In what is assumed to be the last of the so-called Border Guard Trials
(Mauerschützenprozesse) the district court in Berlin found two
former senior GDR border guards responsible for the deaths of four people killed
by fragmentation grenades in an area under their control (09.11.2004). However,
the court did not impose sanctions against the two men because Judge Gabriele
Strobel expressed the view that it was not possible to determine exactly what
had happened at the time of the killings, which took place between 1974 and
1981. The leniency of the decision reflects the fact that, in accordance with
Article 315 of the Introductory Act of the Criminal Code, the court applied
§ 25 of the GDR Criminal Code. For more information see an article from
the Max-Planck-Institute for International Criminal Law at http://www.iuscrim.mpg.de/forsch/straf/docs/arnold.pdf.
Former Transport Minister Günther Krause, also known
for representing the GDR in the negotiations of the Reunification Treaty, this
month won his criminal case on appeal. The Federal Supreme Court reversed the
judgement of the High Court in Rostock, which had sentenced Krause to three
years and nine months for fraud, defrauding the revenue and perfidy. The appeal
court upheld Krause’s claim that the defrauding of the revenue had been
time-barred and that there had been procedural errors relating to the evidence
used to support the other convictions.
The German Judges Association has called for the abolition of the statutory
right of Ministers of Justice to issue instructions to the office of
the public prosecutor (Weisungsrecht) (02.08.2004). Ministers
are currently entitled to intervene in the work of the public prosecution in
criminal cases, but judges are concerned about potential political influences.
The so-called Mannesmann trial at the district court in Düsseldorf
ended with a complete acquittal for all of the accused, among them Deutsche
Bank boss, Josef Ackermann (22.07.2004). In spite of the fact that Judge Brigitte
Koppenhöfer told the accused that there had been severe breaches of the
Companies Act (Aktiengesetz), there were no criminal convictions. The public
prosecution announced that it would appeal against the judgement.
The Federal Ministry of Justice published proposals aimed at modifying the
limitation of action in criminal law by introducing new criteria for suspending
the period of limitation (26.07.2004). One proposal is that the period
of limitation would be suspended if one of the judges or lay judges was to
fall ill. The Ministry also proposed that more testimonies might be replaced
by reference to the files.
Following invalidation of regional legislation concerning subsequent
preventive detention by the Federal Constitutional Court, the final
expert hearing on the issue at the Federal Parliament (Bundestag) revealed
divergent opinions among lawyers and criminologists (06.05.2004). Whereas some
experts argued that the legislation was unnecessary and raised human rights
issues, others thought it to be inevitable.
The Public Prosecution in Cologne is investigating whether the German version
of the reality TV show “I’m a Celebrity, Get Me Out of Here!” may
have violated animal rights according to the Animal Protection Act (03.03.2004).
A spokesperson for the Public Prosecution stated that the investigation centred
on a January episode of the show, during which former Pop Idol celebrity Daniel
Küblböck had to put his head into an aquarium with goldfish, which
were subsequently washed out of the glass container.
Legislation on child abuse and child pornography has been tightened and several
inconsistencies in previous legislation eliminated. (01.04.2004) Additionally,
DNA tests can now be used more widely as evidence and it is now possible to
prosecute for the handling and not only the taking of pornographic images of
New “anti-paparazzi” legislation has been proposed
by an all-party coalition. (23.02.2004). The legislation would impose criminal
law sanctions not only for the publication of photographs or videos made without
consent, but also for the actual act of shoting the photographs or videos.
The legislation aims to close a gap in the law, which became apparent when
paparazzi started taking pictures of celebrities in their private homes and
gardens. It would also ban, e.g., secret video cameras in solariums and pictures
taken with mobiles. These cases are currently difficult to prosecute if the
material is published on the Internet through distant servers.
The infamous “cannibal of Rothenburg” has been
convicted of manslaughter and sentenced to 8 years in prison by the district
court in Fulda (01.02.2004). Manslaughter is the normal offence when intentionally
killing another person, unless special elements of the crime qualify the action
to be categorised as murder. In this unique case, the court was faced with
the difficult task of deciding whether the defendant could be charged with
murder when the victim had agreed to being slaughtered. The public prosecution
has appealed against
The second of the Hamburg terrorism trials against Moroccan
citizen Abdelghani Mzoudi ended in an acquittal (05.02.2004). The defendant
had been charged with aiding a murder, but the court ruled “in dubio
pro reo” on the grounds that it did not see sufficient evidence underpinning
the charge since the US Department of Justice did not allow it access to key
in the United States.
As part of the enforcement of the Road Traffic Act, a number of changes to
the Schedule of Penalties (Bugeldkatalog) will become
effective in the first half of 2004. The use of cellular phones while driving
a car will incur a fine of € 40, and an entry will also be made in the
central traffic register in Flensburg. New fines will also be introduced for
failing to fasten one’s seat belt in a coach, and for the incorrect use
of indicators at roundabouts (10.01.2004).
The Federal Minister of Justice, Brigitte Zypries, opposes a re-introduction
of a leniency programme (Kronzeugenregelung) in criminal
law. This programme, which allowed judges to substantially reduce the sentence
of criminals who provide the authorities with evidence leading to the solution
of cases involving serious criminal acts, was abolished in 1999. The minister
holds the view that the programme did not prove a success (01.12.2003). Some
senior judges, however, think that without a leniency programme criminal investigation
will become more difficult, since there is little they can offer witnesses
in return for
Using suspensions of driving licences as a sanction has proven to be rather efficient.
Thus the options for this sanction shall be broadened, as was suggested by the
Minister of Justice (04.08.2003). Other politicians have already agreed; especially
juvenile crime could be addressed with this.
The suggestion of the Federal Ministry
of Justice regarding the creation of a database containing information against
the suspects of sex crimes has been rejected
by the ministers of the states. The Minister of Justice of the State of Schleswig-Holstein,
Anke Lütke (who as a lawyer had advised victims of sexual offenders) said
that the ministers rejected this suggestion, because it is not in the interest
of the victims (10.06.2003).
The Constitutional Court has specified the information
that has to be given in pursuance of a search warrant (28.04.2003). Especially
if rooms of non-suspects
are to be searched, the category of items searched for and the reasons why
person might have them must be provided.