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The Right to a Fair Criminal Trial in German Criminal Proceedings Law

by Professor Dr. E. Samson, University of Kiel (Germany)

I. Introduction

One of the principal intentions of the German criminal proceedings law is the protection of the accused from disproportionate and unfair infringements by the prosecuting authorities. In this sense, the German Criminal Proceedings Code has also been called the criminal's "magna charta". Others see in the criminal proceedings law a form of Constitutional law put into concrete terms. After the bad experiences in the past, the German legislator has tried all in all successfully to equip the accused in a criminal trial with adequate rights for his defence. Consequently, the majority of the rules for the criminal trial find agreement even among the critics. However, in view of rising crime the German legislator tends more and more to restrict well-established rights of the accused, claiming that this is the only way to insure an effective prosecution. An example of this tendency is the significant cut-back in the right to the motion to hear evidence. Nevertheless, the regulations on criminal proceedings ought to be seen as a sensible realization of the fair-trial principle.

However, the situation is different in cases of particular procedural conflicts that lack special regulations. In these cases, the judge has to find a solution by an interpretation of the law or by analogy. The criteria that determine the decision are manifold and among them, there is often tension. This shows in the jurisdiction of the Federal Constitutional Court where it is recognized that in these cases, there can be a collision between the right to fair trial on the one hand and the need for an effective prosecution on the other hand. The questionable point of this jurisdiction is that the right to fair trial does not always have priority; there is a weighing up of interests in each individual case and as a result there may very well be important aspects of fair trial falling by the wayside. These kind of conflicts have become significant in the past for example when the question had to be answered whether the testimony of an accused that had not been informed of his right to remain silent can be used against him in trial. Only after a long period of hesitation, it was decided that there would be a prohibition on its use, a "prohibition of utilization." The German criminal proceedings law contains only very incomplete rules on prohibitions of utilization, because generally, the prohibition of utilization only applies to the particular evidence that has been obtained illegally. However, it generally does not extend to other evidence that has been discovered with the help of the illegally obtained evidence.

A final example is the right of the arrested accused to examine the files. This problem will be dealt with more extensively at the end of this article, because it can be used to characterize not only a single question, but the principle of German jurisdiction.

II. The Basic Structure of the Criminal Trial

A. The Sources of Law

While the Strafprozeßordnung (Criminal Proceedings Code) describes the overall course of the trial as well as the rights and obligations of all people that are involved in the trial, the Gerichtsverfassungsgesetz (Law on the Constitution of courts) regulates the structure of the courts. In addition, there are civil rights in the German Constitution (Grundgesetz) that are relevant to criminal law. Among them are for example the right to the legal judge, the principle ne bis in idem and the principle nullum crimen, nulla poena sine lege. But also the general civil rights influence the state's power to interfere with the legal status of the citizen. Among them are for example the general right to the dignity of man, the right to life (the death penalty is prohibited by explicit Constitutional regulation), the right to personal freedom and the inviolability of the residence. All of these civil rights have to be directly applied by all state bodies. Additionally, everyone can file a complaint about infringement of the Constitution directly to the Federal Constitutional Court claiming that his civil rights have been violated by a state power. The Federal Constitutional Court declares such measures that violate civil rights unconstitutional. The decisions instantly represent ruling law; there is no need for special ratification by the legislator. In addition, the European Human Rights Convention is directly ruling domestic law within the Federal Republic of Germany.

B. The Prosecuting Authorities

The criminal trial starts with the decision of the prosecution to institute criminal proceedings. The prosecution is obliged to investigate all circumstances speaking for and against the defendant. Consequently, the prosecution has also the obligation to attend to the interests of the accused. The prosecution is supported by the criminal investigators of the police who themselves have no independent authorization for investigations, but derive their authorization from the prosecution's to which they are only assistants.

The conviction to a sentence can only be carried out by a court. In Germany, there are criminal courts at four levels: the lowest level is the Amtsgericht, the second the Landgericht, the third is the Oberlandesgericht and at the top of the pyramid stands the Bundesgerichtshof. Leaving aside some special regulations, there is the following rule of competence :

For matters of little significance, the criminal trial starts at the Amtsgericht. Against the decision of the court, an appeal can be filed. That means that the court at the second level, the Landgericht, has to repeat the whole trial. The decision of the Landgericht, can be reviewed before the court at the third level, the Oberlandesgericht. In a review, the court only examines whether the Landgericht has wrongly applied the law, but the facts of the case are not examined further. In serious cases, the trial starts directly at the second level, at the Landgericht. The decision is subject only to review so that there is no examination of facts in the second instance. The court of review in this case is the Bundesgerichtshof.

