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My understanding was that German criminal proceedings are "private" (meaning secret, no one is allowed in except participants) and that the accused is assumed to be guilty until proven innocent, which is a standard plank of Napoleanic Code.

However, I recently read in a German legal guide the following:

The Latin phrase “in dubio pro reo” means that the court has to give the defendant the benefit of the doubt. The accused is assumed to be innocent until his guilt has been established beyond reasonable doubt.

So, which is it? Germany doesn't follow Napoleanic code anymore? Seems unbelievable to me. Is the guide just a theory on paper like the so-called inviolability of the home against searches which everybody in Germany knows is a joke.

  • 7
    I think you are about 120 years too late. – gnasher729 May 13 at 18:58
  • 1
    The ECHR, which includes almost all of Europe, explicitly provides for the presumption of innocence, unlike the US constitution. – phoog May 16 at 21:23
9

Trials in German criminal cases are generally open to the public (subject to exceptions similar to those in the U.S.) and there is a presumption of innocence until proof beyond a reasonable doubt establishes otherwise in its criminal justice system. The authority for this and the history of this are explored below.

In a criminal case in Germany, according to the German Code of Criminal Procedure, Section 261, a judge is supposed to make a decision upon guilt or innocence based upon the following standard:

Section 261.

[Free Evaluation of Evidence]

The court shall decide on the result of the evidence taken according to its free conviction gained from the hearing as a whole.

Section 263 provides that decisions regarding guilt against a defendant must be made by a two-thirds majority of the judges (typically a panel of three in felony cases).

Neither the German Penal Code, nor the German Code of Criminal Procedure contain a clear articulation of a presumption of innocence or of a presumption of guilt. An arrest and certain other pre-trial remedies are allowed when someone is "seriously suspected" of a crime, and a judge may dismiss charged if they are without sufficient legal basis on their face.

As explained here:

If there are indications of a crime, the district attorney or the police department must initiate an official investigation. If the matter comes to a trial, it is the court's duty to pursue further official investigations. The court is obliged to look for evidence, whether or not defence counsel or the district attorney ask that evidence is heard. . . .

In criminal proceedings, all evidence must be presented during the trial. Only the results of the main (oral) hearing may serve as a basis for the sentence (sections 261 and 264, Code of Criminal Procedure). Written evidence, such as documents, must be read out and witnesses must be interrogated in the presence of the court and the public. . . .

Hearings and other court dates in criminal matters are . . . open to the public (section 169, Court Constitution Act). In some cases, confidentiality is deemed to outweigh the basic rule of public access to court proceedings, for example in matters of national security, or, more commonly, in proceedings concerning young people. . . .

Juries are not used in criminal proceedings. Minor cases are tried by one career judge, and other matters are tried by a court consisting of one career judge and two lay judges (section 29, Court Constitution Act). In certain very serious matters (for example, cases involving the death of the victim), the court consists of three career judges and two lay judges (section 74, Court Constitution Act), Lay judges in criminal proceedings are meant to ensure the approval of a criminal verdict by the public. . . .

In civil law cases, the burden of proof generally lies with the party asserting the claim. They must prove their case beyond reasonable doubt.

The burden of proof can be shifted, for example in claims for damages due to breach of contractual obligations. The defendant's responsibility for the contractual breach is presumed by the law, and the defendant bears the burden of proving otherwise (section 280 subsection 1 second sentence, German Code of Civil Law (Bürgerliches Gesetzbuch)).

As there are no disclosure-like proceedings, the party with the burden of proof may need to demonstrate a fact that they have had no chance to obtain knowledge of, while the other party can present this information easily (for example, information regarding the opposing party's assets or tax burden). In this case, the burden of proof does not shift, but the other party has a duty to provide sufficient information for the first party to substantiate their submission. This is known as the "secondary burden of proof". . . .

As criminal proceedings in Germany are not adversarial, but apply the principle of official investigation (see Question 18), it is the court and the prosecutor that have to provide evidence both against and in favour of the accused.

In a criminal trial the standard of proof is similar to the one in civil matters: the court must be convinced beyond reasonable doubt. The benefit of any doubt goes to the accused.

The legal source this standard of proof is an international treaty, as articulated below, and this provides a legal gloss on the interpretation given to Section 261 quoted above. This is basically the same standard of proof in civil and criminal cases. The probabilistic "preponderance of the evidence" standard used in civil cases in common law systems is not used.

The presumption of innocence in the German criminal justice system and its practical effects are discussed in this 2014 law review article. It explains the history of that provision in German law as well:

Comparatists of criminal law and procedure like the presumption of innocence. It seems to provide a focus on which all can agree. The presumption of innocence has a rich historical heritage (see Hruschka 2000) and enjoys international acceptance, as exemplified by its recognition as a basic right in Article 14 (2) of the International Covenant on Civil and Political Rights.1 But the presumption’s aura and its effectiveness as a rhetorical device contrast with the difficulty of determining its precise meaning, especially in international discourse. The presumption of innocence, it seems, resembles a wonderfully carved and polished gem which reflects the light in various sparkling tones—but at closer inspection is nothing but a piece of glass.

