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Youth Courts Law (Jugendgerichtsgesetz, JGG)

“Youth Courts Law in the version of the promulgation of 11 December 1974 (Federal Law Gazette [BGBl.]) Part I p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part I p. 1212)”

Translation provided by the Federal Ministry for Justice and Chris Pavis and Neil Mussett and reproduced with kind permission.


Table of Contents 

Part I Scope

Section 1 Scope as to persons and substantive scope
Section 2 Goal of criminal law relating to young people; application of general criminal law

Part II Youths

First Title Youth misconduct and its consequences

First Chapter General provisions

Section 3 Criminal liability
Section 4 Legal classification of acts committed by youths
Section 5 Consequences of youth offences
Section 6 Incidental consequences
Section 7 Measures of reform and prevention
Section 8 Combination of measures and youth penalty

Second Chapter Supervisory measures

Section 9 Types of measure
Section 10 Instructions
Section 11 Duration of and subsequent amendments to instructions; consequences of failure to comply
Section 12 Supervisory assistance

Third Chapter Disciplinary measures

Section 13 Types of measure and their application
Section 14 Reprimands
Section 15 Conditions
Section 16 Youth detention

Fourth Chapter Youth penalty

Section 17 Form and conditions
Section 18 Duration of youth penalty
Section 19 –

Fifth Chapter Probationary suspension of youth penalty

Section 20 (Deleted)
Section 21 Suspension of sentence
Section 22 Probationary period
Section 23 Instructions and conditions
Section 24 Probationary assistancey
Section 25 Appointment and duties of the probation officer
Section 26 Revocation of probationary suspension of sentence
Section 26a Remission of youth penalty

Sixth Chapter Suspension of imposition of youth penalty

Section 27 Conditions
Section 28 Probationary period
Section 29 Probationary assistance
Section 30 Imposition of youth penalty; spending of sentence

Seventh Chapter Combination of offences

Section 31 Commission of several offences by a youth
Section 32 Combination of offences committed at different ages and different stages of maturity

Second Title Constitution and procedure of youth courts

First Chapter Constitution of youth courts

Section 33 Youth courts
Section 33a
Section 33b
Section 34 Tasks of the youth court judge
Section 35 Lay youth assessors
Section 36 Public prosecutors handling matters involving youths
Section 37 Selection of youth court judges and public prosecutors handling matters involving youths
Section 38 Youth courts assistance service

Second Chapter Jurisdiction

Section 39 Substantive jurisdiction of the youth court judge
Section 40 Substantive jurisdiction of the lay youth assessors’ court
Section 41 Substantive jurisdiction of the youth panel
Section 42 Geographical jurisdiction

Third Chapter Youth criminal proceedings

First Subchapter Preliminary proceedings

Section 43 Scope of investigations
Section 44 Questioning the accused
Section 45 Dispensing with prosecution
Section 46 Principal results of the investigations

Second Subchapter The main proceedings

Section 47 Legal Succession
Section 47a Public Notice of a Resolution on Reallocation
Section 48 Prohibition on Disposition and Development Freezes
Section 49 The Area for Reallocation
Section 50 As-Built Map and Inventory
Section 51 Notification and Note of Reallocation
Section 52 Reallocation Mass and Redistribution
Section 52a Criteria for Redistribution
Section 53 Redistribution by Value
Section 54 Redistribution by Size

Third Subchapter Legal remedies

Section 55 Contesting decisions
Section 56 Partial enforcement of an aggregate penalty

Fourth Subchapter Procedure for probationary suspension of youth penalty

Section 57 Decision on suspension
Section 58 Further decisions
Section 59 Contesting decisions
Section 60 Probation plan
Section 61 (Deleted)

Fifth Subchapter Procedure for probationary suspension of youth penalty

Section 62 Decisions
Section 63 Contesting decisions
Section 64 Probation plan

Sixth Subchapter Supplementary decisions

Section 65 Subsequent decisions on instructions and conditions
Section 66 Supplementation of decisions in force for multiple convictions

Seventh Subchapter Common provisions on procedure

Section 67 Position of the parent or guardian and of the legal representative
Section 68 Compulsory defence counsel
Section 69 Adviser
Section 70 Notifications
Section 71 Preliminary orders on supervision
Section 72 Remand detention
Section 72a Involvement of the youth court assistance service in custody matters
Section 73 Placement for observation purposes
Section 74 Costs and expenses

Eighth Subchapter Simplified procedure for cases involving youths

Section 75 (Deleted)
Section 76 Conditions for applying the simplified procedure for matters involving youths
Section 77 Rejection of the application
Section 78 Procedure and decision

Ninth Subchapter Suspension of provisions of general procedural law

Section 79 Penalty order and accelerated procedure
Section 80 Private prosecution and private ancillary prosecution
Section 81 Compensation for the aggrieved person

Third Title Enforcement and execution

First Chapter Enforcement

First Subchapter Status of enforcement and jurisdiction

Section 82 Enforcement officer
Section 83 Decisions in enforcement proceedings
Section 84 Geographical jurisdiction
Section 85 Surrender and transfer of enforcement

Second Subchapter Youth detention

Section 86 Conversion of detention during leisure time
Section 87 Enforcement of youth detention

Third Subchapter Youth penalty

Section 88 Suspension of remainder of youth penalty
Section 89 –
Section 89a Interruption and enforcement of youth penalty in combination with imprisonment

Second Chapter Execution

Section 90 Youth detention
Section 91 Purpose of executing youth penalties
Section 92 Legal recourse in execution of youth detention, youth penalty and placement in a psychiatric hospital or in an institution for withdrawal treatment
Section 93 Remand detention
Section 93a Placement in an institution for withdrawal treatment

Fourth Title Striking from the criminal record

Section 94 to 96
Section 97 Striking from the criminal record by judicial instruction
Section 98 Procedure
Section 99 Decision
Section 100 Striking from the criminal record following remission of penalty or of a remainder of penalty
Section 101 Revocation

Fifth Subchapter Youths brought before courts with jurisdiction for general criminal matters

Section 102 Jurisdiction
Section 103 Joinder of several criminal matters
Section 104 Proceedings against youths

Part III Young adults

First Chapter Application of substantive criminal law

Section 105 Application of youth criminal law to young adults
Section 106 Mitigation of general criminal law with regard to young adults; preventive detention

Second Chapter Constitution of the court and procedure

Section 107 Constitution of the court
Section 108 Jurisdiction
Section 109 Procedure

Third Chapter Enforcement, execution and striking from the criminal record

Section 110 Enforcement and execution
Section 111 Striking from the criminal record

Fourth Chapter Young adults appearing in courts with jurisdiction for general criminal matters

Section 112 Application mutatis mutandis

Part Four Special provisions applicable to soldiers in the Federal Armed Forces

Section 112a Application of youth criminal law
Section 112b Supervisory assistance by the disciplinary officer
Section 112c Enforcement
Section 112d Hearing the disciplinary officer
Section 112e Proceedings before courts with jurisdiction for general criminal matters

Part Five Concluding and transitional provisions

Section 113 Probation officers
Section 114 Execution of imprisonment in a facility provided for execution of youth penalty
Section 115 Regulations on execution issued by the German Federal Government
Section 116 Temporal application
Section 117 Composition of the court
Section 118
Section 119 Custodial sentences
Section 120 References
Section 121 Transitional provision
Section 122
Section 123 Special provision for Berlin
Section 124 Berlin clause
Section 125 Entry into force


Part I Scope

Section 1 Scope as to persons and substantive scope

(1) This Law shall apply if a youth or young adult engages in misconduct punishable under the provisions of general law.

(2) “Youth” shall mean anyone who, at the time of the act, has reached the age of fourteen but not yet eighteen years; “young adult” shall mean anyone who, at the time of the act, has reached the age of eighteen but not yet twenty-one years.

Section 2 Goal of criminal law relating to young people; application of general criminal law

(1) The application of criminal law relating to young people is above all to counter renewed criminal offences on the part of a youth or young adult: In order to achieve this goal, the legal consequences, and with respect for the parental right of upbringing also the procedure, shall be orientated primarily in line with the educational concept.

(2) The provisions of general law shall apply only insofar as not otherwise provided for in this Law.

Part II Youths

First Title Youth misconduct and its consequences

First Chapter General provisions

Section 3 Criminal liability

A youth shall bear criminal liability if, at the time of the act, he has reached a level of moral and intellectual maturity sufficient to enable him to understand the wrongfulness of the act and to conduct himself in accordance with such understanding. For the purposes of bettering a youth who bears no criminal liability due to a lack of maturity the judge may order the same measures as the judge responsible for family and guardianship matters.

Section 4 Legal classification of acts committed by youths

The provisions of general criminal law shall be applied to classify an unlawful act by a youth as a serious criminal offence or a less serious criminal offence and in assessing when the act shall be barred by statute.

Section 5 Consequences of youth offences

(1) Supervisory measures may be ordered in response to a criminal offence committed by a youth.

(2) Where supervisory measures do not suffice, disciplinary measures or youth penalty may be imposed to punish an offence committed by a youth.

(3) Disciplinary measures or youth penalty shall be dispensed with if placement in a psychiatric hospital or institution for withdrawal treatment renders punishment by the judge dispensable.

Section 6 Incidental consequences

(1) The court may not hand down a decision entailing loss of the capacity to hold public office, to attain public electoral rights or the right to elect or vote in public matters. The court may not order public announcement of the conviction.

(2) There shall be no loss of the capacity to hold public office and attain public electoral rights (section 45, subsection 1, of the German Criminal Code).

Section 7 Measures of reform and prevention

(1) Placement in a psychiatric hospital or an institution for withdrawal treatment, supervision of conduct or withdrawal of permission to drive (section 61, numbers 1, 2, 4 and 5, of the German Criminal Code) may be ordered as measures of reform and prevention within the meaning of general criminal law.

(2) If after sentencing to at least seven years’ youth penalty because or also because of a serious criminal offence

  1. against life, physical integrity or sexual self-determination, or
  2. in accordance with section 251 of the Criminal Code, also in conjunction with section 252 or section 255 of the Criminal Code

by means of which the victim suffered severe mental or physical damage or was exposed to such a danger, facts become known prior to the end of the execution of this youth penalty indicating a considerable danger emanating from the convict for the public, the court may subsequently order placement in preventive detention if it emerges in the overall evaluation of the convict, of his offence or offences, and additionally of his development during the execution of the youth penalty that he is highly likely to commit criminal offences of the above nature again.

(3) If placement in a psychiatric hospital ordered in respect of an offence of the type designated in subsection 2 in accordance with section 67d, subsection 6, of the Criminal Code has been declared completed because the state ruling out or reducing culpability on which the placement was based did not exist at the time of the decision on completion, the court may subsequently order placement in preventive detention if

(4) Section 275a of the Code of Criminal Procedure and sections 74f and 120a of the Constitution of the Courts Law shall apply mutatis mutandis to the proceedings and to the ruling on subsequent ordering of placement in preventive detention in accordance with subsections 2 and 3. The regular deadline for review as to whether the further enforcement of placement in preventive detention is to be suspended on probation (section 67e of the Criminal Code) shall be one year in cases falling under subsections 2 and 3.