Since 1922, the so-called jury system is no longer used in German criminal law. That means: the participation of lay assessors does not happen in the way that lay assessors independently decide on a part of the trial. Rather, they are members of a homogeneous court that is formed of professional judges and lay assessors. This court decides homogeneously on the questions of guilt and sentence. In these decisions the professional judges and the lay assessors each have one vote.

For the selection of the judges, the German proceedings law endeavours to insure that only neutral and impartial judges are selected. That is why professional judges are appointed for a lifetime, after they have been nominated by a judge-election-committee that consists of members of the Laender-parliaments (state parliaments), but also of professional judges. The lay assessors are selected from nomination lists of the community parliaments by drawing lots; they only serve for a certain period of time. Both professional judges and lay assessors are not allowed to take orders from anyone.

The competence of a court for a particular case is not determined ad hoc. Rather, every court has to insure at the beginning of each year by setting up a so-called work distribution plan that the competence of the individual judges cannot be influenced in relation to a particular case. Consequently, it has to be determined in advance by using abstract criteria which judge is responsible for which case (e.g. the first letter in the name of the oldest defendant). This principle of the legal judge has a Constitutional rank. In case it is violated, the verdict cannot take effect.

C. The Procedure of a Criminal Trial

The German criminal proceedings law distinguishes three phases of the proceedings.

1. In the so-called preliminary proceedings the prosecutor determines the procedure. He decides which witnesses are heard, whether experts have to be consulted and which procedural measures have to be taken to investigate the case. If the prosecutor wants to interfere with legal positions of involved individuals that are secured by the Constitution, he has to obtain the permission of a judge. That applies especially for the search in apartments, for the confiscation of evidence and for the arrest of individuals. At the end of the preliminary proceedings, the prosecutor has to come to a conclusion whether in his opinion a suspicion exists that is sufficient for imposing public charge. If he declines to find such a suspicion, then he suspends the proceedings. Even though a sufficient suspicion exists, he can still suspend the proceedings, if in his opinion the guilt of the accused is too minor or if the accused agrees to pay a fine. About 70% of the preliminary proceedings are suspended by the prosecution in this way.

However, if the prosecutor decides that there is a sufficient suspicion and no minor guilt is given, he imposes the public charge. This can be done by him in two ways: Either, he files an indictment and applies at the competent court for the opening of the main proceedings. Or he applies at the court for a so-called order of summary punishment. In such a case, the court after examination generally issues the order. Only if the accused objects, the main hearing is opened. If he does not object, then, the order of summary punishment is equal to a legally valid verdict.

2. In the so-called intermediate proceedings the court, consisting only of the professional judges, examines whether the charges of the prosecutor justify a sufficient suspicion. During these intermediate proceedings, the court can order further examination of witnesses or gather additional evidence. The accused is also given the opportunity to make a statement concerning the charges against him. If the court has the opinion that there is a sufficient suspicion, it opens the main hearing and admits the charge. If the court does not see a sufficient suspicion, it denies the opening of the main proceedings. Against this decision, the prosecution has remedies.

3. The main proceedings begin with the decision of the court to admit the charge. They consist mainly of the main hearing itself. The main hearing is generally concluded by a verdict.

III. The Rights of the Accused in the Preliminary Proceedings

A. The Right to Remain Silent

The accused is not obliged at any stage of the proceedings to give any kind of testimony or to participate actively in the trial in any other way. He is only obliged to tolerate the legal measures of the prosecuting authorities passively. That means for example he must tolerate a search in his apartment if it is based on a search warrant issued by a judge or a test measuring the blood-alcohol content in cases of traffic offences.

Not later than at the beginning of his first interrogation, he has to be informed that preliminary proceedings have been opened against him and what the investigations are aiming at. Furthermore, he has to be informed that he is not obliged to give any kind of testimony and that he is free to consult a lawyer. If the accused has not been informed in this way, then the testimony that he has given in ignorance of the legal situation may not be used against him. However, that does not mean that knowledge obtained with the help of his testimony may not be used as well. The theory of the fruits of the poisoned tree is unknown to the German criminal law and this is a grave shortcoming in the opinion of many. While the testimony of the accused cannot be used, the knowledge gathered due to this testimony may be used against him, and this is a kind of incentive for the prosecuting authorities not to take the duties to inform the accused of his rights too seriously.

136 a Strafprozeßordnung (Criminal Proceedings Code) prohibits every kind of coercive measure against the accused. That does not only include the use of torture, but also of fatigue and deception. The right of the accused to remain silent is derived by the Federal Constitutional Court from the civil rights of the Constitution. A duty to self-incrimination according to this opinion is contradictory to the dignity of man and to the principle of the rule of law (nemo tenetur, ipse prodere).

