Definition and Significance of Criminal Procedure Law
Criminal procedure law denotes the branch of public law that regulates the entirety of statutory provisions shaping the process for determining and sanctioning criminal offenses. It serves the enforcement of the state’s claim to punishment and sets out the procedures for prosecution, judicial decision-making, and the execution of penalties. Criminal procedure law ensures both effective prosecution and the protection of the rights of the accused and other parties to the proceedings.
Systematic Classification and Objectives
Criminal procedure law features its own systematic structure, reflected particularly in the German Code of Criminal Procedure (StPO). It differs from substantive criminal law in that it prescribes the procedural rules for how substantive law is applied. The key objectives of criminal procedure law are:
- Rule of Law and Fair Proceedings
- Safeguarding the constitution and fundamental rights in the context of criminal prosecution
- Ensuring effective administration of criminal justice
- Protection of the innocent from wrongful conviction
Sources of Criminal Procedure Law
National Criminal Procedure Law
The principal source of law for criminal procedure in Germany is the Code of Criminal Procedure (StPO). Supplementary provisions can be found in the Courts Constitution Act (GVG), the Juvenile Courts Act (JGG), the Administrative Offenses Act (OWiG), and other special statutes.
Supranational Criminal Procedure Law
International provisions of significance for criminal procedure stem in particular from the European Convention on Human Rights (ECHR), the Basic Law (Art. 101 ff. GG), and from EU directives that establish minimum standards for criminal proceedings.
Principles of Criminal Proceedings
Criminal procedure law is characterized by numerous fundamental procedural principles that serve to protect those involved and to ascertain the truth:
Principle of Legality (Official Duty Principle)
In general, prosecuting authorities are obliged to initiate investigations when they become aware of criminal offenses (principle of legality, § 152 (2) StPO).
Principle of Prosecution (Separation Principle)
A separation between prosecution and adjudication ensures a fair trial (§ 151 StPO).
Principle of Publicity
Court hearings are generally public (§ 169 GVG) to guarantee transparency and oversight.
Presumption of Innocence and Fair Trial
The presumption of innocence (Art. 6(2) ECHR) and the right to a fair trial are foundational pillars of criminal procedure law.
Principle of Orality and Directness
The court must, as a rule, take evidence in oral main proceedings and through direct impression of witnesses or items of evidence (§ 250 StPO).
Process and Stages of Criminal Proceedings
Criminal procedure law regulates the criminal proceedings in several clearly defined stages:
1. Investigation proceedings
The investigation phase begins with an initial suspicion of a criminal offense. The public prosecutor’s office, as the ‘master of the proceedings’, conducts investigations together with the police authorities. The goal is to clarify the facts of the case. This stage concludes with termination, a penal order, or the filing of charges (§§ 152-170 StPO).
Measures in the investigation proceedings
- Search and seizure
- Arrest and provisional detention
- Surveillance of telecommunications
2. Intermediate proceedings
In the intermediate proceedings, the competent court reviews, after charges are filed, whether there are sufficient grounds for suspicion (an adequate level of suspicion) for the main trial to be opened (§§ 199 ff. StPO).
3. Main proceedings
In the main trial, the charges are examined by the court in a public hearing. Evidence is taken, witnesses are heard, and the defense has its say. The main proceedings conclude with the judgment (§§ 226-275 StPO).
4. Appeals proceedings
Appeals against judgments include remedies such as appeal and revision (§§ 296 ff., 333 ff. StPO).
- Appeal: Review of facts and law before a different instance.
- Revision: Review solely for legal errors.
5. Enforcement proceedings
Once a judgment becomes final, enforcement of custodial measures is carried out in accordance with the Penal Enforcement Code (StVollstrO).
Participants in Criminal Proceedings
Criminal procedure law recognizes various parties to the proceedings, each with their own rights and duties:
- Public Prosecutor: conducts the investigation proceedings and represents the prosecution.
- Accused/Indicted/Defendant: is granted comprehensive defense rights.
- Defense counsel: supports the accused and safeguards their rights.
- Judge: independent decision-makers.
- Witnesses and Experts: provide evidence.
- Joint plaintiffs, adhesion claimants, injured parties and private prosecutors: may participate in the proceedings to varying extents.
Evidence Procedure and Means of Proof
Criminal procedure law regulates the taking of evidence and admissible means of proof. In principle, the following means of proof are recognized:
- Witnesses
- Experts
- Documents
- Objects of inspection
- Statements of the accused
The assessment of evidence is the prerogative of the court and is carried out freely, though statutory rules regarding inadmissible evidence must not be violated.
Special Types of Procedure
Criminal procedure law permits several special types of procedure, including:
- Penal order proceedings (§§ 407 ff. StPO): written proceedings without a main hearing in simple cases.
- Abbreviated proceedings (plea bargain in criminal proceedings pursuant to § 257c StPO): Agreement between court, prosecution, and defense on the sentence.
- Juvenile criminal proceedings: adapted to the particularities of juvenile defendants, applying the JGG.
Significance and Reforms
Criminal procedure law is subject to continuous change. Reforms regularly address aspects such as victim protection, digitalization of criminal proceedings, adaptation to international requirements, and the balance between effective law enforcement and individual fundamental rights.