Section 8 Combination of measures and youth penalty

(1) Supervisory measures and disciplinary measures, as well as several supervisory measures or several disciplinary measures, may be ordered in combination. Youth detention may not be combined with an order to provide supervisory assistance pursuant to section 12, number 2.

(2) The judge may only impose instructions and conditions and order supervision by a social worker in combination with youth penalty. Where the youth is subject to probationary supervision, any concurrent order for supervision by a social worker shall be suspended until expiry of the probationary period.

(3) In addition to supervisory measures, disciplinary measures and youth penalty, the judge may order imposition of those incidental penalties and incidental consequences admissible under this Law.

Second Chapter Supervisory measures

Section 9 Types of measure

“Supervisory measures” shall mean:

  1. the issuing of instructions,
  2. an order to avail oneself of supervisory assistance within the meaning of section 12.

Section 10 Instructions

(1) Instructions shall be directions and prohibitions by which the youth can conduct his life and which are intended to promote and guarantee his education. Instructions must not place unreasonable demands on the way the youth conducts his life. In particular, the judge may instruct the youth to:

  1. comply with instructions relating to his place of residence,
  2. live with a family or in residential accommodation,
  3. accept a training place or employment,
  4. perform certain work tasks,
  5. submit himself to the care and supervision of a specific person (care assistant),
  6. attend a social skills training course,
  7. attempt to achieve a settlement with the aggrieved person (settlement between offender and victim),
  8. avoid contact with certain persons or frequenting places providing public hospitality or entertainment, or
  9. attend a road-traffic training course.

(2) With the consent of the parent or guardian and the legal representative, the judge may also require the youth to undergo specialist rehabilitative treatment or addiction withdrawal treatment. If the youth is more than sixteen years of age, such condition should be imposed only with his consent.

Section 11 Duration of and subsequent amendments to instructions; consequences of failure to comply

(1) The judge shall determine the duration of instructions. The duration may not exceed two years; in the case of an instruction pursuant to section 10, subsection 1, third sentence, number 5, the duration should not exceed one year; in the case of an instruction pursuant to section 10, subsection 1, third sentence, number 6, it should not exceed six months.

(2) The judge may amend instructions, lift them or prior to expiry extend their duration to no more than three years if this is conducive to the purposes of supervision.

(3) If the youth culpably fails to comply with instructions, youth detention may be imposed if he had previously been cautioned as to the consequences of culpable non-compliance. The period of youth detention imposed in such cases may not exceed a total duration of four weeks if there is a conviction. The judge shall dispense with enforcement of youth detention if the youth complies with the instruction after the detention has been imposed.

Section 12 Supervisory assistance

After hearing the youth welfare office the judge may, under the conditions set out in the Eighth Book of the Social Code, require the youth to avail himself of supervisory assistance:

  1. in the form of supervisory assistance by a social worker within the meaning of section 30 of the Eighth Book of the Social Code, or
  2. in a day and night-time institution or in another form of supervised accommodation within the meaning of section 34 of the Eighth Book of the Social Code.

Third Chapter Disciplinary measures

Section 13 Types of measure and their application

(1) The judge shall apply disciplinary measures to punish the criminal offence if youth penalty is not indicated, but if the youth must be made acutely aware that he must assume responsibility for the wrong he has done.

(2) “Disciplinary measures” shall mean:

  1. reprimands,
  2. imposition of conditions,
  3. youth detention.

(3) Disciplinary measures shall not carry the same legal consequences as a criminal sentence.

Section 14 Reprimands

The purpose of issuing a reprimand is to make absolutely clear to the youth the wrongfulness of his actions.

Section 15 Conditions

(1) The judge can require the youth to:

  1. make good, to the best of his ability, for damage caused as a result of the offence,
  2. apologise personally to the aggrieved person,
  3. perform certain tasks, or
  4. pay a sum of money to a charitable organisation.

In so doing no unreasonable demands may be made of the youth.

(2) The judge should order payment of a sum of money only if

  1. the youth has engaged only in minor misconduct and it is to be assumed that he will pay the sum from money of which he is allowed to personally dispose, or
  2. the proceeds which the youth has gained from his offence or the payment which he received for committing the criminal offence is to be withdrawn from him.

(3) The judge may subsequently vary conditions or dispense with compliance with them either in full or in part where this is conducive to the purposes of supervision. Section 11, subsection 3, shall apply mutatis mutandis where the youth culpably fails to comply with conditions. Where youth detention has been enforced, the judge may declare conditions to have been met either in full or in part.

Section 16 Youth detention

(1) “Youth detention” shall mean detention of the youth during leisure time, or short-term or long-term detention.

(2) Detention during leisure time shall be imposed during the youth’s weekly leisure time and shall be counted as one or two periods of leisure time.

(3) Short-term detention shall be imposed in lieu of detention during leisure time if an uninterrupted period of execution appears expedient given the purpose of the supervision and neither the youth’s education and training, nor his employment, are adversely affected. A two-day period of short-term detention shall be deemed equivalent to one leisure period.

(4) Long-term detention shall be at least one week and not more than four weeks in duration. It shall be counted in entire days or weeks.

Fourth Chapter Youth penalty

Section 17 Form and conditions

(1) “Youth penalty” shall mean deprivation of liberty in a facility provided for its execution.

(2) The judge shall impose youth penalty if, as a result of the harmful inclinations demonstrated by the youth during the act, supervisory measures or disciplinary measures are not sufficient for the purposes of supervision or if such a penalty is necessary given the seriousness of the youth’s guilt.

Section 18 Duration of youth penalty

(1) The minimum duration of youth penalty shall be six months; its maximum duration shall be five years. If the act constitutes a serious criminal offence for which general criminal law prescribes a maximum sentence of more than ten years’ deprivation of liberty, the maximum duration of youth penalty shall be ten years. The statutory range of penalties under general criminal law shall not apply.

(2) Youth penalty shall be calculated such as to make it possible to achieve the desired supervisory aim.

Section 19

Fifth Chapter Probationary suspension of youth penalty

Section 20

(Deleted)

Section 21 Suspension of sentence

(1) Where sentencing involves the imposition of youth penalty not exceeding one year, the judge shall suspend enforcement of the sentence on probation if it can be expected that the youth will regard the sentence itself as a warning and, while not gaining the experience of serving the sentence, will gain from the supervisory influence of the probation and henceforth conduct himself in a law-abiding manner. Account shall be taken of the youth’s personality, his prior life, the circumstances in which he acted, his conduct after the act, his living environment and the effects which suspension of sentence can be expected to have on him.

(2) In accordance with the conditions set out in subsection 1, the judge shall also suspend on probation enforcement of a longer period of youth penalty not exceeding two years if enforcement is not indicated on grounds relating to the youth’s personal development.

(3) Suspension of sentence cannot be limited to part of the youth penalty. It shall not be excluded because of credit given for periods of remand detention or other deprivation of liberty.

Section 22 Probationary period

(1) The judge shall fix the duration of the probationary period. It may not exceed three years’, nor be of less than two years’, duration.

(2) The probationary period shall commence on the day the decision to suspend the youth penalty enters into force. It may subsequently be shortened to one year or, prior to its expiry, be extended to a maximum of four years. However, in the cases designated in section 21, subsection 2, the probationary period may be shortened to no less than two years.

Section 23 Instructions and conditions

(1) The judge should exercise a supervisory influence on the youth’s conduct during the probationary period by the issuance of instructions. He may also impose conditions on the youth. He may also make, vary or revoke such orders subsequently. Section 10, section 11, subsection 3, and section 15, subsections 1, 2 and 3, second sentence, shall apply mutatis mutandis.

(2) If the youth gives assurances concerning his future conduct or offers to provide services apt to make amends for the wrong he has done, the judge shall, as a general rule, temporarily refrain from imposing instructions and conditions if it can be expected that the youth will comply with his assurances or offers.

Section 24 Probationary assistance

(1) For a maximum of two years during the probationary period, the judge shall place the youth under the supervision and guidance of a full-time probation officer. The judge may also place the youth under the supervision of a volunteer probation assistant if this appears conducive to the purposes of the supervision. Section 22, subsection 2, first sentence, shall apply mutatis mutandis.

(2) The judge may vary or revoke a decision taken in accordance with subsection 1 prior to expiry of the probationary period; he may also issue a new order placing the youth under supervision during the probationary period. In such cases, the maximum duration designated in subsection 1, first sentence, may be exceeded.

(3) The probation officer shall provide the youth with help and guidance. Acting in agreement with the judge, he shall monitor fulfilment of instructions, conditions, assurances and offers. The probation officer should promote the youth’s supervision and wherever possible work together on a basis of trust with the youth’s parent or guardian or his legal representative. In the exercise of his office he shall have rights of access to the youth. He may require the youth’s parent or guardian, his legal representative, his school or the person providing him with training to provide information about the youth’s conduct.

Section 25 Appointment and duties of the probation officer

The probation officer shall be appointed by the judge. The judge may issue instructions for the performance of his tasks in accordance with section 24, subsection 3. The probation officer shall report, at intervals fixed by the judge, on the manner in which the youth conducts himself. He shall inform the judge of serious or persistent violations of instructions, conditions, assurances and offers.

Section 26 Revocation of probationary suspension of sentence

(1) The judge shall revoke probationary suspension of youth penalty if the youth:

  1. commits a criminal offence during the probationary period, and thereby demonstrates that the expectation on which the suspension was based has not been fulfilled,
  2. seriously or persistently violates instructions or persistently evades the probation officer’s supervision and guidance and thereby gives cause for concern that he will commit further criminal offences, or
  3. seriously or persistently violates conditions.

The first sentence, number 1, shall apply mutatis mutandis if the act is committed in the period between the time when the decision to suspend sentence is taken and the time when that decision enters into force.

(2) However the judge shall refrain from revocation of suspension if it is sufficient:

  1. for further instructions to be issued or conditions to be imposed,
  2. to extend the suspension or supervision period to a maximum of four years, or
  3. to place the youth under the supervision of a probation officer once more prior to expiry of the probation period.

(3) No reimbursement shall be effected for services rendered by the youth in compliance with instructions, conditions, assurances or offers (section 23). However, if the judge revokes suspension he may give credit against the youth penalty for services rendered by the youth in compliance with conditions or corresponding offers.

Section 26a Remission of youth penalty

If the judge does not revoke the suspension, he shall release the offender from serving the youth penalty upon expiry of the suspension period. Section 26, subsection 3, first sentence, shall apply.

Sixth Chapter Suspension of imposition of youth penalty

Section 27 Conditions

If, after exhausting all forms of investigation, there can be no certainty as to whether while committing the criminal offence the youth’s harmful inclinations were demonstrated to such an extent as to necessitate imposition of youth penalty, the judge may issue a finding as to the youth’s guilt while suspending the decision to impose youth penalty for a probationary period which the judge shall fix.