In what follows, I will not even begin to discuss the various meanings that the presumption of innocence has acquired in different legal systems. I will rather concentrate on the German system and will try to demonstrate the (useful but) limited reach of the presumption of innocence in the German context.

In a legal system such as the German system that is solidly built on codes and statutes, one would expect that a principle as important as the presumption of innocence is enshrined in the Constitution, or at least in one of the first paragraphs of the Code of Criminal Procedure. But the presumption of innocence has not been given a prominent place in the cathedral of German law; in fact, the presumption does not appear anywhere in indigenous German legislation. It has become part of German statutory law only by the wholesale transformation, in 1952, of the European Convention on Human Rights into domestic German law.2

In spite of that less than spectacular genealogy, the presumption of innocence enjoys as high a status in German legal discourse as in any other legal system. In a 1987 decision, the Federal Constitutional Court, Germany’s highest judicial authority, declared that ‘‘the presumption of innocence is a special feature of the principle of Rechtsstaat (a state built on the rule of law) and thus has the rank of a constitutional norm.’’3 The Constitutional Court linked the presumption of innocence to other high-ranking Constitutional concepts, such as the principle of culpability as a requirement for punishment, and human dignity, which is the supreme value protected by Article 1 of the German Constitution.4

1 Article 14 (2) of the International Covenant on Civil and Political Rights of 19 December 1966 reads:

‘‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.’’

2 See Gesetz u¨ber die Konvention zum Schutz der Menschenrechte und Grundfreiheiten, II Bundesgesetzblatt p. 685 (1952).

3 Bundesverfassungsgericht, Judgment of 26 March 1987, 74 Entscheidungen des Bundesverfassungsgerichts (hereinafter: BVerfGE) 358 at 370.

4 id. at 371.

The presumption of innocence was in a section numbers 6(2) in the original 1952 treaty (which contained equally authoritative English, French and German provisions) that Germany adopted, but has been renumbered in the meantime.

Footnote on some assumptions in the question.

Germany never followed the Napoleonic Code. It drafted its own civil and criminal codes from scratch based upon the Napoleonic Code model. Most civil codes in the world follow either the German model or the French model (e.g. South Korea's civil code is based upon Germany's while Vietnam's was based upon the French civil code). Superficially, the German model is easily distinguished by having more major subparts than the French one does. All civil and criminal codes in civil law countries have been amended many times.

All countries in Continental Europe, in the pre-Napoleonic Code era, did something that is now called the "reception" of Roman law, which basically meant treating Roman legal treatises as binding legal authorities, in the "early modern" period before which personal feudal rule by aristocrats rather than the "rule of law" was the norm. But the available Roman legal treatises offered more insight to officials making judicial decisions based upon received Roman law, and were taken as more authoritative in the area of non-criminal private law, than they were in the areas of public and criminal law.

In most of continental Europe (and for that matter in the U.K. as well), human rights flow mostly from international treaties (associated with the formation of the "Council of Europe" not to be confused with the E.U. organ known as the European Council), rather than from domestic constitutional rights, although some of these countries have also incorporated their treaty obligations into separate constitutional provisions or domestic statutes as a means of implementing those treaties.

  • Interesting, but I have to admit this is not giving me a warm and fuzzy feeling. So, I guess the takeaway here is that if I get arrested in Germany, the cops are going to rape me, right? – Cicero May 14 at 3:35
  • 4
    @Cicero Absolutely not. Past abuses notwithstanding, Germany's criminal justice system is among the least corrupt in the world (second only to those of Scandinavia) and its incarceration practices and conditions prior to trial are profoundly more humane than they are in the U.S. Visitors from the U.S. to German jails and prisons are flabbergasted by how well prisoners are treated. See e.g. vera.org/blog/dispatches-from-germany/… and nytimes.com/2015/08/07/opinion/… – ohwilleke May 14 at 3:37
  • Hmm, ok. Well, the last time I was in Paris we were walking in the street and this van was there across the street with all these cops around it dressed in military garb and the Parisienne with us said, "Don't look! Don't look! They will throw you in the van if you look." But I guess France is different than Germany, because France is Napoleanic Code, but Germany is only kind-of-but-not-really-Napoleanic-Code? – Cicero May 14 at 3:56
  • 3
    @Cicero French criminal justice has more abuses than German, although both are still better on the whole than the U.S. The French have a long tradition of using paramilitary forces (Gendarmes) in law enforcement in addition to police, and police were totally controlled from the capital with even local governments run by central government appointees until the 1980s or so. It has also had something close to a coup in the post-WWII era & has developed a very antagonistic relationship between authority and the people visible now in the yellow jacket protests and earlier in the French revolution. – ohwilleke May 14 at 4:00
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    @Cicero As Willeke explained, Germany is not "only kind-of-but-not-really-Napoleonic-Code", it has nothing to do with Napoleonic code whatsover. And your comment about expectation of being raped by cops, that looks like trolling. – gnasher729 May 14 at 10:46
4

You must be careful with the term Code Napoleon.

