successfully been recused for bias or if the motion for recusal had been unlawfully rejected; 4. the court unlawfully found that it had jurisdiction; 5. the hearing took place in the absence of the public prosecution or of another person whose presence is prescribed by law; 6. the judgment was passed on the basis of a hearing in which the provisions on open justice had been violated; 7. the judgment does not contain reasons or if these were not included in the dossier within the time limit pursuant to § 275(1) 2nd and 4th sentences; 8. the defence was, by decision of the court, unlawfully restricted in relation to an issue essential to the judgment.

We shall look in some detail at those two provisions in turn. Section 337— relative grounds of appeal When § 337 refers to ‘law’, it means any provision laid down in the constitutional law, statutes and statutory instruments of the Federation and the Länder, as well as customary law, international treaty law if transformed into domestic law by act of parliament, generally accepted rules of international law and foreign law, if relevant to the decision. Not caught by this concept are administrative circulars or guidance, codes of conduct, or regulations of self-governing bodies regulated under public law such as incorporated associations, co-operatives, etc. Plans for the allocation of judicial business do not fall under § 337 either.84 The law as mentioned by § 337 may be divided into procedural law and substantive law; errors of substantive law, as we saw above, may be pleaded summarily by the Sachrüge without any need for further justification. The distinction between procedural and substantive law does not depend on whether the provision in question is to be found in the StPO or other laws, but on the 84

MG § 337 Mn 2–3.

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Appeals and Post-conviction Review question of whether or not it regulates the path a court has to follow in order to arrive at a decision: if it does so, it is procedural85; anything else is substantive law. However, as with all things that sound so simple and straightforward, there are a few counterintuitive exceptions: the Sachrüge, not the Verfahrensrüge, covers issues that are not strictly speaking ‘law’ but are potential sources of error on the path to a decision, such as, for example, a violation of the rules of logic by the court,86 violation of the rule in dubio pro reo, which would seem to be an eminently procedural maxim related to the evaluation of evidence,87 and the use of expunged prior convictions contrary to § 51 BZRG,88 etc.89 The procedural law itself may be sub-divided into two further categories: a) general procedural rules, for example on the course of the trial, admission of evidence, etc on the one hand; and b) procedural pre-conditions for the initiation or conduct of a trial in the first place (Verfahrens- or Prozessvoraussetzungen), such as, for example, the existence of a proper indictment, the court’s jurisdiction over the offence, the existence of a request to prosecute if one is necessary, etc on the other hand. The second category, true to the German penchant for putting everything in its proper drawer, has two further sub-categories, namely: a) the conditions that regulate whether a court may try a case at all (Befassungsverbot); and b) the conditions which regulate whether a court may proceed to punishment (Bestrafungsverbot).90 The former must be examined by the appellate court ex officio, the latter only upon properly pleaded grounds for appeal.91 Note that the duty to examine the former applies even if the appeal has been restricted to sentence only, with the conviction having become final under normal rules.92 The following are examples of Befassungsverbote: — lack of formal indictment93 — lack of decision admitting indictment (Eröffnungsbeschluss) — German jurisdiction

85

MG § 337 Mn. 6; BGHSt 19, 273; 25, 100. BGHSt 3, 213. 87 OLG Celle MDR 1957, 436. 88 BGHSt 24, 378. 89 See generally on the ambit of the Sachrüge in this context, MG § 337 Mn 26–32 with numerous references to the case law. 90 MG § 337 Mn 6. 91 Ibid. 92 BGHSt 6, 305; 8, 269; 11, 393; 21, 242. 93 See, under English law, the parallel scenario of an unsigned indictment, discussed by the House of Lords in R v Clarke and McDaid [2008] UKHL 8. The Court of Appeal had treated this as a harmless error (see below), but the House of Lords reversed the conviction. 86

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Individual Modes of Appeal — — — — —

jurisdiction ratione loci or materiae whether the defendant is still alive age of criminal responsibility under § 19 StGB parliamentary or diplomatic immunity res judicata or identical litis pendens. 94

The consequence of a Befassungsverbot is always a discontinuance, regardless of whether the proceedings have progressed to a point that an acquittal would otherwise be entered: given that the court has no power to proceed at all, even an acquittal would be meaningless and devoid of a proper basis.95 Befassungsverbote may be healed and the case may then be reprosecuted, all things being equal. Bestrafungsverbote involve, for example: — — — — — —

lack of or withdrawal of a request to prosecute the statute of limitations amnesty restrictions on extradition undue delay in the proceedings unlawful use of an agent provocateur.96

The consequence of a Bestrafungsverbot is typically also a discontinuance, but if a case has reached the stage where an acquittal would otherwise be entered, the acquittal takes precedence.97 Regardless of the nature of the procedural error, it must be proved by the appellant or established ex officio by the court; remaining doubts do not work in the appellant’s favour because the default presumption is that the rules have been followed, unless the fact that a doubt remains is due to established negligence on the part of the judicial administration.98 The bases for the examination are the court record and the judgment; in so far as these do not bind the appellate court or if the record has been lost, the court may make the necessary enquiries in the Freibeweis procedure, ie it is not bound by strict rules of evidence.99 The appellate court is otherwise not permitted to repeat or extend the taking of evidence of the lower court.100 The factual findings of the judgment may thus be attacked only if the proof can be furnished without any need to repeat the hearing below.101 The appellate court may not substitute its own evaluation of the evidence for that of the lower court.102 Discrepancies between the contents of the dossier and the

94 95 96 97 98 99 100 101 102

MG Einl 143. BGHSt 46, 130; MG Einl 143a. MG Einl. 143. OLG München NJW 2008, 3151. BGHSt 16, 164; 53, 268; BGH StraFo 2009, 293; BVerfG DAR 1983, 208. MG § 337 Mn 11. BGHSt 15, 347; 31, 139. BGH NStZ 1997, 296 and see MG § 337 Mn 14 with references. MG § 337 Mn 15.

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Appeals and Post-conviction Review judgment are no grounds for appeal, unless the judgment itself contains pointers to such a discrepancy; in such cases the court may exceptionally look at the dossier if there is an egregious and inexplicable discrepancy.103 Decisions which are based on provisions which allow the judge a certain discretion or margin of appreciation are exempt from appellate control, unless the judge was unaware of the fact that he had discretion, or used the discretion in a grossly arbitrary manner or clearly misinterpreted the relevant legal concepts; the appellate court may not substitute its own discretion for that of the trial judge.104 Lastly, even though the appellant may have suffered a grievance, she cannot base her Revision on procedural errors if the violated provisions are meant to protect only the legal interests of third parties and not her own; the BGH developed the so-called Rechtskreistheorie (theory of legal spheres) as the doctrinal substratum for this contention.105 Grounds of appeal based on procedural error may be lost if they are not raised in time106; they may be waived in exceptional cases, but not if public policy does not put the particular issue at the sole disposal of the defendant, ie if the general principles of the rule of law demand that the error be taken into account despite the waiver, that is, if fundamental tenets of proper procedure have been violated.107 Whether a ground of appeal can be forfeited because of a party’s own unethical or contradictory behaviour is highly controversial.108 However, we need to remember § 238(2),109 which blocks the use of an error by the presiding judge in the running of the trial as a ground for appeal, unless the party concerned saved it by raising an objection at trial. For the Sachrüge, the restriction of the basis for an appeal applies similarly: the court may only look at the judgment (and any pictures, etc referred to under § 267(1) 3rd sentence) to see whether its reasons are free from contradictions or lacunae and comply with the rules of logic. The appellate court may refer to matters which are common knowledge and take judicial notice of them; it may also hear experts on the question of whether certain general scientific rules or statistics exist on the application of which the appealed judgment turns.110 The court record and the dossier are not proper bases for examination of the misapplication of substantive law, although there is controversy over whether the court may use the dossier and record if they have been included in a proper

103

BGHSt 43, 212. BGHSt 5, 57; 6, 298; 10, 327; 15, 390; 18, 238; 22, 266. 105 BGHSt 11, 213; and see for examples of such provisions, MG § 337 Mn 19. 106 MG § 337 Mn 42. 107 See, for examples, MG § 337 Mn 43–46. 108 MG § 337 Mn 47. 109 See ch 5. 110 BGHSt 49, 34; see also BGH NStZ-RR 2004, 238 on judicial notice of prior judicial proceedings in the same case. 104

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Individual Modes of Appeal Verfahrensrüge (appeal on points of procedure) as set out above.111 The appellate court may, with a presumption of deference to the trial judge, examine the evaluation of the evidence by the trial court as far as the argument of the court for reaching its evaluation, not the evaluation itself, is concerned; in recent years, in an attempt to increase the potential for doing justice in the individual case, the appellate courts have extended the remit of their scrutiny to demanding that the trial court’s argument be plausible to the appellate court.112 The sentence as such is also subject to the scrutiny of the appellate court, but again only to the extent that the trial court did not properly describe its reasoning in the judgment, or used inappropriate arguments in the sentencing process.113 For both categories of grounds of appeal, the judgment and the grievance to the appellant must have been caused by the error of law, ie the case would have had a different outcome had the law been applied correctly. This is somewhat akin to the ‘harmless error’ rule in US law114. However, the appellant need not establish beyond reasonable doubt that there was such a causal link; it is enough if the possibility exists.115 The link will be missing only if the causality of the

111

BGHSt 14, 162; 22, 282; 35, 238. See MG § 337 Mn 26 with references. 113 MG § 337 Mn 34–35a. 114 Rule 52 of the Federal Rules of Criminal Procedure provides: ‘Rule 52. Harmless and Plain Error (a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. (b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.’ See on the development, eg, Chapman v California 386 US 18 (= 87 S Ct 824) on harmless federal constitutional error, but note that the standard for a court to declare an error harmless is that the harmlessness is established to the conviction of the court beyond reasonable doubt. The English courts had until 1873 followed the so-called Exchequer Rule, a presumption of prejudice which led to an automatic reversal if there was an error in the admission of evidence. This was only restricted by the Judicature Act 1873, which allowed the appellate courts to dismiss an appeal despite such an error, ‘unless some substantial wrong or miscarriage’ had thereby been caused, ie whether the error was likely to have had an impact upon the outcome of the case. However, recent practice of the (then) House of Lords seems to suggest a remaining reluctance on the part of English courts to step away too soon from a rather technical approach as under the old Exchequer Rule, despite the fact that the Government had —unsuccessfully— tried in the Criminal Justice and Immigation Bill 2008 to require the Court of Appeal to uphold a conviction if it was convinced of the defendant’s actual guilt. See JR Spencer, ‘Quashing convictions for procedural irregularities’ [2008] Cambridge Law Journal 227; Y Kamisar, W La Fave and JH Israel, Modern Criminal Procedure, 8th edn (St Paul, West Publishing, 1994) 1601 f. See also for the similar ‘substantial miscarriage of justice’ proviso in New Zealand, R v Barlow [2009] UKPC 30; Matenga v R [2009] NZSC 18. 115 BGHSt 1, 346; 8, 155; 9, 77; 20, 160; 21, 288; 22, 278. 112