However, like in other cases of a collision between the right to fair trial and the interests in prosecution, the Federal Constitutional Court here weighs up the different interests in the same way, as described in more detail at the end of this article with the example of the right of the arrested accused to examine files. That means in practice that the Federal Constitutional Court permits the legislator to introduce a duty to self-incrimination for particular areas of life and as a compensation prohibits that the testimony given in obeying the obligation to testify may be used against the accused in a criminal trial. Accordingly, in the German law there are two spheres where grave and questionable exceptions from the freedom of testimony and consequently from the principle of nemo tenetur exist.

A first exception can be found within the German bankruptcy law. There, the debtor is obliged to fully elucidate the circumstances even if he would have to incriminate himself by this testimony. If he refuses to testify for this reason, the testimony can be enforced with compulsory measures (coercive fine or arrest up to 6 months). If he fulfills the duty to testify and due to that incriminates himself of an offence, then this testimony may not be used against him. However, if this testimony enables the prosecution to discover other evidence, then this evidence can be used in trial.

Another example with practical relevancy can be found in the tax law. The citizen is obliged to give tax declarations that are true and complete. Every violation of this obligation means a committal of the criminal offence of "tax evasion" with a possible sentence of up to 10 years imprisonment ( 370 Abgabenordnung - tax law). If the citizen can only fulfill the obligation to declare taxes by incriminating himself of a punishable offence, then this does not represent a reason to restrict the obligation to tax declaration. Rather, the law provides in 393, 30 Abgabenordnung that the testimony given in fulfilling the obligation to tax declaration may not be used against him in a criminal trial. But in this case as well, the evidence gathered with the help of this testimony may definitely be used.

This shows that the principle of nemo tenetur is significantly restricted in these two spheres of the current law. The prohibitions of evidence utilization do not sufficiently moderate this restriction.

B. The Right to Defence

At every stage of the trial, the accused has the right to make use of defence counsel. For defence counsel may be selected: lawyers and lecturers of law at a German university.

Serious cases -- whenever detention was ordered or the case is heard at the Landgericht represent cases of so-called necessary defence. In cases of necessary defence, the accused has to be represented by a defence lawyer. If he does not select a defence lawyer himself, then the court selects one with respect to the wishes of the accused. This so-called obligatory defence counsel is paid for by the state. The German criminal proceedings law contains completely insufficient regulations for the payment of obligatory defence lawyers. This may be explained as follows: in a normal case, the legal regulations award the obligatory defence lawyer exceptionally low amounts that do not even partially cover the costs of the time spent. As an example, during preliminary proceedings, an obligatory defence lawyer receives an amount of less than DM 1000, -- even if he has to expend many days for the case. Only in extraordinarily extensive cases, does the law provide for a higher amount which is determined by the Oberlandesgericht following an application of the obligatory defence lawyer. Among the German Oberlandesgerichte, a very differentiated practice has developed. While some of them in such cases fix a payment for the defence lawyer that enables him to intensively work on the case, others have the opinion that the payment of an obligatory defence lawyer does not have to represent full compensation for his work. Naturally, this has consequences for the quality of obligatory defence.

C. The Rights of the Arrested Accused

Aside from a few exceptions, every arrest of the accused requires two preconditions:

- There has to be a strong suspicion, that means there must be a higher degree of suspicion that the accused has committed the criminal offence.

- In addition, a justification for the arrest must be given. Normally, an arrest is justified with the risk of escape or the danger of suppression of evidence. A risk of escape is to be assumed if there is a suspicion that the accused is planning to evade the main hearing. A danger of suppression of evidence exists if there is a suspicion that the accused is planning to try to illegally influence witnesses, documents or other evidence.

The formal proceedings of the detention are regulated with exceptional detail within the German criminal proceedings law. Every preliminarily arrested has to be presented to a judge not later than at the end of the next day after the arrest. If the judge refuses to issue an arrest warrant (judicial order), then the arrested person is to be released immediately. If the judge decides to issue an arrest warrant, he roughly explains the grounds of suspicion to the preliminarily arrested and pronounces the arrest warrant in his presence. Against this arrest warrant, the accused has different remedies. Among them is the possibility of the so-called "oral review of remand in custody". If he applies for this review, then there have to be oral proceedings before the same judge within the next 14 days. In these proceedings, the justification of the arrest warrant is reviewed and the accused can bring forward exonerating points. The accused can also file an "appeal against remand in custody". In such a case, the matter is reviewed not by the judge of first instance, but by the next higher court (generally the Landgericht). Against the decision of the Landgericht to keep the arrest warrant in effect, the accused still has the so-called "further appeal" which results in a review of the arrest warrant by the Oberlandesgericht.