Section 28 Probationary period

(1) The probationary period may not exceed two years’, nor be of less than one year’s, duration.

(2) The probationary period shall commence on the day the judgment establishing the youth’s guilt enters into force. It may subsequently be shortened to one year or, prior to its expiry, be extended to a maximum of two years.

Section 29 Probationary assistance

The youth shall be placed under the supervision and guidance of a probation officer for all or part of the probationary period. Section 23, section 24, subsection 1, first and second sentences, section 24, subsections 2 and 3, section 25 and section 28, subsection 2, first sentence, shall apply mutatis mutandis.

Section 30 Imposition of youth penalty; spending of sentence

(1) If it results, primarily from the youth’s poor conduct during the probationary period, that the offence censured in the court’s verdict against him is a result of the youth’s harmful inclinations demonstrated to an extent requiring imposition of youth penalty, the judge shall order imposition of that penalty which he would have handed down at the time of the verdict had a certain assessment of the youth’s harmful inclinations been possible.

(2) If the conditions set out in subsection 1 do not obtain upon expiry of the probationary period, the sentence shall be considered spent.

Seventh ChapterCombination of offences

Section 31 Commission of several offences by a youth

(1) Even if a youth has committed several criminal offences, the judge shall impose only one set of supervisory measures, disciplinary measures or a single youth penalty. Insofar as provided for in this Law (section 8) different types of supervisory measures and disciplinary measures may be ordered in combination, or measures may be combined with youth penalty. The statutory maximum limits applicable to youth detention and youth penalty may not be exceeded.

(2) If the youth’s guilt has already been finally established in relation to some of the criminal offences or a supervisory measure, disciplinary measure or youth penalty determined though not yet completely implemented, served or otherwise disposed of, account shall be taken of the judgment and similarly only measures or youth penalty imposed. The judge shall have discretion to give credit for periods of youth detention already served when imposing youth penalty.

(3) If it is conducive to the purposes of supervision, the judge may refrain from including in the new decision offences for which a conviction has been obtained. In so doing, he may declare supervisory or disciplinary measures spent if he imposes youth penalty.

Section 32 Combination of offences committed at different ages and different stages of maturity

If sentence is passed simultaneously for a combination of offences of which youth criminal law would apply to some and general criminal law to the others, youth criminal law shall be applied to them all if the main focus lies with those offences which should be assessed under youth criminal law. If that is not the case, general criminal law shall apply to them all.

Second Title Constitution and procedure of youth courts

First Chapter Constitution of youth courts

Section 33 Youth courts

(1) The youth courts shall have jurisdiction to hear cases involving youth misconduct.

(2) “Youth courts” shall mean the criminal court judge sitting as a youth court judge, the court of assessors (lay youth assessors’ court) and the criminal panel (youth panel).

(3) The governments of the Länder shall have the authority to issue legal ordinances permitting a judge sitting in one of the local courts to be appointed as a youth court judge for the districts of several local courts (district youth court judge) and permitting a joint lay youth assessors’ court for the districts of several local courts to be established in one of the local courts. The governments of the Länder may issue a legal directive by which that authority is transferred to the judicial administrations of the Länder.

Section 33a

(1) The lay youth assessors’ court shall be composed of the youth court judge who shall preside and two lay youth assessors. One man and one woman shall be present as lay youth assessors at each main hearing.

(2) The lay youth assessors shall not participate in decisions taken outside the main hearing.

Section 33b

(1) The youth panel shall be composed of three judges including the presiding judge as well as two lay youth assessors (grand youth panel); in appeal proceedings concerning the facts and law of judgments of the youth court judge it shall be composed of the presiding judge and two lay youth assessors (small youth panel).

(2) At the opening of the main hearing, the grand youth panel shall decide that it shall be composed in the main hearing of two judges including the presiding judge as well as two lay youth assessors insofar as the provisions of general law, including the provision set out in section 74e of the Constitution of the Courts Law, do not stipulate that the case falls within the jurisdiction of the jury court or, given the scope or difficulty of the case, the participation of a third judge does not appear necessary. If a case has been referred back by the court examining the appeal on law only, the youth panel which has regained jurisdiction may establish its composition afresh in accordance with the first sentence.

(3) Section 33a, subsection 1, second sentence, and subsection 2, shall apply mutatis mutandis.

Section 34 Tasks of the youth court judge

(1) The youth court judge is charged with all tasks incumbent on a judge sitting in a local court in criminal proceedings.

(2) The supervisory functions incumbent on the family and guardianship judge for matters concerning youths should be transferred to the youth court judge. Deviation from the aforementioned is permissible for special reasons, id est. if the youth court judge is appointed to sit in the district of several local courts.

(3) “Supervisory functions incumbent on the family and guardianship judge” shall mean:

  1. supporting the parent, the guardian or the carer by appropriate measures (section 1631, subsection 3, sections 1800 and 1915 of the Civil Code),
  2. those measures intended to ward off a danger to the youth (sections 1666, 1666a, section 1837, subsection 4, and section 1915 of the Civil Code).
  3. (Deleted)

Section 35 Lay youth assessors

(1) The assessors sitting in the youth courts (lay youth assessors) shall be elected upon a proposal of the youth assistance committee for a period of four years in the court’s calendar by the committee prescribed by section 40 of the Constitution of the Courts Law. The latter committee should elect an equal number of men and women.

(2) The youth assistance committee should propose an equal number of men and women, and at least twice the number of persons as are required to act as lay youth assessors and assistant lay youth assessors. The individuals proposed should have appropriate education and training as well as experience in the education and upbringing of youths.

(3) The youth assistance committee’s list of proposed candidates shall constitute a list of candidates within the meaning of section 36 of the Constitution of the Courts Law. Inclusion in the list shall require the assent of two thirds of the committee’s voting members. The list of candidates shall be displayed at the youth welfare office for public inspection for a period of one week. The time at which it is to be displayed shall be announced publicly in advance.

(4) The youth court judge shall chair the lay youth assessors’ electoral committee at which decisions are taken on objections to the youth assistance committee’s list of candidates and at which the lay youth assessors and assistant lay youth assessors are elected.

(5) The lay youth assessors shall be included on lists of lay assessors, which shall be kept separately for men and women.

Section 36 Public prosecutors handling matters involving youths

Youth public prosecutors shall be assigned to proceedings falling within the jurisdiction of the youth courts.

Section 37 Selection of youth court judges and public prosecutors handling matters involving youths

Judges sitting in the youth courts and public prosecutors handling matters involving youths should have appropriate education and training as well as experience in the education and upbringing of youths.

Section 38 Youth courts assistance service

(1) Assistance for the youth courts shall be provided by the youth welfare offices working in conjunction with the youth assistance associations.

(2) Representatives of the youth court assistance service shall highlight the supervisory, social and care-related aspects in proceedings before the youth courts. For this purpose, they shall support the participating authorities by researching into the accused’s personality, his development and his environment, and shall express a view on measures to be taken. In custody cases they shall report without delay on the results of their enquiries. The representative of the youth court assistance service who carried out the enquiries should be sent to appear at the main hearing. Insofar as no probation officer is appointed to do so, they shall ensure that the youth complies with instructions and conditions. They shall inform the judge of serious failures of compliance. Where a youth is placed under their supervision pursuant to section 10, subsection 1, third sentence, number 5, they shall exercise care and supervision unless the judge has entrusted this to another person. During the probationary period, they shall work together closely with the probation officer. During execution of the sentence they shall remain in contact with the youth, and they shall look after the youth’s reintegration into society.

(3) The youth court assistance service shall be involved at all stages of the proceedings against a youth. It should involve itself as early as possible. The representatives of the youth court assistance service shall always be heard prior to the imposition of instructions (section 10); if a care order can be considered, they should also express a view as to who should be appointed as care assistant.

Second Chapter Jurisdiction

Section 39 Substantive jurisdiction of the youth court judge

(1) The youth court judge shall have jurisdiction to deal with youth misconduct providing only supervisory measures, disciplinary measures, incidental penalties and consequences permissible under this Law or the withdrawal of permission to drive are to be expected and providing the public prosecutor files charges before the criminal court judge. The youth court judge shall not have jurisdiction to deal with matters brought against youths and adults joindered pursuant to section 103 if the judge at the local court would not have jurisdiction to deal with the adults under the provisions of general law. Section 209, subsection 2, of the Code of Criminal Procedure shall apply mutatis mutandis.

(2) The youth court judge may not hand down youth penalty exceeding one year’s duration; he may not order placement in a psychiatric hospital.

Section 40 Substantive jurisdiction of the lay youth assessors’ court

(1) The lay youth assessors’ court has jurisdiction to deal with all youth misconduct which does not fall within the jurisdiction of another youth court. Section 209 of the Code of Criminal Procedure shall apply mutatis mutandis.

(2) Up until the opening of the main proceedings, the lay youth assessors’ court may of its own motion obtain a decision from the youth panel as to whether it wishes to accept a particular matter for adjudication as a result of the particular scope of the matter.

(3) Before issuing an order to accept a matter for adjudication, the presiding judge of the youth panel shall invite the indicted accused to indicate within a particular time frame whether he wishes to apply for specific evidence to be taken prior to the main hearing.

(4) The order by which the youth panel decides to accept or refuse a case for adjudication shall not be subject to appeal. The order accepting the matter for adjudication shall be joined with the decision to open the hearing.

Section 41 Substantive jurisdiction of the youth panel

(1) The youth panel, as a court capable of handing down decisions in the first instance, shall have jurisdiction in matters

  1. which fall within the jurisdiction of the jury court according to the provisions of general law, including section 74e of the Constitution of the Courts Law,
  2. which it accepts for adjudication following a submission of the lay youth assessors’ court as a result of the special scope of the matter (section 40, subsection 2), and
  3. brought against youths and adults joindered pursuant to section 103 if a grand criminal panel would have jurisdiction for dealing with the adults in accordance with the provisions of general law,
  4. in which the public prosecution office files a charge before the youth panel because of the particular need for protection of the persons aggrieved by the criminal offence who can be considered as witnesses, and
  5. in which the accused is accused of an offence of the type designated in section 7, subsection 2, and a higher penalty than five years’ youth penalty or placement in a psychiatric hospital is to be anticipated.

(2) The youth panel shall also have jurisdiction for deliberating and deciding on appeals on fact and law as a legal remedy against judgments of the youth court judge and the lay youth assessors’ court. It shall also take the decisions listed in section 73, subsection 1, of the Constitution of the Courts Law.

Section 42 Geographical jurisdiction

(1) In addition to the judge who has jurisdiction in accordance with general procedural law or with the special provisions, jurisdiction shall lie with

  1. the judge entrusted with performing the supervisory functions assumed by the family and guardianship judges concerning the accused,
  2. the judge in whose district the accused is at liberty at the time the charges are brought, and
  3. until the accused has served the youth penalty in full, the judge entrusted with the tasks of the enforcement officer.

(2) If possible, the public prosecutor should bring the charges before the judge responsible for performing the supervisory functions of the family and guardianship judge; however, until the accused has served the youth penalty in full, they should be brought before the judge entrusted with the tasks of the enforcement officer.