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Appeals and Post-conviction Review error can be excluded or is merely theoretical.116 Herdegen aptly calls this a ‘burden of proof ’ (Beweislast) on the part of the appellate court.117 Section 338—absolute grounds of appeal Section 338 Nos 1–7 create irrebuttable presumptions of a causal link between an error and the outcome of the judgment; No 8 has traditionally been read down by the courts to be more of a special case of a Verfahrensrüge under § 337, as we shall see below. The idea behind the provision is that the violations it lists are typically serious violations of fundamental procedural rules, yet an effect on the individual judgment is difficult if not impossible to prove.118 However, even those grounds of appeal are subject to the general proviso that if an effect can be excluded by application of sheer logic, a violation will not lead to a reversal of the judgment.119 Lastly, the mere fact that a violation has been established does not mean that the judgment will fall in its entirety if the effect of the violation can be confined to a distinct part of it.120 Remember that only the party who suffers a grievance from the violation is entitled to use it as a ground of appeal; § 338 is not a general preservation-of-due-process clause.121 Let us look briefly at the individual grounds for appeal in turn: 116

BGHSt 14, 265; 18, 290. See MG § 337 Mn 37. 118 MG § 338 Mn 1. 119 See, for an example, BGH NJW 1977, 443: the defendant appealed against conviction on the ground of § 338 No 1 because of an alleged violation of the rules allocating lay assessors to his trial. Assessor A1, after having been summoned for service, had sent an apology to the presiding judge, stating that because of a pre-arranged vacation she was unable to serve on the trial dates; she was excused by the judge, who then summoned the next assessor on the list, A2, to sit. A2 in turn excused herself with a medical certificate which, however, did not list her condition explicitly. She was excused and assessor A3 eventually sat on the trial. During the course of the trial, A2 sent a more specific certificate which led to her being struck off the list of assessors completely. The BGH accepted that a pre-planned vacation was in principle a sufficient excuse under a commonsense interpretation of the rules, having regard to the typical arrangements for work and vacation times of the average citizen in employment and her family, as was an excuse based on medical grounds. The question of whether the first certificate by A2 was insufficient for lack of specification of the disease was moot because the second, specified certificate would have led to her exclusion from the trial in any case, so that regardless of the decision of the judge, A2 would have been replaced and the trial would have recommenced with A3. Thus the appellant was in no worse position than he would have been had A2 started to sit and had then been replaced. Other examples may be found in BGH StraFo 2003, 134; NStZ 2006, 713; 2007, 352. 120 BGH NStZ 1983, 375. 121 BGHSt 10, 119. Examples: absence of a co-defendant not normally a ground of appeal for another defendant (BGHSt 31, 323); absence of defence counsel of a co-defendant (RGSt 52, 188); witness testimony under unlawful exclusion of the public if the testimony did not concern the appellant’s case (BGH NJW 1962, 261). The position of the public prosecution service is somewhat different, as was noted above: it appears that the prosecution are not bound by the criterion of a grievance to the same degree because they have the general function of making sure that the law is applied properly; the details, however, await clarification. I am grateful to 117

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Individual Modes of Appeal a) Ground No 1 (the panel was incorrectly constituted), like Nos 2 and 3 (improper participation of judge or lay assessor), relates to the constitutional right to a pre-determined judge but does not exhaust that right. Section 338 No 1 is triggered if one of the cases under a)–d) is made out; however, it may also encompass other cases of violation of that right, but then the case law requires the establishment of arbitrariness.122 Controversially, the BGH also applies this ‘absence-of-arbitrary-interpretation’ qualifier to the cases listed in No 1.123 This is methodologically questionable, because any sort of bad faith would seem to be irrelevant given that the defendant was objectively tried by the wrong judges in the view of the appellate court, even if the interpretation by the trial court may have been understandable. Blind, mute or deaf judges are excluded from sitting at trial level because they are incapable of engaging with the parties and the evidence to the degree required.124 Inattentive, tired125 or sleeping judges or lay assessors may run foul of ground No 1 if they are ‘mentally absent’ from the proceedings for a substantial time. Note that an appeal based on ground No 1 requires that the issue of unlawful composition is raised at trial at the earliest possible opportunity once it becomes objectively recognisable, unless the issue arose only at a time when it could no longer be made the basis of an objection under normal procedure. Ground No 1 a)–d) represent exceptions to that duty to object.126 b) Ground No 2 (excluded judge or lay assessor participated in the judgment) is straightforward. Note that this ground of appeal is triggered regardless of whether a party actually recused a judge as being excluded by law, but it applies only to judges who participated in the judgment, not to those who merely contributed to the preparation of the trial.127 c) Ground No 3 (recused judge or lay assessor, etc participated in the judgment) extends the grounds of appeal to the scenario in which a judge continued to sit until judgment after he had been recused or the recusal had been wrongly rejected. Note that only the defendant who recused the judge may raise this ground of appeal, not a co-defendant who had not done so.128 This ground of appeal is the counter-piece to § 28(2) 2nd sentence, which restricts the appeal against a decision on recusal if the recusal concerns a trial judge; in effect, the Revision based on a recusal issue is therefore a delayed sofortige Beschwerde and, as we shall see below, under Beschwerde rules this Wolfgang Schomburg, former judge at the BGH and Honorary Professor of Law at Durham Law School, for his comments on the issue. 122 123 124 125 126 127 128

BVerfG NJW 1992, 2075. See, for references and critical commentary, MG § 338 Mn 6. See the case law cited at MG § 338 Mn 10–13. MG § 338 Mn 14–15. MG § 338 Mn 16–20. MG § 338 Mn 22. BGH MDR 1985, 981.

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Appeals and Post-conviction Review allows the appellate court to substitute its own discretion in full for that of the trial judge when deciding whether the recusal decision was correct.129 However, in keeping with the fact that this is after all still an appeal on points of law only, the appellate court is not allowed to use new evidence which was not available at the time of the decision by the trial court; in such cases it must remand the case back to the trial court for a rehearing.130 d) Ground No 4 (lack of jurisdiction) relates to jurisdiction ratione loci and materiae, and is as such self-explanatory. Note that it is more or less moot as far as the latter is concerned, given that the jurisdiction ratione materiae must now be examined ex officio in any event.131 e) Ground No 5 (absence of prescribed persons) aims to ensure that the persons who are by law required to be present during the essential parts of the trial are indeed present. The prosecution and the clerk of the court, the interpreter (if needed) and the defendant must always be present, unless one of the reasons for temporary exclusion of the defendant is fulfilled132; defence counsel is required to be present in cases of mandatory representation under § 140.133 As with ground No 1 above, ground No 5 is not triggered if an impact on the judgment can logically be excluded.134 The following are examples of essential and non-essential parts of the trial: i) Essential — examination of the defendant about his person and about the charges135 — reading of the indictment136 — taking of evidence137 — introducing the defendant’s prior criminal record unless no negative conclusions from it are drawn for the defendant138 — closing speeches139 — reading out the operative part of the judgment in open court.140 ii) Non-essential — calling up of witnesses and experts141

129

MG § 338 Mn 25–27. BGHSt 21, 85; 23, 200. 131 MG § 338 Mn 32. 132 MG § 338 Mn 39–39a, 44. 133 See for the details MG § 338 Mn 41. 134 MG § 338 Mn 36. 135 BGHSt 9, 243. Note that the examination about the defendant’s personal history is part of the examination about the charges, because of its potential impact on sentencing or questions of §§ 20, 21 StGB or 3 JGG, etc. 136 BGHSt 9, 243. 137 BGHSt 15, 306; 21, 332. 138 BGH NJW 1972, 2006; NStZ 1993, 30. 139 OLG Hamburg, StV 1984, 111. 140 BGHSt 8, 41. 141 BGHSt 15, 263. 130

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Individual Modes of Appeal — —

cautioning of witness and experts about the oath142 establishing the identity of the defendant143 and his capacity to plead144 — oral explanation of the reasons for the judgment in open court as well as decisions on conditions of suspended sentences.145 f) Ground No 6 (violation of the principle of open justice), despite its open wording, applies only to those cases in which access by the public was restricted; it does not provide a ground for appeal if access was incorrectly extended.146 A restriction may also exist if individual persons were wrongly excluded from attending the hearing as spectators,147 or if access to the courtroom is granted only during recess and breaks.148 This ground requires at least negligence on the part of the court.149 g) Ground No 7 (lack of reasons in the judgment) applies only to procedural decisions under §§ 329(1) and 412 if a defendant is absent from the proceedings in the Berufung or after an objection to a Strafbefehl, because in all other cases the lack of reasons is caught by the Sachrüge. 150 The ground requires the total absence of any reasons, for example because the judge died151 or left judicial service152 after pronouncing it in court but before writing the reasoned judgment, or because the judges can no longer agree on the result of their deliberations.153 h) Ground No 8 (the unlawful restriction of the defence)154 does not provide an absolute ground for appeal according to the controversial155 case law of the BGH.156 It requires a violation of a specific procedural provision,157 or of the principles of fair trial158 or the court’s duty of care,159 as well as a causal link160 between that violation and the judgment. The restriction must be the 142

MG § 338 Mn 38. Ibid. 144 BGH NStZ 1994, 228. 145 BGH NStZ-RR 1998, 237; BGHSt 25, 333. 146 BGHSt 10, 202; 23, 82. 147 BGHSt 24, 329. 148 BGH NStZ 2004, 510. 149 BGHSt 22, 297. Negligence on the part of other court employees is not sufficient, but the court is under a duty to supervise them, make sure that the rules on public access are being complied with and stop improper behaviour or access restrictions at once; see BGHSt 22, 297; BGH NJW 1979, 2622. For further details, see MG § 338 Mn 49–50b. 150 MG § 338 Mn 52. 151 OLG Celle NJW 1959, 1648. 152 BGH NStZ 1993, 30. 153 BGH MDR 1954, 337. 154 It does not apply to any other parties; MG § 338 Mn 58. 155 See for contrary voices from the literature MG § 338 Mn 58. 156 BGHSt 30, 131. 157 BGHSt 21, 334. 158 MG § 338 Mn 59. 159 BGHSt 29, 149. 160 BGHSt 44, 82. 143

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Appeals and Post-conviction Review consequence of a decision (Beschluss) of the entire panel161 in the trial hearing; decisions outside the hearing do not qualify as grounds of appeal under this heading.162 Judgment Section 353 provides that in so far as the appeal is well-founded the judgment must be reversed, including any factual findings as far as they are tainted by the error which led to the reversal. Section 354 allows or requires the appellate court to revise the judgment itself in a few scenarios: a) If the judgment is quashed merely because the law has been incorrectly applied to the otherwise undisputed factual findings and no new examination of the facts is necessary, the court must itself revise the judgment if the decision is either an acquittal or a discontinuance, if the sentence is a mandatory163 one or if the court, in agreement with and on a motion by the prosecution, deems the general minimum sentence or a discharge appropriate. b) If the error relates only to the sentencing decision, the court may decline to quash the sentence if it considers the sentence adequate164; if the prosecution makes a motion to that effect, it may also reduce165 the sentence. The provision also contains a complex rule on how to treat aggregate sentences which we shall not address here.166 In all other cases, the appellate court must remand the case back to a different panel of the same court whose judgment was quashed, or to another court of the same tier in that Land. If the trial court was the OLG, the case must be remanded to another panel of that OLG. If the remaining offences after a partial reversal belong to the jurisdiction of a lower court, the remand order may be made to that court. If a judgment is quashed because the trial court lacked jurisdiction, the case is remanded to the court which has jurisdiction.