Regardless of these remedies, the files have to be presented to the Oberlandesgericht not later than after six months of consecutive detention. The Oberlandesgericht in these proceedings not only examines whether the grounds for the detention still remain, but also whether the proceedings have been adequately accelerated. Even if there is still a strong suspicion and a justification for the detention, the Oberlandesgericht has to suspend the arrest warrant, if the criminal proceedings have not been carried out with sufficient speed. If the Oberlandesgericht leaves the arrest warrant in effect, then the files have to be presented again to the court for review every three months.

Despite this carefully drawn up formal legal system, there are lively complaints in the Federal Republic of Germany that detention is imposed too extensively. The reasons for this are manifold:

- First of all, the possibilities for a defence against an arrest warrant are restricted even for defence counsel, because according to the jurisdiction of the Federal Constitutional Court, the examination of files by the defence lawyer is possible only to a restricted extent (for further details see below).

- In the cases of obligatory defence, there is often little tendency among the defence lawyers to work on the case intensively. The main reason for this is the low payment for obligatory defence counsel.

- The judicial review of the arrest warrant is often much too sweeping and does not penetrate the details of the case. The explanation for this is the too great workload that judges responsible for detention matters generally face.

- In addition, the German criminal proceedings law lacks alternative restrictions of personal freedom which could avoid detention, e.g. a house arrest, etc.

Despite many years of discussion about a reform of the custody law, little has happened so far; there are also no concrete reform plans.

IV. The Rights of the Accused During Preliminary Proceedings

In practice, the preliminary proceedings are of little importance, because generally, the defence lawyers do not launch any activities at this stage of the proceedings, but leave the actual defence to the main hearing. That is also the reason why in more than 90% of the cases the charges brought forward by the prosecution are admitted to the main hearing.

V. The Rights of the Accused in the Main Proceedings

A. The Basic Structure of the Main Hearing

Unlike the Anglo-American proceedings law, the German criminal trial is not organized as a party trial. That means in theory that the court, the prosecution, and the defence have to introduce all relevant points into the trial -- including the ones exonerating the accused.

However, in practice this has the following fatal consequence: the professional judges know the files collected by the prosecution and thus almost all testimony of witnesses gathered by the prosecution. The presiding judge of the court -- always a professional judge -- chairs the proceedings not only formally. He starts with questioning the accused concerning his identity and then concerning the case and discusses with him the evidence speaking against the defendant. After that, the presiding judge himself also examines the witnesses named by the prosecution and the defence. The same applies to the other evidence, e.g. the examination of experts, visual inspections, etc. Only after the presiding judge, and if necessary his assessors, have questioned the witnesses, the experts, and the defendant, do the prosecution and the defence ask their questions. This special structure of the German criminal proceedings law in the main hearing has the fatal consequence that the presiding judge of the court does not act as an absolutely impartial arbitrator among the involved but has to try to convict the defendant using the existing evidence. This leads him into a double role. On the one hand, he has to keep an eye on the fair-trial principle in favor of the defendant. On the other hand, he is obliged to try to convict the defendant of the criminal offence he is charged with. This situation not only puts too much psychological strain on the presiding judge of the court, it degrades prosecutor and defence counsel to the function of merely playing minor roles. Only circumstances that the presiding judge of the court has forgotten to ask about may be discussed afterwards in the examination of prosecution and defence counsel.

A true adversarial trial, where on the one side the prosecution is trying to convict the accused and on the other side the defence is trying to save the defendant from conviction, does not exist in the German criminal proceedings law.

B. The Accused's Right to be Tried Without Undue Delay

The "principle of acceleration" implies: i.e. immediate involvement of the prosecution, six months limit for detention, and generally no suspensions of the main hearing for longer than ten days. The principle of acceleration applies to all stages of the trial. The average time elapsing between

-arrest and formal charging with an offence is 3 to 4 months

-the beginning and completion of trial is 5 to 6 months

-the initiation and disposition of an appeal is 3 to 4 months

New charges can be added at the last moment just prior to trial and also in trial. However, the accused must be given sufficient time for a defence. If necessary, the main hearing must be suspended in order to prepare the defence.

Except for genocide and murder, all offences come under the statute of limitations within a period of three to thirty years. However, these regulations do not assist in encouraging a prompt trial, because on one hand, the limitation periods are long and on the other, limitation is interrupted (e.g. by the first interrogation of the accused, by every judicial interrogation or a respective order, and by every judicial order of confiscation and search).

C. Public Conduct of the Trial

Trials are conducted in public. Exceptions from this principle exist e.g. for cases on family affairs and children, placement cases, the protection of a party's privacy, and criminal trials against juveniles.

Recordings in sound or picture intended for publication are not admitted, but the media may be present, take notes, draw, report etc. In addition, the public may be partially or completely excluded from the trial if there is a danger to state security, to testifying or otherwise involved individuals, if certain classified information is discussed or if individuals under 16 years of age are to be examined. Respective exclusions of the public have taken place within the last two years as well. However, none of these trials is worth mentioning. Aside from that, there is no restriction on media coverage.

