criminal-law germany burden-of-proof criminal-procedure
Innocent until proven guilty in Germany?
<p>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.</p>

<p>However, I recently read in a <a href="http://www.infovictims.de/de_en/criminal-proceedings/overview" rel="nofollow noreferrer">German legal guide</a> the following:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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.</p>

<p>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.</p>

<p>In a criminal case in Germany, according to the <a href="https://documents.law.yale.edu/sites/default/files/germany_-_criminal_procedure_code.pdf" rel="noreferrer">German Code of Criminal Procedure</a>, Section 261, a judge is supposed to make a decision upon guilt or innocence based upon the following standard:</p>

<blockquote>
  <p>Section 261.</p>
  
  <p>[Free Evaluation of Evidence]</p>
  
  <p>The court shall decide on the result of the evidence taken according
  to its free conviction gained from the hearing as a whole.</p>
</blockquote>

<p>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).</p>

<p>Neither the <a href="http://www.gesetze-im-internet.de/englisch_stgb/index.html#gl_p0012" rel="noreferrer">German Penal Code</a>, 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.</p>

<p>As explained <a href="https://uk.practicallaw.thomsonreuters.com/w-007-7132?transitionType=Default&amp;contextData=(sc.Default)&amp;firstPage=true&amp;comp=pluk&amp;bhcp=1#co_anchor_a735129" rel="noreferrer">here</a>:</p>

<blockquote>
  <p>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. . . . </p>
  
  <p>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. . . . </p>
  
  <p><strong>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.</strong> . . . </p>
  
  <p>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. . . .</p>
  
  <p>In civil law cases, the burden of proof generally lies with the party
  asserting the claim. They must prove their case beyond reasonable
  doubt.</p>
  
  <p>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)).</p>
  
  <p>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". . . . </p>
  
  <p>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.</p>
  
  <p><strong>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.</strong></p>
</blockquote>

<p>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.</p>

<p>The presumption of innocence in the German criminal justice system and its practical effects are discussed in <a href="https://www.researchgate.net/publication/262572627_Assuming_that_the_Defendant_Is_Not_Guilty_The_Presumption_of_Innocence_in_the_German_System_of_Criminal_Justice" rel="noreferrer">this 2014 law review article</a>. It explains the history of that provision in German law as well:</p>

<blockquote>
  <p>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.</p>
  
  <p>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.</p>
  
  <p>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 <strong>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</strong></p>
  
  <p>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
  <em>Rechtsstaat</em> (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</p>
  
  <p>1 Article 14 (2) of the International Covenant on Civil and Political
  Rights of 19 December 1966 reads:</p>
  
  <p>‘‘Everyone charged with a criminal offence shall have the right to be
  presumed innocent until proved guilty according to law.’’</p>
  
  <p>2 See Gesetz u¨ber die Konvention zum Schutz der Menschenrechte und
  Grundfreiheiten, II Bundesgesetzblatt p. 685 (1952).</p>
  
  <p>3 Bundesverfassungsgericht, Judgment of 26 March 1987, 74
  Entscheidungen des Bundesverfassungsgerichts (hereinafter: BVerfGE)
  358 at 370.</p>
  
  <p>4 id. at 371.</p>
</blockquote>

<p>The presumption of innocence was in a section numbers 6(2) in the <a href="https://www.bgbl.de/xaver/bgbl/start.xav#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl252s0685.pdf%27%5D__1557804271722" rel="noreferrer">original 1952 treaty</a> (which contained equally authoritative English, French and German provisions) that Germany adopted, but has been renumbered in the meantime.</p>

<p><strong>Footnote on some assumptions in the question.</strong></p>

<p>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. </p>

<p>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.</p>

<p>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.</p>

<p>You must be careful with the term <strong>Code Napoleon</strong>.</p>

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

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

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

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

<p>At the latest it was replaced by the Strafgesetzbuch on the 1872-01-01.</p>

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

<p><a href="https://de.m.wikipedia.org/wiki/Cinq_codes" rel="nofollow noreferrer">https://de.m.wikipedia.org/wiki/Cinq_codes</a></p>

<hr>

<p><strong>Persumpsion of guilt</strong></p>

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

<p>I found <strong>nothing at all</strong> to support this claim. </p>

<p>In this Wikipedia page, France is <strong>not meantioned all</strong>. </p>

<p><a href="https://en.m.wikipedia.org/wiki/Presumption_of_guilt" rel="nofollow noreferrer">https://en.m.wikipedia.org/wiki/Presumption_of_guilt</a></p>

<p>I would say that that is a bad sign. </p>

<hr>

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

<p><a href="https://en.m.wikipedia.org/wiki/Napoleonic_Code#Code_of_criminal_instruction" rel="nofollow noreferrer">https://en.m.wikipedia.org/wiki/Napoleonic_Code#Code_of_criminal_instruction</a></p>

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

<p>A (from me shorten) quote from the article <strong>Crystallises</strong> the problem:</p>

<ul>
<li>'from arrest until acquitted one is presumed guilty'</li>
</ul>

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

<ul>
<li>yes</li>
</ul>

<p>Does a <strong>prosecutor</strong> desire to find the arrested person guilty?</p>

<ul>
<li>yes</li>
</ul>

<p>Would the same be done in Anglo-Saxon Common Law</p>

<ul>
<li>yes</li>
</ul>

<p>So where is the problem? Why such a claim? </p>

<p>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.</p>

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

<ul>
<li>a <strong>misuse</strong> of the system to rid themselves of undesired opponents</li>
</ul>

<p>(The same may said for France in the 1960's during thee aftermath of the <strong>Algerien War</strong>) </p>

<p>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.</p>

<p>Based on the above, I am <em>leaning</em> to the conclusion that this (mainly Anglo-Saxon) <strong>myth</strong></p>

<ul>
<li>is based on the <strong>misuse</strong> of the system and <strong>not</strong> on it's intended use</li>
</ul>

<p>Any system can be misused. </p>

<p>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. </p>

<p>So anything is possible, when so desired</p>

<hr>

<p><strong>Answers to questions (where not already answered)</strong></p>

<p>Restricted Court session apply only to minors or young adults. The result is public. </p>

<p>Televised sessions are not permitted, mainly to <strong>perserve the dignity of the individual</strong>. </p>

<p>As to your claim: 'everybody in germany knows is a joke' </p>

<ul>
<li>sorry if this sounds rude, but

<ul>
<li>that is a claim based on <strong>ignorance</strong></li>
</ul></li>
</ul>

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

<ul>
<li>no, they will be very busy filling out all the paperwork</li>
</ul>

<p>Your experience with your Parisienne 'friend': avoid peaple who <strong>misuse</strong> your naivity. </p>

<p>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. </p>
