NCJ Number
78405
Journal
Juridical Review Volume: 1979 Dated: (December 1979) Pages: 202-223
Date Published
1979
Length
22 pages
Annotation
This article surveys efforts to reform criminal procedure law in the Federal Republic of Germany since 1945, examines legislation enacted in the mid-1970's to counter tactics used by the defense in major terrorist trials, and suggests areas for future reform.
Abstract
In contrast to the carefully planned reforms in criminal law, revisions in German procedural law have followed a somewhat arbitrary and unconnected sequence. During the past 25 years, procedural reforms have had two main goals: to accommodate the ideal of Rechtsstaat -- a constitutional state in which the rule of law prevails -- and to promote criminal law reform. Efforts to develop criminal procedure according to the Rechtsstaat principle can be divided into three periods, beginning with an introductory phase after World War II when the legislature concentrated on restoring procedures deformed by the Third Reich. The next stage was concerned with a continuous liberalization of procedures to improve the position of the accused, which lasted up to the mid-1960's. The chief issue was reform of pretrial custody, although other laws expanded the rights of the defense. The third and current phase has focused on creating shorter and more accelerated procedures and has reacted to political events in the context of a growing law and order campaign. Procedures have been speeded up primarily by reducing the safeguards of the accused, such as eliminating the judicial pretrial investigation and the final committal hearing. The Criminal Procedures (Essential Supplementary Provisions) Act was passed in 1974 in response to the behavior of the accused and their counsels in major terrorist trials. These provisions limited the number of defense lawyers per defendant, prohibited the collective defense of several persons by a single lawyer, allowed prison authorities to control correspondence between imprisoned defendants and their lawyers, excluded defense counsel on certain grounds, and permitted trials to continue without the accused's presence under specific circumstances. These laws have posed numerous problems in regular criminal proceedings, and revisions are needed to adapt procedures to the reformed criminal laws implemented in January 1975. Procedures should also be altered to accommodate legislative innovations. Other areas for reform are mentioned. The article contains four footnotes.