Report on Germany

Abstract

German constitutional jurisprudence emphasizes a close link between the truth-finding purpose of the criminal trial and the presence of the accused. As the latter’s individual culpability is of key importance to the imposition of criminal sanctions, procedural law attaches great value to the defendant’s presence at the trial, laying down both a right and a duty to this effect. It is only for crimes of minor severity that a sanction can be imposed without giving the defendant the opportunity to personally comment on the charges before a judge in advance—and even then, he or she can demand a subsequent trial. In any case, the defendant must have the opportunity to comment on the charges in an oral hearing. Furthermore, as the trial serves to ascertain the truth in the best possible way, accused persons have very limited options to waive their right to be present at trial, even after having been heard on the charges. Within narrow limits, the defendant can be temporarily removed from the trial, particularly for the purpose of maintaining order or enabling the examination of a witness. Beyond that, and with the exception of some alternative proceedings such as private prosecutions, German law broadly presupposes the personal presence of the defendant throughout the trial. In contrast, the accused’s personal participation at the pre-trial stage remains limited and is then primarily relevant for the judicial interrogation of witnesses and in judicial review proceedings against pretrial detention. The right to be present at one’s trial recently gained special significance in European Arrest Warrant proceedings following an in absentia trial in the requesting state where the convicted person had not unequivocally waived the right to be present. The Federal Constitutional Court stipulates special requirements in this regard in order to ensure that the right to a retrial in the requesting state is effective.