Comparative Law Spring 2002 Professor Susanna Fischer

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Comparative Law Spring 2002Professor Susanna
Fischer

• CLASS 27
• GERMAN CRIMINAL PROCEDURE
• March 22, 2002

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Wrap-up German Civil Procedure
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German Criminal Law

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

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German Criminal Law

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

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Legal Sources for Criminal Procedure

• What are the legal sources governing criminal
  procedure in Germany?

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Legal Sources for Criminal Procedure

• Strafprozeßordnung - (StPO or Code of Criminal
  Procdure)
• Jungendgerichtsgesetz (JGG or Juvenile Court Act)
• Gerichtsverfassungsgesetz (GVG or Judicature Act)
• Grundgesetz (GG or Basic Law) Arts. 1-19, 101,
  103-104
• European Convention on Human Rights
• Administrative directives

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Penal Code

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

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Criminal Courts in Germany

• What German courts hear criminal proceedings?
• And are they first instance courts or appellate
  courts?

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Criminal Courts in Germany

• Amtsgericht 1st instance
• Landgericht 1st instance or 2d instance
• Oberlandesgericht 1st, 2d or 3d instance
• Bundesgericht Court of appeal of last resort

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Criminal Courts in Germany

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

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Amtsgericht

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

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Landgericht

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

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Oberlandesgericht

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

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Bundesgerichtshof

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

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Principles of Criminal Procedure

• What are the basic principles underlying the
  German system of criminal procedure?

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Principles of Criminal Procedure

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

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More principles

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

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Principle of Investigation

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

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Investigation

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

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Course of a Criminal Proceeding

• How does a criminal proceeding start?
• How does it proceed?
• How does it end?