Германия


DE

Official (constitutional) name of the country: Federal Republic of Germany

Organisation of the judicial system

According to the German Constitution, there are courts on the federal level which are the Federal Constitutional Court and five federal supreme courts, this is to say 

1. the Federal Court of Justice (Bundesgerichtshof)

2. the Federal Labour Court (Bundesarbeitsgericht)

3. the Federal Social Court (Bundessozialgericht)

4. the Federal Finance Court (Bundesfinanzhof)

5. the Federal Administrative Court (Bundesverwaltungsgericht)

All the other courts in Germany are courts of the federal state and fall in the competences of the respective “Land”.

 

Court organization in criminal matters

 

1. The courts having penal jurisdiction are organized on four levels:

  • the local courts (Amtsgerichte)
  • the regional courts (Landgerichte)
  • the higher regional courts (Oberlandesgerichte)
  • the Federal Court of Justice (Bundesgerichtshof) in Karlsruhe.

 

The local, regional and higher regional courts are all courts of the “Länder”. Only the Federal Court of Justice is a court of the federation. The competences
of the different levels of courts, including but not limited to the criminal branch, are set out in a law, the Court Constitution Act: http://www.gesetze-im-internet.de/englisch_gvg/. Whereas this law also contains some general procedural provisions, the procedure in criminal matters at a whole is laid
down in the Code of Criminal Procedure: http://www.gesetze-im-internet.de/englisch_stpo/.


The local courts are located in almost every city and larger towns. They always act as court of first instance. In criminal matters the competence of the local court is limited to imposing a fine or a custodial sentence of less than four years.

The regional courts: The district of the regional court covers several local courts. The regional courts act as first instance and second instance. In criminal matters the regional courts are competent as courts of first instance in all cases where a custodial sentence of more than 4 years is expected. In second instance the regional courts are competent in criminal matters for appeals against the decisions and judgments of the local court.

The higher regional courts: The district of a higher regional court covers several regional courts and their local courts. The higher regional courts act mainly as court of appeal when an appeal had been lodged against the judgment of the regional courts acting as court of second instance; or of the local court as first instance. Besides this appellate function, it acts as court of first instance for certain types of offences, such as war crimes, crimes against the state and terrorism.

The Federal Court of Justice in Karlsruhe: It represents the final court of appeal for all judgments issued by the regional and higher regional courts in Germany acting as courts of first instance. The Federal Court of Justice never acts as court of first instance and has therefore no original jurisdiction.


2.
The German law provides for two types of appeal:


The first one is called “Berufung”. It is an appeal on questions of facts and law. This remedy provides for a full check of the case (trial de novo).

The other remedy is called “Revision”. This is the appeal only on questions of law. The court of appeal only checks whether the substantive law has been applied correctly and whether the fundamental procedural rules have been observed. The appeal court will not reassess the evidence in place of the trial court but only intervene if it has been demonstrated to be clearly erroneous.


All judgments in criminal matters given by the local court can be challenged with the appeal on facts and law. It is for the regional court to decide upon such an appeal. Against the decisions of a regional court following an appeal on facts and law a further remedy can be lodged which is the appeal on law.  This appeal is dealt with by the higher regional court.

In cases where the regional court has decided as court of first instance, the appeal on facts and law is not possible. In these cases only the appeal on
law is possible. The same applies when the higher regional court has decided upon a case as court of first instance like for example in terrorist cases.
Also in this case there is only the appeal on law but not the appeal on facts and law. The appeals on law against the judgments of the regional court and the
higher regional court are all dealt with by the Federal Court of Justice in Karlsruhe.



The Prosecution offices and their competences

The prosecution offices are set up at every regional court and carry out public prosecution functions not only at the regional court but also at the local
courts belonging to the district of the respective regional court.

Public prosecution offices are competent to investigate all kinds of criminal offences except of offences against the state and other offences falling within
the competence of the Federal Public Prosecution Office. They furthermore argue the cases they bring before criminal courts, and they are also competent for
the execution of sentences.

As a rule, in Germany the principle of mandatory prosecution (Legalitätsprinzip) is applicable. If an investigative measure requires a decision by the judge (what is in particular the case for coercive measures like house searches, seizure, telephone tapping, pre-trial detention etc.), the competent public prosecutor submits his motion to the competent local court. The examining magistrate (Ermittlungsrichter) then decides whether to grant the motion. Under certain preconditions, public prosecution offices may themselves order coercive measures in exigent circumstances, e.g. imminent danger.

