4 ms·

Though IANAL, some notes about this article: * Please keep in mind it's from 1979. Some things have changed considerably. * The Schöffengericht (1 Judge, 2 La

Though IANAL, some notes about this article: * Please keep in mind it's from 1979. Some things have changed considerably. * The Schöffengericht (1 Judge, 2 Laymen) is only the lowest level of courts (Amtsgericht, probably a district court) and the higher levels are composed of professional judges only. Any crime that has an expected punishment of more than 4 years is judged by professional judges only. * Some trials may skip the first step on the appeal ladder and go directly to the Landgericht. * We have our own version of the plea bargain since 2009 (Verständigung im Strafverfahren). Arguments for the plea bargain are pretty much the same as in the USA: Some trials tend to get very complicated, especially cases with financial background where laws and regulations are complicated to understand for non-experts. Lately there have been discussions about wether to remove or modify the plea bargain, fueled after a series of appeals against plea bargains [1]. * In some circumstance a confession may be beneficial for the defendant, reducing the fine or prison time. This is especially true when the defendant supports the prosecution of other defendants in the same or a related trial (Kronzeugenregelung). This sometimes leads to pressure to confess a crime the defendant has not committed. [1] German, sorry: http://beck-aktuell.beck.de/news/bverfg-uebt-deutliche-kritik-am-deal-in-strafprozessen http://beck-aktuell.beck.de/news/bverfg-uebt-deutliche-kriti...

rbehrends 14y ago
While some things have indeed changed since 1979, it is not accurate that any crime for which a punishment of more than four years is expected is handled by professional judges only. Aside from magistrate judges (Amtsrichter), the only case where a German court sits in a criminal case as a trial court without a lay judge are the OLGs (superior state courts). This happens only if the crime is a war of aggression, treason, or creation of a terrorist organization. (Not that there's anything wrong with courts that do not have jurors or lay justices -- the Netherlands seem to be doing fine without either.) Crimes where the expected punishment is more than four years are tried before the penal senates of the regional courts (Landgerichte). They are composed of either one professional judge and two lay judges (Kleine Strafkammer) or three professional judges and two lay judges (Große Strafkammer). The Große Strafkammer can also sit with two professional and two lay judges if the case isn't too complicated. (Incidentally, the idea of lay judges originated in Sweden. Germany adopted the model in the 1920s as part of the so-called Emminger Reform [1]). [1] http://en.wikipedia.org/wiki/Emminger_Reform http://en.wikipedia.org/wiki/Emminger_Reform
- Xylakant 14y ago
  Sigh I specifically looked that up because I was uncertain, but I still managed to get it wrong. Next time, I'll have the coffee first. Thanks for the detailled correction.
- com 14y ago
  The Netherlands might not be doing as well as you might think. Things like the Chipshol debacle in the Netherlands shows that there is strong evidence of judicial collusion in a series of court cases - http://en.wikipedia.org/wiki/Chipshol http://en.wikipedia.org/wiki/Chipshol has a very superficial summary of something that I found quite shocking, involving public accusations of corruption, perjury, where one of the ex-judges involved was forced out as head of the Dutch anti-trust authority when it all blew open. Judges and lawyers seem to come from the same social circles, have gone to the same universities, members of the same clubs and so on. To access the conveyor-belt of promotions and opportunities, it is not inconceivable that a culture of "scratch my back, and I'll scratch yours" in a part of a small legal and judicial community in a small country could form. A system in which lay-people are involved may have to work a lot harder to pretend that biased judgements are fair.
hef19898 14y ago
Not to forget that in the German legal system it is, well common maybe to big a word, but at least possiblke to put people almost indeffinitaly in a psychiatric clinic. Needed for this is a criminal lawsuite and a psychiatric evaluation stating said individual is a threat for him or herself and others. If the court follows that evaluation, the defendant can be put in a forensic psychiatry without being judged guilty for the crime at all. Just a different point, doesn't have to do something with the abuse potential of plea bargains. The biggest criticism I have regarding plea bargains in Germany is, that they usually apply for white collar crimes since these tend to be rather to complex for the average judge and state attorney to follow. Blue collar crimes are differrent matter all together. The result is that a plea bargain benefits the state since the process is fast, the defendant since not the whole scope becomes public and the sentence tends to be rather short. While there are some public prosecution departments speciallized in white collar and financial crimes they are far between. So whenever there is one that can be settled out of court, it's tempting. But that's just my personal view of it. One prominent example of a guy being in a psychiatry since 2006 is Gustl Mollath. And it turned out that he is not as guilty as initially believed...
- Xylakant 14y ago
  The matter of detention in a psychiatric ward is a separate issue. In general it is a good thing since defendants in need of treatment get treatment instead of punishment. It is not intended as indefinite detention but requires regular reexamination. There's a problem with the examination though: There is little incentive to release a patient as "now safe", since the public outcry would be massive if the patient committed another crime afterwards. The Mollath case is contested. It may very well be possible that he is guilty, but not crazy or crazy, but not guilty. The problems found in this case are very symptomatic of the bavaria/baden-württemberg courts. One reason is that the appeals court for that region is unlikely to actually accept an appeal.

