1. History of criminal law
The history of German criminal law starts in the Germanic time, which lasted till the end of the 6th century. In Germanic tribal law systems most punishments for crimes were compensations for the loss of the aggrieved party. Public punishment was usual only in cases of crimes against the community, e.g. the disclosure of military secrets.
In the Frankish era between the 5th and 9th century the penal law of the state grew stronger and was written down more intensely. Tribal laws also were written down. In the Middle Ages governmental power more and more was taken over by local rulers, cities and the sovereigns of territories. Body punishments and torture came to an increasing importance. A unitary basis for penal law was created by private collections of laws like the Mirror of Saxonia (Sachsenspiegel) from 1230. An important milestone was the Constitutio Criminalis Carolina, which can be considered as the first unitary German criminal code. It was enacted by emperor Karl V. in the year 1532. By the Carolina the trial by ordeal was substituted by a trial by peaces of circumstancial evidence and confessions. Confessions were obtained by torture. The proceedings and conditions of torture were exactly defined by the Carolina. The Carolina systemized German law. One negative aspect is that it declared witchcraft as a criminal offence which was to be punished by burning of the person at the stake. Together with the new unitary rules about torture this was the juridical basis for a number of waves of witch burnings which were supported by fanatical clerical officials. In the area of the German Empire burnings of so called witches and wizards claimed the lives of around 25.000 people till the 18 th century and depopulated some regions (e.g. the Trier region) almost completely. The number of victims in the empire corresponds to the number of burnt witches in the rest of Europe in this period of time.
At the beginning of the Enlightenment an increasing number of scholars of law supported a more rational law. Prussian king Friedrich II. disposed of torture as an instrument of evidence in the moment of his assumption of office in 1740. Penal law was characterized by terms of imprisonment now. It was regulated in the Prussian General Code of Law (Preussisches Allgemeines Landrecht, ALR) and in the codes of the other German speaking countries. In 1851 a Prussian criminal code was enacted which became the basis for the criminal code of the Northern German Alliance of 1870. In 1871 this code became the criminal code for the newly founded German Empire. Today it is still in force – admittedly with a number of alterations. The Nazis invented several alterations which were cancelled after World War II – e.g. the use of analogy in the criminal law or the emasculation of sexual offenders.
The Book of General Provisions of the Criminal Code (§§ 1 – 79b) includes principles significant for the complete area of penal law. It defines the different ways of committing a crime, i.e. completion and attempt, committing a crime and participation (the latter subdivided into instigation and aiding), acting on purpose and negligence, acting and omitting. It also defines self-defence and help in case of emergency and shows the basic consequences of crimes. The Book of General Provisions also regulates the conditions of the application for legal proceedings against somebody and contains the rules about the time limitation period of crimes. German criminal law distinguishes between misdemeanor and crime. Every illegal action with a threat of punishment of at least one year of imprisonment is qualified as a crime.
The Special Part of the Criminal Code (§§ 80 – 358) includes the descriptions of the individual crimes. These are thematically arranged. German criminal law often defines simple and qualified methods of committing a crime. There are different threats of punishment for these: The wilful killing of another person is a manslaughter (threat of at least five years in prison up to lifelong imprisonment). The law enumerates certain motives and ways of committing which qualify the killing as a murder, e.g. killing caused by greed, killing in an insidious way or by means dangerous to the public. The punishment for murder is always a lifelong imprisonment.
Important sections of the Special Part of the Criminal Code deal with crimes against physical integrity (e.g. bodily injury, dangerous bodily injury), crimes against personal freedom (e.g. trade and trafficking in human beings, deprivation of children, deprivation of liberty), theft and defalcation, robbery and blackmail, fraud and infedelity, wilful damage to property. Examples for crimes of the business sector are crimes connected with insolvency and crimes against fair competition.
Examples for threats of punishment:
Practically a lot of crimes are punished by penalties of money. Bodily injury or damage of property will be punished with prison only in extraordinary cases or in case of frequent recurrence. - Decreased capability of guilt, e.g. caused by a mental illness, can result in a decrease of the punishment. The court also may state a case of exceptionally heavy guilt – e.g. because of extremely cruel methods of killing. This statement prevents or delays an early release out of prison.