The public prosecution offices are subordinate to the office of the Public Prosecutor General located at each Higher Regional Court. Each Land has at least one Higher Regional Court and therefore one General Prosecution Office, some have two (e.g. Baden-Württemberg and Rhineland-Palatinate) or three (Bavaria, Lower Saxony, North Rhine-Westphalia).

On the federal level there is only one prosecution office, the Federal Public Prosecution Office which has its seat in Karlsruhe. In the area of investigation and prosecution of crimes, the Federal Public Prosecution Office is competent to investigate and prosecute crimes against the state and terrorist crimes as well as other cases, if they involve serious crime that goes beyond individual Länder borders. Furthermore it is involved in all appeals on questions of law lodged against judgments of all regional and higher regional courts in Germany when acting as court of first instance. There is no superior/subordinate relationship of any sort between the Federal Public Prosecution Office in Karlsruhe and the Länder prosecution offices.

 

For further details:

Judicial system in Germany. e-Justice website 

European Commission for the Efficiency of Justice (CEPEJ). Profile of Germany

 

Judicial cooperation

 General description of the national system for international judicial cooperation in criminal matters

 

I. Incoming requests from other EU Member States 

The competent judicial authorities to receive and deal with incoming mutual legal assistance requests are the locally competent Public Prosecution Offices. This applies to all kinds of mutual legal assistance requests, with some exceptions, most notably


a) requests related to the enforcement of financial penalties under EU Framework Decision 2005/212/JHA and on entries in the Federal Central Criminal Register (e.g. criminal convictions), both of which are dealt with by the Federal Office of Justice and which therefore have to be sent to the aforementioned authority, and

b) requests to surrender a person on the basis of an European Arrest Warrant. As it is for the Higher Regional Court to decide on extradition requests including requests concerning the surrender of a person on the basis of an EAW, European Arrest Warrants have to be sent and are to be dealt with by the General Prosecution Offices.

Using the EJN Atlas available on this website makes it easy to find the competent Public Prosecution Office or court. In addition, also the nationwide “Directory of Places and Courts” maintained by the Ministry of Justice of North Rhine-Westphalia may be useful, if you know the area code or the municipality:

http://en.justiz.de/OrtsGerichtsverzeichnis/index.php


The Federal Office of Justice can also help in determining the locally competent authority but does not as such handle requests within the European Union. Judicial authorities of the “Länder” may report cases to the Federal Office of Justice because of their significance or to ensure uniformity of the practice in extradition and mutual legal assistance.


II. Outgoing requests to other EU Member States

As a rule, the prosecution offices and courts are competent to issue mutual legal assistance requests in the cases they are dealing with. It is also for the prosecution offices to issue European Arrest Warrants following national arrest warrants. An exception applies for requests related to the enforcement of financial penalties under the EU Framework Decision (see above) where the Federal Office of Justice is the competent central authority not only for incoming but also for outgoing requests.

III. Further remarks 

Germany has set up one EJN contact point per federal state located at a General Prosecution Office of the respective “Land”. Furthermore, EJN contact points are also set up at the Federal Public Prosecution Office and at the Federal Office of Justice. Thus, 18 EJN contact points exist in Germany in total.

The German law governing extradition and other mutual legal assistance to and from other States is the Act on international cooperation in criminal matters (IRG – Gesetz über die internationale Rechtshilfe in Strafsachen), see http://www.gesetze-im-internet.de/englisch_irg/index.html

To ensure uniformity and to aid practitioners, the Federal Government and the governments of the “Länder” have issued official “guidelines for international cooperation in criminal matters” (RiVASt – Richtlinien für den Verkehr mit dem Ausland in Strafrechtlichen Angelegenheiten). They are available (in German) on the website of the Federal Ministry of Justice under 

http://www.bmj.de/DE/Service/StatistikenFachinformationenPublikationen/Fachinformationen/RiVASt/_node.html

 

Text in original language, English and/or other available languages of the relevant national laws/provisions of the Criminal procedure codes  on judicial cooperation in criminal matters:


Useful links to German legislation


There is also a selection of translated statutes and ordinances

http://www.gesetze-im-internet.de/Teilliste_translations.html 


The following links are particularly useful for criminal practitioners:

 

The Code of Criminal Procedure (StPO – Strafprozessordnung)

German Code of Criminal Procedure (English pdf version)  (Information extracted from UNODC website)


The Criminal Code (StGB – Strafgesetzbuch)

German Criminal Code (English pdf version)  (Information extracted from UNODC website)


The Courts Constitution Act (GVG – Gerichtsverfassungsgesetz)