161 A decision or an omission by the presiding judge alone does not trigger the ground for appeal; BGH NStZ 2009, 51; RGSt 61, 376. 162 BGHSt 21, 334; BGH NStZ 1993, 31; NJW 1996, 2383. 163 The appellate court must not normally quash an acquittal, enter a conviction and remand the case to the trial level for sentencing in cases of discretionary sentences; see, for the case law and the limited exceptions, MG § 354 Mn 23. 164 This is a (recent) significant departure from the role of the Revision, because it allows the court to substitute its own views for those of the trial court. The BVerfG (NJW 2007, 2977) has declared the provision to be compatible with the GG, but only on a very restrictive reading, compliance with which will render the provision de facto moot for all practical purposes; see MG § 354 Mn 28–28a. 165 The previous considerations (n 164 above) apply mutatis mutandis to the power to reduce the sentence; MG § 338 Mn 29. 166 See, for the details, MG § 354 Mn 30–32.

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Individual Modes of Appeal Section 357 is an important rule which provides for the extension of the effect of the judgment to co-defendants even if they themselves did not lodge an appeal. The effect is triggered mainly with respect to errors of substantive law, but can also occur with procedural matters which taint the proceedings against all co-defendants, for example if the indictment against them was defective.167 Lastly, § 358 binds the court to which the case is remanded to follow the legal views expressed by the appellate court in the retrial of the defendant. It also contains the rule of the reformatio in peius, as in § 331 for the Berufung, which applies to the appellate court as well as to the trial court in the retrial after remand168; however, it does not forbid the imposition of a penalty in place of a quashed mental hospital order, nor the imposition eo ipso of a mental hospital order or an order for custodial addiction treatment under §§ 63, 63 StGB.169 Beschwerde Sections 304 ff regulate the (mainly170) interlocutory remedy of the Beschwerde. We shall look at its features in outline here. It is meant to prevent ongoing prejudice to a party, which might be caused by delaying the decision about a grievance from the pre-trial stage onwards until the judgment at first instance or even an appeal against judgment. The Beschwerde lies from the AG to the LG and from the LG to the OLG. Its admissibility is in principle general, but there are numerous instances outside §§ 304 ff where the law either restricts its use, or places a time limit on its application171 (usually one week, § 311(2)); in the latter case it is called a sofortige Beschwerde, ie literally translated, an ‘immediate appeal’. Pursuant to § 304(1)–(5), no Beschwerde lies against decisions by the BGH— except for some decisions on detention, search and seizure, etc by its examining judge (Ermittlungsrichter)—or the OLG, unless the latter sits as a court of first instance and the matter concerns an order for remand in custody, provisional detention under § 126a, search and seizure, data retrieval under § 101(1) and a number of other trial-related matters, as well as issues surrounding the revocation of probation under a suspended sentence or after an order for early release.172 Section 305 exempts all decisions of a trial court which precede the judgment from appeal by way of Beschwerde, unless they relate to detention, seizure, preliminary driving disqualification orders and contempt citations, or affect third party rights, etc. Note that pursuant to § 310, decisions by the LG or

167

See MG § 357 Mn 8–11 for the details. MG § 358 Mn 11. 169 See MG § 358 Mn 11–12. 170 There are a few instances where ancillary decisions at judgment stage may be appealed via Beschwerde, namely the cost order, an indemnification order and in juvenile proceedings the decision about the suspension of a sentence of juvenile imprisonment; see MG § 304 Mn 1. 171 MG Vor § 304 Mn 1. 172 See, for the details, MG § 304 Mn 5–19. 168

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Appeals and Post-conviction Review OLG issued upon a Beschwerde are not subject to further appeal unless again they concern matters of provisional detention or remand in custody under §§ 112 ff, 126a, or the freezing of assets under §§ 111b(2), 111d if the amount frozen exceeds €20,000. Section 306 requires the Beschwerde to be filed with the iudex a quo whose decision is being appealed, who under § 306(2) has the power and duty to amend the decision if the appeal is deemed to have merit. Otherwise, the court will refer the matter to the appellate court as soon as possible, but no later than within three days.173 If the appeal is a sofortige Beschwerde, the court must not amend its decision unless in the decision it had used evidence about which the appellant had not had a chance to comment and if it deems the appeal well-founded after he has commented (§ 311(2)). Section 307 provides that the appeal does not stay the execution of the decision, unless the court specifically orders a stay. These two sections show that the Beschwerde does not have the same consequence as the Berufung or Revision, namely automatic devolutive and suspensive effect. The court may not, under § 308, amend the decision to the disadvantage of the respondent without giving him an opportunity to be heard, other than in cases of arrest warrants, etc (§ 33(4) 1st sentence) where it would be counterproductive to warn the suspect that a warrant is being sought against him, that the pre-trial judge refused to issue one and that the prosecution is now appealing that refusal. Section 311a mitigates that disadvantage to some extent in the cases where no further appeal is possible, in so far as it requires the appellate court, on his motion or ex officio, to allow the respondent to make representations, following which it may reverse or otherwise amend its own previous and otherwise unappealable decision. For the purposes of deciding the appeal, the court may order or perform its own investigations. The decision does not require an oral hearing, but the prosecution must be heard when suitable, ie there is no need to hear the prosecution if the court denies or dismisses the Beschwerde by the defendant or suspect (§ 309(1)). If the court finds the appeal to have merit, it must typically make the requisite orders; a remand to the lower court is permitted only in cases of serious procedural errors which the appellate court cannot rectify itself (§ 309(2)).174 If a case is remanded, the lower court is not bound by the legal opinion of the appellate court; § 358(1) on the Revision, as explained above, does not apply by way of analogy.175

173 In practice this time limit will very often not be met for logistical reasons. Overstepping the period has, however, no consequences because it is generally seen as an Ordnungsvorschrift, ie a rule that is ‘more like a guideline’; see MG § 306 Mn 11. 174 See, for the case law and discussion, MG § 309 Mn 7–9. 175 MG § 309 Mn 10.

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Post-conviction Review Juvenile proceedings What has been said above regarding adult proceedings applies mutatis mutandis to juvenile cases, with one major176 exception: § 55 JGG seriously restricts the rights of appeal in juvenile court proceedings in order to streamline and speed up the process, so that the juvenile offender may be brought under the influence of the education-driven sanctions as quickly as possible.177 Section 55(1) JGG precludes an appeal against sentence if the sanctions consist merely of educational or corrective measures, with the exception of educational assistance in an institution under § 12 No 2 JGG. The most drastic provision is § 55(2) JGG, which prevents a party who has filed an admissible Berufung from appealing the judgment in the Berufung via the Revision. For the defendant, it extends this effect if either he, his parent or guardian, etc has filed the appeal; however, § 55(3) JGG prevents any appellant other than the defendant from withdrawing the appeal without the defendant’s consent.

POST-CONVICTION REVIEW

Similar to the recent debates about retrials in England and Wales, the question of whether and to what degree a final judgment, be it conviction or acquittal, should be allowed to be revisited has occupied the attention of the German legislator. This applies especially with regard to the emergence of new technologies that could have had a major impact on the judgment at the time, such as DNA analysis, etc. As we shall see, such new evidence is permissible as a ground for review only if the review is requested in favour of the defendant, but not to his detriment. The government of North Rhine-Westphalia tabled a draft law in April 2010 in the Bundesrat that would allow such review also to the disadvantage of the defendant; the draft law was sent to the Justice And Home Affairs Committees on 7 May 2010, but at the time of writing no new development had emerged.178

176 See, for a number of other rules of appeals in the JGG that cannot be dealt with here for reasons of space, U Eisenberg, Jugendgerichtsgesetz, 14th edn (hereafter ‘EB’) (Munich, CH Beck, 2010) § 55 Mn 4. 177 EB § 55 Mn 33–37a. 178 See BRat-Drs 222/10 of 21 April 2010, online at .

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Appeals and Post-conviction Review Grounds for review The StPO179 distinguishes between applications for review made in favour of or against the defendant. A review application in favour of a defendant may have one of only four aims: a) acquittal; b) discontinuance; c) a less severe sentence on the basis of a law other than the one applied in the judgment the review of which is being requested; or d) a significantly different decision about measures of rehabilitation and incapacitation. It is inadmissible to seek any other remedy under this procedure.180 The criteria are set out in §§ 359, 362, 364 and 373a. Section 359 allows for a review in favour of the defendant in the following circumstances: a) if a document (Urkunde)181 used as genuine at trial to his detriment turns out to have been false; b) if a witness or an expert in his testimony against the defendant either negligently or intentionally committed a violation of his oath, or made an intentionally untrue statement when not under oath; c) if a judge or lay assessor who participated in the judgment, with regard to the case in question, violated his official duties,182 unless the violation was caused by the defendant himself; d) if a civil183 court judgment on which the criminal judgment was based is quashed by another final judgment; e) if new184 facts185 or evidence are produced which on their own or together with previously heard evidence appear to support186 the acquittal of the 179 The grounds for review are exhaustive, the courts may not expand them by analogy; MG § 359 Mn 1. There is a specific provision outside the StPO—§ 79(1) BVerfGG, which deals with the case that the BVerfG declares a law unconstitutional or strikes it down, on the basis of which persons may have been convicted; the law opens the review procedure under the StPO in such a case. 180 MG § 359 Mn 2. 181 On the definition, which follows substantive criminal law under § 267 StGB, not the definition under § 249, see MG § 359 Mn 4–9. 182 Eg, offences under §§ 239, 240, 257, 267, 331, 332, 339, 343, 344 StGB; see further MG § 359 Mn 14–16. 183 The wording of this criterion is misleading, because it also refers to judgments by civil courts, employment tribunals, social welfare, revenue and administrative courts; see MG § 359 Mn 17–20. 184 The cut-off date is the time of the judgment that is being reviewed; note that either the facts or the means of evidence must be new, not necessarily both; one might thus have new facts which are supported by old evidence and vice versa; see MG § 359 Mn 2 –36 for the details. 185 Note that a change in the law or jurisprudence of the courts is not a new ‘fact’ within the meaning of this provision; MG § 359 Mn 24. 186 See, on the details, MG § 359 Mn 37–51.

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Post-conviction Review

f)

defendant or, in application of a more lenient law, a lesser penalty, or a significantly different decision about measures of rehabilitation and incapacitation; or if the ECtHR187 has found a violation of the ECHR or of its Protocols, and the judgment188 is based on that violation.

Section 362 permits a review against the defendant if: a) a document used as genuine at trial in his favour turns out to have been false; b) a witness or an expert in his testimony in favour of the defendant either negligently or intentionally committed a violation of his oath, or made an intentionally untrue statement when not under oath; c) a judge or lay assessor who participated in the judgment, with regard to the case in question, violated his official duties; d) the acquitted defendant subsequently made a credible confession, either in or out of court. The review criteria for an application against the defendant have been extended by § 373a, which regulates the review of a Strafbefehl which has become final. While all the provisions from § 359–§ 373 also apply to convictions by way of Strafbefehl, a review is also possible if new facts or evidence are produced which on their own or together with previously heard evidence appear to support a conviction for a felony instead of a misdemeanour. Section 364 restricts the application of § 359 Nos 1–3 and § 362 Nos 1–3 by requiring that a review application based on an offence as mentioned in those provisions requires the final conviction of the person alleged to have committed the offence, or that criminal proceedings cannot be initiated for other reasons than lack of evidence; § 359 No 5 is expressly exempted from this proviso. Procedure Let us now take a brief look at the procedure for post-conviction review. The review is split into two parts: a) the admissibility proceedings, which determine whether an application lies at all (Aditionsverfahren); and b) the merit proceedings (Probationsverfahren), which determine whether and which review is required.

