Concept and Significance of the Constitutio Criminalis Carolina
Die Constitutio Criminalis Carolina (PHGO), also known as the Carolina is a historical legal regulation of the Holy Roman Empire of the German Nation. It was enacted under Charles V in 1532 at the Imperial Diet in Regensburg and is considered the most significant unified criminal law statute of the Early Modern period in the German region. The term ‘peinlich’ in its original sense refers to pain and punishment (from the Latin poena), so the ordinance contained criminal and procedural law regulations. The PHGO had a lasting influence on the development of criminal law and criminal procedure law in Germany and Europe.
Genesis of the Constitutio Criminalis Carolina
The introduction of an empire-wide criminal code in the 16th century became necessary because the legal system at the time was marked by local and territorial particularities as well as a multitude of legal sources. Even in the late Middle Ages, there already existed several so-called ‘Halsgerichte,’ courts that could decide over life and death. The aim of the PHGO was the unification of criminal law principles and procedural rules.
The draft was significantly influenced by the legal practice of southern Germany and by Romanist, especially Italian, legal sources. After years of deliberations, the ordinance came into force in 1532 as an imperial law. However, it was only binding under imperial law and had to be recognized by the individual regional princes, but it quickly became the authoritative criminal code in the German-speaking world.
Structure and Content of the Constitutio Criminalis Carolina
General Part
The PHGO is divided into 219 articles and comprises both substantive criminal law and criminal procedural law. It consists of:
- Basic provisions on the structure and jurisdiction of the courts
- Definitions of criminal offenses
- Guidelines on the imposition of penalties and punishments
- Regulations on criminal procedure
Substantive Criminal Law
The PHGO describes numerous criminal offenses, with the severity of the crime usually central to the punishment to be imposed. The following offenses, among others, are addressed:
- Murder, manslaughter, and bodily injury
- Theft and robbery
- Arson
- Perjury
- Witchcraft and idolatry
- High treason
For each act, penalty ranges were specified. The ordinance also distinguished between minor and severe cases, as well as between perpetrators and accomplices.
Penalties under the Constitutio Criminalis Carolina
The PHGO provided for a graduated system of punishments. These included:
- Death penalty (usually by beheading, hanging, burning, etc.)
- Corporal punishments (e.g., mutilation, branding)
- Imprisonment (e.g., dungeon)
- Fines and penalties
- Dishonor punishments
Criminal Procedure and Investigation
The PHGO regulates in detail the procedure for investigating and prosecuting crimes. In particular, the so-called inquisitorial process was established as the procedural basis. The procedure proceeded in several stages:
Investigation
- Prosecution and accusation
- Collection of witness testimonies
- Inspection of the accused
Torture and forced confession
A central and controversial point was the admissibility of torture to extract confessions, provided there was sufficient suspicion (‘peinliche Befragung’). This was subject to strict requirements – such as circumstantial evidence or testimonies. A confession was considered the key piece of evidence; if it was lacking, a conviction was difficult.
Procedural Principles
- Regulation of evidence (e.g., inspection, testimonial evidence)
- Possibility of defense by the accused
- Summons and right to a judgment by several judges
Significance and Historical Impact of the Constitutio Criminalis Carolina
Imperial Legal Status
Although the PHGO could not replace all local legal traditions in practice, it was used in most German territories as a direct or indirect source of criminal law. Due to its comprehensive set of regulations, it was valid until the enactment of the ‘General State Laws for the Prussian States’ (1794) in northeastern German territories and in some cases even beyond.
Influence on Later Legislation
The PHGO served as a model for numerous later codifications and influenced the development of European criminal law. It shaped general legal principles such as the definition of offenses and penalty ranges, the evidentiary value of witness statements, and the introduction of judicial case law.
Criticism and Development of Criminal Procedure
Application of Torture
A main criticism of the PHGO was the extensive application of torture. In practice, despite intended regulations limiting it, this led to abuse and fatal miscarriages of justice. The conditions for the admissibility of torture required by the ordinance were partly ignored by the courts.
Abolition and Further Development
With the Enlightenment and the rise of Humanism in the 18th century, the strict application of harsh punishments was increasingly pushed back. Torture and the death penalty were gradually abolished. The PHGO lost its practical significance with the introduction of modern codes such as the Bavarian Penal Code (1813) or the General State Laws (Prussia 1794), but as the first unified criminal procedure code, it served as a model for the criminal procedure law of modern states.
Sources and Transmission
Numerous historical manuscripts and prints of the PHGO have been preserved in archives. The importance of the document is reflected in the large number of regional commentaries and adaptations, many of which are extant and document the application of the law.
Summary
Die Constitutio Criminalis Carolina of 1532 marks a decisive step towards the unification of German criminal and criminal procedure law in the Early Modern period. In addition to codifying central criminal offenses and legal principles, it regulated for the first time criminal procedure in the inquisitorial process and the use of torture. Despite justified criticism—especially of the practice of torture—the PHGO stands at the beginning of the development of modern criminal law and was formative for subsequent legislation in Central Europe.
See also:
- Carolina (penal code)
- inquisitorial process
- History of Criminal Law in the Holy Roman Empire
- Torture in the Middle Ages
Literature and Sources:
- Constitutio Criminalis Carolina of Emperor Charles V from 1532. In: Deutsche Rechtsquellen des Mittelalters.
