Minutes of the main negotiation

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The minutes of the main hearing (also the minutes of the meeting or the minutes of the meeting ) certify the course and results of the main hearing in the German criminal process . The preparation of a protocol is prescribed in Section 271 (1) of the Code of Criminal Procedure . The protocol of the main hearing is not a public document in the sense of § 348 StGB .

content

The minutes contain the place and the day of the hearing, the names of the judges and lay judges , the public prosecutor's office and any defense attorney present . It also contains the name of an interpreter who may be present, as well as the names of the other parties involved, the description of the criminal offense after the indictment, and information on whether the proceedings were held in public or whether the public was excluded ( Section 272 StPO).

The course of the negotiation and the main formalities of the proceedings must be recorded ( Section 273 (1) of the Code of Criminal Procedure). These include, among other things, the presence of the persons prescribed in Section 226 of the Code of Criminal Procedure, the questioning of the accused on the person and the matter, the reading of the indictment , the hearing of the witnesses , the reading of documents and the inspection of objects, the applications made during the hearing , the instructions given and procedural declarations made. This also includes the last word of the accused, a judgment given at the hearing, resolutions announced at the hearing, and any agreement or the fact that no agreement has taken place.

Compliance with the essential formalities can only be proven through the protocol (positive evidential value). If an event that is required to be recorded as essential formality is not recorded, it is thus proven that the corresponding event did not take place (negative evidential value). Only the objection of falsification against the evidential value of the protocol is admissible ( § 274 StPO). If the proof of the forgery is provided, the evidential value of the protocol with regard to the parts affected by the forgery does not apply. The evidential value applies only within the procedure in which the protocol was drawn up, but not in other procedures. If, for example, the minutes certify that a witness was sworn in, the defendant can not successfully complain in the appeal that the witness was not sworn in. If the witness is subsequently charged with perjury in a new trial and he denies having been sworn in at all, general rules require evidence to be taken on the matter of the swearing in (for example by questioning the judge). The record note about the swearing-in is at most indicative .

Only at the district court , i.e. at the criminal judge and the lay judge's court , is the essential content of the defendant's statement and the statements of the witnesses and experts to be recorded if the judgment is not final ( Section 273 (2) StPO). In this case, too, the evidential value of the protocol is limited to the fact that the accused got involved and that the witnesses were heard. However, the content of the statements cannot be proven by the protocol.

At the Regional Court and the Higher Regional Court , on the other hand, only the fact of the hearing as such is recorded, not the content of the hearing. Because only in the appeal proceedings , which only take place against judgments of the local court ( § 312 StPO), § 325 StPO allows it under certain circumstances, "in the reporting and the taking of evidence [...] minutes of statements of the witnesses heard in the main hearing of the first instance Experts [… to] read out ”in order to make a renewed examination of the witnesses or experts concerned superfluous. Judgments of the regional court and the higher regional court can only be challenged with the appeal , § 135 , § 121 Abs. 1 Nr. 1 Courts Constitution Act . Only errors in the judgment under appeal or in the procedure can be criticized there; evidence is generally not collected. The Code of Criminal Procedure assumes that the information provided by witnesses and experts in judgments of the regional and higher regional courts is correctly reproduced in all essential details, and from the outset excludes the possibility of procedural complaints based on contradictions between the protocol and the judgment under Section 261 of the Code of Criminal Procedure.

A process can be logged ex officio or upon request if this process matters, for example because the process contains a procedural error or gives rise to further evidence ( Section 273 (3) sentence 1 StPO). The wording of a statement can also be logged if it is not just the content that matters, but the exact wording of the statement, for example because the statement may constitute a criminal offense. In this case, the recorded statement must be read out and it must be noted in the record whether the person making the statement approved the record or what objections he raised to this ( Section 273 (3) sentence 3 StPO). In practice, the phrase “vug” (read out and approved) is used for this.

Procedure

The minutes are drawn up jointly by the chairman and the clerk of the office , whereby the chairman may not issue any instructions to the clerk. The minutes are not completed until the chairman and the clerk have signed the minutes. If the chairman and the clerk cannot agree on the content of the minutes, the evidential value of the minutes lapses. If the criminal judge refrains from calling in a clerk in accordance with Section 226 (2) of the Code of Criminal Procedure, he alone creates and signs the protocol. The judgment may only be served after the minutes have been completed ( Section 273 (4) StPO). Ralf Eschelbach criticizes the fact that it could impair the free and impartial evaluation of evidence according to § 261 StPO if the judge himself creates the minutes, since he would then practically fail as a neutral assessor if he no longer observes the process with full attention but focuses on his own Paperwork focused.

Protocol correction

The completed protocol, i.e. signed by the judge and the clerk and given to the file, can be corrected ex officio or upon request at any time. This is - unlike in civil proceedings ( § 164 ZPO ) - not regulated by law, but is generally considered to be permissible as long as the notarizing persons still have reliable memories of the process. If a protocol correction is requested, official statements from the notary are to be obtained prior to the decision and submitted to the applicant for information prior to the decision. The correction is made by means of a separate declaration that is added to the minutes and must be signed by the chairman and the clerk. Special features apply if the ground is to be withdrawn retrospectively by means of a protocol correction of an audit complaint that has already been made (so-called complaint stifling ). Such a protocol correction was previously considered inadmissible. According to a decision by the Grand Senate for Criminal Matters of the Federal Court of Justice , however, it is permissible under the following conditions: The chairman and the clerk must still have a reliable memory of the incident. The intention of correcting the minutes is to be forwarded to the complainant for a statement, together with official declarations from the notary. If the complainant objects, further official statements from the other parties involved in the proceedings (assessor, public prosecutor) must be obtained, if necessary, and forwarded to the complainant for comments. If the notifying persons continue to believe that the minutes are incorrect, they must correct it by means of a reasoned resolution .

literature

Individual evidence

  1. ↑ BGH, judgment of May 13, 2015, Az. 3 StR 498/14, openjur.de at the end
  2. ↑ Löwe-Rosenberg, StPO, 26th edition, § 274 Rn. 36
  3. ↑ See BGHSt 38, 14, 2 StR 45/91 of July 3, 1991, hrr-strafrecht ;
    BGHR StPO § 261 epitome of the hearing 7, 22, 1 StR 366/87 of August 18, 1987, jurion.de ;
    BGHSt 19, 193, 1 StR 510/63 of February 4, 1964, jurion.de
  4. ↑ See Joachim Stünker u. a .: Draft of a Victims Rights Reform Act of November 11, 2003, Bundestag printed matter 15/1976 pdf , p. 12 f. "To No. 10";
    critical Thomas Fischer (lawyer) : "Appeal" or "Revision" , pp. 3–5 zeit.de of March 14, 2017.
  5. ↑ Ralf Eschelbach : § 261 Principle of Free Judicial Evidence Assessment 2016, 7.1
  6. ↑ Löwe-Rosenberg, StPO, 26th edition, § 271 Rn. 43ff.
  7. ^ BGH, decision of April 23, 2007 - GSSt 1/06