A Comparative Analysis of Pre-Trial Procedure in Europe: The Search for an Ideal Model
Pre-trial Procedure in GermanyUriel Moeller
German criminal procedure is and has been under enormous economic pressure. To relieve the justice system the “deal” or plea-bargain is, as of 2013, officially a part of the German criminal law system. However, the deal is restricted to the main procedure and the initiative of the judge. During the pre-trial procedure, the prosecution is “die Herrin des Verfahrens” (Lord of the procedure). The German Criminal Procedure Code grants the prosecutor vast possibilities to terminate criminal procedures pre-trial. Those possibilities are used extensively in practice. The majority of criminal procedures in Germany are not concluded by the judge, but by the prosecution. This chapter examines the power of the prosecutor to terminate criminal procedures pre-trial in the German criminal law system.
After a brief historical overview, it will show that for all but very grave crimes the prosecution has considerable discretion to terminate the procedure without a conviction, even though a conviction would have been likely. This raises questions of justice and victims’ rights, especially when in practice the prosecution sometimes oversteps its discretion.
This article will also discuss the advantages of such a systematic pre-trail conclusion of criminal procedure. While some claim the costs for “justice” to be high, the economic advantages are considerable, heightening efficiency and focus in a justice system under huge economical restrain while also producing appropriate results in terms of criminal policy.