D. Location of the Trial

In principle, the venue complies with the geographic location where the conduct occurred; in practice, this rule is generally applied. However, a trial at the place of the accused's residence or abode or at the place of the accused's arrest is also possible. The prosecution can choose whether it wants to bring charges before another, also locally competent court. It is not provided for by the law that the court may transfer the trial to another locality if it appears that the accused would be unable to receive a fair trial due to local bias.

E. Trials in absentia

In principle, a trial in the absence of the defendant is not admissible. If the defendant fails to appear at the beginning of trial without excuse, he is ordered to be brought forward. The defendant is also not allowed to leave during trial. In the following cases, trial may be continued in his absence, if he was already interrogated about the charges and the court does not consider his further presence necessary:

- if the defendant leaves trial or fails to return without authorization,

- if the defendant deliberately, culpably causes his inability to stand trial,

- in cases of disorderly behaviour,

- in cases of authorized absence for individual defendants if several defendants are at trial,

- if the defendant fails to appear in spite of an orderly summons including the notification that a trial in absentia is possible, if a minor sentence is expected that does not include imprisonment,

- in cases of authorized absence responding to the defendant's application if a minor sentence is expected that may include imprisonment up to six months.

As soon as the defendant has regained the ability to stand trial, he is notified of the essential contents of what has been heard in his absence. For the defendant who does not have a defence lawyer, one is to be appointed as soon as a trial in absentia is taken into consideration due to deliberate inability to stand trial. Only if the defendant intentionally fails to appear at or leaves from trial without authorization, a trial in absentia without the presence of a defence lawyer may be considered. Review is possible under the usual conditions. A trial in absentia constitutes an "absolute reason for review," unless the defendant left or failed to appear without authorization.

F. Mentally Incompetent Defendants

A mentally incompetent person is unable to stand trial. If the inability to stand trial is only temporary, the trial is suspended. In case of permanent inability to stand trial, the case is dropped permanently. The ability to stand trial is to be evaluated by the court. The court is assisted by medical experts on this matter.

G. Translation

A translator is to be provided by the court. The translator's fees must be paid by the defendant only if he caused these costs culpably and unnecessarily. The translator is chosen by the court. However, the defendant may object to a translator on the basis of bias. All statements important for the trial -- the indictment, applications, decisions and testimony -- are to be translated word-for-word. Restrictions may be made only for the final submissions.

H. Examination of Witnesses/Rejection of Evidence

For the appearance and examination of witnesses, uniform rules apply regardless of whether the witness is lying, or has testified for or against the accused. Defence counsel, especially, has the right to examination of the witnesses named by the prosecution. Respectively, the prosecution, especially, has the right to examination of the witnesses named by the defence. Defendant, defence counsel, and prosecution have the same right to question the witnesses.

Evidence offered by the defence may be rejected only under the following conditions:

- The production of evidence is not admissible, e.g. using unadmitted evidence such as co-defendants or successfully objected to experts.

- The production of evidence is unnecessary because of flagrance.

- The fact to be proven is without significance for the decision or is already evident.

- The evidence is completely unsuited or inaccessible.

- The motion is only made to draw out the trial.

- The defence's claim to be proven can be assumed to be true.

- The application for examination of an expert may be rejected if the court itself has the necessary expertise.

- A visual inspection or the summons of a witness who is abroad is not necessary for investigating the truth.

I. Testimony Not Obtained in Court

It is generally admissible to examine witnesses on statements of individuals who are not subject to questioning in the main hearing. Therefore judges, prosecutors, police officers or other witnesses may be questioned about statements of individuals examined by them or other statements. Reading aloud or utilizing documents containing statements of individuals who are not being examined in the main hearing is generally inadmissible. However, there are the following exceptions for reading out judicial interrogation protocols:

- A witness, expert or co-accused has died, has become mentally incompetent in the meantime or his present abode cannot be investigated.

- The appearance of the person is hindered for a longer and uncertain period of time by obstacles that cannot be removed.

- The appearance of a person living very distant is not reasonable for him considering the importance of his testimony.

- Prosecution, defence, and defendant agree with the documents being read aloud.

In addition, reading aloud is admitted if the person has died or cannot be examined in court within a foreseeable period of time because of another reason.

The obligation to testify in court also applies to witnesses who could endanger themselves with their testimony. However, they may be permitted to not state their address and identity in the examination. So-called undercover investigators whose identity is not to be revealed do not have to testify in the main hearing. They may be subject to an examination carried out by an appointed judge outside the main hearing. The accused and defence counsel are allowed to be present at this examination in commission. Such an examination protocol may then later be read aloud in the main hearing. If this form of testimony by the undercover investigator is also prohibited by the competent authority, he cannot be examined as a witness at all. Then only the examination of another witness on possible statements that the undercover investigator made to him may be considered.

