Principles of German Criminal Procedure

Michael Bohlander

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509935345
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto comparato

The new edition of this seminal text outlines the fundamental aspects of the German approach to criminal procedure. It explores a wide range of issues from setting out the basic procedural principles to presenting the main players in the criminal justice system, pre-trial investigations, the path from indictment to trial judgment, rules of evidence, sentencing, and appeals and post-conviction review. As far as it is useful for an introductory text, the differences between proceedings against adults and juveniles are highlighted. The theoretical discussion of decision-making and style of judgment writing is supported by practical insights through specimen translations of an indictment, a trial judgment and an appellate judgment by the Federal Court of Justice.

1

Introduction

Scope of the Book

In my book, Principles of German Criminal Law, I had said in 2009:

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, emphasised 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 still holds true for the present volume on the procedural aspects of German criminal justice. The field of criminal procedure is much wider than that of substantive law because practical issues play a more prominent role, which makes the task of selecting the right subjects within the limited space of a mere introduction more difficult. For example, the entire field of international cooperation in criminal matters, an area of huge practical importance for German prosecutors, judges and defence counsel these days, has been left out. Domestic 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, not least from first-hand practice during my time at the Extraordinary Chambers in the Courts of Cambodia, 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 common law procedural commentators, the French juge d’instruction, for example, has been a non-entity in German law for a long time and the role of the independent public prosecutor takes up a lot of what would fall into the remit of an investigating judge in France. 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 comments apply to judgment drafting, where the education of law² students at university and in practical training after having obtained a first university degree or state examination, 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 state supreme courts, the Oberlandesgerichte (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 BVerfG has kept a close watch over the manner in which the ordinary courts administer 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 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 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. That new legislation has since been implemented and now forms the basis of the revised discussion below in the chapter on sentencing.

Digitalisation has also reached the German administration of justice and since 1 January 2018³ the StPO has had a number of new provisions regulating the use of an electronic case file (§§ 32–32f) which – where already in place – have ramifications into all provisions of the law which refer to court records. Where it was relevant for individual substantive issues, this development was referenced but in terms of a general introduction, the topic is too technical and not of sufficient systemic relevance to dedicate a separate part to it.

German Materials Used

As in the previous edition 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 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.

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, translated by Dr Margaret Hiley and me, A Modern History of German Criminal Law (Berlin, Springer, 2014).

Mode of Citation

I repeat what was said in the previous edition:

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 German criminal court hierarchy. Chapter four takes the reader 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 in 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.

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

²In 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 course 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, for example, S Bartie, ‘The lingering core of legal scholarship’ (2010) 30 Legal Studies 345.

³Law of 5 July 2017, BGBl I 2017, 2208.

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 versus 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 (§ 261) in German, really lower than the standard ‘beyond reasonable doubt’ of which common lawyers tend to be so proud?³ A quick look at the law will reveal 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, Continental inquisitorial systems do not ha...