Legal advice in criminal proceedings in the Federal Republic of Germany

Conclusion Certain components of the British system of legal aid, especially the duty solicitor scheme, could beneficially be introduced in modified form into German criminal procedure. Conversely, some points of German law could benefit the British system, such as less rigid adherence to the autonomy principle. With the increasing integration of the European states, and particularly the abolition of internal border controls, it is time to think closely not only about harmonizing the economic structures of the European Community member states but also about creating human rights protections at the Community level, which is inextricably connected to access to competent legal advice in criminal proceedings.This article is a revised version of a lecture given at the Exeter University Centre for Legal and Interdisciplinary Development (EUCLID) seminar at Exeter University, Exeter, England, February 22, 1990, as part of my doctoral research project on the implementation of a duty solicitor scheme in German criminal procedure.I should especially like to thank Josephine Shaw, Lecturer in Law at Keele University and former Acting Director of EUCLID at Exeter University, for proof-reading the first draft and for supporting my research project. I am also grateful to Mervyn Bennun and Kim Economides for their helpful comments when I gave this lecture.Juristisches Staatsexamen, Universität des Saarlandes 1986; Honorary Research Fellow, University of Exeter 1989–1990; Assessor iur., Justizprüfungsamt des Saarlandes 1991; Doctor of Law, Universität des Saarlandes 1992; former Assistant to the Chair of Criminal Law, Criminal Procedure, Criminology, and Comparative Criminal Law, Universität des Saarlandes 1987–1991.     

Juvenile Delinquency in the Federal Republic of Germany

Juvenile delinquency has gained recognition worldwide as one of the most prominent criminological problem areas as well as a pressing crime political issue. The current state of this field in Germany is characterized by a tremendous increase after World War II, similar to other west European countries, but slightly leveling down since the Eighties. However, the great bulk of juvenile delinquency is built by minor offenses-in particular petty theft and non-serious road traffic offenses. Violence (although with an enormous increase), illegal drug offenses, and sexual crimes make together not more than one fifth of the total volume of youth crime. On the whole, juvenile delinquency represents the deviant behavior of young males; the proportion of female crime—although increasing too- is not higher than three decades ago, and consists mainly of shoplifting and bicycle theft. Youngsters of foreign groups or minorities are more involved in delinquency at present than in the Seventies or earlier, partly in activities of violent groups. While, in the past, rockers mainly got attention, now soccer hooligans and violent right-wing skinheads, especially when attacking minority people and asylum seekers, are in the forefront of public interest. This is true for East and West Germany. In general, the delinquents come mostly from the lower social strata, show socialization defects, have reduced start chances, are often unemployed, and are without or have less social support by their families. With regard to this, criminological experts favor socialization theories, social learning and control theories to explain these phenomena, emphasizing the binding forces of the underlying orientation of moral values. The corresponding guidelines of juvenile crime policy give preference to the application of non-custodial measures and diversion strategies on one hand, and to the reduction of freedom-depriving sanctions like community service or offender-victim-mediation on the other, indicating a successive retreat from a traditional punitive concept.     

Fines and Justice Administration: The Experience of the Federal Republic of Germany

As part of the penal code revised in 1969, the Federal Republic of Germany increased its reliance on fines, including the introduction of day-fines, in lieu of short-term imprisonment for minor offenses. The previous trend toward the use of fines was accelerated by the requirement that courts order imprisonment only in exceptional cases. Traffic cases were particularly affected. The qualities of the offense and the absence of previous offenses, rather than an individualized study of the offender, continued to be the dominant criterium influencing the choice of a fine. The chief effect of day fines was higher amounts applied to the more affluent defendants; the amount of the fine appeared to have no effect on subsequent recidivism. For first offenders, fines were superior to imprisonment in avoiding reconviction. Day-fines were no more effective (but not less effective) than imprisonment in the instance of traffic offenses. Fines were superior to other sanctions for petty property offenders but not for career thieves.     

德国《基本法》中的社会国家原则

从语义解释的角度看,社会国家原则在《联邦德国基本法》(以下简称《基本法》)文本中不具有显著地位,且内容不够明确;但从体系解释而言,该原则享有不得修改的宪法基本原则的突出地位。社会国家原则产生的历史则表明,该原则具有弥补《基本法》中社会基本权利缺失的功能。但社会国家的目的以及社会国家原则保障的基本权利都必须通过立法者制定的法律来加以具体化。联邦宪法法院在发挥社会国家原则的宪法规范功能以及确定社会国家的最低宪法标准方面起到了重要作用。社会国家原则在联邦宪法法院的判决中一般与基本权利条款、基本权利限制条款以及社会国家的目标一起发挥作用,被用来为立法者设定社会权利保护义务或论证限制基本权利的法律规范的正当性。     

Comparison of the criminal statistics of the United States and the Federal Republic of Germany

A systematic procedure for comparing the criminal statistics of the United States and the Federal Republic of Germany is presented. The procedure was developed after (1) reviewing and translating applicable paragraphs of the Federal Republic of Germany's Penal Code and (2) reviewing both the formal and informal processes used in both countries for recording crime statistics. Subsequently, a detailed comparison of criminal statistics was made using this comparative procedure.     