J. The Presumption of Innocence

The defendant is presumed innocent until his guilt is proven in the main hearing. If doubts about the guilt of the defendant remain, he must be acquitted. The court decides on the result of the evidence heard according to its independent decision. The independence of the judges is guaranteed by the Constitution. Only facts adduced and proven in the main hearing may be utilized. These facts must be referred to in the statement of reasons. The court must be convinced of the responsibility of the defendant as well as of all the other conditions of culpability. If only the slightest doubts remain about one of the conditions of culpability being fulfilled, there can be no conviction.

K. Unlawful Interferences in Obtaining Evidence

If the unlawful interference was committed by prosecuting authorities, the evidence generally may not be utilized. In case the interference was committed by a private person, the evidence may only not be utilized if the interference also constitutes a violation of human dignity which would be repeated or maintained in the main hearing, e.g. by playing a secretly recorded telephone conversation.

L. The Victim's Rights to Participate in Trial

The victim has the following rights :

- He/she may institute criminal proceedings.

- He/she may receive details/copies from the files.

- He/she can be an intervenor for certain offences.

- If the prosecution does not want to take up preliminary proceedings or drops them, the victim may try to enforce preliminary proceedings and an indictment of the accused.

- For certain offences for which there is generally no public interest in a prosecution; the victim may file private prosecution.

VI. The Right to Fair Trial in the Practice of the Federal Constitutional Court - an Example

A. Introduction

The Federal Republic of Germany is a state under the rule of law by its Constitution. Article 1 Paragraph 1 of the Grundgesetz (GG - German Constitution) reads: "The dignity of man is inviolable. To respect and protect it shall be the duty of all public authorities." There is a dispute whether a person's dignity represents an individual civil right. However, this dispute is of little significance because there is general agreement that all special civil rights are to be translated and specified in such a way that the principle in Art. 1 para. 1 GG remains untouched. This way, the principle of inviolability of man's dignity influences each of the special civil rights.

According to German Constitutional law, the civil rights do not merely contain a more or less non-committal programme, but constitute actual personal rights of each citizen. Consequently, Art. 1 para. 3 GG states: "The following basic rights shall bind legislature, executive, and the judiciary as directly enforceable law." This principle is to a large degree secured by procedural law.

According to Art. 19 para. 4 GG, every citizen whose rights are violated by public (i.e. state) power can take this matter to court. Every court always has to examine whether a law or an act of state violates the civil right of the person concerned. If that is the case, then the act of state is illegal. A law violating civil rights is unconstitutional and has to be brought before the Federal Constitutional Court for examination. If the citizen concerned thinks the court has wrongly denied a violation of the Constitution by a law or an act of state, he can directly file a complaint about infringement of Constitutional rights at the Federal Constitutional Court.

The position of the right to fair trial within this system of civil rights and their procedural enforcement is recognized in the precedents of the Federal Constitutional Court. However, it faces various attacks within the jurisprudential literature. The Federal Constitutional Court derives the right to fair trial from the principle of the rule of law as well as from the general right to liberty in Art. 2 para. 1 GG. It occasionally names it a "trial civil right." From this general trial civil right, three main groups of individual rights are deduced:

- First, from the right to fair trial follows a "right to equality of arms." As a consequence of this right, in a criminal trial, cutting back the right to defence would be illegal.

-Second, "welfare obligations" of the court are derived from it as well. Those obligations result in the duty of the court to notify and to instruct, and the court is also prohibited from making surprise decisions.

- Finally, the "principle of acceleration" follows from the right to fair trial. Violations of the principle of acceleration result in a mitigation of the sentence, or in extreme cases, in the abandonment of the criminal trial.

Against the recognition of a general trial civil right, the jurisprudential literature makes the argument that such a general principle would hollow out the detailed order of the procedural laws in an incalculable way. The Federal Constitutional Court has not accepted this fundamental criticism but has held on to its position. In various decisions, it reversed court measures seen as unconstitutional violations of the right to fair trial. Despite this general recognition and practical application of the right to fair trial in the jurisdiction of the German Federal Constitutional Court, there is still a deplorable state of affairs to be concerned with. This situation has a very fundamental cause and very clear-cut consequences.

I would like to prove this claim in two steps. In the first part, I will describe the problem in theory. In the second part, I will explain the consequences of the problem using a current example.

