Michael Bohlander - Principles of German Criminal Procedure

PRINCIPLES OF GERMAN CRIMINAL PROCEDURE

The book aims to outline the fundamental aspects of the German approach to criminal procedure; it is meant as a companion volume to the authors earlier publications, The German Criminal CodeA Modern English Translation, and Principles of German Criminal Law, also with Hart. In appropriate cases, comparisons to English and Welsh law have been drawn. The chapters cover 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.

Studies in International and Comparative Criminal Law: Volume 8

Studies in International and Comparative Criminal Law

General Editor: Michael Bohlander

Criminal law had long been regarded as the preserve of national legal systems, and comparative research in criminal law for a long time had something of an academic ivory tower quality. However, in the past 15 years it has been transformed into an increasingly, and moreover practically, relevant subject of study for international and comparative lawyers. This can be attributed to numerous factors, such as the establishment of ad hoc international criminal tribunals and the International Criminal Court, as well as to developments within the EU, the UN and other international organisations. There is a myriad of initiatives related to tackling terrorism, money laundering, organised crime, people trafficking and the drugs trade, and the international war on terror. Criminal law is being used to address global or regional problems, often across the borders of fundamentally different legal systems, only one of which is the traditional divide between common and civil law approaches. It is therefore no longer solely a matter for domestic lawyers.The need exists for a global approach which encompasses comparative and international law.

Responding to this development this new series will include books on a wide range of topics, including studies of international law, EU law, the work of specific international tribunals, and comparative studies of national systems of criminal law. Given that the different systems to a large extent operate based on the idiosyncracies of the peoples and states that have created them, the series will also welcome pertinent historical, criminological and socio-legal research into these issues.

Editorial Committee:
Mohammed Ayat (ICTR, Kigali) Robert Cryer (Birmingham)
Caroline Fournet (Groningen)
Alex Obote-Odora (ICTR, Arusha)
Dawn Rothe (Old Dominion University, VA)
Silvia Tellenbach (Freiburg)
Helen Xanthaki (IALS, London)
Liling Yue (Beijing)

Volume 1: The German Criminal Code: A Modern English Translation

Michael Bohlander

Volume 2: Principles of German Criminal Law

Michael Bohlander

Volume 3: Crime, Procedure and Evidence in a Comparative and International Context Essays in Honour of Professor Mirjan Damaska

Edited by John Jackson, Maximo Langer and Peter Tillers

Volume 4: The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes

Hector Olasolo

Volume 5: Transnational Organised Crime in International Law

Tom Obokata

Volume 6: Sentencing in International Criminal Law: The Approach of the Two ad hoc Tribunals and Future Perspectives for the International Criminal Court

Silvia DAscoli

Volume 7: OLAF at the Crossroads

Constantin Stefanou, Simone White and Helen Xanthaki

In memory of
Kaiyan Homi Kaikobad
Our birth made us mortal, our death will make us immortal.

Michael Bohlander

Published in the United Kingdom by Hart Publishing Ltd

16C Worcester Place, Oxford, OX1 2JW

Telephone: +44 (0)1865 517530

Fax: +44 (0)1865 510710

E-mail:

Website: http://www.hartpub.co.uk

Published in North America (US and Canada) by

Hart Publishing

c/o International Specialized Book Services

920 NE 58th Avenue, Suite 300

Portland, OR 972133786

USA

Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190

Fax: +1 503 280 8832

E-mail:

Website: http://www.isbs.com

Michael Bohlander 2012

Michael Bohlander has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above.

British Library Cataloguing in Publication Data

Data Available

ISBN: 978-1-84946-216-7

Typeset by Columns Design XML Ltd, Reading

Printed and bound in Great Britain by

CPI Group (UK) Ltd, Croydon, CR0 4YY

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 practitioners 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.