187 Decisions by the Court of Justice of the European Union, previously the European Court of Justice, do not fall under this provision, but there is a debate about applying § 79(1) BVerfGG by way of analogy; see n 179 above and MG § 359 Mn 52. 188 There is controversy over whether only the person who obtained the ECtHR decision has standing to apply for review, a view that does not sit easily with the strategy of obtaining so-called ‘pilot judgments’ in the hope that the State in question will then follow the matter up without additional proceedings in each and every case; MG § 359 Mn 52.

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Appeals and Post-conviction Review Section 365 provides that the general rules for appeals, ie §§ 296–303, apply mutatis mutandis to review proceedings. The jurisdiction for review proceedings lies with a different court from the one whose judgment is being submitted for review, but the application may be lodged with the latter, who must then forward it to the proper court (§ 367, § 140a GVG). The review application requires a final judgment on the merits (Sachurteil), not merely one which orders a discontinuance.189 There is some dispute over the question whether a judgment may be made the object of a review application if only the conviction but not the sentence is final, for example if the defendant is merely appealing against sentence. Despite the fact that the BGH opposes in principle the parallel operation of appeal and review in the same proceedings,190 it would appear that the majority of the OLGs, who after all decide on appeals against decisions about whether or not to allow review proceedings to go ahead, accept the feasibility of review of the conviction while the sentence is still under appeal.191 In any event, according to § 360, an application for review does not stay the enforcement of the judgment, although the court may order a stay or an interruption of the enforcement. Neither the death of the defendant,192 nor the fact that she served the sentence in full or that the enforcement has otherwise been terminated, prevents an application for review, and certain close relatives have the right to initiate or take over the proceedings (§ 361). The aim of a review cannot be a more lenient sentence on the basis of the same law,193 and one cannot argue diminished responsibility (§ 21 StGB)194 in order to obtain a reduced

189

MG Vor § 359 Mn 4—controversial. BGH NStZ 1994, 25. 191 See the references at MG Vor § 359 Mn 4, who is himself critical of the majority view because of the potential for delay and confusion it creates. The majority approach can lead to serious complications. Imagine that D’s appeal against sentence is dismissed by final judgment of the BGH, but in the meantime, or shortly after the judgment by the BGH, the review court overturns the conviction: in that case, we have a final sentencing appeal decision which is then undermined by the review court. Can the review court actually go ahead and sentence on the basis of the new facts if the sentence has actually become final and may as such be in need of a review application? As we shall see below, the ban on the reformatio in peius under § 373(2) prevents an increase in sentence, but only in those cases where the review procedure was initiated solely in favour of the defendant; there may have been a cross-application to the detriment of the defendant by the prosecution that was ultimately unsuccessful—in such a case the ban would not seem to be triggered. It would normally appear that if a defendant wants to avoid this kind of problem, she should appeal conviction and sentence together, and then go for review after the appeal is decided. However, if the appeal is a Revision, any new evidence would be inadmissible during the appeal stage even if the appeal was against conviction and sentence; the defendant would have to wait until the appeal was over and then bring in the new evidence in a review application, so there is an understandable motive on the defence’s part for using the evidence as soon as possible, especially if the defendant is in custody. 192 However, the rule does not apply if the defendant dies before the judgment becomes final; BGH NStZ 1983, 179. In such a scenario the court must issue a discontinuance under § 206 a; BGHSt 45, 108. 193 See, on the definition of this concept, MG § 363 Mn 3–5. 194 This has been held to be constitutional by BVerfGE 5, 22. 190

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Post-conviction Review sentence (§ 363)195; this does not apply to measures of rehabilitation and incapacitation.196 Sections 364a and 364b require the court in certain circumstances (difficulty of the case, financial means of the applicant, etc) to assign counsel for the review proceedings or their preparation. The application must state the ground for review, according to the relevant provisions, and the evidence as extensively and in as much detail as possible, so that it can in principle be understood without reference to external documents (§ 366(1)). An application by the defendant or one of the relatives must be signed by a lawyer (§ 366(2)). If the application does not comply with these requirements, it must be rejected as inadmissible, otherwise it is served on the respondent with a deadline for a reply (§ 368). If it is admissible, the court will commission a judge to examine the evidence offered, followed by a further opportunity for the parties to comment on the evidence (§ 369). If the court considers the evidence insufficient to support the claims made by the applicant, it will reject the application by Beschluss as ill-founded on the merits, otherwise it will order the initiation of the review process and a retrial, typically197 before the review court (§ 370). If the defendant is already deceased, the court may hear any additional evidence it may deem necessary; it will then decide without a proper retrial whether to acquit the defendant or whether to dismiss the application for review. It may also immediately acquit in other cases if the prosecution consents and there is enough evidence to support an acquittal. In case of an acquittal, the previous judgment must be quashed formally (§ 371). If the applicant so requests, the reversal of the previous judgment must be made public (§ 371(4)). Any decisions by the court of first instance following an application for review may be appealed by sofortige Beschwerde, with the exception that the order for the initiation of the review and for a retrial cannot be appealed by the prosecution (§ 372). The court, after a full198 retrial or appeal hearing, must either uphold the previous judgment or revise as appropriate; it must not, however, pass a more severe sentence than under the reviewed judgment if the review was only requested in favour of the defendant, again notwithstanding the possibility of imposing a mental hospital or custodial addiction treatment order under §§ 63, 64 StGB. The judgment after retrial is subject to the normal appeals procedures.

195 Note that according to some commentators this provision has no relevance for the ground of review in § 359 No 5, because that ground requires a reduction on the basis of a different law in any event; MG § 363 Mn 1. The BGH takes a different view; BGHSt 48, 153. 196 MG § 363 Mn 2. 197 Referrals to another court are possible under certain conditions, but not to the original court; MG § 370 Mn 17. 198 MG § 373 Mn 1–2.

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Annex 1 Indictment to the Schwurgericht for aggravated murder and other offences1 A, 5 December 1986

Public Prosecution Service at the Landgericht A − 65 Js 18/86

Custody! To the Landgericht A 5th Criminal Division (Schwurgericht Division)

pp 153, 160

The electrician Werner Kurtz, born on 10/9/1950 in C, no fixed abode, German citizen, single in custody in this matter since 12/4/1986 on the grounds of the arrest warrant of the Amtsgericht A of 15/3/1986—934 Gs 398/86—in the prison facility in A.

p 134

next date for review of custody according to § 121 StPO: 10 January 1987,

pp 136, 216, 326

assigned defence counsel: Rechtsanwalt Dr D in A.

is charged

pp 138, 159

that on 1 January 1986 and in the night before 4 January 1986, in E, 1. he killed a person in order to cover up another offence,

1 Translation of D Rahn, Mustertexte zum Strafprozeß, 4th edn (Munich, C H Beck, 1987) 76–82. Note: the page numbers in the left-hand column relate to the pages of the prosecution

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Annex I

2. he took chattels belonging to another away with the intention of unlawfully appropriating them for himself, and for the purpose of the commission of the offence broke into a building and stole property which was especially protected by a sealed container, and by the same act intentionally and without the required licence acquired a firearm, 3. he attempted to take away chattels belonging to another with the intention of unlawfully appropriating them for himself, while carrying a firearm and that by the same act he carried a firearm without the required licence. Ad 2. In the early morning hours of 1/1/1986 the accused used a brick to break the glass pane of the entrance door of the house of architect F in E, Südstraße 15, rummaged through the rooms, broke open a desk and took wrist watches, jewellery, an attaché case, a pistol ‘Walter-PPK-Dural’, cal 7.65 mm together with a magazine and ammunition as well as several keys. Ad 1. and 3. In the night from 3 to 4/1/1986 he returned to the above-mentioned house and entered it as well as the office building on the same estate, using keys he had stolen during the first burglary. When he opened a dividing door in the office building which led to the flat of the industrial sales representative G, he found himself confronted by the latter. Because he felt that he had been discovered, the accused, who was carrying the pistol he had stolen during the first break-in, fired three shots at G, two of which wounded him lethally. Felonies and misdemeanours pursuant to §§ 211(2), 242, 243 Nos 1 and 2, 244 No 1, 48,2 22, 52, 53 StGB; 28(1), 35(1), 53(3) Nos 1a and b Weapons Act. Evidence pp 116, 132 f, 160 f, 171 f, 329 f

I. Statements by the accused

II. Witnesses p 124

2

1. ….…...

This provision, which dealt with recidivism, has since been repealed.

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Indictment to the Schwurgericht

p 126

2. ….…....

p 139

3.–20. ….….... III. Experts

pp 202 f

1. Dr FK, Federal Criminal Bureau

pp 7 f

2. Prof Dr med. B Sch, Institute for Forensic Medicine at the University of H.

pp 252 f

3. …………

p 19

4. ………… IV. Exhibits

pp 120, 121, 191

1. Bullets cal 7.56 mm 2. Magazine with 7 bullets cal 7.65 mm 3. Jewellery 4. Stamps V. Attached dossiers Prosecution Service A, 19 KLs 20/76. Essential Result of the Investigations

p 160

I. Personal history The accused, whose father was a metal worker by profession, has two brothers, one of whom is 6 years older, the other 3 years younger.

p 160

He did not have a good relationship with his father because he believed that the father preferred the younger brother over him. In any event, he felt put back vis-à-vis his brothers. In H, where his father had inherited a house, he went to school from 1957 to 1965. His performance at school improved after year 4, having previously been poor. He finished school with an average of 2.3. His best marks were in the science subjects, of which he liked chemistry best.

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Annex I

p 161

Following the wishes of his father he began an apprenticeship as an electrician, which he finished in 1967 with the vocational qualification.3 He did not, however, take a liking to that vocation and felt his father had forced him into it. In December 1967, four weeks after the examination, he left home because the relationship with his father had increasingly deteriorated. He finally ended up in St, where he worked as an electrician during the following years. The Landgericht A on 23/10/1983—19 KLs 20/83—convicted him of 6 counts of aggravated theft and sentenced him to an aggregate sentence of 2 years and 6 months’ imprisonment. On 21/12/1985 he was released from prison early because of a Christmas amnesty. His modus operandi with the offences he committed was essentially identical. They were mainly spontaneous burglaries. Over time he developed the habit of burgling the same crime scene repeatedly.

II. Facts of the Case

pp 165 f, 78

1. Prior to his release from prison in December 1985 the accused tried to find employment. The job centre was, however, unable to provide him with a job.

p 165

He placed a job seeker advertisement in the ‘X-Newspaper’. In response, among others, the firm of Schulze & Co in T replied who wished to hire the accused as an electrical mechanic. The firm also offered to find him a flat. They agreed that he should call the firm immediately upon his arrival in E and that he would be picked up from the station.

pp 151, 165

On the day of his release, 21 December 1985, his departure was delayed by formalities to such an extent, that he arrived in E only in the evening. He tried to ring the firm but could no longer reach anyone.

3 Note that the traditional German word Gesellenprüfung, used in the original for the final exam of an apprenticeship, would have had as its closest historical equivalent in English ‘journeyman’s examination’, which is, however, an anachronism now in England and Wales where this qualification would likely be a NVQ 3, ie a National Vocational Qualification Level 3.

