Miscarriage of justice

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Legal miscarriage is a general term for errors in the judiciary ; there is no legal definition. Those wrongly convicted are called justice victims .

In the public perception, a miscarriage of justice is primarily understood to mean a criminal conviction of innocent people. According to the legal understanding, errors of justice, or especially wrong judgments , also occur in other legal areas such as civil law and public law and in every work process of the judiciary. Reasons for a mistake in the judiciary can lie in an unintentional misconception by the judge, a deliberate misleading of the judge by witnesses , experts , lawyers or other persons or a procedural error .

The deliberate misapplication of the law, however, is generally referred to as perversion of the law. When the death penalty is imposed and carried out as a result of such abuse of law , it is often called judicial murder . The execution of wrongly convicted people is also often referred to by critics of the death penalty as such.

A “ scandal in the field of justice, the judicial system” is called a judicial scandal .

Errors of justice in the German legal system

Terminology

There is no binding definition of the term miscarriage of justice. While legal errors can occur not only in criminal law, but also in every other area of ​​law, media reporting and public perception predominantly - but not exclusively - refer to wrong decisions in criminal proceedings that lead to innocent convictions.

Differentiation from perversion of the law

In contrast to perversion of the law , which is an offense of the Criminal Code (StGB) ( § 339 StGB) and requires deliberate action , the miscarriage of justice as an error presupposes a misconception of the decision-maker about reality. The misconception can exist in legal or factual terms, i.e. either with regard to the applicable law or with regard to the facts established by the court.

A difficulty in delimiting judicial errors arises from the fact that the law as a measure of the decision necessarily exhibits a certain fuzziness (indeterminacy), which is increased when it is applied (also in the determination of a factual situation with the help of the law of evidence): If the legal content Once a rule has been established, it is often a question of application by the decision-maker as to whether and what consequences the rule has for a case. There is therefore a gray area between the miscarriage of justice as a mistake and a correct decision.

Correction of errors in the judiciary

Avoiding errors of justice, exposing and correcting the decision itself, or at least its consequences, is a legal problem to which many rules are devoted. This includes in particular the right to apply for evidence , the legal remedies ( appeal and revision ), the other legal remedies , the right of retrial and, finally, e.g. B. legislation on compensation law.

In the law of evidence, in the limitation of legal remedies, in the law of retrial and in the law of compensation , limits are discernible, which even a society prepared to understand the fallibility of its judiciary must probably impose on itself. Thus, in the law of evidence, with the approval of the highest court, only the so-called “standard of practical reason” is applied for judicial conviction and thus the establishment of facts. Theoretical doubts must be disregarded. When it comes to legal remedies, many decisions cannot and must not be reviewed because e.g. B. Deadlines have been missed, the limits of complaint are not reached or (e.g. in the law on administrative offenses ) a wrong decision has been made in individual cases . In the law of resumption, the legal force of decisions must be protected because otherwise it would not be possible to build on earlier decisions. And finally, in the compensation law, the individual is expected to make a sacrifice to the community, because full compensation for all errors (for example according to the principle of total repair according to § 249 BGB ) would overwhelm the public sector.

The court reporter Sabine Rückert wrote in 2011:

How often wrong judgments actually occur in Germany on the basis of false accusations is not researched. On the contrary - for courts, public prosecutors and even for academia, failure of the criminal justice system is not an issue. A total of only about 90 readmissions in over 800,000 [Note: = only about 8,900 each. Case] ​​legally settled criminal cases are counted by the Federal Ministry of Justice per year. The number of those who are innocently convicted in our country is likely to be considerably higher. How much can be seen from the fact that after a guilty verdict in the ensuing damage compensation process, in 30 to 40 percent of the cases , civil courts come to a different verdict than the criminal court previously dealt with.

In an investigation of 7,482 death sentences from 1973 to the end of 2004, US researchers concluded that more than 4% of the death sentences sentenced to death were innocent. They referred to projections based on the length of imprisonment and the fact that 1.6% of the death row inmates were later officially exonerated. Judge Antonin Scalia of the US Supreme Court put the 2007 error rate at 0.027%.

