German Law and the German Legal System
A short list of some important things to be aware of -- you never know when they might come in handy.
Although the German legal system doesn't match the US constitutional Bill of Rights point for point, legal specialists who have studied it are usually in agreement that it is fair. It provides many safeguards to ensure the fairness of investigations and trials.
When authorities question a suspect, they must make it clear that any statement may be used against him or her. A suspect can't be compelled to testify against himself or herself, and has the absolute right, without undue influence, to remain silent.
Physical examinations can be made over the suspect's objection. Blood samples, for example, may be taken if the alleged offense is related to drugs or alcohol, provided this doesn't pose a health danger.
The authority of German police is about the same as in other developed countries. If a party is required to appear in a German court he or she will be properly served with a summons. Failure to appear in court may be punished.
Drug offenses such as importation, sale or possession of narcotics, including marijuana and hashish, are considered serious crimes.
German law has very strict requirements regarding the registration and possession of firearms and other weapons.
Anything an individual sells (including a car) automatically carries a six-month warranty under law unless this has been explicitly excluded. Normal wear and tear of a used item is not considered a defect.
Under German marriage laws, a party can't file for divorce until he or she has been separated for one year, or for three years if the divorce is contested. Annulments are very rare.
The differences between German and American laws are particularly obvious when it comes to contracts. In the US it is common, and usually necessary, to spell out everything in a contract. The rule in German law, on the other hand, is: "a short contract is a good contract." (For example the main issues in rental agreements and leases are codified in a law dealing with landlord-tenant relations. There may be nothing in the lease dealing with notice periods, renovations required or actions in the event of non-payment of rent, but these things are still covered because of the law.)
An agreement to rent an apartment or house for a fixed term cannot be terminated early except under extraordinary circumstances. A job transfer is usually not an extraordinary circumstance. It's advisable for expatriates to have a German attorney lead them through this maze.
It is a criminal offense in Germany to show disrespect for the colors, flag, coat of arms or national anthem of the country or any of its states; or to remove, damage or disfigure any publicly displayed national flag or symbol. Insulting an individual can also be a criminal offense, particularly if the individual is an official, such as a policeman or judge, acting under his legal authority.
The first phase of a German criminal prosecution is pre-trial investigation to determine if there are grounds for a formal indictment. If a prosecutor determines that there is, the case is transferred to the appropriate German court, where the presiding judge decides if the evidence warrants a trial. This contrasts markedly from the US, where a judge will have little or no knowledge of the facts of a case until evidence has been introduced in the courtroom.
German law requires a prompt and speedy trial, though at least one week must pass between the time of the official notification of the charges and the date of the trial. The defense counsel may make a postponement motion, for example, if more time is needed to prepare the case. The trial will be open to the public unless this is specifically excluded because of public order, public morals or national security. Also, the public is automatically excluded if the accused is a minor.
There is no such thing as a jury trial in Germany, though court procedures are otherwise similar to those in the US. Under German law the accused is presumed innocent until proven guilty. In minor cases there may be only a single judge presiding. Or, if the charges are severe and the accused faces heavy penalties, there may be five persons hearing the case; three professional judges and two lay judges.
Formal pleas of "guilty" or "not guilty" do not exist in German trials. An accused party can't plead guilty in order to receive a lesser punishment. Hearsay evidence and, under certain conditions, depositions of absent witnesses can be admitted as evidence in a German court. The attendance of witnesses and the production of evidence can be compelled.
It is wise to have a German defense counsel unless a case is very minor or the charges are undisputed. The right of the accused to be represented by counsel is carefully protected under German law. In some cases when the accused is charged with an offense punishable by a year or more of confinement, German law mandates the provision of counsel even if the accused doesn't wish it.
Attorney fees depend on the length of the trial and the complexity of the case. They can be quite high if the trial takes more than a day, or if representation is by an attorney of high repute. There are also court costs which can be quite high if the case is complex. If the accused in criminal cases is acquitted, the court generally pays the attorney's fees.
Though he has the duty of defending the accused to the maximum of his ability, a German lawyer is not as active in court as an American lawyer. In a German trial, the judge, not the defense counsel or the prosecutor, obtains the testimony of the witnesses. After the judge is finished, the prosecutor and the defense counsel will be permitted to question witnesses. The aim is to obtain the truth from witnesses by direct questioning rather than through the examination and cross-examination generally used in a US trial.
Contrary to US law, the German Code of Criminal Procedure allows victims of an offense, or their survivors, the right to participate in the trial as intervenors or private prosecutors. Intervenors are usually represented by counsel and may produce evidence related to the case, as well as question witnesses.
If the accused is convicted the court usually will credit the entire period of pre-trial confinement. For many crimes a probation period of two to five years is often imposed on first offenders. Depending on the crime, of course, prison terms can range from one month to life; though in practice sentences seldom exceed 15 years.
Fines can be levied for violations of traffic, environmental, consumer protection and unfair competition laws. Also, objects used in the violation of a law (a car, for example) may be confiscated.
Confinement begins immediately after the judgment of the court is announced at trial, unless an appeal is pending. In this case the judgment doesn't become legally effective until and unless the appeal is denied or withdrawn.
Although German law protects the accused from being repeatedly prosecuted or subjected to double jeopardy, the prosecution as well as the defense may appeal a court judgement, and such an appeal by the prosecution is not considered double jeopardy. Notification for appeal must be submitted within one week after the oral announcement of the court's judgement. A brief supporting the appeal must be submitted within 30 days.
Special Courts exist in certain public law areas such as tax matters (Finanzgerichte) and social matters (Sozialgerichte). Constitutional law issues are heard by the Constitutional Court (Bundesverfassungsgericht). Under certain circumstances, accused parties who are not German may have their passports confiscated to keep them from leaving the country. In serious cases, the accused may be placed in pre-trial confinement.