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pp 165, 290, 132

In the station hall he suddenly noticed that he had lost his wallet which contained his entire release fund of about 480 DEM. Because he was now without any financial means, he turned to previous acquaintances in order to find a place to stay. He did not contact the firm of Schulze because he was afraid that they might have taken his delayed arrival amiss. He then decided to commit another burglary. Given that from his previous offences he knew the part of the town called O very well, he looked for an appropriate object there.

pp 132, 126, 129, 172, 186, 189

2. The accused spent New Year’s Eve with witnesses Z and H in their home and subsequently in different bars in the vicinity of the station. In the early morning of 1/1/1986 he went to the Südstraße. Seeing as there were no footprints in the snow in front of the house of witness F, the accused concluded that the house was not inhabited at the time.

p 172

p 41

He first used a stone to break the window pane in the area leading from the garage to the greenhouse, but did not enter the house any further because he noticed that the connecting corridor was closed off by old doors on both sides. He then used a slab from the pavement to smash the glass pane of the entrance door.

p 172 p 41, 173

Inside the house he went into every room and rummaged through wardrobes and desks. In order to break open the wardrobes he used tools he had found in the basement. He stole the following objects: From the living room etc, a small dictaphone, an attaché case, collector’s stamps; from the bedroom, jewellery and wrist watches as well as a pistol ‘Walther-PPK-Dural’; from a wardrobe in the corridor, keys, among them the house door key. Moreover he stole a portable radio, several cameras and a pocket dictaphone. Most of his booty he sold over a period of time to unknown persons.

pp 173, 81

p 173

3. On the night before 4 January 1986 at around midnight the accused returned to the house of witness F. He had the door key and the pistol with him which he had stolen on 1/1/1986.

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Annex I

p 29, 35 f, 7

After letting himself in with the door key he roamed through the house. Suddenly he found himself in the presence of the industrial sales agent G who was a tenant there. G, already in pyjamas, had been watching a TV programme from the bed. While he was still standing in the door, which when opened allows a view of the bed, the accused fired the first shot at G who was still sitting in bed. The bullet entered the head in the area of the left eye and exited behind the left ear.

pp 38, 50

pp 7, 53, 59R, 37, 74

G, holding his hands and arms protectively in front of his head, jumped from the bed and in the direction of the exit door. Seeing this, the accused fired another shot which did, however, hit a chair between the window sill and the door. G was by now almost to the exit door and had his left back turned to the accused. The latter followed G towards the middle of the room and then fired the third shot, which entered in the back of the left armpit and exited under the back of the right armpit. This penetrating shot caused severe internal bleeding which had an immediate lethal effect. G collapsed in front of the exit door. The accused then searched the deceased’s wallet which had been lying on the table. Whether he also took a purse that had been placed on the table and which witnesses had seen with G cannot be established.

pp 124, 80

4. The accused then returned to the flat of witness H.

pp 153 f, 115, 121, 191

Subsequently, he committed other burglaries, which led to his arrest on 12/4/1986 in A. Upon his arrest, the accused was carrying a set of collector’s stamps which stemmed from the burglary of 1/1/1986.

pp 37, 48, 50R,4 51

pp 176, 331, 7, 55

4

‘R’ means Rückseite, ie back of the page.

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Indictment to the Schwurgericht

pp 132 f, 171 f, 329 f, 172

5. The accused essentially admits the offences of which he stands charged.

p 305

He declared that on 1/1/1986 he had been seriously intoxicated by alcohol. On the basis of the preliminary medical expert report a state of insanity based on the ingested alcohol can, however, be excluded.

p 186, 189

This follows from the statements of witnesses Q and P, who did not notice any state of drunkenness with the accused. A state of diminished responsibility would appear to be improbable given the deliberate and planned behaviour of the accused. The accused stated in relation to the events of the night before 4 January 1986 that he was carrying the pistol only because he wanted to sell it to a certain ‘Erich’. He had arranged a meeting with ‘Erich’ for the evening of 3/1/1986; the meeting did, however, not go ahead. The alleged ‘Erich’ could not be identified or found.

pp 174, 329 f

p 335

pp 174, 175

The accused stated further that he got drunk out of annoyance that the meeting with ‘Erich’ and a certain ‘Fritz’ had not gone ahead. Suddenly, he found himself on the way to the villa F. He alleges that he has no exact memory of the events from then on. He could only remember that in the basement he had knocked off the top of a wine bottle with the pistol and drunk from the bottle. He then suddenly had found himself in the presence of G in a brightly lit room. At that moment, something soft had hit him in the face and someone had attacked him. He had defended himself with raised arms. His memory only returned when he saw himself standing in the room with the deceased lying in front of him.

pp 175, 331

pp 175, 176

p 176

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Annex I

pp 186, 189

The accused has made no statements as to the amount of alcohol ingested. Witnesses Q and P cannot remember seeing the accused on that night. The preliminary medical expert report also comes to the conclusion that there existed no alcohol-based insanity at the time of the burglary.

pp 306 f

As far as the act of killing is concerned, the expert believes that he cannot exclude a state of insanity. However, in the evaluation of this question account must be taken of the fact that despite the alcohol drunk the accused was capable of aiming his shots and then searching the wallet. This speaks against the existence of the criteria for § 20 StGB. I move

pp 308

1. that the indictment be admitted for trial before the Landgericht—Schwurgericht divison—in A, 2. that the arrest warrant of the Amtsgericht A of 1573/1986 be upheld because the reasons for the warrant continue to apply.

Binder Public Prosecutor

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Annex 2 Judgment of the Schwurgericht (imposition of life sentence)1 The defendant is guilty of aggravated murder and sentenced to life imprisonment. His guilt is especially serious. The defendant shall bear the costs of the proceedings. Provisions applied: §§ 211, 57a(1) 1st sentence No 2 StGB

REASONS: I. 1.

(Description of the defendant’s CV)

2.

The defendant has multiple prior convictions:

In 1999, he was sentenced to a fine of 120 daily units of 80 DEM each for causing bodily harm by dangerous means; the facts were that as a bouncer in a bar he expelled a guest who did not want another drink, using a baton. In 2000, the defendant was sentenced to a suspended term of eight months’ imprisonment for causing bodily harm by dangerous means. He had begun a quarrel with the manager of another bar and shot him in the face with a gas pistol during the course of the altercation. The sentence was later ordered to take effect; the defendant served the entire term in 2001. Only fourteen days after the previous conviction, the defendant committed another offence. On the night of 10 June 2000, the defendant again had a quarrel with a patron of the bar he was working in at the time. He hit the person with a baton, causing him serious head wounds from which he died two weeks later. For this offence, the defendant was convicted of inflicting bodily harm causing death and sentenced to a term of four years and six months’ imprisonment which he served until 30 May 2006; the remainder of the sentence was suspended.

1 Translation of L Meyer-Goßner and E Appl, Die Urteile in Strafsachen, 28th edn (Munich, Verlag Franz Wahlen, 2008) 253–55.

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Annex 2 II. Immediately after his release the defendant found employment as the manager of a ‘sauna’; the owner of that enterprise was Karl Adam, for whom the defendant had already worked as a bouncer prior to his incarceration. Already during the time when the defendant was serving his sentence, Adam had been urged by his competitor, Detlev Brücker, the eventual victim, to give up his night club and sauna. In this context the two of them had on several occasions come to blows, most recently in early December 2006. After Adam had told the defendant about this at the beginning of January 2007, the latter adopted the idea of Brücker and decided to ‘take out’ the competition himself. The defendant began to make plans about how this goal could best be achieved. As Brücker had the backing of a major ‘organisation’ and the defendant did not consider mere threats or intimidations as useful avenues, he finally came to the conclusion that only the death of Brücker would solve the problems; he decided to kill Brücker. On the night of 16 January 2007 he took a loaded pistol and drove the Brücker’s house. There he hid behind the garage and waited. Brücker left the house together with his employee Korz at around 10 pm. When Brücker opened the driver’s door of his car, the defendant emerged from the shadow of the garage. Only now he realised that Brücker was in company. Nonetheless he continued with his plan and from a distance of one and a half meters fired two shots at him in order to kill him. In so doing the defendant exploited the fact that Brücker was not expecting an attack and had therefore no chance to defend himself. The shots hit Brücker in the back of his head; the injury suffered led to his death at the scene of the crime. The defendant then fled but could be arrested about ten minutes later. In his car the murder weapon could be secured. A blood sample taken at 10.20 pm showed a blood alcohol level of 0 milligrams; the examination of a urine sample provided voluntarily by the defendant at 10.25 pm showed no indication of prior ingestion of medicine or drugs. The ability of the defendant to understand and to control his actions was not impaired at the time of the offence.

III. The defendant declined to make a statement about the events. The findings about the prior history of the offence follow from the testimony of the witness Adam who recounted the events as set out above. Adam furthermore stated that he had told the defendant about his dispute with Brücker shortly after hiring him as manager. Some time later, the defendant had asked him whether one could not ‘turn the tables’ on Brücker and eliminate the competition in order to increase one’s own business. He did, however, not think much of that. For the court, however, this statement by the defendant provides the motive for the killing. There are no doubts about the credibility of the witness who had known the defendant well for years and is on friendly terms with him. His testimony was also partly corroborated by uninvolved witnesses. Helga Fricke, a former employee of Adam, and Gerhard Frost, a patron of the bar, testified that at the beginning of December 2006 they were

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Judgment of the Schwurgericht present during an altercation between Adam and Brücker. They could, however, not say anything about the reason for the quarrel. The findings about the immediate events surrounding the offence are essentially based on the testimony of the witness Korz. She credibly testified that she saw how the defendant had stepped out of the shadow of the garage und fired two shots from behind at close range—about one and a half meters—at Brücker. This testimony matches that of police officer Gerhardt and the expert Sieber according to which the place where the cartridges were found was compatible with the shots having been fired from such a distance to the victim. It also matches the explanations of the forensic expert Dr Laue who conducted the autopsy of Brücker, according to which two shots to the back of the head were the cause of death. Furthermore the testimony of police officer Schnell, who had searched the car driven by the defendant, and that of the expert Sieber establish that the pistol secured from the car was the one from which the shots had been fired. On this basis the court has no doubts that the defendant killed Brücker, realising and exploiting the fact that the latter did not expect an attack and was thus defenceless. The court is certain that the ability of the defendant to understand and control his actions accordingly was not impaired at the time of the offence, based on the convincing testimony of the experts Prof Dr Erz and Prof Dr Stein, on the basis of the findings about the circumstances of the offence and the prior history of the defendant and its own impression of the defendant gained during the trial. Prof Dr Erz testified about the negative blood and urine samples; the expert Prof Dr Stein conducted a thorough psychological and psychiatric exploration of the defendant which showed no cause for an impairment of the defendant’s ability to understand and control his actions accordingly at the time of the offence.

IV. The defendant is guilty of aggravated murder (§ 211 StGB); he killed Brücker by stealth and out of base motives. Killing by stealth is established because the defendant was aware of the fact that Brücker was actually not aware of an impending attack and thus defenceless, and he exploited this fact. Moreover he acted out of base motives; the motive of the defendant to ‘eliminate’ the competition is a motive that is close to greed and on the lowest moral level.