Scientific investigation of errors of justice

The scientific investigation of errors of justice is hampered by the difficulty of distinguishing between actual errors and correct decisions. In the area of criminal procedural law , an investigation by Karl Peters into sources of errors in criminal proceedings in Germany had a considerable influence. There is also intensive research into the validation of evidence ( credibility research for testimony ). The introduction of objective evidence (in common law only evidence and confession were admissible evidence) through to DNA analysis is characterized by efforts to avoid errors or to uncover errors (cf. death penalty ). Finally, statistical studies have helped to uncover errors (frequency of death sentences depending on skin color , etc.).

Criticism of the judicial system and causes of judicial errors

Some lawyers, some of whom are or have worked as judges in German courts, see the cause of errors of justice in Germany primarily in the German judicial system, as can be seen from the following quotes:

“Self-criticism is certainly what judges have the least. Of course there are also many judges who understand their office in such a way that it is simply unacceptable to criticize the judgment. "
“The culture of error does not belong to the judiciary, but the whole system of the third power consists of the self-image that one proclaims absolute and unquestionable truths. If that were to be questioned, then this system of justice, which makes final judgments, would be in jeopardy. Of course, all sorts of people rest on that, who simply, you have to say it so hard, botch. "
“The judiciary has something to hide. In my opinion, judges are systematically overwhelmed by what they have to do. The main work is figuring out who did what. And you haven't learned that anywhere. No judge has learned how to find out the truth. No judge learned anything about the hearing of witnesses, about psychology or about sociology during his training. "
“The judiciary does not want readmissions. Even if a reopening request is well justified, the courts dealing with the reopening always try to find some pretext to suppress this reopening. The judiciary defends the legal force of a judgment once pronounced with teeth and claws "
  • Conclusion of the TV documentary Innocent Behind Bars - locked away and checked off on June 2nd, 2015:
“The most common reasons for legal errors: pressure to succeed, sloppy one-sided investigations, ignorance and excessive demands on judges as well as a lack of training. And: Lack of self-criticism: this is one of the reasons why retrial proceedings are prevented by all means. And so there will continue to be wrong judgments and in most cases they will persist, with fatal consequences for the victims. "
“Even if he [the judge] makes gross and gross mistakes, he is not responsible for the consequences. This is ensured by Section 839 (2) sentence 1 of the German Civil Code (BGB) and the protective, broad interpretation of this provision by the judicature. "
“The German slum justice system is taking on ever sharper contours. The decline of the jurisprudence is widespread. What shakes me most personally is the lack of professional ethics and professional shame. "
"There are too many power-obsessed, better-knowing and, unfortunately, incompetent judges in the German judiciary who are apparently out of the question."
“A crux of our legal system is the complete failure of the supervision of judges. Whatever legal violations judges may commit, they are not threatened with blame. "
“The deep sleep of judicial complacency is seldom disturbed. Criticism from litigants, lawyers and politicians ricochets off a wall of well-organized and functioning self-immunization mechanisms. The criticism of lawyers and litigants is regularly rejected as one-sided, that of journalists not taken seriously due to a lack of professional competence and that of politicians as an attack on judicial independence. It is a phenomenon of our media democracy that a profession with such central political, social and economic power as the judiciary has so successfully evaded the test of public criticism. The judges have every reason to enter into a critical discussion with themselves. The case law has long been ripe for bankruptcy. It is expensive, incalculable and time consuming. Only 30 percent of the population have full confidence in the judiciary. The lottery character of the jurisprudence, the authoritarian demeanor, the incomprehensible language and the arrogance of many judges in dealing with citizens seeking justice create distrust and rejection. "
“Something is rotten in Germany's constitutional state. False representations of witness statements, circumstantial evidence or expert statements by the judges are just as common as adventurous ways of reaching a verdict. The result are scandalous misjudgments and victims of justice who are defenselessly exposed to the mills of the judiciary, which is still shaped today by the legal understanding of the Nazi era. "
  • Udo Hochschild, judge at the Dresden Administrative Court considers the judiciary to be externally controlled:
“It is controlled by another state power - the executive branch, headed by the government. Their interest is primarily aimed at maintaining power. This irrelevant interest jeopardizes the independence of the judiciary. Judges are not servants of power, but servants of law. Therefore judges must be organized freely from power interests. In Germany they are not. "
  • Gerd Seidel , professor emeritus for public law, lists in an article for the magazine Anwaltsblatt some of what he believes to be scandalous court proceedings and decisions that went unpunished because of the judicial independence . The problem of the arbitrary behavior of some judges is not alleviated by the fact that legal remedies are available to correct obvious misjudgments .

