Negotiation skills (Germany)
In German criminal procedural law, the ability to negotiate is the ability to sensibly perceive one's interests in or outside of the hearing, to conduct the defense in an intelligible and understandable manner, to issue or receive declarations of proceedings.
Inability to negotiate is a procedural obstacle that can lead to the appointment being rescheduled , to the temporary suspension of the proceedings according to § 205 StPO or, in the case of permanent incapacity , to the final suspension of the proceedings ( § 206a StPO).
In the case of adults , the ability to negotiate is the opposite of the inability to negotiate. The existence of inability to negotiate must always be assessed according to the specific circumstances of the individual case; the criteria as for process capability in civil litigation or legal capacity shall not be used in civil law. The complexity of the case or the limitations of sensory perception (e.g. in the case of deaf or blind defendants) are also irrelevant; Such deficits are rather to be compensated by a mandatory defense that is then necessary . On the one hand, the accused must, on the one hand, be capable of interrogation insofar as he is to be questioned in the context of criminal proceedings, i.e. he must have the necessary insight into the legal situation, even if only approximate, which can be excluded in the case of serious mental illnesses. On the other hand, if a main hearing is being held, he must be able to perceive the course of the main hearing, to classify it in his mind and to react appropriately to it (so-called main negotiation ability ). This ability can be lacking not only in mental and mental illnesses, but also in certain physical illnesses.
A special form of inability to stand trial occurs if the accused fulfills the above-mentioned conditions, but holding the main hearing would be associated with a serious health risk (e.g. risk of a heart attack during the main hearing or high risk of suicide)
Limited incapacity to negotiate is a condition in which action must be taken. Such measures can e.g. B. medical supervision or the execution of the main hearing at the whereabouts of the accused if he is not fit to travel due to his condition. However, the main proceedings must also be discontinued in such cases if the necessary measures make it impossible to carry out the main proceedings in a reasonably concentrated manner or (e.g. in the case of progressive illnesses) it has been established in advance that the accused will be permanently incapable of standing during the main hearing.
Since deliberately inducing incapacity to stand trial has always been a popular strategy to delay or completely prevent criminal proceedings, Section 231a StPO contains the authorization of the court in the event that the incapacity to stand for which the indictment occurs before the indictment has been fully questioned As an exception, to conduct the main hearing after consulting an expert opinion in the absence of the accused; the accused must be heard beforehand. Any conceivable behavior that leads to a deterioration in the state of health comes into consideration as deliberate induction, e.g. B. self-harm, taking medication or intoxicants, hunger strike, unauthorized discontinuation of already prescribed medication or cancellation of a medical treatment that has already started. Intent is necessary with regard to the occurrence of the incapacity to negotiate, conditional intent is sufficient. Incapacity of the accused excludes willful intent and thus responsibility. The accused must continue to be at least able to be heard so that he can comment on the charge; An unconsciousness or a similarly serious health disorder that leads to the inability to interrogate excludes the procedure according to § 231a StPO. If the defendant has no defense counsel in such a case, the court appoints a public defender for him. If the incapacity to stand trial is not caused deliberately, the defendant is not obliged to help improve his or her health with the aim of restoring the ability to stand trial. Criminal procedural law does not recognize any kind of therapy obligation. In the case law, however, it is controversial whether the improvement of the defendant's health can be enforced by imposing pre- trial detention .
literature
- Lutz Meyer-Goßner et al .: Criminal Procedure Law , Verlag CH Beck, Munich 2007, 50th edition, p. 22.
- Carl-Friedrich-Stuckenberg: § 205 . In: Löwe / Rosenberg, The Code of Criminal Procedure and the Courts Constitution Act , 26th edition, Volume 5 (§§ 151–212b), Verlag Walter de Gruyter, Berlin 2012, ISBN 3110974371 , pp. 1120ff
- Jörg-Peter Becker: § 231a . In: Löwe / Rosenberg, The Code of Criminal Procedure and the Courts Constitution Act , 26th edition, Volume 6 (§§ 213-255a), Verlag Walter de Gruyter, Berlin 2012, ISBN 311097438X , p. 317ff
Individual evidence
- ↑ Carsten Krumm: Termination, Prevention and Rescheduling StV 2012, pp. 177–182.
- ↑ Löwe / Rosenberg, § 205 Rn 21
- ↑ Löwe / Rosenberg, § 205 Rn 22
- ↑ Löwe / Rosenberg, § 205 Rn 23
- ↑ Löwe / Rosenberg, § 205 Rn 27
- ^ Löwe / Rosenberg, § 205 Rn 24
- ↑ Löwe / Rosenberg, § 231a Rn 2
- ↑ Löwe / Rosenberg, § 231a Rn 6
- ↑ Löwe / Rosenberg, § 231a Rn 4
- ↑ Löwe / Rosenberg, § 231a Rn 14
- ^ Löwe / Rosenberg, § 205 Rn 18