V. The sentence for aggravated murder is imprisonment for life. The court cannot find any extraordinary circumstances which might make the imposition of that sentence in the present case unacceptable (BGHSt 30, 105). The guilt of the defendant is especially serious (§ 57a(1) 1st sentence No 2 StGB): To his credit it may be said that the offence stood in a remote connection to the attempt by Brücker to make Adam leave town by his threats. However, the aggravating factors by far outweigh the mitigating ones. The offence had been meticulously planned and had not been committed out of spontaneous excitement. Further, the defendant has fulfilled two

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Annex 2 separate elements of aggravated murder and was not deterred from carrying out the offence by the unexpected presence of a witness. However, the decisive element justifying the finding of especially serious guilt is the personality of the defendant which evidences clear signs of a criminal attitude showing disregard for the life and limb of others. This follows not only from the present offence but also and to a special degree from the offences underlying his previous convictions. The increasing tendency of the defendant’s preparedness to harm others physically, the new offences committed only a short time after the previous convictions, and the refusal to let even a lengthy period of imprisonment and an active operational probation period be a warning to him, show an ingrained criminal character which clearly differs from that of the ‘average’ offender under § 211 StGB. The decision as to the costs is based on § 456(1) StPO. (Signatures)

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Annex 3 Judgment of the Bundesgerichtshof 1 2 StR 226/08

IN THE NAME OF THE PEOPLE! Judgment of 20 February 2008 In the criminal matter against Karl-Wilhelm Freiherr von und zu Worms from Frankfurt, born on 6 February 1957 in Fritzlar, on a charge of causing wrong entries to be made in public records. The 2nd Criminal Senate of the Bundesgerichtshof, in the hearing of 20 February 2008, in which the following participated: Presiding Judge at the BGH Dr A, presiding, Judges at the BGH B, C, D and E as assessors, Senior Prosecutor at the BGH F as the representative of the Federal Prosecutor General, Attorney Z from Frankfurt am Main as defence counsel, Judicial secretary H as clerk of the court, has found: On the appeal of the defendant the judgment of the Landgericht Frankfurt am Main of 20 June 2007 is reversed. The defendant is acquitted. The costs of the proceedings and the defendant’s necessary expenses shall be paid out of public funds.

1 Translation of L Meyer-Goßner and E Appl, Die Urteile in Strafsachen, 28th edn (Munich, Verlag Franz Wahlen, 2008) 263–65.

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Annex 3 On grounds of law2 Reasons: 1.

The Landgericht sentenced the defendant to a fine of 180 day units of €8 for causing wrong entries to be made in public records. According to the findings of the Landgericht the former co-defendant Helmut Schmitt, who out of a craving for recognition had already unlawfully acquired a honorary doctorate, wanted to acquire the name of the defendant which contained a title of nobility and to this end wished to be adopted by the defendant and his wife. Together an adult adoption procedure was initiated. In a written statement to the Amtsgericht which had expressed reservations about the parent–child relationship between the defendant and Schmitt on account of the small age difference between the defendant and Schmitt, the defendant made, among other things, untruthful explanations about the time when they had met and his relationship to Schmitt. The Amtsgericht then issued an adoption decree in which Schmitt was adopted as a child by the defendant and his wife and took on the defendant’s name. Thereafter the changes in personal status were entered in the personal status books of the civil registry office, the residence register and on the identity card of Schmitt.

2.

The defendant’s appeal based on the incorrect application of the substantive criminal law succeeds in its entirety.

a)

The conviction for causing wrong entries to be made in public records pursuant to § 271 StGB does not stand up to legal scrutiny.

A wrong entry in the meaning of § 271 StGB was not caused by the defendant, notwithstanding the fact that his explanations about the time when they met and the mutual relationship before the family division of the Amtsgericht were wrong. These explanations, however, were not certified in a public certificate which furnishes proof erga omnes, public books, files or registers. The personal status books, which are in principle public books (see Fischer, StGB, 55th edn § 271 Mn 8), register the fact of adoption as a child and the change of name with reference to the adoption decree and the provisions referred to ( see §§ 15(1) No 2, 30 Personal Status Act), but not the actual background of the adoption. As far as the identity card and the residence register are concerned—the latter’s quality as a public register being controversial (see AG Bremen NStZ-RR 2005, 341, 342; Freud in MünchKomm-StGB § 271 Mn 28; Fischer, op cit Mn 9)—only the name change was relevant. The facts mentioned therein are, however, correct based on a valid adoption and name change decree. There is no reason to believe that the decree was void. Insofar as potentially incorrect statements on the parent–child relationship were caused to be entered in the reasons of the adoption decree, a criminal liability under § 271 StGB does not arise, either. In this context it is irrelevant whether the decree—a fact not mentioned in the judgment—contained reasons at all (given the fact that an adoption

2 German: ‘Von Rechts wegen’, meaning that because the appeal was based on points of law only, the reasons for the decision also rest on grounds of law only, and not on a different evaluation of the evidence, etc.

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Judgment of the Bundesgerichtshof decree cannot be appealed some commentators deny a duty to give reasons, see Maurer in MünchKomm-BGB § 1752 Mn 15; opposing view of Engelhardt in in Keidel/Kuntze/ Winkler, Freiwillige Gerichtsbarkeit, 15th edn § 56e FGG). In any event, the reasons for a decision do not participate in the function of specific public proof. They do not have the power of proof erga omnes. § 271 StGB does not refer to the correctness of the factual statements in a judicial decision (see Freund, op cit, Mn 29 f; Cramer/Heine in Schönke/ Schröder, StGB, 27th edn § 271 Mn 23). Judicial decisions do not have the purpose of establishing facts, but of adjudicating. Establishing facts is only a means to that end (RGSt 24, 308, 312). b)

Given that there are no other offences that might apply and that consequently only an error in the application of the law on the facts stated in the judgment occurred, and absent any other findings that could be detrimental to the defendant, the Senate enters an acquittal pursuant to § 354(1) StPO.

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Index Absehen von Strafe (disccharge), 109 Absprachen im Strafprozess: See plea agreements accusatory principle, 24–5 accused, indictment considered, 105–6 acquittal: public records offences, Bundesgerichtshof judgment (Annex 3), 294–6 addiction treatment orders, provisional, 80–1 adult criminal chambers: juvenile court chamber and, 41 adult proceedings: appeals, courts used, 37 criminal cases, Landgericht jurisdiction, 41 early release, 208 fixed term imprisonment, release from, 209–10 life imprisonment, release from, 210–12 open justice system, in, 34–5 penalties, 210–12 driving disqualification and bans, 204, 243–4 fines, 203–4 public elections, fitness for, 205 public office, fitness for, 205 sentencing principles see sentencing and enforcement supervision orders, 207 suspended sentences, 205–8 adult trials: first instance (outline), 117–18 aggravated murder: Schwurgericht indictment (Annex 1), 282–9 Amtsgericht (AG) (County Court): adult appeals proceedings, 37 jurisdiction, 39–40 Anfangsverdacht (initial suspicion), 69–70 Anklagegrundsatz (accusatory principle), 24–5 Anklagesatz (operative core of the indictment), 104–5 Anklageschrift (indictment), 68–9, 104–5 Antragsdelikte (offences requiring a request to prosecute), 25 appeals, 251–81 adult proceedings courts used, 37 Rügeverkümmerung (‘atrophied ground of appeal’), 126–8 conditions for correction, 127

Berufung see Berufung Beschwerde, see Beschwerde form, 252 general rules, 252–5 grievance, for, 254–5 handing down decisions, 254 interpretation, 252 leave to, 256 moot, 255 out of time, 254 points of law, decision on, 126 retrial, by see Berufung Revision see Revision right to appeal, 252–3 types of, 251 waiver and withdrawal, 253–4 appellate jurisdiction: court structure, 38 Jugendkammer, 44 Oberlandesgericht (State Supreme Court), of, 42 points of law, 39 arrest: arresting person’s responsibility, 72 children under 14, 71–2 committing crimes, suspicion of, 72–3 holding without warrant, 71–4 identification of suspect, 73 warrants, 75–6 criteria for issuing, 75–6 execution, detention on remand, during, 79 stay of, 78–9 extension, grounds for, 80 six months, longer than, 79 issue, continued or repeated offences, 76–7 prohibition, 76 sexual offences, for, 76–7 juvenile proceedings, special provisions, 81 lifting, 79 right to review (Haftprüfung), 74 written, issue of, 76 audio tapes and inspection, 162 audio-visual recordings: evidence as, 160–1 inspection, 162–3

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Index beauftragter Richter (commissioned judge), 30 Befassungsverbot: consequences, 267 examples, 266–7 Berufsrichter see professional judge Berufung (appeal by retrial), 256–9, appeal hearings, 256–9 appellate court’s jurisdiction, 258–9 closing statements, 257 defendant’s absence, consequences, 257–8 evidential stage, 257 sentence, increase of, 259 leave to appeal, 256 lodging, 256 Beschleunigtes Verfahren see expedited procedure Beschleunigungsgrundsatz (speedy trial principle), 30–1 Beschlüsse (rulings), 13–14 Beschwer (grievance), 254–5 Beschwerde, 275–6 appeals against, 276 application of, 275–5 decisions, amendment, 276 filing, 276 definition, 275 Beugehaft sanction, 150 see also testimony Bewährungshilfe (probation service), 64–5 Beweisantrag (evidential motion), 164–5 elements of, 164 Beweisermittlungsantrag (motion to investigate evidence), 165–6 bias: ‘concern of bias’ defined, 52–3 recusal motions for, 54–5 Blackburn v Attorney-General (UK case), 15–16 Bundesgerichtshof (BGH) (Federal Court of Justice): judgment, acquittal, public records offences (Annex 3), 294–6 jursidiction, 43 burden of proof, 7 case law, commentary on, 3 Chamber for commercial offences (Wirtschaftsstrafkammer): Landgericht jurisdiction, 41 charges and charging: cautions, regulations (§ 136), 95–7 suspects of (§ 136), 95–7 changes, legal or factual basis, 122–4 § 265 (1), 122–3 § 266, 123–4 documents, 68–9

children: under 14, arrest of, 71–2 witnesses, as, 148 clerk of the court, 65–6 co-defendants: witnesses, as, 146–7 evaluation, 147 Code of International Criminal Law (Völkerstrafgesetzbuch), discontinuance under, 109–10 concentration principle: recusal motion for bias, 54–5 confiscation, 245–250 conditions (StGB §73), 246 effect, 247 extended, 247 monetary value, 246–7 conflicts of jurisdiction, 46–8, basic principle, 46 courts and prosecution services, 47–8 criminal cases, in, 46–7 constitutional principles, 17–24 contempt of court, witnesses, of, 149–50 correction order, 127–8 costs, 133–4, allocation, 134, parties, of, 133–4 proceedings, of, 133–4 counsel: assignment, juvenile proceedings, 61 recission, 62 time and procedure, 61–2 defence, choice, restrictions, 59–60 prosecution dossier, inspection, 62–3 qualifications, 57–8 role, 58 defendant’s right to access, 63 representation of defendant, 58–9 witnesses, as, 148–9 County Court (Amtsgericht) see Amtsgericht court procedure: selection of experts, 155–6 court record, 125–8 appellate process of revision, 126–8 contents, 125–6 procedure, § 274 formalities, 126 courts (Gerichte), 36–48 adult proceedings, appeals, 37 criminal, jurisdiction, deciding factors, 46 hierarchy (diagram), 38 introduction, 36 overview, 37–9 staffing, 48–51