Penitentiary system and errors of justice

In the penal system, the correctness of the judgment is assumed and therefore the given facts are not checked again. Those affected by a miscarriage of justice suffer particular disadvantages; because who does not confess a serious crime and behaves not clear in the prison, which is usually neither enforcement relaxations reach and even an early release. In the Horst Arnold case , for example, the inmate had to serve the entire sentence because he truthfully denied the crime and resisted therapy.

If it subsequently turns out that there has been a miscarriage of justice, those affected receive compensation for the period of detention in proportion to the length of detention in accordance with the provisions of the Law on Compensation for Prosecution Measures (StrEG). A flat rate for daily meals is deducted from this sum. The compensation for damage other than financial loss is currently EUR 25 per day of imprisonment. In Austria, in the event of a proven miscarriage of justice, you get between 20 and 50 euros per day in custody compensation.

Known errors of justice in Germany

Errors of justice in Switzerland

According to a study by the University of Zurich, 237 legally binding criminal judgments or orders were only overturned in retrial between 1995 and 2004. Among them were 12 cases with a sentence of more than 2 years in prison.

The Werner Ferrari case has become known in recent times . He was sentenced to life imprisonment in 1995 for fivefold child murder. Due to recent investigations, he was acquitted in 2007 with regard to the fifth murder, which, however, did not change anything in terms of the total sentence.

Feature films

See also

literature

  • Toni Böhme: The wrong judgment in criminal proceedings - the term and frequency. In: Unit of procedural law. Conference of young procedural law scholars on 18./19. September 2015 in Cologne. Edited by Daniel Effer-Uhe u. a. Boorberg, Stuttgart 2016, ISBN 978-3-415-05708-1 , pp. 39–54.
  • Gerhard Bundschuh : Death in the Flames. Spectacular misjudgments. Das Neue Berlin, Berlin 2014, ISBN 978-3-360-02184-7 .
  • Thomas Darnstädt : The judge and his victim: When the judiciary is wrong. Munich 2013, ISBN 978-3-492-05558-1 .
  • Barbara Dunkel, Stefanie Kemme: Misjudgments in Germany - a balance sheet of empirical research for five decades. In: New criminal policy. NK. Forum for Law, Law and Practice 28 (2016), ISSN  0934-9200 , pp. 138–154.
  • Barbara Dunkel: Wrong decisions in the judiciary. Systematic analysis of retrial proceedings in criminal proceedings with regard to frequency and risk factors (= German and European criminal procedural law and police law. Volume 8). Nomos, Baden-Baden 2018, ISBN 978-3-8487-5272-0 .
  • Bernd Herbort: Right up to the last instance . Bastei Lübbe, 1996, ISBN 978-3-404-61378-6 .
  • Max Hirschberg : The wrong judgment in criminal proceedings: On the pathology of jurisprudence. Kohlhammer, Stuttgart 1960.
  • Barbara Keller: Is that what a murderer looks like? Edition Noack & Block, Berlin 2010, ISBN 978-3-86813-006-5 .
  • Jörg Kunkel, Thomas Schuhbauer: Miscarriage of justice! Germany in the mirror of spectacular misjudgments. Campus Verlag, 2004, ISBN 978-3-593-37542-7 .
  • Herrmann Mostar: Convicted innocently. From the chronicle of the judiciary murders. Scherz & Goverts, Stuttgart 1956.
  • Hans-Dieter Otto: The lexicon of errors of justice: scandalous cases, innocent victims, persistent investigators. Berlin 2003, ISBN 978-3-548-36453-7 .
  • Karl Peters , Heinrich Foth, Wilhelm Haddenhorst : Sources of error in criminal proceedings: An investigation into retrial proceedings in the FRG. Volume 1: Introduction and Documentation. Volume 2: Systematic Investigations and Conclusions. Volume 3: Right of Reopening. Verlag Müller Jur. Vlg. CF, 1995, ISBN 978-3-8114-0215-7 .
  • Sabine Rückert : Wrong in the name of the people. A miscarriage of justice and its consequences. Hoffmann and Campe, Hamburg 2007, ISBN 3-455-50015-3 .
  • Erich Sello : The errors of the criminal justice system and their causes. Death penalty and life imprisonment in judicial miscarriages of recent times. v. Decker, Berlin 1911. (Slightly edited, new edition: Hoffmann, Schifferstadt 2001), ISBN 3-929349-40-X .
  • Hans Martin Sutermeister : Summa Iniuria: A pitaval of legal errors - five hundred cases of human error in the area of ​​justice from a criminal and social psychological point of view. Elfenau Verlag, Basel 1976.
  • Florian Wille: Testimony against testimony in sexual abuse proceedings. Deficit defendant rights in Germany and Austria and their correction options. Springer, Heidelberg 2012, ISBN 978-3-642-27421-3 .