German criminal law allows so called "time-bound" (zeitige) imprisonments of a duration up to 15 years or penalties of money. Additionally for a few crimes – e.g. murder or high treason – it determines the threat of lifelong imprisonment. According to a decision of the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) from 1977, every convict must have the chance of a later life in freedom. Correspondingly after a certain time of imprisonment a revisal of the imprisonment takes place. During this process the possibility of an early release of the convict is examined. A sentence to more than one lifelong imprisonment or to a period of imprisonment exceeding the normal lifetime of a person is not possible in Germany. Somebody convicted to lifelong imprisonment may come free soonest after 15 years under the conditions that
In cases of exceptionally heavy guilt – e.g. serial murder or particular cruelness – an early release is possible soonest after 18 years of imprisonment. These rules are interpreted in different ways in the German federal states. Practically the average duration of a "lifelong" imprisonment wavers between 20 and 27 years dependent on the state. If the convict is a danger to the public, a judge can order a security arrest following the regular punishment. Mentally ill criminals may be admitted into special hospitals which are secured against their escape. Both measures are not neccessarily temporary; they can last till the end of the person´s life. The convict is to be released if he is healthy and not dangerous any more from the medical point of view.
German criminal procedural law is to be found in the Criminal Procedure Act (Strafprozessordnung, StPO). The prosecuting authority decides about the opening of the investigational proceedings under the condition of adequate suspicions of criminal activity against the suspect. The police performs the investigations, which are lead and controlled by the prosecutional authority. The public prosecutor may start investigations with or without an report of an offence by a citizen. In case of sufficient evidence against a certain person the prosecutor will officially accuse the suspect. The prosecutor has the duty to collect evidence both against and in the interest of the suspect. Video films or audio recordings made in secret are not permitted as evidence.
The criminal trial is led by the judge. Public prosecutor and judge are independent from each other and from other governmental authorities. Judges do not have to follow any instructions. Prosecutors have to follow instructions by the ministries of justice of the states, but only to a limited extent. The judge underlies the principle of authoritative investigations (Amtsermittlungsgrundsatz), i.e. his duty is to investigate and consider all facts and matters being relevant for the case. The judge must not rely on the evidence brought forward by the prosecutor or the defence. He has to ascertain the true order of events, e.g. by an inspection of the site of crime or by the hearing of witnesses or specialists.
Trials with a jury of lay persons do not exist in Germany. To a certain extent lay persons are appointed as assessors (Schöffen). Schöffen-trials consist of one full-time judge leading the trial and two assessors. These work without payment. All three have the same right to vote. The Schöffen-trial is held at the local court and is competent only for criminal offences not falling under the competence of a common trial lead by a single judge and also not falling under the competence of the Landgericht (court of appeal which is competent for first-level – trials in cases of special importance). The Schöffen-trial may sentence a person to not more then four years of prison. It is not competent to sentence somebody to a security arrest after his regular punishment, or to admit him to a psychiatrical hospital. Assessors are also posted at so called "Oath Trials" (Schwurgerichte) at the Landgericht. These are not to be confused with the Schöffen-trials or with a jury known from other countries. Oath Trials are staffed with three full-time judges and two assessors. They are competent mainly for homicides. The term Schwurgericht originates from the time before 1924, when jury trials existed in Germany.
The German Criminal Procedure Act distinguishes between offences being prosecuted by the state on it`s own accord and such being prosecuted on formal application by the victim. The latter are devided into absolute and relative offences. "Absolutely applicational" offences are being prosecuted only if there is a formal application of the victim. An example is the offence of unlawful trespas. "Relatively applicational" offences are prosecuted additionally at the suggestion of the prosecutor´s office itself in cases of an extraordinary public interest in the individual case. An example for this kind of offence is the simple bodily injury.
The applicational offences mentioned in § 374 of the Criminal Procedure Act (StPO) may be prosecuted in a special way initiated by the victim: By "private prosecution" (Privatklageverfahren). This term describes a rarely practised legal procedure in which the victim in a sense takes over the role of the prosecutor. The public prosecutor does not take part in this procedure; evidence has to be presented to the judge of the criminal court by the victim. Offences being dealt with by private prosecution are, e.g., the insult to a person, the damage to property and the bodily injury.
For this kind of offences another particularity applies: Before a legal action is started, there has to be an attempt of amicable settlement in front of an arbitrative board. The failing of this attempt is a supposition for a legal action by private prosecution.Legal remedies in the area of penal law are the complaint, the appeal and the revision. The complaint may be used against decisions and injunctions not being court sentences and originating from the court of the first authority or from the court of appeal. Similar to civil law within the scope of the appeal both formal and factual matters are examined, e.g. the circumstances of the crime. Only the court of appeal may carry out a second hearing of evidence. In the revision only formal mistakes of the court of appeal are discussed. In the penal law, the revision can be used against sentences of the local courts, the Schöffen-trials, the Landgericht´s chambers of criminal law and against sentences of the state`s high courts as courts of first authority. Against sentences of the "Oath Courts" (Schwurgerichte) an appeal is not permitted; the revision is the only legal remedy against them. – A legal remedy must not lead to a harder punishment of the accused than the previous sentence. A harder sentence is therefore not possible.
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