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Index support services, 64–5 see also specific courts’ entries crimes, suspicion of committing, 72–3 criminal procedure: German, legislation covering, 9–11 inquisitorial approach, 6–9 stages, 11–13 cross-examination (Kreuzverhör), 119–20 custody review hearing (Haftprüfung), 74

provisional, 111 rejection of indictment, 107–8 reversible, 110–11 misdemeanours, 111 §§ 45, 47, 153, 154, 170 JGG, under, 104, 108–13 deadlines for compliance (§ 153), 109 discretionary prosecution principle, 25–7 disqualification orders: driving for, 243–4 professional, 245 DNA analysis: judicial orders, 87 mass screenings, 88 purposes, lawful and unlawful, 86–7 sexual and serious offences, in, 87–8 testing procedures, 87–8 documentary evidence, 157–61, general rules, 157–8 double counting and adult offences, 186–7, 190 dragnet investigations: definition, 88–9 time-limited collection, 89 driving: ban, 204 disqualification, 243–4 licences, issue of, 244 duty of care (Gerichtliche Fürsorgepflicht), 23 duty of suspicion (Anfangsverdacht), 69–70

defence, 57–63, conflict defence (Konfliktverteidigung), 114 counsel see counsel pre-trial investigation, 67–8 defendants: Berufung hearings, access to, 63 increase in sentences, 259 counsel representation, 58–9 plea agreements, 120–2 previous statements, 160 right to scheme, 173–4 Strafbefehl and, 136–7 trial proceedings, in, 116–17 see also co-defendants deprivation, 247–50 company representatives, of, 250 conditions of, 247–8 effect of, 249 monetary value, 248–9 proportionality, 248 publication media, 249 detention: duration, rehabilitation and incapacitation, 240 mentally-ill persons, 232 incapacitation, M v Germany, 226–37 remand, execution of arrest warrant, during, 79 discharge (Absehen von Strafe), 109 discontinuance (Einstellung des Verfahrens): Befassungsverbote, 266–7 Code of International Criminal Law (Völkerstrafgesetzbuch) under, 109–10 court’s options, 102–3 discharge (Absehen von Strafe), 109 Federal Prosecutor General (Generalbundesanwalt), 109 juvenile proceedings, 102–3 educational measures, 112 judicial consent, without, 112 §§ 45 & 47 JGG, under, 111–13 misdemeanours (Vergehen), 108–9 conditions for, 108–9 offences committed abroad, 109

ECHR see European Convention on Human Rights Einführungsgetz zum Gerichtsverfassungs gesetz (EGGVG), 10 Einzelrichter see professional judges Einziehung see deprivation enforcement see sentencing England: mandatory and discretionary prosecution, 256 Erfolgsunwert (severity of consequence), adult proceedings, sentencing and enforcement, 182–5 Ermittlungsgrundsatz (inquisitorial principle), 27–8 Ermittlungsverfahren see pre-trial investigation ersuchter Richter (requested judge), 30 European Convention on Human Rights, 10 case law, Sicherungsverwahrung, on, 226–37 M v Germany considered, 226–37 presentation of evidence, 29 Eventualbeweisantrag ( motion made under the condition that the court arrives at a certain conclusion about a certain issue), 166

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Index evidence, 143–74 audio visual recordings, 160–1 bodily samples, 85–6 commissary taking, of, 30 DNA analysis, 86–8 documentary see documentary evidence evidential motions see evidential motions ex officio duty, 172 expedited procedure, 140–1 free evaluation, 32 German law, in, 32 interpretation, in dubio pro reo, 33 introduction, 143–4 means of,144–63 moot, 166 presentation, oral, 28–9 previous statements (records), 158–61 right to silence, 173–4 rules, 163–74 seized objects as, 83 trial preparation, 113–14 Widerspruchslösung (objection model), 172 witness’s prior statement (§252), 151–2 evidential motion: alleged facts, 168–70 denying, 167–71 expert evidence, 170–1 Hilfsbeweisantrag, 166–7 inspections, denial of, 171 judicial notice, 168 legislation covering, 167–8 proceedings delay, 170 types, 164–7 expedited procedure (Beschleunigtes Verfahren), 139–141 court’s sentencing powers, 140 evidence and, 140–1 interrogation of witnesses, 140–1 introduction, 139–40 expert evidence: evidential motion, 170–1 experts, 147–8, 152–7 appointments, right to refuse, 157 court-appointed, 153 court selection, 155–6 parties’ own summoned, 164 privately retained, 153 recusal of, 156 Federal Prosecutor General (Generalbundesanwalt): discontinance, powers of, 109 free conviction (freie Überzeugung), 8–9 freedom of will: violations, suspect’s interrogation, 98–9

freie Beweiswürdigung, 32 freie Überzeugung (free conviction), 8–9 Generalbundesanwalt (Federal Prosecutor General): discontinance, powers of, 109 Gerichte see courts Gerichtliche Fürsorgepflicht, (judicial duty of care), 23 Gerichtshilfe (court support service), 64–5 Gerichtsverfassungsgesetz (GVG) (Organisation of Courts Act), 10 oral presentation of evidence, 28–9 German law: evidence, history of, 32 mandatory and discretionary prosecution, 25–7 Gesetzlicher Richter (pre-determined judge), 18–19 ‘great listening attack’, 90–1 Green Paper of the European Commission on the Presumption of Innocence COM (2006), 8 grievance: appeals for, 254–5 Großer Lauschangriff (great listening attack), 90–1 Grundgesetz (GG), 9 Art 97, 17–18 Grundsatz der Verhältnismäßigkeit und Übermaßverbot (proportionality principle), 22 GVG see Gerichtsverfassungsgesetz Haftbeschwerde see arrest, warrant Haftprüfung (custody review), 74 Herrin des Ermittlungsverfahren see prosecution Hilfsbeweisantrag (residual evidential motion), 166–7 human rights: case law, incapacitation, M v Germany, 226–37 human dignity, forbidden interrogation techniques, 97–100 imprisonment: early release, 208 fixed term, release, adult proceedings, 209–10 juvenile proceedings 200–1, 217–21 deferment of sentence, 219–20 early release, 220–1

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Index proceedings, 218–9 suspended sentence, 217–19 life, release, adult proceedings, 210–12 suspended offences, adult proceedings, 205–8 in dubio pro reo, 21, 32–3 interpretation of evidence, 33 incapacitation: criminal proceedings, 138–9 absence of offender, 138–9 definition, 137–8 duration, 239–40 orders, 176, 223–39 basic concept, 223–6 deferred, 232–3 ex post extension, M v Germany, 223, 226 Landgericht jurisdiction, 42 legislation covering, 223–6 rehabilitation measures, 137 Sicherungsverwahrung, ex post extension, procedures, 137–9 subsequent (post 2000), 234–7 subsequent (pre-2010), 233–4 sentencing and enforcement, 178–9 StGB review, 240 suspension of measures, 239 termination, 239–40 transfer, 239 young adults proceedings, 221–50 indictment, 104–8 accused’s consideration of, 105–6 admission of, 106–7 § 207 requirements of, 107 aggravated murder, Schwurgericht (Annex 1), 282–9 content and structure, 104–5 indictment (Anklageschrift), 104–5 amendment of, 105 ‘operative core of the indictment’ (Anklagesatz), 104 rejection, 107–8, discontinuance, 107–8 trial panel’s consideration of, 105–6 innocence, presumption of, 7–8, 21–2 inquisitorial principle, 27–8 inspection, 161–3 audio visual recordings, 162–3 general comments, 161–2 technical reports, 163 interrogation: judicial, regulations, 93–5

§ 136, 95–7 techniques (§ 136a), 97–100 JGG see Jugendgerichtsgesetz judges: behaviour during hearings, 54–5 commissioned (beauftragter Richter), 30 consent, juvenile proceedings, discontinuance, 112 DNA analysis testing procedure, 87–8 exclusion, 51–5 ‘ex officio’, 52 reasons for, 52 rules, 52 lay judge (Schöffe, abbrev. L), 37, 48–51 application for, ineligible peersons, 51 refusal, 51 eligibility for, 51 powers, 49–50 striking off list, 51 term of office, 50 unexcused absence, 51 panels, 48–9 mixed, 37 pre-determined (gesetzlicher Richter), 18–19 professional (Berufsrichter, abbrev. P), 37, 48–51 adult appeal proceedings, 37 education and training, 49 recusal, 51–5 admissibility of, 54–5 requested (ersuchter Richter), 30 role in trials, 119–20 searches, ordered by, 82–3 seizure orders, 84–5 single, minor juvenile offences, 43 Strafbefehl, role in, 136 trial preparation, 113 witnesses, as, 148–9 judgment (Urteil), 13–15, 128–34 Bundesgerichtshof, acquittal, components, 130–2 form of, 130–2 introduction, 128–30 juvenile proceedings, differences from adult trials, 132–3 outline (table), 131–2 revision appeals, 274–5 Schwurgericht, life sentence (Annex 2), 290–3 signature, on, 131 judicial independence, 17–18

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Index Jugendgerichtsgesetz (JGG) (Juvenile Courts Act), 10 Jugendgerichtshilfe (juvenile court support service), 12–13, 64–5 Jugendkammer (Juvenile Court Chamber [LG]): appellate jurisdiction, 44 lower courts, cases admitted to, 44–5 trial jurisdiction, 43–4 Jugendschöffengericht: juvenile appeals, 39 juvenile court jurisdiction, 43 Juvenile Court Chamber (LG) and adult criminal chamber, 41 juvenile courts: criminal law procedure, 11–13 jurisdiction, 43–5 Juvenile Courts Act, 10 minor offences, single judge, 43 juvenile proceedings: appeals procedure, 39 arrest warrants, special provisions, 81 corrective measures, 215–17 counsel, assignment of, 61 discontinuance see discontinuance early release, 212–21 educational measures, 213–15 imprisonment see imprisonment judgments, differences from adult trials, 132–3 open justice system, in, 35 penalties, 212–21 introduction, 212–13 post-conviction review, 277–81 grounds, 278–9 against defendants, 279 in defendant’s favour, 278–9 procedure, 279–81 application for, 280–1 jurisdiction, 280 requirements, 281 sections, 279 pre-trial investigation, 70 prosecutions, options following, 101–3 sentencing see sentencing and enforcement juvenile procedure: simplified, 141–2 motion details, 141 sentence under, 141–2

Landgericht (LG): adult appeals proceedings, 37 jurisdiction, 40–2 trial preparation, 114–15 legal examination: stages, 15–17 offenders’ position, 16–17 legal spheres theory, 268 legal terminology, 13–15 English, 13 German, 13–15 Legalitätsprinzip (principle of mandatory prosecution), 25–7, 69 legislation: criminal procedure, for, 2–3, 9–11 principles, 24–35 libel, parallel trials, 111 life sentence, 82 Schwurgericht judgment (Annex 2), 290–3 M v Germany, 226–37 incapacitation order, ex post extension, 223, 226 mandatory investigation and prosecution 25–7 69 Maßregeln der Besserung und Sicherung see incapacitation, rehabilitation mental health: mental hospital orders, 222 mentally-ill persons defined, 232 mental health orders, provisional, 80–1 minor offences: discontinuance of proceedings, 26 mitigating circumstances of adult offences, 193–4 monetary value: confiscation, 246–7 deprivation, 248–9 Mündlichkeitsprinzip (oral evidence), 28–9 Nachträgliche Sicherungsverwahrung: Landgericht jurisdiction, 42 ne bis in idem, 23–4 negligence: adult proceedings, specific offences, sentencing for, 184–5

Kommissarische Beweisaufnahme (commissary taking of evidence), 30 Konfliktverteidigung (conflict defence), 114 Konzentrationsprinzip (concentration principle), 30–1

oaths for witnesses, 150 Oberlandesgericht (OLG) (State Supreme Court): appellate jurisdiction, 42 points of law (Revision) considered, 39 trial preparation, 114–15 offences: committed abroad, criminal, 45–6 place of offence, 45–6 discontinuance, 109