(3) If the defendant changes his place of residence the judge may, with the consent of the public prosecutor, transfer the case to the judge in whose district the defendant is resident. If the judge to whom the case has been transferred has concerns about accepting the case, the matter shall be referred to the next court superior to them both.

Third Chapter Youth criminal proceedings

First Subchapter Preliminary proceedings

Section 43 Scope of investigations

(1) Once proceedings have been initiated, investigations should be conducted as soon as possible into the accused’s life and family background, his development, his previous conduct and all other circumstances apt to assist in assessing his psychological, emotional and character make-up. The parent or guardian and the legal representative, the school and the person providing him with training should insofar as possible be heard. The school or person providing training shall not be heard if the youth could as a result fear suffering undesirable disadvantages, id est. loss of his training place or his job. Account shall be taken of section 38, subsection 3.

(2) If necessary, id est. to establish the state of his development or any other characteristics relevant to the proceedings, the accused shall undergo examination. Where possible an expert specialising in examining youths shall be assigned to carry out the order.

Section 44 Questioning the accused

If youth penalty is to be expected the public prosecutor or the president of the youth court should question the accused before charges are brought.

Section 45 Dispensing with prosecution

(1) The public prosecutor may dispense with prosecution without the judge’s consent if the conditions set out in section 153 of the Code of Criminal Procedure are met.

(2) The public prosecutor shall dispense with prosecution if a supervisory measure has already been enforced or initiated and if he considers neither the participation of the judge pursuant to subsection 3 nor the bringing of charges to be necessary. An attempt by the youth to achieve a settlement with the aggrieved person shall be considered equivalent to a supervisory measure.

(3) The public prosecutor shall propose issuance of a reprimand, of instructions pursuant to section 10, subsection 1, third sentence, numbers 4, 7 and 9 or conditions by the youth court judge if the accused admits his guilt and if the public prosecutor considers that the ordering of such a judicial measure is necessary but the bringing of charges not apposite. If the youth court judge agrees to the proposal, the public prosecutor shall dispense with the prosecution; where instructions or conditions are imposed he shall however dispense with the prosecution only once the youth has complied with them. Section 11, subsection 3 and section 15, subsection 3, second sentence, shall not be applied. Section 47, subsection 3, shall apply mutatis mutandis.

Section 46 Principal results of the investigations

The public prosecutor should set out the principal results of the investigations in the bill of indictment (section 200, subsection 2, of the Code of Criminal Procedure) such as to ensure that knowledge of them shall as far as possible involve no disadvantages for the accused’s education and development.

Second Subchapter The main proceedings

Section 47 Discontinuation of proceedings by the judge

(1) If the bill of indictment has been submitted, the judge may discontinue the proceedings if

  1. the conditions set out in section 153 of the Code of Criminal Procedure have been met,
  2. a supervisory measure within the meaning of section 45, subsection 2, which renders a decision by judgment dispensable, has already been conducted or initiated,
  3. the judge considers a decision by judgment dispensable and orders a measure listed in section 45, subsection 3, first sentence, against a youth who has confessed his guilt, or
  4. the defendant lacks criminal liability on the grounds of insufficient maturity.

In the cases designated in the first sentence, numbers 2 and 3, the judge may temporarily discontinue the proceedings with the consent of the public prosecutor and fix a period of no more than six months in which the youth must comply with the conditions, instructions or supervisory measures. The decision shall be handed down as an order of the court. That order shall not be subject to appeal. If the youth complies with the conditions, instructions or supervisory measures, the judge shall discontinue the proceedings. Section 11, subsection 3, and section 15, subsection 3, second sentence, shall not apply.

(2) Discontinuation of proceedings shall require the consent of the public prosecutor unless the latter has already given consent for their preliminary discontinuation. The order discontinuing proceedings may also be issued in the main proceedings. It shall set out the grounds for the decision and shall not be subject to appeal. The defendant shall not be informed of the grounds if it is to be feared that knowledge of them could involve disadvantages for his education and development.

(3) Fresh charges may be brought for the same act only on the basis of new facts or evidence.

Section 47a Pre-eminence of the youth courts

After the main proceedings have been opened, a youth court cannot declare itself to lack jurisdiction on the ground that the case should be heard by a court of the same or a lower level dealing with general criminal matters. Section 103, subsection 2, second and third sentences, shall remain unaffected.

Section 48 Exclusion of the public

(1) The deliberations before the decision-taking court, including the announcing of its decisions, shall not be open to the public.

(2) Besides the participants to the proceedings, the aggrieved person, his parent or guardian and his legal representative, and, where the defendant is subject to the supervision and guidance of a probation officer or the care and supervision of a care assistant or if a social worker has been assigned to him, the probation officer, care assistant and the social worker are permitted to be present. The same shall apply to the head of institution in cases in which the youth receives supervisory assistance in a residential home or comparable institution. The judge may admit other persons for special reasons, id est. for training purposes.

(3) If young adults or adults are also defendants in the proceedings, the deliberations shall be held in public. The public may be excluded if this is in the supervisory interests of youths who are defendants.

Section 49 Administering of oath

(1) In proceedings before the youth court judge, an oath shall be administered to witnesses only if the judge considers it necessary to do so given the decisive importance of the testimony or in order to obtain truthful testimony. The youth court judge may refrain from administering an oath to experts in all cases.

(2) Subsection 1 shall not be applied if young adults or adults are also defendants in the proceedings.

Section 50 Presence at the main hearing

(1) The main hearing may take place in the absence of the defendant only if this would be permissible in the general proceedings, if there are special reasons to do so and with the assent of the public prosecutor.

(2) The presiding judge should also issue an order to summons the parent or guardian and the legal representative. The provisions concerning summonses, the consequences of failure to appear and compensation for witnesses shall apply mutatis mutandis.

(3) The representative of the youth courts welfare office shall be informed of the place and time of the main hearing. He shall be permitted to speak on request.

(4) If a probation officer assigned to the youth attends the main hearing, he should be heard as to the youth’s development during the probationary period. The first sentence shall apply mutatis mutandis to a care assistant assigned to the youth and the leader of a social skills training course attended by the youth.

Section 51 Temporary exclusion of participants

(1) The presiding judge should exclude the accused for the duration of discussions in the deliberations which could be disadvantageous to his education and development. He shall inform the defendant of the deliberations held in his absence insofar as is necessary for the purposes of his defence.

(2) The presiding judge may also exclude the accused’s parent or guardian and legal representative from the hearing where2. they are suspected of being involved in the accused’s misconduct, or to the degree that they have been convicted in respect of participation,3. there is fear of a danger to the life, limb or liberty of the accused, of a witness or of another person or of another considerable impairment to the well-being of the accused,4. it is to be feared that their presence will impair the ascertainment of the truth, or

In cases falling under the first sentence, numbers 3 to 5, the presiding judge may also exclude the parent or guardian and legal representatives of the aggrieved person from the hearing, in cases falling under number 3, also if other considerable impairment of the well-being of the aggrieved party is to be feared. Parents and guardians and legal representatives shall be excluded if the preconditions of the first sentence, number 5, are met and the exclusion of the person whose life is affected is applied for. The first sentence, number 5, shall not apply insofar as the persons whose lives are affected are opposed to exclusion from the main hearing.

(3) Section 177 of the Constitution of the Courts Law shall apply mutatis mutandis.

(4) In cases falling under subsection 2, an agreement is to be sought with regard to leaving the courtroom prior to exclusion. The presiding judge shall suitably inform the parent or guardian and legal representatives of the accused, as soon as they are present once more, of the essential content of what has been testified, or of the deliberations held, during their absence.

(5) The exclusion of the parent or guardian and of legal representatives in accordance with subsections 2 and 3 shall also be permissible if they are appointed as counsel (section 69).

Section 52 Credit for remand detention when calculating youth detention

Where youth detention is ordered and where its purpose has been achieved in full or in part by serving remand detention or some other form of deprivation of liberty resulting from the act, the judge may stipulate in the judgment that, or the extent to which, the youth detention shall not be enforced.

Section 52a Credit for remand detention when calculating youth penalty

(1) Where the accused has had remand detention or another form of deprivation of liberty imposed on him as a result of an offence which is or has been the subject of the proceedings, this shall be credited against the youth penalty. The judge may however order that credit shall be withheld in full or in part if credit is not justified given the defendant’s conduct after the offence or for supervisory reasons. Supervisory reasons shall be deemed to exist if, once credit has been given for deprivation of liberty, the remaining supervisory effect required on the defendant is not guaranteed.

(?) (2)

Section 53 Transfer of matters to the family or guardianship judge

In his judgment the judge may leave it to the judge responsible for family or guardianship matters to select and order supervisory measures if he does not impose youth penalty. The judge responsible for family or guardianship matters must then order imposition of a supervisory measure providing the circumstances on which the judgment were mainly based have not changed.

Section 54 Grounds for the judgment

(1) If the defendant is found guilty, the grounds for the judgment shall also set out which circumstances were decisive to fixing his punishment, for the measures ordered, for leaving the selection and ordering of them to the judge responsible for family or guardianship matters, or for refraining from imposing disciplinary measures and punishment. Account should be taken here in particular of the defendant’s moral, intellectual and physical make-up.

(2) The defendant shall not be informed of the grounds for the judgment if there is cause to fear that doing so might be disadvantageous for his education and development.

Third Subchapter Legal remedies

Section 55 Contesting decisions

(1) A decision which orders only supervisory measures or disciplinary measures, or which leaves the selection and ordering of supervisory measures to the judge responsible for family or guardianship matters, cannot be contested on the basis of the extent of the measures, nor can it be contested because other or farther-reaching supervisory measures or disciplinary measures ought to have been ordered or because the selection and ordering of supervisory measures has been left to the judge responsible for family or guardianship matters. This provision shall not apply if the judge has ordered making use of supervisory assistance pursuant to section 12, number 2.

(2) Whoever has submitted an admissible appeal on fact and law may no longer submit an appeal on law only against the judgment in the first-mentioned appeal. If the defendant, the parent or guardian or the legal representative has submitted an admissible appeal on fact and law, none of the aforementioned may avail themselves of an appeal on law only as a legal remedy against the judgment in the appeal on fact and law.

(3) The parent or guardian or the legal representative may withdraw a legal remedy filed by him only with the consent of the accused.

(4) Section 356a of the Code of Criminal Procedure shall apply mutatis mutandisinsofar as a person concerned in accordance with subsection 1, first sentence, is prevented from challenging a decision or in accordance with subsection 2 is unable to lodge an appeal against the ruling on the appeal on points of fact and law.

Section 56 Partial enforcement of an aggregate penalty

(1) If a defendant has been sentenced to an aggregate penalty as a result of several criminal offences, the appeal court may, prior to the main hearing, declare the judgment concerning part of the penalty to be enforceable if the findings on the guilt in relation to one or several criminal offences have not been contested. The order shall be admissible only if it is in the accused’s recognised interest. The part of the penalty may not exceed the penalty applicable to a conviction for those criminal offences where the findings on the defendant’s guilt have not been contested.

