NCJ Number
64464
Journal
Questione Criminale Volume: 4 Issue: 2 Dated: (MAY-AUGUST 1978) Pages: 297-316
Date Published
1978
Length
20 pages
Annotation
THIS CRITIQUE OF CRIMINAL COURT PROCEDURE REFORMS ENACTED IN THE FEDERAL REPUBLIC OF GERMANY IN 1975 IS INTENDED FOR ACADEMIC AUDIENCES AND LAW STUDENTS AND FOCUSES ON THE CAUSES AND IMPLICATIONS OF THE CHANGES MADE.
Abstract
THE POST-WORLD WAR II LIBERALIZATION OF THE GERMAN PENAL CODES AND COURT PROCEDURES WAS PARTIALLY HALTED AFTER 1968, WHEN EMERGENCY OR AD-HOC LAWS BEGAN TO BE ENACTED PIECEMEAL IN RESPONSE TO THE SERIOUS PUBLIC THREAT POSED BY TERRORISTS SUCH AS THE BAADER-MEINHOF GANG. THE LATTER, WHEN ARRESTED AND BROUGHT TO TRIAL, RAISED UNIQUE LEGAL AND PROCEDURAL UNETHICAL ACTIONS OF THEIR NUMEROUS DEFENSE COUNSELS. EACH QUESTION THEY RAISED AND EACH VIOLATION OF TRIAL PROCEDURES BY GANG MEMBERS OR THEIR LAWYERS HAD TO BE NEUTRALIZED BY AN AD-HOC RULING WITH LITTLE GENERAL APPLICABILITY. THE DEFENDANTS BECAME PHYSICALLY INCAPACITATED AND UNABLE TO ATTEND COURT SESSIONS AS A CONSEQUENCE OF HUNGER STRIKES AND SOLITARY CONFINEMENT ELICITED BY THEIR DEFIANT AND REBELLIOUS BEHAVIOR. ORDERLY COURTROOM PROCEDURES WERE CONSTANTLY DISRUPTED AND THE TRIALS DELAYED. AD-HOC LEGISLATION WAS ENACTED TO REGULATE THE NUMBER OF DEFENDERS FOR EACH ACCUSED AND OTHER PROCEDURES, IN RESPONSE TO THE UNETHICAL BEHAVIOR OF THE GANG'S DEFENSE LAWYERS. CONTROVERSIES ARISING FROM THESE AND OTHER CHANGES IN TRIAL COURT PROCEDURES INVOLVE THE ROLE CONCEPT OF DEFENSE ATTORNEYS IN GENERAL, THE PRESSING NEED FOR MORE EXPEDITIOUS TRIALS, AND THE USE OF PROSECUTORIAL DISCRETION TO SETTLE MINOR CRIMINAL CASES THOROUGH PLEA BARGAINING AT PRETRIAL CONFERENCES. TO SPEED UP PROCEDURES, A FINAL HEARING FOR GREATER PROTECTION OF DEFENDANTS' RIGHTS HAS BEEN ELIMINATED, THUS CURTAILING RIGHTS OF THE ACCUSED. THE INSTITUTED DISCRETIONAL PRACTICES RAISE THE SPECTRE OF A POSSIBLE DOUBLE STANDARD IN THE APPLICATION OF JUSTICE TO AFFLUENT DEFENDANTS ACCUSED OF ECONOMIC CRIMES. OTHER ITEMS DISCUSSED INCLUDED THE INVOLVEMENT OF TRIAL JUDGES IN PRETRIAL HEARINGS, AND THE IMPLEMENTATION OF THE NEW CORRECTIONAL PHILOSOPHY OF REHABILITATION AND SOCIAL REINTEGRATION VERSUS THE OLD INTIMIDATION AND RETRIBUTION CONCEPTS. --IN ITALIAN.