Main hearing
According to German criminal procedure law, the main hearing is the core component of every criminal proceeding and is regulated in Sections 226–275 of the Code of Criminal Procedure (StPO). It usually ends with a judgment or - possibly provisional - termination of the proceedings . The principle of orality applies to the main hearing . Minutes must be drawn up of the main hearing .
Course of the main hearing
The course of the main hearing is regulated in Section 243 of the Code of Criminal Procedure.
The main hearing begins when the matter is called (Section 243 (1) sentence 1 StPO). If, contrary to the wording of the law, such a call is not made, the point in time at which the court is recognizably hearing is considered to be the beginning. The chairman has to order the call of the matter or to carry it out himself so that it is effective. The call can be made by a court sergeant or the clerk. A loudspeaker system is often used, which is directed towards the area in front of the meeting room. At the latest when the matter is called, the public must have the opportunity to enter the courtroom (if it is a public hearing).
The chairman determines whether the defendant and defense counsel are present and whether the evidence has been obtained , in particular whether the summoned witnesses and experts have appeared (Section 243 (1) sentence 2 StPO). For unexcused absence of the accused may paraded or a warrant to so-called. Trial detention shall be adopted, as far as this is necessary to carry out the trial ( § 230 paragraph 2 StPO).
Then the witnesses have to leave the room so that they can make their testimony impartially and without knowledge of the content of the main hearing until they are questioned (Section 243 (2) sentence 1 StPO). This does not apply to joint plaintiffs who are entitled to be present ( Section 397 (1) sentence 1 of the Code of Criminal Procedure) or adhesion plaintiffs together with legal representatives and spouses or partners ( Section 404 (3) sentence 2 of the Code of Criminal Procedure), not even for those who have committed a criminal offense if they are authorized to join as joint plaintiffs would, but does not appear as a joint plaintiff ( Section 406h (1) sentence 2 StPO). It is still possible to leave the room voluntarily, as the evidential value of a testimony can be reduced if the entire main hearing is known.
The chairman then interrogates the accused about his personal circumstances. The point here is simply to clarify his identity. His personal circumstances (education, income, family situation, criminal record ) are only discussed when the defendant is questioned.
The public prosecutor then reads out the charge (Section 243 (3) StPO). Deviating assessments by the court in the opening decision are to be taken as a basis, whereby the public prosecutor may communicate his differing legal opinion.
The chairman notifies whether discussions have taken place according to §§ 202a , § 212 StPO, if their subject was the possibility of an understanding ( § 257c ) StPO and, if so, their essential content (§ 243 paragraph 4 sentence 1 StPO). This obligation also applies in the further course of the main hearing, insofar as there are changes to the notification at the beginning of the main hearing (Section 243 (4) sentence 2 StPO).
The defendant is then informed that he is free to comment on the charge or not to testify on the matter (Section 243 (5) of the Code of Criminal Procedure). No pressure may be exerted on its freedom of expression. In particular, he must not be threatened that he will suffer disadvantages if he remains silent on the matter. An interrogation may only be carried out if the defendant declares that he wants to testify. Asking questions to a defendant who has declared himself to be silent is inadmissible.
Taking of evidence : The taking of evidence takes up the longest time. The court must investigate the facts comprehensively ( inquisition maxim ). All questions relating to guilt and punishment are resolved in the strict evidence procedure. Only five pieces of evidence are admissible in this: inspection , experts , documents , witnesses and the defendant's statements. The chairman conducts the taking of evidence. After his questions, he passes on the right to ask questions to the other parties involved in the proceedings (the adjudicating judges - professional judges or lay judges -, public prosecutor, defense attorney , accused, and possibly also joint plaintiffs and experts). The court decides on the admissibility of questions ( § 242 StPO). After each gathering of evidence, there is the possibility of submitting a declaration ( Section 257 of the Code of Criminal Procedure). The court also decides on applications for evidence ( Section 244 (6) of the Code of Criminal Procedure).
The closing lectures ( Section 258 (1) of the Code of Criminal Procedure) begin with the plea and the application from the public prosecutor. This is followed by the plea and the motion of the defense counsel. This does not apply to the appeal: There the appellant has the right to make the first final presentation. A final lecture can be replicated ( Section 258, Paragraph 2, Clause 1 StPO). The defendant has the last word ( Section 258, Paragraph 2, Clause 2 StPO).
After secretly deliberating the court, the chairman announces the judgment by reading out the sentence and explaining the reasons for the judgment ( Section 260 (1) StPO, Section 268 (2) sentence 1 StPO). Afterwards, any resolutions on probation or continuation of detention or temporary placement are read out.
Finally, in the event of a conviction, instructions on the right to appeal must be given ( Section 35a StPO). The session is then closed.
In more extensive proceedings with time-consuming taking of evidence, for example through the interrogation of numerous witnesses or the submission of various reports, the main hearing sometimes extends over many individual dates (hearing days). The main hearing, however, may be interrupted for a maximum of three weeks, and for one month only if the negotiations took place on at least ten days beforehand ( Section 229 of the Code of Criminal Procedure). In order to meet this deadline, a so-called sliding date may be necessary.
With Art. 5 of the Act to Mitigate the Consequences of the COVID-19 Pandemic in Civil, Insolvency and Criminal Procedure Law , Section 10 EGStPO was revised. From March 28, 2020 to March 27, 2021, regardless of the duration of the main hearing, the interruption periods specified in Section 229 (1) and (2) StPO are suspended as long as the main hearing is due to protective measures to prevent the spread of infections with the SARS-CoV -2 virus ( COVID-19 pandemic in Germany ) cannot be carried out, but for a maximum of two months. This applies accordingly to the deadline for pronouncing the judgment specified in Section 268 (3) sentence 2 StPO . The court determines the beginning and end of the suspension by means of an incontestable decision .
literature
- Detlef Burhoff, manual for the main criminal trial. ZAP-Verlag Recklinghausen 2002, ISBN 3896551167
Individual evidence