- Dambeck, M.: Die Carolina. Law and Crime around 1530. Berlin 1999.
- Heinrich, Thomas: Die Entwicklung des Strafrechts von der Carolina bis zur Moderne. Munich 2012.
Frequently Asked Questions
How was the confession evaluated in the Constitutio Criminalis Carolina?
The confession had a particularly high status under the Constitutio Criminalis Carolina (1532) and was considered the ‘king of evidence.’ A judicial confession was necessary to enable a criminal conviction, especially for serious crimes such as murder, robbery, or witchcraft. A distinction was made between voluntary and torture-induced confessions. The Carolina expressly stipulated that a confession made under torture had to be reaffirmed outside the torture site in order to be valid (so-called ‘reconfirmation’). The aim was to prevent confessions that were made solely as a result of torture. A missing confession could only be replaced by very strong material and circumstantial evidence, so-called ‘direct evidence.’ However, in practice, the high value of the confession led to a significant increase in the use of torture as evidence, as it was the quickest means to obtain the ‘king of evidence.’
What role did torture play in the criminal process under the Constitutio Criminalis Carolina?
The Carolina permitted the use of torture to establish the truth, but only under certain conditions. Torture was allowed exclusively in cases of serious crimes and in so-called ‘high capital crimes,’ especially capital offenses. A further requirement was a preliminary suspicion (‘half-proofs’ or circumstantial evidence), such as witness testimony, material evidence, or possession of stolen goods. The Carolina stipulated that torture should be carried out as humanely as possible and expressly supervised by judges. It was not to be used as a punishment, but only to uncover the truth. Moreover, torture was to be stopped as soon as the accused made a confession, which then had to be confirmed outside the torture chamber. Nevertheless, historical practice showed that torture was often abused and used beyond the legal requirements.
To what extent did the Constitutio Criminalis Carolina limit the arbitrariness of judges in criminal proceedings?
A key objective of the Carolina was to standardize and limit the arbitrariness of judges in criminal proceedings. The Carolina introduced, for the first time, a codified criminal and procedural law in the Holy Roman Empire of the German Nation and made the burden of proof and the sentencing mandatory in many cases. This meant that judges could no longer decide solely at their own discretion, but were bound by the provisions and sentencing ranges set out in the Carolina. For example, criminal offenses, admissible evidence (inspection, witness statements, confession, circumstantial evidence), and penal measures (death penalty, corporal punishment, dishonor penalties) were determined and documented in detail. Judges also had to ensure that the proceedings followed the prescribed steps (e.g., preliminary investigation, main hearing, judgment, appeal) to protect the rights of the accused.
What significance did the Carolina have for the development of criminal procedural law in Germany?
The Constitutio Criminalis Carolina was a milestone for criminal and criminal procedural law in Germany. For the first time, there was an attempt to create a unified criminal law for the entire empire and to replace orally transmitted legal customs with codified, i.e., written regulations. The Carolina had a major influence on the subsequent development of German criminal procedure law, for instance through the introduction of the inquisitorial process, the increased importance of objective evidence, and the binding nature of the law. Many aspects that later became part of modern criminal procedure—such as rules of evidence, witness protection, or appellate proceedings—had their origins or predecessors in the Carolina. Despite the historical distance, numerous principles, such as the right to a fair trial, have been further developed and survive in modern form in today’s criminal procedures.
What penalties did the Constitutio Criminalis Carolina provide for, and what principles governed their application?
The Carolina recognized a wide range of penalties, which were graded according to the severity of the offense and the degree of guilt. Among the most severe penalties were death by sword, drowning, burning, or breaking on the wheel. In addition, there were corporal punishments such as mutilation, branding, whipping, as well as dishonor and imprisonment penalties such as public shaming or imprisonment. The Carolina described binding penalty ranges for numerous offenses, but also left judges discretion (‘arbitrium iudicis’) in cases of lesser severity or less clearly defined crimes. The application of penalties was governed by principles such as culpability, the definition of the offense, and the burden of proof. A prerequisite for conviction was always the presence of a confession or clear evidence.
Was there a possibility of appeal against a judgment under the Carolina?
The Carolina expressly provided for the remedy of appeal. Suspects, accused persons, or their legal representatives could appeal a judgment to the next higher court authority, for example in cases of cruelty or obvious miscarriage of law by the court of first instance. This was particularly often exercised in judgments involving the death penalty. The Carolina also established procedural rules for this. Larger and more significant cases could even be brought before the Imperial Aulic Council or the Imperial Chamber Court. This contributed to the further development of an institutionally anchored appeal system.
How were accused persons to be protected in criminal proceedings under the Carolina?
Although the rights of accused persons were limited by today’s standards, the Carolina already contained important safeguards. These included, in particular, the prohibition of excessive or arbitrary torture, the requirement to provide proof before conviction, and the mandate to bring a defendant before an impartial court. In addition, the institution of defense was strengthened: defendants could present exculpatory evidence. The obligation to reconfirm confessions obtained under torture was another safeguard to prevent miscarriages of justice and abuse. Finally, the appeal route and the mandatory recording of court proceedings were introduced, ensuring for the first time the reviewability and documentation of the process.