(2) An immediate complaint may be filed against this order.

Fourth Subchapter Procedure for probationary suspension of youth penalty

Section 57 Decision on suspension

(1) Probationary suspension of youth penalty shall be ordered in the judgment or subsequently by order of the court if execution of the penalty has not yet commenced. Jurisdiction for issuing the order subsequently shall lie with the judge who handed down the decision on the matter at first instance; the public prosecutor and the youth shall be heard.

(2) If the judge has refused suspension in the judgment, it may subsequently be ordered only if, since the judgment was handed down, circumstances have come to light which, on their own or in conjunction with the circumstances which are already known, justify probationary suspension of youth penalty.

(3) Where consideration can be given to instructions or conditions (section 23) the youth shall, in suitable cases, be asked whether he can give assurances concerning his future conduct or he offers to render services suitable to make amends for the wrong he has done. Where consideration can be given to an instruction to undergo rehabilitative treatment or addiction withdrawal treatment a youth who has reached sixteen years of age shall be asked whether he gives his consent thereto.

(4) Section 260, subsection 4, fourth sentence, and section 267, subsection 3, fourth sentence, of the Code of Criminal Procedure shall apply mutatis mutandis.

Section 58 Further decisions

(1) Decisions which become necessary due to the suspension (sections 22, 23, 24, 26 and 26a) shall be taken by order of the judge. The public prosecutor, the youth and the probation officer shall be heard. Where consideration can be given to a decision pursuant to section 26 or to imposition of youth detention, the youth shall be given the opportunity to make an oral statement before the judge. Grounds shall be set out in the order.

(2) The judge shall also supervise enforcement of the provisional measures pursuant to section 453c of the Code of Criminal Procedure.

(3) Jurisdiction shall lie with the judge who ordered the suspension. He can transfer all or part of the decisions to the youth court judge in whose district the youth resides. Section 42, subsection 3, second sentence, shall apply mutatis mutandis.

Section 59 Contesting decisions

(1) An immediate complaint shall be admissible against a decision ordering or rejecting suspension of youth penalty if such order is to be contested alone. The same shall apply if a judgement is contested solely because the penalty has not been suspended.

(2) A complaint may be filed against a decision on the duration of the probationary period (section 22), the duration of the period of probationary assistance (section 24), a fresh order to undergo probationary assistance during the probationary period (section 24, subsection 2) and on instructions and conditions (section 23). The complaint may relate only to the fact that the probationary period or the period of probationary assistance was subsequently lengthened, that probationary assistance was ordered afresh or that an order which has been imposed is illegal.

(3) An immediate complaint shall be admissible against the revocation of suspension of youth penalty (section 26, subsection 1).

(4) The order concerning remission of youth penalty (section 26a) cannot be contested.

(5) If an admissible appeal on law only is filed against a judgment and a complaint filed against a decision relating to probationary suspension of youth penalty ordered in the judgment, the court hearing the appeal on law only shall also have jurisdiction to hand down a decision on the complaint.

Section 60 Probation plan

(1) The presiding judge shall set out the conditions and instructions imposed in a probation plan. He shall give the plan to the youth and at the same time caution him as to the significance of the suspension, the period of probation and probationary assistance, the instructions and conditions and about the possibility of revoking the probation. At the same time, he shall be instructed to give notice each time he changes the place where he resides or where he receives training or works during the probationary period. Where changes are subsequently made to the probation plan, the youth shall also be advised as to the essential content.

(2) The probation officer’s name shall be entered in the probation plan.

(3) By his signature the youth should confirm that he has read the probation plan and promise that he wishes to comply with the instructions and conditions. The parent or guardian and the legal representative should also sign the probation plan.

Section 61

(Deleted)

Fifth Subchapter Procedure for suspension of imposition of youth penalty

Section 62 Decisions

(1) Decisions pursuant to sections 27 and 30 shall be handed down in the form of a judgment based on main proceedings. Section 267, subsection 3, fourth sentence of the Code of Criminal Procedure shall apply mutatis mutandis to the decision to suspend imposition of youth penalty.

(2) With the consent of the public prosecutor an order that the guilty verdict be considered spent may be also ordered after expiry of the probationary period without a main hearing.

(3) If a main hearing conducted during the probationary period reveals that youth penalty is necessary (section 30, subsection 1), an order shall be issued stating that the decision to impose the penalty shall remain suspended.

(4) Section 58, subsection 1, first, second and fourth sentences and section 58, subsection 3, first sentence shall apply mutatis mutandis to the other decisions which become necessary as a result of the suspension of imposition of youth penalty.

Section 63 Contesting decisions

(1) An order that the guilty verdict be considered spent (section 62, subsection 2) or that the decision to impose youth penalty shall remain suspended (section 62, subsection 3) may not be contested.

(2) In other cases section 59, subsections 2 and 5 shall apply mutatis mutandis.

Section 64 Probation plan

Section 60 shall apply mutatis mutandis. The youth shall be advised of the significance of the suspension, the period of probation and the period of probationary assistance, of the instructions and conditions and that he can expect a youth penalty to be imposed if he demonstrates poor conduct during the probationary period.

Sixth Subchapter Supplementary decisions

Section 65 Subsequent decisions on instructions and conditions

(1) Subsequent decisions relating to instructions (section 11, subsections 2 and 3) or conditions (section 15, subsection 3) shall be taken by order of the judge at first instance after hearing the public prosecutor and the youth. Insofar as necessary, the representative of the youth court assistance service, the care assistant appointed pursuant to section 10, subsection 1, third sentence, number 5, and the leader of the social skills training centre acting in accordance with section 10, subsection 1, third sentence, number 6, shall be heard. Where consideration can be given to imposing youth detention, the youth shall be given the opportunity to make an oral statement before the judge. The judge may transfer the proceedings to the youth court judge in whose district the youth is resident if the youth has changed his place of residence. Section 42, subsection 3, second sentence, shall apply mutatis mutandis.

(2) If the judge has refused to change instructions, his order cannot be contested. If he has imposed youth detention, an immediate complaint may be filed against the order. That complaint shall have a delaying effect.

Section 66 Supplementation of decisions in force for multiple convictions

(1) Where measures or youth penalty have not been fixed as an aggregate (section 31), and where the supervisory measures, disciplinary measures and penalties recognised in the legally effective decisions have not yet been implemented, served or otherwise disposed of in full, the judge shall hand down a like decision thereafter. This shall not apply insofar as the judge had dispensed with taking account of criminal offences for which final sentence has been passed in accordance with section 31, subsection 3.

(2) The decision shall be taken by judgment based on a main hearing if applied for by the public prosecutor or if the presiding judge considers it appropriate. If no main hearing is conducted, the judge shall take his decision by order. The same shall apply to jurisdiction and procedure for issuing the order as applies to the subsequent formulation of an aggregate penalty under the general provisions. If youth penalty has been served in part, jurisdiction shall lie with the judge entrusted with the tasks of the enforcement officer.

Seventh Subchapter Common provisions on procedure

Section 67 Position of the parent or guardian and of the legal representative

(1) Insofar as the accused has a right to be heard, to ask questions and make applications or to be present during acts of investigation, the same rights shall also accrue to the parent or guardian and to the legal representative.

(2) Where provision is made for notices to the accused, the corresponding notice should also be addressed to the parent or guardian and to the legal representative.

(3) The legal representative’s right to select defence counsel and to file for legal remedies shall also accrue to the parent or guardian.

(4) The judge may remove such rights from the parent or guardian and the legal representative insofar as they are suspected of participating in the accused’s misconduct or insofar as they have been convicted of participation. Where the parent or guardian or the legal representative fulfils the conditions set out in the first sentence, the judge may remove those rights from both parties if abuse of those rights is to be feared. If the parent or guardian and the legal representative no longer hold those rights, the judge with jurisdiction for family or guardianship matters shall appoint a carer to preserve the accused’s interests in the proceedings which are pending. The main hearing shall be suspended until the carer has been appointed.

(5) Where there are several parents or guardians, each of them may exercise the rights of parents and guardians set out in this Law. At the main hearing or in any other hearing before the judge, the absentee parent or guardian shall be deemed to be represented by the parent or guardian who is present. Where provision is made for notices or summonses to be issued, it shall be sufficient for these to be addressed to one of the parents or guardians.

Section 68 Compulsory defence counsel

The presiding judge shall appoint defence counsel for the accused if

  1. defence counsel would have to be appointed for an adult,
  2. the parent or guardian and the legal representative have had their rights withdrawn in accordance with this Law,
  3. the parent or guardian and the legal representative have been excluded from the hearing in accordance with section 51, subsection 2, and the impairment in the defence of their rights can no longer be sufficiently compensated for by subsequent information (section 51, subsection 4, second sentence),
  4. consideration may be given to placing the accused in an institution for the purpose of preparing an expert report on his personal development (section 73), or
  5. remand detention or provisional committal is to be enforced against him pursuant to section 126a of the Code of Criminal Procedure if he has not yet reached eighteen years of age; defence counsel shall be appointed without delay.

Section 69 Adviser

(1) The presiding judge can appoint an adviser for the accused at any stage in the proceedings if the circumstances do not warrant the appointment of compulsory defence counsel.

(2) The parent or guardian and the legal representative may not be appointed as adviser if this could be expected to be disadvantageous to his education and development.

(3) The adviser can be permitted to inspect the files. He shall otherwise have the same rights in the main hearing as defence counsel.

Section 70 Notifications

The youth court assistance service, in appropriate cases also the judge responsible for family and guardianship matters, the family judge and the school shall be informed of the initiation and outcome of the proceedings. They shall inform the public prosecutor if they become aware that other criminal proceedings are pending against the accused. The judge responsible for family and guardianship matters shall furthermore inform the public prosecutor of other measures taken by the family and guardianship courts and of the variance or lifting of such measures where the judge responsible for family and guardianship matters does not consider that the interests meriting protection of the accused or of any other person affected by the notification override such notification.

Section 71 Preliminary orders on supervision

(1) Until the judgment enters into final effect, the judge may issue preliminary orders concerning supervision of the youth or suggest the provision of services in accordance with the Eighth Book of the Social Code.

(2) The judge may order temporary placement in a suitable youth welfare services home if this is also apposite, given the measure which is to be expected, in order to protect the youth from a further risk to his development, in particular from committing further criminal offences. Sections 114 to 115a, 117 to 118b, 120, 125 and 126 of the Code of Criminal Procedure shall apply by analogy to temporary placement. Temporary placement shall be implemented in accordance with the rules applicable to the youth welfare service home.

Section 72 Remand detention

(1) Remand detention may be imposed and enforced only if its purpose cannot be achieved by a preliminary supervision order or by other measures. In assessing its proportionality (section 112, subsection 1, second sentence, of the Code of Criminal Procedure) account shall also be taken of the special strain which executing custody has on youths. Where investigation is imposed, the detention order shall set out the reasons which demonstrate that other measures, particularly temporary placement in a youth welfare service home, are not sufficient and that remand detention is not disproportionate.