In general it is an alternative name for the code civil (original name code civil des Français 1804) and is one of the 5 books of law.

It was introduced in Westphalia in 1808 and used in french domenated areas until it was replaced by the Bürgerlichgesetzbuch in 1901.

What you are talking about (I assume) is the code pénal or d'instruction criminelle. which was introduced in 1810 in France as the last of the 5 books.

In how far this crimnal law had been introduced into the french dominated area of Germany, I cannot say.

At the latest it was replaced by the Strafgesetzbuch on the 1872-01-01.

I have never found a German copy, the only one I know exist in a museum and contains all of the 5 books.

https://de.m.wikipedia.org/wiki/Cinq_codes


Persumpsion of guilt

When younger I also heard of this claim and remembered it a few weeks ago and looked for proof.

I found nothing at all to support this claim.

In this Wikipedia page, France is not meantioned all.

https://en.m.wikipedia.org/wiki/Presumption_of_guilt

I would say that that is a bad sign.


A futher link with a more extensive explanation of the law books, where the theme of presumption of guilt is meantioned.

https://en.m.wikipedia.org/wiki/Napoleonic_Code#Code_of_criminal_instruction

The Wikipedia artical, in combination with link to the pdf artical of the NYTimes of 1895-04-14, sheds light on how this misconception may have come about.

A (from me shorten) quote from the article Crystallises the problem:

  • 'from arrest until acquitted one is presumed guilty'

Does a policeman, after an arrest (that is shortly thereafter confirmed by a judge), try to keep the arrested in custody?

  • yes

Does a prosecutor desire to find the arrested person guilty?

  • yes

Would the same be done in Anglo-Saxon Common Law

  • yes

So where is the problem? Why such a claim?

I think that a bit of history of the time (France end of the 19th century), which for the reporter is so everyday knowledge that needs no meantioning of.

The political conflicts between Royalists, Republicans and Napoleon supporters (each in tern being the government of the day) may have lead to as

  • a misuse of the system to rid themselves of undesired opponents

(The same may said for France in the 1960's during thee aftermath of the Algerien War)

Also, since these french codes were in active use in Germany and law commentaries existed (1858) comparing the different code, I have not noticed any statements vbeeing made about an assumption of guilt in the French codes.

Based on the above, I am leaning to the conclusion that this (mainly Anglo-Saxon) myth

  • is based on the misuse of the system and not on it's intended use

Any system can be misused.

I saw a typed judgment from the DDR (East Germany), where the typist used the date of typing - which was 10 days before the trial started.

So anything is possible, when so desired


Answers to questions (where not already answered)

Restricted Court session apply only to minors or young adults. The result is public.

Televised sessions are not permitted, mainly to perserve the dignity of the individual.

As to your claim: 'everybody in germany knows is a joke'

  • sorry if this sounds rude, but
    • that is a claim based on ignorance

As to your conclusion: 'if I get arrested in Germany, the cops are going to rape me, right?'

  • no, they will be very busy filling out all the paperwork

Your experience with your Parisienne 'friend': avoid peaple who misuse your naivity.

Despite everything else, I encourage you to continue attempting to learn (and absorb) the realities of life, as your participation in this forum shows you are willing to do.

  • @Cicero your understanding of Europe has nothing to do with reality. Rarely does one see such a collection of false claims. – Mark Johnson May 16 at 19:01
  • There was also the code d'instruction criminelle of 1808, which concerned criminal procedure. – phoog May 16 at 21:05
  • Yes, book number 4 as shown in the cinq code link. Unfortunately my french is to minimal to read the original text and come to a conclusion. I asked a Canadian friend last week about this, but he replied that he had never heard the claim. So I hope someone more knowledgeable in french law can clear up this possible misunderstanding. – Mark Johnson May 17 at 1:33
  • I also searched for an English translation of that code; frankly, given its historical importance I'm astonished no one's translated it. – cpast May 17 at 2:23
  • @cpast me too. Google translate does a decent job with it, at least for someone accustomed to reading between the lines of mistranslated text. As far as I can see it does not explicitly provide for presumption of innocence (but then neither does the US constitution). The procedural prescriptions do require evidence of guilt, and they do not require evidence of innocence. Presumption of innocence was explicit in France with the 1789 Declaration of the Rights of Man and of the Citizen, but I do not know whether that had any effect in the Napoleonic era. – phoog May 17 at 14:17

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