How a criminal trial works in Germany and which court hears the case

The starting point is the sentence to be expected, not the label given to the offence.

The Amtsgericht, the local court, is competent where no sentence higher than four years of imprisonment is to be expected and the public prosecution office does not bring the charge before the Landgericht on account of the particular need to protect injured parties, or on account of the scale or the significance of the case. Nor may it impose a sentence higher than four years (§ 24 Abs. 1 und 2 GVG; Abs. is the German abbreviation for the subsection of a provision).

Within the Amtsgericht, the Strafrichter decides alone in the case of offences at the lower level of seriousness where they are prosecuted by way of a Privatklage, a private prosecution, or where no sentence higher than two years of imprisonment is to be expected (§ 25 GVG). Otherwise the Schöffengericht hears the case (§ 28 GVG), made up of one judge of the Amtsgericht presiding and two Schöffen (§ 29 Abs. 1 GVG). Schöffen are lay judges. Under § 30 Abs. 1 GVG they exercise the judicial office during the Hauptverhandlung to the full extent and with the same voting rights as the judges of the Amtsgericht; they therefore vote on guilt and on sentence as well. Under § 77 Abs. 1 GVG the same applies accordingly to the Schöffen of the criminal divisions. Decisions taken outside the Hauptverhandlung are, by contrast, taken by the judge alone (§ 30 Abs. 2 GVG).

The Strafkammer at the Landgericht is competent at first instance for all serious offences that do not belong before the Amtsgericht or the Oberlandesgericht, and in the further cases named in § 74 Abs. 1 GVG. For certain serious offences, which § 74 Abs. 2 GVG lists individually, the criminal division sits as a Schwurgericht. The large criminal division is made up of three judges including the presiding judge and two Schöffen (§ 76 Abs. 1 GVG). It decides on its composition for the Hauptverhandlung when it opens the main proceedings: in the cases named in § 76 Abs. 2 GVG three judges take part, and otherwise two judges including the presiding judge and two Schöffen. § 76 Abs. 3 GVG states when the participation of a third judge will as a rule be necessary.

Calling on the case. The hearing begins when the case is called on. The presiding judge establishes whether the defendant and the defence lawyer are present and whether the evidence has been brought (§ 243 Abs. 1 StPO). Those called upon to reach the judgment, the public prosecution office and a registrar of the court office must be present throughout (§ 226 Abs. 1 StPO). The hearing, including the pronouncement of judgments, is public; recordings for the purpose of publication are not permitted (§ 169 Abs. 1 GVG).

Witnesses and personal details. The witnesses leave the courtroom. The presiding judge questions the defendant about their personal circumstances (§ 243 Abs. 2 StPO); this is not about the allegation but about name, age and occupation.

The indictment. The public prosecution office reads out the operative part of the indictment (§ 243 Abs. 3 StPO). The presiding judge then states whether there have been any discussions about a Verständigung, an agreement about the further course and the outcome of the proceedings (§ 243 Abs. 4 StPO).

Information about rights, and the defendant's statement. The defendant is informed that they are free to comment on the charge or to make no statement on the matter (§ 243 Abs. 5 StPO). Whether and what they say belongs in the preparation, not in the courtroom.

Taking of evidence. After the defendant has been questioned, the taking of evidence follows (§ 244 Abs. 1 StPO). In order to establish the truth, the court must of its own motion extend the taking of evidence to all facts and evidence that are of significance for the decision (§ 244 Abs. 2 StPO). Alongside this, the parties may apply for evidence to be taken; the conditions under which such an application may be rejected are set out in the further subsections of § 244 StPO. After each individual piece of evidence has been taken, the defendant should be asked whether they wish to say anything about it; on request the public prosecution office and the defence are also given the opportunity to do so (§ 257 Abs. 1 und 2 StPO).

Closing speeches and the last word. After the taking of evidence is closed, first the public prosecution office and then the defendant are given the floor for their submissions and applications; these are the closing speeches. The public prosecution office has the right of reply, and the defendant is entitled to the last word. Even where a defence lawyer has spoken for them, the defendant must be asked whether they themselves have anything further to say in their defence (§ 258 Abs. 1 bis 3 StPO).

Judgment. The Hauptverhandlung closes with the pronouncement of the judgment following the deliberation (§ 260 Abs. 1 StPO). The court decides on the result of the taking of evidence according to its free conviction drawn from the hearing as a whole (§ 261 StPO). Judgment is pronounced by reading out the operative part and setting out the reasons; the operative part must in every case be read out before the reasons are given (§ 268 Abs. 2 StPO). The judgment should be pronounced at the end of the hearing and must be pronounced no later than two weeks afterwards, failing which the Hauptverhandlung must begin afresh (§ 268 Abs. 3 StPO).

In suitable cases the court and the parties to the proceedings may reach an agreement about the further course and the outcome of the proceedings (§ 257c Abs. 1 StPO). Its subject matter may only be the legal consequences that can form part of the judgment, other procedural measures, and the conduct of the parties in the proceedings; a confession should form part of every such agreement. The finding of guilt and measures of correction and prevention may not be its subject matter (§ 257c Abs. 2 StPO).

The court ceases to be bound on the conditions named in § 257c Abs. 4 StPO, for example where significant circumstances have been overlooked or arise afresh; the confession may then not be used. A Verständigung is not a contract about the outcome.

Offences by juveniles are decided by the juvenile courts: the juvenile court judge, the Jugendschöffengericht and the Jugendkammer (§ 33 Abs. 1 und 2 JGG, the Jugendgerichtsgesetz, the Youth Courts Act). The hearing there is not public (§ 48 Abs. 1 JGG); where young adults or adults are charged as well, it is public (§ 48 Abs. 3 JGG).