Summary: Criminal procedure law governs state criminal proceedings from initiation through judicial decision to enforcement of the penalty. Its central function is to provide a fair balance between effective crime control and the guarantees of protection for participants. With ongoing societal developments and international influences, criminal procedure law remains a dynamic and highly relevant area of law.
Frequently Asked Questions
What rights does an accused have in the criminal process?
The accused in criminal proceedings is subject to special procedural guarantees derived from both the Code of Criminal Procedure (StPO), the Basic Law, and the European Convention on Human Rights (ECHR). The most important rights include the right to be heard, the right to refuse to testify, the right to defense counsel, and the right to access case files (through the defense counsel). In the investigation phase, the accused must be informed of their rights, especially the right to remain silent and the right to consult a defender at any time. The accused is not obliged to contribute to their own incrimination (the so-called nemo tenetur principle). During further proceedings, the accused has the right to file evidentiary motions, to attend the main hearings as well as the taking of evidence, and, after the conclusion of evidence, to make a statement or give an explanation. Violations of these rights may, in individual cases, result in the exclusion of evidence or even the annulment of a judgment.
When may pre-trial detention be ordered, and how does the process work?
Pre-trial detention may only be ordered under strict statutory conditions (§§ 112 ff. StPO). The prerequisites are strong suspicion of a criminal offense as well as the presence of a ground for detention, such as risk of flight, risk of collusion, or risk of repetition. The order is issued by the investigating judge upon application by the prosecution. The accused must be heard before the order is made, and it must be examined whether milder measures, such as reporting requirements, would suffice. The order must be reviewed regularly, the duration of detention is limited, and any prolonged detention requires particularly intensive judicial review. An appeal may be filed against the detention. If the process ends with a discontinuation or an acquittal, the accused has a claim to compensation in accordance with the StrEG.
What is the role of defense counsel in criminal proceedings?
The defense counsel is tasked with safeguarding the procedural rights and legitimate interests of the accused and, as far as possible, contributing to their exoneration. Legally, the defense counsel is an independent organ of the administration of justice with special powers: This includes the right to inspect files, submit evidentiary motions, attend and participate in interrogations, the right to the final word, and the right to file appeals. In certain cases—such as with serious allegations or when the accused cannot defend themselves—a mandatory defense (public defender) must be appointed by law (§ 140 StPO). The defense counsel is further bound by a duty of confidentiality and is subject to legal limitations in carrying out their work, for example in relation to obstruction of justice or aiding and abetting.
What is meant by the principle in dubio pro reo?
The principle of “in dubio pro reo”—when in doubt, for the accused—is a fundamental rule-of-law principle in criminal proceedings. It obliges the court, when assessing evidence, to interpret the facts in a manner more favorable to the accused if, after exhausting all evidentiary possibilities, doubts remain regarding their guilt. This principle is rooted in Art. 20(3) GG and Art. 6(2) ECHR. It does not apply automatically to every uncertainty, but only when the court, after exhaustive evidence-taking, cannot reach a firmer conviction. Any remaining doubts must be expressly addressed in the reasons for the judgment. A failure to do so constitutes an appealable error and may result in the judgment being overturned.
What remedies are available in criminal proceedings?
In German criminal proceedings, the accused (as well as the prosecution) has access to various remedies, in particular appeal, revision, and complaint. An appeal is admissible against judgments of the local courts and leads to a complete re-examination of the case, both on facts and law, by the next instance; new evidence can be introduced. Revision is normally limited to reviewing legal errors and is possible against judgments of the regional and higher regional courts. Additionally, during preliminary and investigation proceedings, complaints and other applications (for example, for reinstatement, detention review) may be lodged. The applicable deadlines and formal requirements are mandatory, and missing them may result in a loss of the remedy. In certain cases, remedies have suspensive effect.
How is the assessment of evidence conducted in criminal proceedings, and according to which principles?
The assessment of evidence in criminal proceedings is, as a rule, the task of the trial court and is governed by the principle of free evaluation of evidence (§ 261 StPO). The court must thoroughly and completely consider all evidence without being bound to strict rules of evidence. No formal rules of evidence may be applied (prohibition of ‘theories of proof’); at the same time, all evidence must be critically assessed, taking into account both objective and subjective factors. In particular, it must be considered whether evidence is admissible, whether contradictions exist, and how credible statements are. The outcome of this evaluation must be presented in the judgment in a comprehensible and reasoned manner; inadequate or contradictory evaluation may be grounds for appeal. The aforementioned principle in dubio pro reo must always be observed.
What is a penal order and what are the legal consequences?
A penal order is a simplified procedure under §§ 407 ff. StPO for the swift resolution of criminal cases, in particular for minor offenses. The prosecution applies to the local court for a penal order, which enables the imposition of punishment without a main hearing. Upon service, the accused has two weeks to object. If they do not do so, the penal order is considered equivalent to a final judgment and enforced accordingly. If an objection is raised, a main hearing is held; all procedural rights and obligations apply as in any regular criminal trial. A penal order can in particular impose a fine, driving ban, ancillary penalties and, in certain circumstances, even imprisonment of up to one year on probation. An entry in the certificate of conduct may also result. The penal order does not allow for appeal, but only for an objection.
