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Germany

Criminal Justice

Law in Germany is codified and is predominantly federal. The Penal Code is a revised version of a legal code introduced after the unification of Germany in 1871 and is therefore influenced by Prussian legal concepts. The system of criminal justice is derived from the civil law, rather than the common law that provides the basis for the systems used in Britain and the United States. In its modern development in Western Europe, including Germany, civil law incorporates ideas of nonconfinement punishments, work-release programs, and other measures aimed at rehabilitation rather than the mere isolation of a criminal from society. Toward these goals, the West German state in the mid-1970s promulgated the revised Code of Criminal Procedure and the Federal Prison Act. West Germany also joined several other civil-law countries by abolishing the death penalty, which was done under the Basic Law. East Germany abolished the death penalty in 1987.

Even before the unification of Germany was completed in 1990, East German laws had been modified to delete provisions empowering authorities to detain people for exercising freedom of expression, association, assembly, and movement. The East German prison population fell from 24,000 to 5,000 persons because so many political crimes had been abolished. Following unification, West Germany's criminal code was adopted, with minor modifications.

Criminal cases get their initial hearing at any of the courts of the three-tiered Land system--local courts, regional or Land courts, and the higher regional (appellate) Land courts--and can be appealed or revised from the lowest to the next two levels or from all three courts to the highest court in the criminal justice system--the Federal Court of Justice (see the Judiciary, ch. 7). Prosecutions leading to a maximum sentence of one year are heard by a judge of the local court. In more serious cases involving possible sentences of up to three years, the judge is assisted by two lay judges, comparable to jury members in a common law system. Criminal cases in which the sentence exceeds three years are referred to a Land court, where they are heard by three judges and three to six lay judges. A Land court of appeal presided over by five judges usually hears only appeals from the lower courts, plus cases concerning extraordinary crimes in violation of the Basic Law, such as treason and genocide.

Individual rights of citizens are guaranteed in the Basic Law and in the country's statutes. The law prevents police from subjecting suspects to physical abuse, torture, drugs, deceit, and hypnosis. The record of the police in conforming to these guidelines is good. A suspect has to be brought before a judge no later than the day following arrest, and the judge is obliged to issue a warrant of arrest specifying reasons for detention or else release the suspect. A relative or another person selected by the detainee has to be notified immediately of any detention lasting beyond the day after arrest. Accused persons have the right of free access to legal counsel, although this right has been restricted in the cases of some terrorists who used contacts with lawyers to continue terrorist activity while in prison. Bail bonds exist but are seldom employed. Criminal trials are held in public; protection against double jeopardy and the usual guarantees of due process are observed.

The judiciary is free from political influence and intimidation by terrorists. Substantial progress has been made in reforming the court system of the former East Germany to meet West German standards. Nevertheless, many experienced East German judges had to be disqualified for political and judicial reasons. Judges introduced from West Germany are handicapped by the unfamiliar circumstances in which they are required to function.

Incidence of Crime and Incarceration

Criminal acts are classified as felonies or misdemeanors, the latter encompassing less serious crimes but including many acts considered felonies in most common-law countries. Crimes categorized as misdemeanors include extortion, fraud, larceny, and even negligent homicide. Felonies are punishable by prison sentences of one year or more; misdemeanors can be punished by shorter prison terms, by combined imprisonment and fines, or solely by fines.

By far the largest number of persons convicted in German courts are fined. In 1991, although nearly 600,000 persons were sentenced for criminal acts in the old Lšnder , the number of persons committed to prison was only about 100,000. About 80 percent of this number were sentenced to a prison term of less than one year, 16 percent were sentenced to between one and five years, and 1 percent were sentenced to between five and fifteen years. Fifty-six persons received life sentences in 1991.

Approximately 43.8 percent of the 6,750,000 crimes registered in 1993 were solved by the authorities. By far the largest category of crime was theft, which accounted for 61.5 percent of the total, followed by damage to property (8.6 percent), fraud (7.8 percent), and crimes of violence (2.4 percent). In the old Lšnder and including all of Berlin, there were 4,230 murders and incidents of manslaughter, of which 84.7 percent were solved by the authorities.

According to federal police data, the crime rate has increased since unification in 1990, especially in the new Lšnder , where the crime rate before unification was lower than that of the old Lšnder . During 1991 the number of criminal offenses recorded amounted to 5 million, compared with 6.3 million in 1992 and nearly 6.8 million in 1993. To some extent, the upsurge in crime was associated with the radical upheaval in the former East Germany and the accompanying loss of jobs and benefits. In 1993, for example, the number of registered crimes in the new Lšnder amounted to 1.4 million, compared with 1.1 million in 1992. The old Lšnder and all of Berlin, in contrast, had 5.3 million registered crimes in 1993, compared with 5.2 million in 1992.

The large concentration of refugees, foreign workers, and illegal immigrants, combined with weaker border controls, has attracted a growing underworld of organized crime in Berlin and in other major German cities, which have a crime rate three times higher than towns with fewer than 20,000 inhabitants. The most common crimes involve narcotics, automobile theft (especially of late-model luxury cars), arms smuggling, counterfeiting, prostitution, gambling, and white-collar crime. Germany is both a market for narcotics and a transshipment point for drugs destined for Scandinavia and Britain. Marijuana enters from the Middle East and North Africa, cocaine from Central and South America, and heroin from Pakistan, Turkey, and Southeast Asia.

Data as of August 1995


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