An end to a consensus on health care in the Federal Republic of Germany?

Over the past fifteen years the national government in the Federal Republic of Germany has animated the political debate about rising health care expenditures. However, it has only provided health policy leadership by shifting the burden of financing health and medical care to others. This paper presents three cases that illustrate the political and institutional constraints inherent in the German policy process that limit the proposal and implementation of appropriate policy solutions to rising health care costs. Cost controls have been inhibited because of the near-universal entitlement of national health insurance, the access all social groups have to advanced medical care, and policies targeted at providers rather than users of health services. The paper also underscores the past and future importance of regional policy coalitions in shaping national health policy.     

Political culture,xenophobia and the development of the violence of the radical right in the Federal Republic of Germany

Recently an increasing amount of violent racism has been directed at foreigners in Germany. Current theoretical explanations are deficient because they fail to recognize the historical role of the political culture. This paper argues that political elites are responsible for initiating rhetoric and policy that has created an environment where xenophobic and racist violence can flourish. Positive normalization is defined as a process for the neutralization of the violent Nazi past and the reconstruction of a German nationalist identity. Negative normalization is described as responsible for the decriminalization and trivialization of xenophobic and racist violence. It is argued that unless changes within the German political culture are taken into account, criminological perspectives on the current situation will inevitably be limited.     

Reporting of crime to the police in the Federal Republic of Germany: A comparison of the old and the new lands

A victimization survey of 7,026 households in the former east and west German Länder (states) carried out one year after the unification of Germany presented a unique opportunity to examine factors associated with the reporting of crime to the police. Logistic regression was used to identify factors associated with variation in the dependent variable, reporting of crime to the police, controlling for victimizations which occurred prior to and subsequent to unification, as well as whether the victim resided in the former east or west German Länder. The amount of loss in German Marks or seriousness of physical injury were the principle determinants of whether a crime was reported to the police.     

德国法学方法论

一般认为,对于一门学术型学科而言,一套方法的存在及由此而形成的方法论至关重要。在德国,法律一直以来都是一门学术型学科。作为被称之为"法学"(字面意思是法律"科学",更确切地说是有关法律的学问)的研究对象,法律以具有一套专门的法学方法论为其特征。在德国大学法学院中,法学方法论是一门非常重要的讲授科目,且围绕这门课程有大量的法学文献。这些文献所讨论的是德国法律人如何(或者更准确地说:应该如何)开展法律工作。德语文献相关讨论中的一个特殊之处在于,在概念上区分"法律解释"与"法的续造"。方法论的讨论涉及制定法解释的各种相关要素、先决条件、不同层级,以及法的续造的合法性等问题。除此之外,还应意识到,对于德国法方法论的讨论是在不同的政治发展历程下展开的。基于此,本文从以下五个一般性话题展开对方法论的讨论:第一,德国、瑞士以及奥地利在方法论上的共性;第二,方法论讨论的规范特征;第三,不同法律领域中所出现的方法论上的差异;第四,法教义学与法学方法论的关系;第五,德国所讨论问题的历史背景。     

Death caused by drug addiction: a review of the experiences in Hamburg and the situation in the Federal Republic of Germany in comparison with the literature

Based on criminological experiences and pathomorphological, serological and toxicological studies of more than 300 fatalities, an overview is given of drugs, their intravenous abuse and drug deaths in Hamburg and the Federal Republic of Germany. The number of drug deaths has increased dramatically in Hamburg, where there were more than 50 cases each year in 1987 and 1988. In the F.R.G. approximately 400 cases are registered per annum. The percentage of female intravenous drug abusers is growing and the age of the decedents is increasing. The mean was formerly 25 years, but is now 30 years. Among the histopathological findings, foreign-body granulomas are of special value; infectious diseases, especially hepatitis B and HIV-infection, have to be investigated serologically and morphologically. The prevalence of HIV-1 antibodies among drug deaths in Hamburg is approximately 15%, in comparison with approximately 50% in Berlin. The "supply" of heroin has apparently become so copious that nearly all deaths are caused by overdosage with this substance. An international agreement about a definition of a drug death is a prerequisite for nationwide analyses.