B. The Problem in Theory

The derivation of the right to fair trial from the principle of the rule of law at first results in a formal problem with significant consequences. The principle of the rule of law demands a functional and effective criminal prosecution. In the opinion of the Federal Constitutional Court there is a conflict between both fundamental components of the principle of the rule of law that has to be solved by observing both principles as well as possible. Because the right to fair trial contains only a general principle without individual specification and this principle can be complied with in very different ways, the Federal Constitutional Court gives priority to the codified procedural laws. Only if it is determined that the indispensable requirements of the rule of law are undoubtedly not met, do concrete consequences result from the right to fair trial. However, the fundamental structures of the trial, as determined by legislation, have to be left untouched as much as possible. (BverfGE vol. 70, pp. 308 et seq). This basic attitude of the German Constitutional law towards the right to fair trial results in an obvious restraint in realization of the trial civil right. This is contradictory in a strange way:

- On the one hand, a trial civil right is recognized in principle and has the significance of Constitutional rank.

- On the other hand, in a concrete case it is applied with extreme restraint and only if a violation of law cannot be overlooked even with the greatest effort.

However, the reason for this astonishing ambiguity is not based mainly on a general restraint of the Federal Constitutional Court in pushing through principles of law against the state. The practice of the Federal Constitutional Court disproves such a supposition.

The conflict between two individual components of the principle of the rule of law as seen by both the Federal Constitutional Court and the jurisprudence, and the concern that a too generous application of the fair trial principle could interfere with an effective criminal prosecution has its origin in a fundamental legal-philosophical peculiarity in the German concept of legality. This peculiarity is the traditional division of German criminal law. On the one side, the so-called material criminal law is of special significance, describing the legal conditions of an offence. According to this idea, the offence violates the abstract order of criminal law at the very time it is committed. The punishment for the offence does then represent a compensation for the injustice of the crime which is indispensable for law and order. The punishment lets the idea of justice become real. This, in reverse, means that whenever an offender is not convicted and punished, dangers for the life of the citizens within the society not only may arise, but the idea of justice itself will definitely and without reservation suffer damage. In contrast to that, the so-called formal law -- which is the criminal proceedings law in Germany -- only has a facilitating function. It mainly serves by making possible the re-establishment of the idea of justice by punishing the offender.

Bearing this roughly sketched principle in mind, every regulation of the proceedings law that does not directly serve the conviction of the offender, but rather strengthens him in his rights, must be looked at with suspicion. Every formal regulation for the taking of evidence, every improvement of the right to defence, and every strengthening of the defendant's rights obstructs the conviction of the guilty offender. But even worse, the realization of justice, which is the main intent of a conviction, is also obstructed.

In the legal opinion of most Germans, every acquittal of a guilty offender is a flagrant violation of the idea of justice -- even if this acquittal was inevitable by the rules of the procedural law. Those who have this legal opinion must unavoidably see a conflict between the idea of (material) justice and the rights of the defendant, and this leads to various restrictions even in those rights of the defendant that have a Constitutional rank.

In contrast to that, another fundamental position within the German criminal proceedings law is still developed very little and weakly. The conflict seen in the German Constitutional law would disappear in many areas if the function of the proceedings law was not mainly seen as a tool to ascertain an injustice which is already an objective fact. If one looks at the possibility of ascertaining an objective, existing truth more sceptically, and agrees with the opinion that only the fair trial represents a realistic chance to find out the truth, then he will find the conflict of the Federal Constitutional Court largely reduced. Then a conviction of the guilty under violation of his civil rights is not only a realization of an effective criminal prosecution by a regretful violation of contrary legal positions, but supports a principle indicating that a conviction based on violations of procedural rules does not necessarily indicate that justice has not been served at all. And vice-versa: for this opinion justice can only be served by a conviction that does not violate the elementary principles of procedural law.

This, however, is not the position of the German Constitutional law which instead sees the described conflict and tries to solve it by weighing the contrary principles against one another and by imposing half-hearted sanctions for procedural violations that have already occurred. This has serious consequences for the realization of the fair trial principle which will be described by using the following example of a conflict the Federal Constitutional Court recently dealt with.

C. A Practical Example

In the practice of German criminal proceedings law, the facts of the case are almost exclusively investigated by the prosecution. An investigation of the facts by the defence rarely happens. There are historic and legal reasons for that.

In Germany there is no considerable number of private investigators. The few private investigators available deal with divorce problems or the protection of the economy. Defence lawyers seldom make use of private investigators. There are no procedural regulations concerning the activities of private investigators. On the other hand, the German prosecuting attorneys are obliged to also investigate those circumstances that support the defendant's case. The defence lawyer, in addition, has the right to examine all files and evidence of the prosecution and to make photocopies of them. Obviously, this right to examination of files, considering the lack of defence investigation possibilities does represent a necessary element of the equality of arms derived from the principle of fair trial.