(2) Until the youth has reached sixteen years of age, imposition of remand detention due to a risk of flight shall be admissible only if he:

  1. had already absconded from the proceedings or made efforts to do so, or
  2. he has no fixed abode or residence within the area in which this Law is applicable.

(3) The decision on enforcement of a custody order and on the measures to avoid it being enforced shall be taken by the judge who issued the custody order or, in urgent cases, by the youth court judge in whose district remand detention would have to be executed.

(4) Temporary placement in a youth welfare service home (section 71, subsection 2), may also be ordered under the same conditions for issuing a custody order. In this case, the judge may subsequently replace the placement order with a custody order if that proves to be necessary.

(5) If a youth is being held in remand detention, the proceedings shall be conducted particularly expeditiously.

(6) The competent judge may, for important reasons, transfer all or some of the judicial decisions concerning remand detention to another youth court judge.

Section 72a Involvement of the youth court assistance service in custody matters

The youth court assistance service shall be informed without delay of the enforcement of a custody order; it should be informed already when a custody order is issued. The youth court assistance service shall be informed when a youth is placed under temporary arrest if it can be expected from the investigations so far that the youth will be brought before the judge pursuant to section 128 of the Code of Criminal Procedure.

Section 73 Placement for observation purposes

(1) In order to prepare an expert opinion on the accused’s state of development, the judge may, after hearing an expert and the defence counsel, order that the accused be taken to an institution appropriate for the examination of youths and that he be placed under observation there. In the preparatory proceedings, the decision shall be taken by the judge who would have jurisdiction to open the main proceedings.

(2) An immediate complaint against the decision shall be admissible. It shall have a delaying effect.

(3) The period of custody in the institution shall not exceed six weeks’ duration.

Section 74 Costs and expenses

The imposition of costs and expenses on the defendant may be dispensed with in proceedings against a youth.

Eighth Subchapter Simplified procedure for cases involving youths

Section 75

(Deleted)

Section 76 Conditions for applying the simplified procedure for matters involving youths

The public prosecutor may apply to the youth court judge in writing or orally for a decision to be taken in the simplified procedure for matters involving youths if it can be expected that the youth court judge will impose only instructions, order supervision by a social worker or probation officer, apply disciplinary measures, impose a driving ban, withdraw permission to drive and impose a bar not exceeding two years or order forfeiture or seizure. The public prosecutor’s application shall be equivalent to public charges.

Section 77 Rejection of the application

(1) The youth court judge shall decline to take a decision by simplified procedure if the matter is not suitable for the procedure, id est. if it is probable that supervisory assistance within the meaning of section 12, number 2, will be ordered or youth penalty will be imposed or if the taking of comprehensive evidence is necessary. The decision may be taken until the time when the judgment is pronounced. It may not be contested.

(2) If the youth court judge refuses to take a decision by simplified procedure, the public prosecutor shall submit a bill of indictment.

Section 78 Procedure and decision

(1) The youth court judge shall issue a decision under the simplified procedure for matters involving youths by judgment on the basis of an oral hearing. He may not impose supervisory assistance within the meaning of section 12, number 2, youth penalty or placement in an institution for withdrawal treatment.

(2) The public prosecutor shall not be obliged to attend the hearing. If he does not attend, his consent shall not be required for the proceedings to be discontinued during the hearing or for proceedings to be conducted in the absence of the defendant.

(3) To simplify, accelerate and structure proceedings in a youth-friendly manner, it shall be permissible to deviate from procedural provisions, providing that such deviation does not impair the investigation of the truth. The provisions concerning the presence of the accused (section 50), the status of the parent or guardian and of the legal representative (section 67) and notification of decisions (section 70) must be observed. If the accused fails to attend the oral hearing, and if his absence is not adequately excused, he can be ordered to be brought before the judge if this has been threatened in the subpoena.

Ninth Subchapter Suspension of provisions of general procedural law

Section 79 Penalty order and accelerated procedure

(1) No penalty order may be issued against a youth.

(2) The accelerated procedure set out under general procedural law shall be inadmissible.

Section 80 Private prosecution and private ancillary prosecution

(1) No private prosecution may be brought against a youth. Misconduct which under the provisions of general law may be pursued by private prosecution shall also be prosecuted by the public prosecutor if supervisory reasons or a justified interest of the aggrieved person which does not go against the aim of the supervision so require.

(2) A counter action shall be admissible against a youth who brings a private prosecution. No youth penalty may be imposed.

(3) The public charge lodged may only be joined as an ancillary prosecutor by someone who has been aggrieved by a serious criminal offence against life, physical integrity or sexual self-determination, or in accordance with section 239, subsection 3, section 239a or section 239b of the Criminal Code, by means of which the victim has been mentally or physically seriously damaged or exposed to such a danger, or by a serious criminal offence in accordance with section 251 of the Criminal Code, also in conjunction with section 252 or section 255 of the Criminal Code. In other respects, section 395, subsection 2, number 1, and sections 396 to 402 of the Code of Criminal Procedure shall apply mutatis mutandis.

Section 81 Compensation for the aggrieved person

The provisions of the Code of Criminal Procedure governing compensation for the aggrieved person (sections 403 to 406c of the Code of Criminal Procedure) shall not be applied in proceedings against a youth.

Third Title Enforcement and execution

First Chapter Enforcement

First Subchapter Status of enforcement and jurisdiction

Section 82 Enforcement officer

(1) The enforcement officer shall be the youth court judge. He shall also perform the tasks assigned by the Code of Criminal Procedure to the criminal enforcement panel of the court.

(2) Insofar as the judge has ordered supervisory assistance within the meaning of section 12, further jurisdiction shall otherwise be assigned according to the provisions of the Eighth Book of the Social Code.

(3) In cases falling under section 7, subsections 2 and 3, the enforcement of placement and responsibility therefor shall be orientated in line with the provisions of the Code of Criminal Procedure if the person concerned has reached the age of 21.

Section 83 Decisions in enforcement proceedings

(1) The decisions of the enforcement officer pursuant to sections 86 to 89a, and section 91, subsection 2, as well as to sections 462a and 463, of the Code of Criminal Procedure shall be deemed to be decisions of the youth court judge.

(2) Jurisdiction for judicial decisions which shall become necessary during enforcement in response to an order made by the enforcement officer shall lie with the youth panel in cases in which:

  1. the decision at first instance was taken by the enforcement officer himself or by a lay youth assessors’ court of which he was the presiding judge,
  2. the enforcement officer, in performance of the tasks of the criminal enforcement panel of the court, would be required to take a decision concerning an order he himself issued.

(3) The decisions taken in accordance with subsections 1 and 2 may, unless otherwise provided, be contested with an immediate complaint. Sections 67 to 69 shall apply mutatis mutandis.

Section 84 Geographical jurisdiction

(1) The youth court judge shall initiate enforcement in all proceedings in which the decision at first instance was taken by him or by a lay youth assessors’ court of which he was the presiding judge.

(2) Except in the cases designated in subsection 1, where a decision taken by another judge is to be enforced, initiation of enforcement shall lie with the youth court judge at the local court who bears responsibility for the supervisory functions of the family and guardianship judge. If in these matters the sentenced person has reached the age of majority, responsibility for initiating enforcement shall lie with the youth court judge at the local court which would have had responsibility for the supervisory functions of the family and guardianship judge if the individual concerned had lacked legal majority.

(3) In the cases designated in subsections 1 and 2, enforcement shall be assured by the youth court judge unless otherwise provided for under section 85.

Section 85 Surrender and transfer of enforcement

(1) Where youth detention is to be enforced, the youth court judge who first had jurisdiction shall surrender enforcement to the youth court judge with jurisdiction in the capacity of execution officer pursuant to section 90, subsection 2, second sentence.

(2) Where youth penalty is to be enforced, enforcement shall be transferred, after reception of the person convicted in the facility provided for execution of youth penalty, to the youth court judge at the local court in whose district the facility provided for execution of youth penalty is located. The governments of the Länder shall be authorised to issue regulations stipulating that enforcement shall be transferred to the youth court judge at a different local court if this appears more expedient for contact reasons. The governments of the Länder may issue regulations transferring such authority to the judicial authorities of the Länder.

(3) Where one of the Länder maintains a facility provided for execution of youth penalty within the territory of one of the other Länder, the Länder concerned may agree that the youth court judge at a local court of the Land which maintains the facility provided for execution of youth penalty should have jurisdiction. Where such agreement is reached, enforcement shall be transferred to the youth court judge of the local court in whose district the authority responsible for supervising the facility provided for execution of youth penalty has its headquarters. The government of the Land which maintains the facility provided for execution of youth penalty shall be authorised to issue regulations according to which the youth court judge of another local court shall acquire jurisdiction if this appears more expedient for contact reasons. The Land government may issue a regulation transferring such authority to the judicial authorities of the Land.

(4) Subsection 2 shall apply mutatis mutandis to enforcement of a measure of reform or prevention pursuant to section 61, number 1 or 2, of the Criminal Code.

(5) For important reasons the enforcement officer may surrender, reserving the right of revocation, enforcement to a youth court judge who would otherwise not have or who no longer has jurisdiction.

(6) Where the convicted person has reached twenty-four years of age, the enforcement officer with jurisdiction pursuant to subsections 2 to 4 may surrender enforcement of youth penalty executed according to the provisions applicable to execution of adult penalties, or of a measure of reform and prevention, to the enforcement authority with jurisdiction under the provisions of general law if execution of the penalty or measure is likely to continue longer and, in the light of the convicted person’s personality, the basic characteristics special to youth criminal law are no longer significant to future decisions; the surrender is binding. Upon surrender, the provisions of the Code of Criminal Procedure and the Constitution of the Courts Law concerning enforcement of sentence shall be applied.

(7) Section 451, subsection 3, of the Code of Criminal Procedure shall apply mutatis mutandis with regard to the jurisdiction of the public prosecutor in enforcement proceedings.

Second Subchapter Youth detention

Section 86 Conversion of detention during leisure time

The enforcement officer may convert detention during leisure time into short-term detention if the conditions set out in section 16, subsection 3, have subsequently been met.

Section 87 Enforcement of youth detention

(1) Enforcement of youth detention shall not be suspended on probation.

(2) Section 450 of the Code of Criminal Procedure shall apply by analogy to the crediting against youth detention of periods spent in remand detention.

(3) The enforcement officer shall refrain from enforcing youth detention in full or, if youth detention has been served in part, from enforcing its remainder if circumstances have become known since the judgment was handed down which, alone or in conjunction with the circumstances already known, justify refraining from enforcement on supervisory grounds. If more than six months have elapsed since the judgment entered into full force, he shall refrain from enforcement in full if that is apposite for supervisory reasons. He may refrain from enforcing youth detention in full if it can be expected that youth detention, in parallel with a penalty imposed against the convicted person as a result of a separate act or which he can expect to be imposed as a result of a separate act, will no longer fulfil its supervisory purpose. Prior to the decision, the enforcement officer shall if possible hear the judge who took the decision, the public prosecutor and the representative of the youth court assistance service.

