Principles of Criminal Procedure and Post-Modern Society: Contradictions and Perspectives

• NCJ Number: 202797
• Author(s): Klaus Volk Ph.D.
• Date Published: 2003
• Length: 18 pages
• Sale Source: Prof. Dr. Klaus Volk
• Publication Format: Document
• Publication Type: Report (Study/Research)
• Language: English
• Country: Germany (Unified)

Annotation

This document explores the relationship between criminal procedure and criminal law in Germany.

Abstract

The fundamental principles of criminal procedure continue to be truth, justice, and peace under law, in Germany. This article defines truth as the coincidence of a mental impression of an event and the event itself; suggests that within Germany’s criminal law, the importance of the procedural norm of fairness may compensate in cases where there is a deficit in truth; and indicates that the participation of lay participants in Germany’s criminal justice system has no identifiable consequence and that trials in Germany are much less important than is the investigation of a crime. Focusing of the principles of immediacy and orality, the article indicates that while these principles were once central to the search for truth in Germany, now these principles are less important than an accused person’s right to defend changes against him or herself. Noting that secret investigations often burden the accused, the author contends that Parliament’s abolishment of the accused’s right to petition the court to take evidence in summary procedures is scandalous in Germany. The author argues that evidentiary prohibitions often deal with information that has been illegally obtained by law enforcement authorities or with legal information that may often injure the rights of an accused person. Discussing the principle “Nemo tenetur se ipsum accusare,” the author contends that legislators are supposed to make certain that an accused person’s right to silence does not stand in the way of a conviction, but that this does not always work out in practice. Considering the issues of the burden of proof and “in dubio pro reo,” the author suggests that the accused has no duty to bring self-incriminating evidence to authorities and that the burden of proof resides with the German State. The current relationship between Germany’s procedural and substantive laws demonstrate the need for a convergence of these differing principles.