Institute of Global Law

German Legal News - Criminal Law

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 children.

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 judgment.

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 witnesses detained 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 information.

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 this person might have them must be provided.

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