(4) Enforcement of youth detention shall be inadmissible if one year has elapsed since the decision entered into full force.

Third Subchapter Youth penalty

Section 88 Suspension of remainder of youth penalty

(1) The enforcement officer may suspend enforcement of the remainder of the youth penalty on probation if the convicted person has served part of the sentence and if suspension can be justified given the youth’s development, and also having due regard to the interest of the general public in security.

(2) If six months of the sentence have not yet been served, an order to suspend enforcement of the remainder may only be issued on especially important grounds. In the case of youth penalty exceeding one year suspension, it shall be only permissible if the convicted person has served at least one third of the penalty.

(3) In the cases designated in subsections 1 and 2, the enforcement officer should take his decision sufficiently early to allow the measures required to prepare the convicted person for life after release to be taken. He may revoke his decision up until the convicted person’s release if, by virtue of new facts or facts that have subsequently come to light relating to the youth’s development, and also having due regard to the interest of the general public in security, responsibility can no longer be taken for suspension.

(4) The execution officer shall take his decision having heard the public prosecutor and the head of the executing institution. The convicted person shall be given an opportunity to make an oral statement.

(5) The enforcement officer may fix time periods not exceeding six months prior to the expiry of which an application by the convicted person to suspend the remainder of sentence on probation shall be inadmissible.

(6) If the enforcement officer orders enforcement of the remainder of youth penalty to be suspended, section 22, subsection 1, subsection 2, first and second sentences, as well as sections 23 to 26a, shall apply mutatis mutandis. The judge who hears the case shall be substituted by the enforcement officer. Section 58, section 59, subsections 2 to 4, and section 60, shall be applied mutatis mutandis to the procedure and the contesting of decisions. A complaint by the public prosecutor against the order to suspend the remainder of sentence shall have a delaying effect.

Section 89

Section 89a Interruption and enforcement of youth penalty in combination with imprisonment

(1) If a prison sentence is also to be enforced against a convicted person sentenced to youth penalty, youth penalty shall generally be enforced first. The enforcement officer shall interrupt enforcement of the youth penalty if half of the youth penalty, with a minimum of six months, has been served. He may interrupt enforcement earlier if consideration can be given to suspending the remainder of the penalty. A remainder of sentence which is enforced because its suspension has been revoked may be interrupted if half of the remainder, with a minimum of six months, has been served and consideration can be given to its renewed suspension. Section 454b, subsection 3, of the Code of Criminal Procedure shall apply mutatis mutandis.

(2) If youth penalty is also to be enforced against a convicted person in addition to life imprisonment, and if the most recent conviction relates to a criminal offence which the convict committed prior to the previous conviction, only life imprisonment shall be enforced; the sentence shall be deeded to be the judgment in the proceedings in which it was possible most recently to examine the underlying factual findings. If the enforcement of a remainder of the life imprisonment is suspended by the court on probation, the court shall declare enforcement of the youth penalty completed.

(3) In the cases designated in subsection 1, section 85, subsection 6, shall apply mutatis mutandis with the proviso that the enforcement officer may surrender enforcement of the youth penalty if the convicted person has reached twenty-one years of age.

Second Chapter Execution

Section 90 Youth detention

(1) Execution of youth detention should arouse the youth’s sense of self-respect and make him fully aware that he must take responsibility for the wrong he has done. Execution of youth detention should be structured in an educational manner. It should help the youth to overcome those difficulties which contributed to his commission of the criminal offence.

(2) Youth detention shall be executed in the Land judicial authority’s youth detention centres or facilities for detention during leisure time. The execution officer shall be the youth court judge in the place of execution.

Section 91 Purpose of executing youth penalties

(1) Vis-à-vis a convicted person who has reached the age of eighteen and who is not suitable for execution of youth penalty, youth penalty may be executed in accordance with the provisions relating to execution of sentences applicable to adults, instead of in accordance with the provisions for youth custody. If the convict has reached the age of twenty-four, youth custody should be executed in accordance with the provisions relating to execution of sentences applicable to adults.

(2) The enforcement officer shall decide on the exception from youth penalty.

Section 92 Legal recourse in execution of youth detention, youth penalty and placement in a psychiatric hospital or in an institution for withdrawal treatment

(1) A court ruling may be applied for against a measure to arrange individual circumstances in the field of youth detention, youth penalty and measures for placement in a psychiatric hospital or in an institution for withdrawal treatment (section 61, numbers 1 and 2, of the Criminal Code). Sections 109 and 111 to 120 subsection 1 of the Prison Act, as well as section 67, subsections 1 to 3 and 5, shall apply mutatis mutandis to the application; Land law may provide that the application may not be lodged until after proceedings for an amicable settlement of the dispute.

(2) The youth panel shall rule on the application in whose district the enforcement authority involved is headquartered. Section 110, second sentence, of the Prison Act shall apply mutatis mutandis. If a Land operates a facility provided for execution of youth penalty in the territory of another Land, the Länder involved may agree that the youth panel at the Regional Court has jurisdiction in whose district the supervisory authority which is responsible for the facility is headquartered.

(3) The youth panel shall rule by resolution. It shall determine according to its discretion whether an oral hearing is to be held. At the request of the youth, the latter shall be heard in person prior to a ruling. The youth shall be notified thereof. If an oral hearing is not carried out, the hearing shall as a rule take place in the prison facility.

(4) The youth panel shall be occupied with one judge when ruling on applications in accordance with subsection 1. This may only be a judge on probation if he has already been assigned adjudicatory tasks in criminal proceedings over a period of one year. If the case is particularly difficult in legal terms, or if it has fundamental significance, the judge shall submit the case to the youth panel for a ruling on acceptance. If one of the prerequisites for acceptance applies, the youth panel shall accept the application. It shall rule on this by a resolution. Re-transfer shall be ruled out.

(5) Section 121 of the Prison Act shall apply to the costs of the proceedings on proviso that it is possible to refrain in accordance with section 74 from imposing costs and expenses on the youth.

(6) If youth penalty is executed in accordance with the provisions relating to execution of sentences applicable to adults in accordance with section 91, subsection 1, or if the youth has reached the age of twenty-four during execution of the measure in accordance with section 61, number 1 or number 2, of the Criminal Code, subsections 1 to 5 shall not apply. The provisions contained in sections 109 to 121 of the Prison Act shall apply to the application for a court ruling.

Section 93 Remand detention

(1) Where possible a youth shall be placed in remand detention in a special institution, or at least in a special department of the prison or in a youth detention institution.

(2) Execution of remand detention should be structured in an educational manner.

(3) Representatives of the youth court assistance service and, if the accused has been placed under the supervision and guidance of a probation officer or the care and supervision of a care worker or if a social worker has been appointed to him, the assistant and the social worker shall have the same rights of contact with the accused as defence counsel.

Section 93a Placement in an institution for withdrawal treatment

(1) The measure set out in section 61, number 2, of the Criminal Code shall be executed in an institution in which the therapeutic resources and social assistance required to treat youths suffering from addiction are available.

(2) In order to achieve the desired aim of the treatment, execution may be relaxed and implemented in a broadly liberal manner.

Fourth Title Striking from the criminal record

Sections 94 to 96

(Repealed)

Section 97 Striking from the criminal record by judicial instruction

(1) Where the youth court judge has been convinced that a youth sentenced to youth penalty has proved himself to be a law-abiding individual by dint of irreproachable conduct, he shall declare of his own motion or on application of the convicted person, of the parent or guardian or of the legal representative, that the entry be struck from the criminal record. This may also occur upon application of the public prosecutor or, if the convicted person is still a minor at the time of the application, upon application of the representative of the youth courts assistance office. Such declaration shall be inadmissible in the case of a conviction pursuant to sections 174 to 180, or section 182, of the Criminal Code.

(2) The order may not be made earlier than two years after serving or remission of the penalty unless the convicted person has demonstrated himself to be particularly deserving of having the entry struck off. The order shall be inadmissible while the penalty is being executed or during a probationary period.

Section 98 Procedure

(1) Jurisdiction shall lie with the youth court judge of the local court responsible for supervisory functions of the family and guardianship judge for matters concerning the convicted person. If the convicted person is a major, jurisdiction shall lie with the youth court judge in whose district the convicted person resides.

(2) The youth court judge shall as a preference assign the body which has looked after the convicted person since he served his sentence to investigate his conduct and his period of probation. He may also conduct investigations of his own. He shall hear the convicted person and, if the latter is a minor, the parent or guardian and the legal representative, as well as the school and the competent administrative authority.

(3) Once the investigations have been completed, the public prosecutor shall be heard.

Section 99 Decision

(1) The youth court judge shall give his decision by order.

(2) If he considers that the conditions applicable to the striking from the criminal record have not yet been fulfilled, he may defer the decision by not more than two years.

(3) An immediate complaint may be filed against the order.

Section 100 Striking from the criminal record following remission of penalty or of a remainder of penalty

Where, in the case of a conviction entailing no more than two years’ youth penalty, remission of penalty or of a remainder of penalty is ordered after probationary suspension, the judge shall at the same time declare that the offence be struck from the criminal record. This shall not apply in the case of a conviction pursuant to sections 174 to 180 or section 182 of the Criminal Code.

Section 101 Revocation

Where the convicted person who has had an entry struck from his criminal record receives a further custodial sentence due to a conviction for a serious criminal offence or a deliberate misdemeanour prior to expiry of the file note, the judge shall, in the judgment or subsequently by order, revoke the striking of the entry from the criminal record. In special cases he may refrain from revocation.

Fifth Subchapter Youths brought before courts with jurisdiction for general criminal matters

Section 102 Jurisdiction

The provisions of this Law shall be without effect to the jurisdiction of the Federal Court of Justice and the higher regional court. In criminal matters falling within the jurisdiction of the higher regional courts at first instance (section 120, subsections 1 and 2, of the Constitution of the Courts Law) the Federal Court of Justice shall also take decisions on complaints against decisions of those higher regional courts which order or refuse to grant probationary suspension of youth penalty (section 59, subsection 1).

Section 103 Joinder of several criminal matters

(1) Criminal cases brought against youths and adults may be joined in accordance with the provisions of general procedural law if this is apposite in order to investigate the truth or on other important grounds.

(2) Jurisdiction shall lie with the youth court. This shall not apply if the criminal matter against adults would, according to the provisions of general law including the provision set out in section 74e of the Constitution of the Courts Law, fall within the jurisdiction of the economic crimes panel or of the criminal panel designated in section 74a of the Constitution of the Courts Law; in a case of this type these criminal panels shall also have jurisdiction for the criminal case against the youth. To examine whether the economic crimes panel or the criminal panel have jurisdiction according to section 74a of the Constitution of the Courts Law, in the matter designated in the second sentence, section 6a, section 225a, subsection 4, section 270, subsection 1, second sentence, of the Code of Criminal Procedure shall apply mutatis mutandis; section 209a of the Code of Criminal Procedure shall apply on the condition that these criminal panels may be assimilated to higher level courts also in relation to the youth panel.