Web links

Wiktionary: miscarriage of justice  - explanations of meanings, word origins, synonyms, translations
Wiktionary: misjudgment  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Administrative Court Berlin, decision of March 30, 2011, Az. 34 L 34.11 A.
  2. ↑ On the miscarriage of justice in administrative law cf. Eberhard Schmidt-Assmann (Ed.): Special administrative law . Walter de Gruyter, 13th edition 2005, ISBN 978-3-11-027762-3 , p. 128. Eberhard Schmidt-Assmann, Friedrich Schoch (Ed.): Special administrative law. 14., rework. Edition 2008, ISBN 978-3899494952 .
  3. ↑ Judicial scandal, the. Duden , accessed on May 12, 2018 .
  4. ↑ See, for example, this article on an alleged miscarriage of justice in administrative law.
  5. ↑ Category: Legal errors at Spiegel Online
  6. ↑ Thomas Darnstädt: Legal errors: Blind before the truth. In: Spiegel Online . April 26, 2013, accessed January 2, 2017 .
  7. ↑ Birte Schmidt: Legal errors: What will happen to the victims in Germany? In: web.de. December 16, 2014, accessed January 2, 2017 .
  8. ↑ Category: Errors of Justice. In: welt.de . Retrieved January 2, 2017 .
  9. ↑ Category: Miscarriage of Justice. In: sueddeutsche.de . Retrieved January 2, 2017 .
  10. ↑ Sabine Rückert: False witnesses: lies that one likes to believe. In: zeit.de . July 7, 2011, accessed January 2, 2017 .
  11. ↑ Death penalty in the US: Four percent of those convicted are innocent. In: Spiegel Online . April 29, 2014, accessed January 2, 2017 .
  12. ↑ JUSTICE / FAIL JUDGMENTS: A kind of Kismet . In: Der Spiegel . No. 19 , 1970 ( online ).
  13. ↑ a b c d e Innocent behind bars - locked away and checked off . TV documentary, 3sat , June 2, 2015 (video in the ZDF media library) .
  14. ^ In: ZAP - Zeitschrift für die Anwaltspraxis , January 9, 1992, p. 28.
  15. ^ In: ZAP - Zeitschrift für die Anwaltspraxis , February 16, 1994, p. 155.
  16. ^ In: ZAP - Zeitschrift für die Anwaltspraxis , March 24, 1994, p. 266.
  17. ^ In: ZAP - Zeitschrift für die Anwaltspraxis , January 19, 2005, p. 49.
  18. ^ In: ZAP - Zeitschrift für die Anwaltspraxis , July 25, 1990, p. 625.
  19. ↑ Demigods in black - Germany's justice in the pillory . Eichborn Verlag, Frankfurt am Main 2005, ISBN 3-8218-5609-2 . .
  20. ^ Udo Hochschild: Separation of Powers in the German Consciousness ( Memento of March 4, 2009 in the Internet Archive ).
  21. ↑ The Limits of Judicial Independence . In: Anwaltsblatt , Edition 6/2002, pp. 325–330.
  22. ^ Justice in error - The cold heart of the state. In: sueddeutsche.de . August 10, 2011, accessed January 2, 2017 .
  23. ↑ Criminal Law Compensation Act in the RIS
  24. ↑ Article Uni Zurich