German Law and the German Legal System
A list of some important things to be aware of -- you never know when they might come in handy.
Although the German legal system operates differently than the Anglo and American systems, 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.
Courts and Judges
For anyone that becomes involved in a legal proceeding there are a number of different courts in which their case may be heard - depending on the nature and seriousness of the case. There are also a number of different higher courts to which appeals can be made. The number of and types of judges that hear cases and make rulings may also vary depending on the type of issue involved.
There is no such thing as a jury trial in Germany and judges take on a more active role in court proceedings. Court procedures are otherwise similar to a jury trial in the USA. Under German law the accused is presumed innocent until proven guilty.
Depending on the specific court, a tribunal can be made up of a single professional judge or a combination of professional judges and “lay judges”. In minor cases there may be only a single professional judge presiding. Or, if the charges are severe and the accused faces heavy penalties, there may up to be five persons hearing the case; three professional judges and two lay judges or five professional judges.
Professional judges serving in the various German States (Länder) are trained legal experts and are normally employed as civil servants for life by the Länder. Lay judges are ordinary citizens selected by a committee to serve a pre-determined length of time. All judges serving in the federal courts are trained in the legal profession. They have to be professional judges or lawyers.
There are both ordinary and specialized courts in the German justice system.
Ordinary Courts hear matters relating to civil, criminal, family and marriage laws. (Local Courts also take care of company registrations and other administrative matters.) These are the most numerous courts in Germany. There are four tiers of Ordinary Courts. Local Courts (Amtsgerichte), can have a single professional judge or up to two professional judges and two lay judges. The next level is the Regional Court (Landegericht) where up to three professional and two lay judges hear cases. After that comes the Higher Regional Courts (Oberlandesgerichte) that seat three to five professional judges. The highest Ordinary Court is the Federal Court of Justice (Bundesgerichtshof). It has five professional judges that hear cases. Criminal cases can be assigned to any of the first three Courts. Civil matters are normally assigned to the first two Courts. Appeals can be made to two higher courts.
The special Administrative law courts (Verwaltungsgerichte) have three levels and hear cases regarding government regulations and actions.
Labor law courts (Arbeitsgerichte) also have three levels and hear cases regarding employment issues, working conditions and collective bargaining agreements.
Social law courts (Sozialgerichte) have three levels and work with cases involving the various social benefits. These include unemployment payments, workers compensation claims and social security payments.
Financial Courts (Finanzgerichte) have two levels and only adjudicate cases involving tax issues.
Any Constitutional law issues are heard by the Federal Constitutional Court (Bundesverfassungsgericht).
Rights & Laws
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.
Selling an item
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 Anglo-American laws are particularly obvious when it comes to contracts. In the US, for example, 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.
Laws regarding respect
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.
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.
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.
Pleas & Evidence
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 that 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 or British lawyer may be. 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.
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 judgment, 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 judgment. A brief supporting the appeal must be submitted within 30 days.