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Date: 16/1

JOBNAME: Bohlander PAGE: 7 SESS: 4 OUTPUT: Mon Jan 16 12:36:47 2012

Index multiple offences, 195–9 legislative provisions, 196–7 sexual and serious offences, DNA analysis, 87–8 state security, Landgericht jurisdiction, 41 Oberlandesgericht jurisdiction, 42 ‘taken into consideration’ (TIC), 124 Tateinheit, 197–9 Tatmehrheit, 197–9 offenders: incapacitation, criminal proceedings of, 138–9 legal examination stages, 16–17 OLG see Oberlandesgericht Öffentlichkeitgrundsatz see open justice principle Offizialprinzip (principle of public prosecution), 25 open justice (Offentlichkeitsgrundsatz), 34–5 adult proceedings, 34–5 juvenile proceedings, 35 Opportunitätsprinzip (discretionary prosecution principle), 25–7 minor offences discontinued, 26 Organisation of Courts Act, 10 Organisation of Courts (Introduction) Act, 10

adult offences see sentencing and enforcement previous statements, 158–61 judicial records, exceptions for, 159 live testimony, replacement of, 158 reading in court, 159–60 Vorhalt (reminder), 159–60, 162 principle of public prosecution, 25 privacy: individuals’, telecommunications surveillance, 90–1 Privatklage (private prosecution), 25 proceedings, costs of, 133–4 professional disqualification, 245 proof: standard of, ‘free conviction’, 8–9 strict form (Strengbeweis), 144–63 proportionality, 22 deprivation, 248 prosecution, 55–7 decision, 103–4 discontinuance and discharges, 26–7 enforcement, staff, 56 independence of, 55–6 juveniles, options, 101–3 mandatory and discretionary England, 25–6 options following, 101–42 introduction, 101–3 powers of arrest, 72–3 pre-trial investigations, 67 private, 25 regulation of, 56 § 170 rules, 103–4 searches, ordered by, 82–3 sufficient cause (genügender Anlass), 103–4 young adults, options, 101–3 witnesses, as, 148–9 prozessual bedingter Beweisantrag (evidential motion under procedural condition), 166 public elections, ability to hold, 205 public office, ability to hold, 205 public prosecution principle, 25

parties, costs of, 133–4 penalties: adult proceedings, driving disqualification and bans, 204, 243–4 fines, 203–4 public elections, fitness for, 205 public office, fitness for, 205 ‘penalty’ defined, M v Germany, 230 plea agreements (Absprachen im Strafprozess), 120–2 police: criminal proceedings, role in, 63–4 powers of arrest, 72–3 searches, ordered by, 82–3 post-conviction review, 251–81 juvenile review see juvenile review postal communications, seizure, 84–5 pre-trial investigation, 67–100 defence’s role, 67–8 duty to investigate, 69–70 initiation, 69–70 introduction, 67–9 juveniles, for, 70 prosecution’s role, 67 stages of, 68–9 young adults, for, 70 prevention of offences:

Raster- and Schleppnetzfahndung see dragnet investigation ratione loci, 45–8 conflicts of jurisdiction see conflicts of jurisdiction defined, 45 residual clauses, 45 ratione materiae:

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Date: 16/1

JOBNAME: Bohlander PAGE: 8 SESS: 4 OUTPUT: Mon Jan 16 12:36:47 2012

Index conflicts of jurisdiction see conflicts of jurisdiction jurisdiction, 39–45 Rechtliches Gehör (right to be heard), 19–20 Rechtskreistheorie (theory of legal spheres), 268 Rechtspfleger (‘quasi-judicial officer’), 133 reconciliation: adult proceedings, sentencing and enforcement, 180 recusal motions: bias, for, 54–5 judges, of, 51–5 reformatio in peius rule, 259 revision appeals, judgement, 275 refusal to testify: peoples’ rights, categories of people, 84 rehabilitation: duration, 239–40 prevention and, 191 sentencing and enforcement, 178–9 StGB review, 240 suspension of measures, 239 termination, 239–40 transfer, 239 young adults proceedings, 221–50 remand: adult offences, for, 194–5 execution of arrest warrant during, 79 representation: discretionary and mandatory differentiated, 60 restitution: adult proceedings, sentencing and enforcement, 180 Revision, 39, 260–75 appeals, admissibility, 261–2 amendment of, 262–3 errors of law, 267–70 judicial administration’s negligence, 267–8 Rechtskreistheorie, 268 grounds for, 263–75 absolute, 270–4 introduction, 263–5 relative, 265–70 Sachrüge, 268–9 judgment, 274–5 procedural law, categories of, 266–70 introduction, 265–6 substantive law and, introduction, 265–6 appellate process,

court record, 126–8 filing, 260–1 judgment, grounds for, 263–75 introduction, 263–5 procedural aspects, 260–3 Revisionsgericht (court hearing appeal on point of law), 126 right to be heard (rechtliches Gehör), 19–20 ‘right to lie’, 7 Rügeverkümmerung (atrophied ground of appeal), 126–8 sanctions, Zweispurigkeit (two-track model), 176–7 Sachverständige see experts sachverständige Zeugen (witnesses because of expertise) see witnesses; experts Schöffe see lay judge Schöffengericht see mixed panel of professional and lay judges Schriftstücke (written materials), 157 Schwurgericht (Landgericht, criminalchamber mainly for homicide offences): indictment, aggravated murder (Annex 1), 282–9 judgment, life sentence (Annex 2), 290–3 Landgericht, jurisdiction, 40 searches: definition, 82 house-owners’ rights, 83 ordering, 82–3 residences, of, 82 rules, 81 seizure, 83–5, government powers, 83–4 objects, of, evidence at trials, 83 orders for, 83 judges, by, 84–5 postal communications, 84–5 prohibition, 84 Selbstleseverfahren (self-reading procedure), 158 sentencing and enforcement, 175–220 adult offenders, multiple offences, 195–9 legislative provision, 196–7 adult proceedings, 179–99 discharge from offences, 189 double counting, 186–7 rules against, 190 Erfolgsunwert (severity of consequence), 182–5 specific offences, 183–5 fairness considerations, 188–9

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Date: 16/1

JOBNAME: Bohlander PAGE: 9 SESS: 4 OUTPUT: Mon Jan 16 12:36:47 2012

Index legislative provision, 179–82 modus operandi, 187–8 specific offences, 187 offences, mitigating circumstances rule, 193–4 prevention, 191–3 deterrence, 192 examples, 192–3 levels of punishment, 191–2 degree of responsibility (Handlungsunwert), 185–8 punishment, effect on, 188–9 reconciliation, 180 remand, 194–5 restitution, 180 serious offences, prevention, 180–2 early release, adult proceedings, 208 juvenile proceedings, 212–21 enforcement sequence, rehabilitation and incapacitation, 239 solution (Vollstreckungslösung), 31 StPO, 56–7 expedited procedure, under, 140 increase of sentence, Berufung hearings, 259 introduction, 175–9 juvenile proceedings, 199–202 corrective measures, 215–17 educational approach and measures, 199–200, 213–15 imprisonment, 200–1 introduction, 212–13 multiple offences, 201–2 penalties, adult proceedings, 202–12 juvenile proceedings, 202–21 rehabilitation and incapitation, 178–9 sentencing frame (Strafrahmen), 177–8 simplified, juvenile proceedings, 141–2 structure overview, 176–9 unified sentence (Einheitsstrafe), 201 young adults, guidelines, 202 Zweispurigkeit (two-track model), 177 sexual offences: DNA analysis, 87–8 issue of arrest warrants for, 76–7 Sicherungsverfahren see incapacitation procedure Sicherungsverwahrung see incapacitation, rehabilitation StGB see Strafgesetzbuch StPO see Strafprozessordnung

Strafbefehl (written penalty order), 13, 26–7, 135–7 defendants and, 136–7 definition, 135 judges’ role in, 136 penalties, 135–6 Strafbefehlsantrag, 68–9 Strafgesetzbuch (Criminal Code), 10 Strafklageverbrauch (ne bis in idem rule), 23–4 Strafprozessordnung (Code of Criminal Procedure), 10 enforcement, 56–7 Strafvollstreckungskammer: Landgericht jurisdiction, 42 Strengbeweis see proof supervision orders, 207, 241–3 conditions, 241 directions for, 241–2 duration, 242–3 full sentences, after, 243 surveillance: electronic, connection data, 91 telecommunications, 89–91 online, 90 suspects: cautioning (§ 136), 95–7 identification of, 73 interrogation, 93–100 freedom of will violations, 98–9 Tateinheit, examples, 197–9 Tatmehrheit: examples, 197–9 juvenile offenders, 201 technical reports, inspection, 163 telecommunications, electronic surveillance, 89–91 testimony, privileged witnesses’, 151–2 time limits: misdemeanours, reversible discontinuance, 111 recusal motion for bias, 54–5 treatment orders: custodial addiction orders, 222 mental hospital orders, 222 trials: admission for, 104–8 adult see adult trials concentration principle, 30–1 essential and non-essential parts, 272–4 fair, right to, 20–1 juvenile, lower courts, admission to, 44–5 panels, indictment considered, 105–6 preparation, 113–15

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Date: 16/1

JOBNAME: Bohlander PAGE: 10 SESS: 4 OUTPUT: Mon Jan 16 12:36:47 2012

Index conflict defence, 114 evidential concerns, 113–14 introduction, 113 Landgericht, 114–15 Oberlandesgericht, 114–15 presiding judges’ role, 113 proceedings, defendants’ role, 116–17 outline, 115 special procedures, 134–5 speedy trials, principles, 30–1 rules, enforcement solutions, 31 verdict (Urteilsformel), 130

Vorführung (bringing defendant before court by order to police), 77–8 Vorhalt see previous statements

undercover agents (verdeckte Ermittler), 92–3 definition, 92 legislative controls, 92–3 use of, 92 Unmittelbarkeitsprinzip (presentation of evidence before the deciding judges), 29–30 Unschuldsvermutung (presumption of innocence), 21–2 Urkundsbeamter (clerk of the court), 65–6 Urteil see judgment Urteilsformel (verdict), 130 verdeckte Ermittler see undercover agents verdict (Urteilsformel), contents, 130 Verfügungen, 13–14 vereinfachtes Jugendverfahren see juvenile procedure, simplified Verfall see confiscation Vergehen (misdemeanours): discontinuance, 108–9 victims, 64 Violent Offenders (Custodial Therapy) Act 2010 (ThUG), 235, 237 Völkerstrafgesetzbuch (Code of International Criminal Law): discontinuance under, 109–10 Vollstreckungslösung (enforcement solution), 31

Wales: mandatory and discretionary prosecution, 25–6 warrants: arrest see arrest warrants Widerspruchlösung (objection model), 172 Wirtschaftsstrafkammer see Chamber for Commercial Offences witnesses, 145–52 co-defendants, as, 146–7 evaluation, 147 contempt of court, 149–50 defendants as, 146–7 definition, 145–6 duty to testify, 149 expertise, because of, 147, 154 hearsay defined, 145–6 interrogation, expedited procedure, 140–1 minimum age, 148 parties’ own, 164 physical examination and inspections, 150–1 prior statements (§252), 151–2 privileged, trial testimony refused, 151–2 under-age, 148 vulnerable, 148 see also testimony young adults: proceedings, incapacitation, 221–50 legislative provision, 221–2 pre-trial investigation, 70 rehabilitation, 221–50 legislative provision, 221–2 prosecutions, options, 101–3 sentencing guidelines see sentencing and enforcement Zeugen see witnesses Zweispurigkeit (two-track model), 221–50

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Date: 16/1