The Basic Law for the Federal Republic of Germany (the German constitution) (GG –Grundgesetz)


Act on International Cooperation in Criminal Matters (IRG – Gesetz über die internationale Rechtshilfe in Strafsachen)

 
The Fiscal Code of Germany (AO – Abgabenordnung)


Youth Courts Law (JGG – Jugendgerichtsgesetz)


Act to Prevent the Exodus of German Cultural Property (KultGSchG – Kulturgüterschutzgesetz)


Act on the Return of Cultural Property (KultGRückG - Kulturgüterrückführungsgesetz)

 

Link to the EJN website’ section on the status of implementation in Germany of the EU legal instruments on judicial cooperation in criminal matters

Link to the national Fiches belges

Links to the relevant sections of the Council of Europe and United Nations Treaties Offices websites containing information on the conventions to which Germany is party

Council of Europe Treaty Office

United Nations Treaty Collection

 

The Federal Ministry of Justice (Bundesministerium der Justiz)

 
The Federal Office of Justice (Bundesamt für Justiz)

The Federal Office of Justice serves as the central point at federal level when it comes to cross-border criminal matters (international mutual assistance). However, owing to the principles of mutual recognition and the direct channel of communication between judicial authorities within the European Union, it is routinely not the Federal Office which is competent for receiving and handling MLA requests. Instead, this has largely

been delegated to the Public Prosecution Offices and the criminal courts (see EJN Atlas). The only exception is the enforcement of financial penalties pursuant to Framework Decision 2005/214/JHA, where the Federal Office of Justice is the competent central authority for incoming and outgoing requests.


The Federal Foreign Office (Auswärtiges Amt)

 
The Federal Public Prosecution Office (Generalbundesanwalt beim Bundesgerichtshof)

At the federal level, a Federal Public Prosecution Office has been established parallel to the Federal Court of Justice. The Federal Public Prosecution Office pleads appeals in the Federal Court of Justice. With respect to investigations and trial, it does not hold a general jurisdiction. Its jurisdiction is limited to war crimes and other crimes under international law, terrorism cases and cases pertaining to national security.


The Federal Criminal Police Office (Bundeskriminalamt)

The Federal Criminal Police Office is competent to carry out law enforcement tasks in certain cases of international and serious crime. Furthermore, the Federal Criminal Police Office coordinates crime suppression at national and international level, in close cooperation with the Criminal Police Offices (the “Landeskriminalämter”) of the various states (the “Länder”) of Germany. Beyond this mandate, the Federal Criminal Police Office functions as the central police contact for various organisations and networks (see 
http://www.bka.de/nn_195530/EN/TheBKA/Tasks/InternationalFunction/internationalFunction__node.html?__nnn=true).

The Federal Criminal Police Office is Germany's national central office for the Schengen Information System SIRENE. It also functions as "Interpol Wiesbaden", the National Contact Bureau for Interpol and as the national unit for EUROPOL. It is the national police Asset Recovery Office (ARO) under Council Decision
2007/845/JHA. It also hosts the Financial Intelligence Unit (FIU) for Germany.


The Federal Court of Justice (Bundesgerichtshof)

The Federal Court of Justice represents the final court of appeal for all judgments issued by the regional and higher regional courts in Germany acting as courts of first instance. The federal court of justice never acts as court of first instance and has therefore no original jurisdiction.

 
The Federal Constitutional Court (Bundesverfassungsgericht)

The Federal Constitutional Court plays an important role in Germany. Its task is in particular to monitor compliance with the constitution.

The German Federal Bar (Bundesrechtsanwaltskammer)

With the provided form you can search the database of all “Rechtsanwälte”/“Rechtsanwältinnen” (attorneys-at-law in private practice) and European lawyers admitted in Germany as well as lawyers from other countries which are established in Germany under § 206 of the Federal Lawyers Act and all legal advisers (“Rechtsbeistände”) who are members of a Bar.

 
Portal of the justice authorities of the federal and state governments

The joint justice portal is maintained by the federal and state governments and provides a wide range of e-justice service in a simple and uniform way.

 
Directory of Places and Courts 


The “Directory of Places and Courts” provides addresses of the locally competent courts and prosecution office similar to the information contained in the EJN-Atlas


The Federal Central Criminal Register (Bundeszentralregister)

The Register, which is maintained by the Federal Office of Justice, holds judgments of the criminal courts which have become final, as well as certain rulings of the guardianship courts and administrative authorities, and – after an assessment entailing a comparison of laws – foreign criminal convictions handed down against Germans or against foreigners living in Germany.

 

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