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Comparative Law Spring 2002 Professor Susanna Fischer

Comparative Law Spring 2002 Professor Susanna Fischer. CLASS 27 GERMAN CRIMINAL PROCEDURE March 22, 2002. Wrap-up: German Civil Procedure. German Criminal Law. What is the main task of criminal proceedings ( Strafverfahren )?

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Comparative Law Spring 2002 Professor Susanna Fischer

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

  2. Wrap-up: German Civil Procedure

  3. 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)?

  4. 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)

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

  6. 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

  7. 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

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

  9. 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

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

  11. 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.

  12. 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)

  13. 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

  14. 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

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

  16. 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

  17. 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 -

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

  19. 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

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

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