rbehrends 14y ago

While some things have indeed changed since 1979, it is not accurate that any crime for which a punishment of more than four years is expected is handled by professional judges only. Aside from magistrate judges (Amtsrichter), the only case where a German court sits in a criminal case as a trial court without a lay judge are the OLGs (superior state courts). This happens only if the crime is a war of aggression, treason, or creation of a terrorist organization. (Not that there's anything wrong with courts that do not have jurors or lay justices -- the Netherlands seem to be doing fine without either.) Crimes where the expected punishment is more than four years are tried before the penal senates of the regional courts (Landgerichte). They are composed of either one professional judge and two lay judges (Kleine Strafkammer) or three professional judges and two lay judges (Große Strafkammer). The Große Strafkammer can also sit with two professional and two lay judges if the case isn't too complicated. (Incidentally, the idea of lay judges originated in Sweden. Germany adopted the model in the 1920s as part of the so-called Emminger Reform [1]). [1] http://en.wikipedia.org/wiki/Emminger_Reform http://en.wikipedia.org/wiki/Emminger_Reform

Xylakant 14y ago
Sigh I specifically looked that up because I was uncertain, but I still managed to get it wrong. Next time, I'll have the coffee first. Thanks for the detailled correction.
com 14y ago
The Netherlands might not be doing as well as you might think. Things like the Chipshol debacle in the Netherlands shows that there is strong evidence of judicial collusion in a series of court cases - http://en.wikipedia.org/wiki/Chipshol http://en.wikipedia.org/wiki/Chipshol has a very superficial summary of something that I found quite shocking, involving public accusations of corruption, perjury, where one of the ex-judges involved was forced out as head of the Dutch anti-trust authority when it all blew open. Judges and lawyers seem to come from the same social circles, have gone to the same universities, members of the same clubs and so on. To access the conveyor-belt of promotions and opportunities, it is not inconceivable that a culture of "scratch my back, and I'll scratch yours" in a part of a small legal and judicial community in a small country could form. A system in which lay-people are involved may have to work a lot harder to pretend that biased judgements are fair.

hef19898 14y ago

Not to forget that in the German legal system it is, well common maybe to big a word, but at least possiblke to put people almost indeffinitaly in a psychiatric clinic. Needed for this is a criminal lawsuite and a psychiatric evaluation stating said individual is a threat for him or herself and others. If the court follows that evaluation, the defendant can be put in a forensic psychiatry without being judged guilty for the crime at all. Just a different point, doesn't have to do something with the abuse potential of plea bargains. The biggest criticism I have regarding plea bargains in Germany is, that they usually apply for white collar crimes since these tend to be rather to complex for the average judge and state attorney to follow. Blue collar crimes are differrent matter all together. The result is that a plea bargain benefits the state since the process is fast, the defendant since not the whole scope becomes public and the sentence tends to be rather short. While there are some public prosecution departments speciallized in white collar and financial crimes they are far between. So whenever there is one that can be settled out of court, it's tempting. But that's just my personal view of it. One prominent example of a guy being in a psychiatry since 2006 is Gustl Mollath. And it turned out that he is not as guilty as initially believed...

Xylakant 14y ago
The matter of detention in a psychiatric ward is a separate issue. In general it is a good thing since defendants in need of treatment get treatment instead of punishment. It is not intended as indefinite detention but requires regular reexamination. There's a problem with the examination though: There is little incentive to release a patient as "now safe", since the public outcry would be massive if the patient committed another crime afterwards. The Mollath case is contested. It may very well be possible that he is guilty, but not crazy or crazy, but not guilty. The problems found in this case are very symptomatic of the bavaria/baden-württemberg courts. One reason is that the appeals court for that region is unlikely to actually accept an appeal.