The right to examination of files by the defence, however, has a significant restriction. As long as the prosecutor has not yet finished his investigation, he can deny examination of files if the outcome of the investigation could be endangered by that. If he does so, his decision cannot be appealed before the court. The Federal Constitutional Court did not see a violation of the fair trial principle in this regulation, because the restriction is only in effect as long as the prosecutor is still investigating.

A problem with the fair trial principle occurred, though, when the accused was taken into custody during investigation. The German Strafprozeßordnung (Criminal Procedures Code) does provide for an extensive legal hearing, and the accused can also appeal against the custody warrant of the magistrate in two instances. This way, the warrant is examined by three judicial bodies. A warrant may only be issued if there is a strong suspicion that the arrested person has committed the offence or if there is a risk that he will escape or illegally manipulate witnesses and other evidence. The judge has to notify him of the reasons supporting the suspicion that he committed the offence and that there is a danger of escape or suppression of evidence.

However, the magistrate and the judges in the two following instances of appeal make their decision based on the files and the evidence brought before them by the prosecutor. The defence lawyer may not examine those files if the prosecutor denies him that right. After several High Courts had evaluated this rule as Constitutional, the problem was taken before the Federal Constitutional Court. It had to decide whether the denial of the right to examination of files violates the right to fair trial. After the Court pointed out that an advantage in information for the prosecution during the investigation is Constitutional, it further declared that an oral notification of the incriminating circumstances is sufficient in "normal cases." However, at the same time it considers that an oral communication of various and extensive testimony has serious difficulties. Following this, the Court states: "From the right of the accused to a fair trial complying with law and order, follows a right of the accused in custody to have his defence lawyer examine the files, if and as far as he needs the information in them in order to effectively influence the judicial custody decision and if an oral notification of the facts and evidence that the court plans to base its decision on is not sufficient."

Even this principle derived from the right to fair trial is carried out only half-heartedly. The right to examination of files explicitly extends not over all files brought before the magistrate, but does only exist insofar as:

- the accused needs the information they contain,

- the court plans to base its decision on those facts and evidence

and

- an oral notification is not sufficient.

That the Court wants these restrictions to be taken seriously is proven in the following sentence of the decision: "However, principally a partial examination of files concerning the facts and evidence relevant for the custody decision will be sufficient." In case the prosecution is denying even a partial examination of files, then a decision cannot be based on facts and evidence that the accused does not know. The court must then, if necessary, reverse the custody warrant. In those few sentences of the decision, all problems of how the German criminal proceedings law usually deals with the principle of fair trial are condensed, as if seen through a magnifying lens.

The Court does not even take into consideration that only the complete notification of the defence provides for the possibility of effective defence, that only in this way are equality of arms and the chance for determining the right decision established. Instead, it deals with the conflict between the purpose of the trial, i.e. the conviction of the accused on the one side, and his right to fair trial as a contrary principle on the other. The Court tries to wind its way between both principles being in conflict with each other by trying to guarantee the right to fair trial but only partially and with various restricting conditions. In addition, these restricting conditions are so far off every usual practice that as a result they again revoke the generally granted right of the accused to examination of files. If the defence lawyer does not know the files, how can he push through his right to examination of files if this is restricted to parts he needs for his defence and which the court plans to base its decision on and for which an oral notification is insufficient? The decision about all these conditions is entirely up to the magistrate. The defence lawyer, without knowledge of the file contents, cannot even name the parts of the files that according to his evaluation are of significance, and even less can he give reasons for that.

Entirely without effect is the additional order of the Federal Constitutional Court. The magistrate may not base his decision on those parts of the files that the defence lawyer was not allowed to examine. If there are four incriminating testimonies in these files, and if the prosecutor thinks the most incriminating testimony must not be shown to the defence lawyer, the magistrate is supposed to base his decision only on the three other testimonies and erase the fourth and most incriminating testimony from his mind.

Obviously, that is too much to expect from the magistrate, and it also represents a violation of the fair trial principle if the defence lawyer is trying to invalidate the three testimonies known to him in the main hearing while the judge and the prosecutor always have the fourth testimony which the defence lawyer does not know about in their minds.

D. Conclusions

This example shall be sufficient. It is one of many. Only too often procedural rights of the accused are recognized in principle and given Constitutional rank but are then subject to a weighing of interests and restrictions that hollow out and reduce the proceedings law, leaving an insufficient leftover.

Remedial action could only be taken by giving up the conflict-model and by recognizing that the procedural laws are truly the only guarantee for determining the right decision. If such an increase in value of the proceedings law could be carried through within the German concept of legality, only then would the fair trial principle have a fair chance within the German criminal proceedings law. Presently, there are no indications of such a development. Consequently, we will remain stuck with the conflict-conception and the half-hearted realization of civil rights.