(3) Where the judge orders separation of the joined matters, the matter which has been separated off shall immediately be surrendered to the judge who would have had jurisdiction had the joinder not taken place.

Section 104 Proceedings against youths

(1) In proceedings against youths before the courts with jurisdiction for general criminal cases the provisions set out in this Law shall apply to:

  1. youth misconduct and its consequences (sections 3 to 32),
  2. the inclusion and legal status of youth court assistance service (section 38, and section 50, subsection 3),
  3. the scope of investigations in preliminary proceedings (section 43),
  4. dispensing with prosecution and discontinuation of the proceedings by the judge (sections 45 and 47),
  5. remand detention (sections 52, 52a and 72),
  6. the grounds for the judgment (section 54),
  7. procedures applicable to legal remedies (sections 55 and 56),
  8. the procedure for probationary suspension of youth penalty and sentencing to youth penalty (sections 57 to 64),
  9. the participation and legal status of the parent and guardian and of the legal representative (section 67 and section 50, subsection 2),
  10. compulsory defence counsel (section 68),
  11. notifications (section 70),
  12. placement for observation purposes (section 73),
  13. costs and expenses (section 74), and
  14. the suspension of other provisions of general procedural law (sections 79 to 81).

(2) The application of further procedural provisions set out in this Law shall be at the discretion of the judge.

(3) Insofar as is required for reasons of state security, the judge may issue an order dispensing with the involvement of the youth court assistance service and participation of the parent and guardian and of the legal representative.

(4) Where the judge considers compulsory care measures necessary, he shall leave it to the judge responsible for family and guardianship matters to select and order them. Section 53, second sentence, shall apply mutatis mutandis.

(5) Decisions which become necessary after probationary suspension of youth penalty shall be transferred to the youth court judge in whose district the youth resides. The same shall apply to decisions following suspension of imposition of youth penalty with the exception of decisions on the fixing of the penalty and the spending of sentence (section 30).

Part III Young adults

First Chapter Application of substantive criminal law

Section 105 Application of youth criminal law to young adults

(1) Where a young adult engages in misconduct punishable under the provisions of general law, the judge shall apply the provisions applicable to a youth set out in sections 4 to 8, section 9, number 1, sections 10 and 11, and 13 to 32, mutatis mutandis if:

  1. the overall assessment of the perpetrator’s personality, taking account of his living environment, demonstrates that at the time of the act he was still equivalent to a youth in terms of his moral and intellectual development, or
  2. the type, circumstances and motives of the act indicate that it constituted youth misconduct.

(2) Section 31, subsection 2, first sentence, and section 31, subsection 3, shall also be applied even if the young adult has already been convicted with legal effect according to the provisions of general criminal law for part of the criminal offences.

(3) The maximum period of youth penalty applicable to young adults shall be ten years.

Section 106 Mitigation of general criminal law with regard to young adults; preventive detention

(1) Where general criminal law is to be applied in response to the criminal act by a young adult, the court may hand down a custodial sentence of ten to fifteen years’ duration in place of life-long imprisonment.

(2) The court may order that the loss of capacity to hold public office and attain public electoral rights (section 45, subsection 1, of the German Criminal Code) shall not obtain.

(3) Preventive detention may not be ordered in addition to the penalty. Subject to the other prerequisites of section 66 of the Criminal Code, the court may reserve ordering of preventive detention if

  1. the young adult is sentenced to at least five years’ imprisonment in respect of a criminal offence of the nature designated in section 66, subsection 3, first sentence, of the Criminal Code, by means of which the victim suffered severe mental or physical damage or was exposed to such a danger,
  2. the relevant previous offences under the general provisions are also those of the type designated in number 1, and
  3. the overall assessment of the offender and of his offences reveals that he is a danger to the public as a result of a proclivity towards such criminal offences.

Section 66a, subsections 2 and 3, of the Criminal Code shall apply mutatis mutandis.

(4) If in addition to the punishment the ordering of preventive detention is reserved, and if the convict has not yet reached the age of twenty-seven, the court shall order that the penalty is already to be executed in a socio-therapeutic facility unless the resocialisation of the offender cannot be better promoted thereby. This order may also take place subsequently. As long as execution in a socio-therapeutic facility has not yet been ordered or the inmate has not yet been transferred to a socio-therapeutic facility, a fresh decision shall be taken on this in each case after six months. The criminal enforcement chamber shall have jurisdiction for subsequent ordering in accordance with the second sentence.

(5) If subsequent to sentencing to at least five years’ imprisonment in respect of a criminal offence of the nature designated in subsection 3, second sentence, number 1, facts become known prior to the end of the execution of this prison sentence indicating that the convict poses a considerable risk to the public, the court may subsequently order him to be placed in preventive detention if the overall assessment of the convict, his offences and additionally of his development when in prison reveals that he is highly likely to commit once more criminal offences of the type designated in subsection 3, second sentence, number 1. If none of the criminal offences on which the conviction was based were committed after 1 April 2004, and if it was hence not possible to reserve preventive detention in accordance with subsection 3, second sentence, the court shall take into account as facts within the meaning of the first sentence also such which were already recognisable at the time of the conviction.

(6) If the placement in a psychiatric hospital ordered in respect of an offence of the type designated in subsection 3, second sentence, number 1, in accordance with section 67d of the Criminal Code has been declared completed because the state ruling out or reducing culpability on which the placement was based did not exist at the time of the decision on completion, the court may subsequently order placement in preventive detention if

Second Chapter Constitution of the court and procedure

Section 107 Constitution of the court

Of the provisions on the constitution of youth courts, sections 33 to 34, subsection 1, and sections 35 to 38, shall apply mutatis mutandis to young adults.

Section 108 Jurisdiction

(1) The provisions on the jurisdiction of the youth courts (sections 39 to 42) shall also apply to misconduct by young adults.

(2) The youth court judge shall also have jurisdiction for misconduct by young adults if it can be expected that general criminal law will apply and if, according to section 25 of the Constitution of the Courts Law, the criminal court judge would have taken the decision.

(3) If general criminal law is to be applied in respect of the unlawful act of an young adult, section 24, subsection 2, of the Constitution of the Courts Law shall apply. If a higher penalty than four years’ imprisonment or placement of the accused in a psychiatric hospital is to be anticipated in an individual case, alone or in addition to a penalty, or in preventive detention (section 106, subsections 3, 5 and 6), jurisdiction shall lie with the youth panel.

Section 109 Procedure

(1) Of the provisions on criminal proceedings against youths (sections 41 to 81) sections 43, 47a, section 50, subsections 3 and 4, section 68, numbers 1 and 3, and section 73, shall apply mutatis mutandis to proceedings against a young adult. The youth court assistance service and, in appropriate cases, also the school shall be informed of the initiation and outcome of the proceedings. They shall inform the public prosecutor if they become aware that other criminal proceedings are pending against the person charged with the offence. The public may be excluded if this is apposite in the young adult’s interest.

(2) If the judge applies youth criminal law (section 105), section 45, section 47, subsection 1, first sentence, numbers 1, 2 and 3, and section 47, subsections 2 and 3, sections 52, 52a, section 54, subsection 1, sections 55 to 66, subsection 74, subsection 79, subsection 1, and section 81, shall apply mutatis mutandis. Section 66 shall also be applied if no single set of measures or youth penalty has been established pursuant to section 105, subsection 2. Section 55, subsections 1 and 2, shall not be applied if the decision was taken in accelerated proceedings under general procedural law. Section 74 shall not apply in the context of a ruling on the expenses of the aggrieved party in accordance with section 472a of the Code of Criminal Procedure.

(3) Section 407, subsection 2, second sentence, of the Code of Criminal Procedure shall not be applied in proceedings against a young adult.

Third Chapter Enforcement, execution and striking from the criminal record

Section 110 Enforcement and execution

(1) Of the provisions on enforcement and execution applicable to youths section 82, subsection 1, and sections 83 to 93a, shall apply mutatis mutandis to young adults provided the judge has applied youth criminal law (section 105) and imposed measures admissible pursuant to this Law or youth penalty.

(2) Section 93 shall apply mutatis mutandis where the individual who was a young adult at the time of the act has not reached twenty-one years of age. In the case of young adults who have reached twenty-one but not yet twenty-four years of age, remand detention may be executed according to the provisions contained in section 93.

Section 111 Striking from the criminal record

The provisions concerning striking from the criminal record (sections 97 to 101) shall apply mutatis mutandis to young adults insofar as the judge has imposed youth penalty.

Fourth Chapter Young adults appearing in courts with jurisdiction for general criminal matters

Section 112 Application mutatis mutandis

Sections 102, 103 and section 104, subsections 1 to 3 and 5, shall apply mutatis mutandis to proceedings against young adults. The provisions designated in section 104, subsection 1, shall be applied only insofar as they are not excluded according to the law applicable to young adults. Where the judge considers it necessary to impose instructions he shall leave it to the youth courts judge in whose district the young adult resides to select and order them.

Part Four Special provisions applicable to soldiers in the Federal Armed Forces

Section 112a Application of youth criminal law

Youth criminal law (sections 3 to 32 and section 105) shall apply, with the following derogations, to the duration of a youth or young adult’s period of service with the Federal Armed Forces:

  1. Supervisory assistance within the meaning of section 12 may not be ordered.
  2. If the youth or young adult requires special supervisory aid as a result of his state of moral or intellectual development, the judge may order the provision of supervisory assistance by the disciplinary officer as a supervisory measure.
  3. When issuing instructions and conditions, the judge should take account of the special characteristics of service in the armed forces. He should adjust instructions and conditions which have already been issued to those special characteristics.
  4. A soldier can be appointed as a voluntary probation officer. He shall not be subject in that activity (section 25, second sentence) to the judge’s instructions.
  5. A probation officer who is not a soldier may not monitor matters for which the youth or young adult’s military superiors are responsible. Measures taken by the disciplinary officer shall take precedence.

Section 112b Supervisory assistance by the disciplinary officer

(1) Where the judge has ordered supervisory assistance (section 112a, number 2), the next-ranking disciplinary officer shall ensure that the youth or young adult is monitored and cared for, including when not on service.

(2) For this purpose duties and restrictions shall be imposed on the youth or young adult which can relate to the service activities, leisure time, holidays and the payment of wages. Details shall be enacted by a legal ordinance (section 115, subsection 3).

(3) Supervisory assistance shall be provided until its purpose has been fulfilled. It shall however end at the latest after having lasted for one year or when the soldier reaches twenty-one years of age or leaves military service.

(4) Supervisory assistance can also be ordered in combination with youth penalty.

Section 112c Enforcement

(1) The enforcement officer shall declare the supervisory measure pursuant to section 112a, number 2, complete when its purpose has been fulfilled.

(2) The enforcement officer shall refrain from enforcing youth detention imposed as a result of an act committed prior to commencement of the period of service against soldiers in the Federal Armed Forces if this is required due to the special characteristics of service in the armed forces, and if account cannot be taken of those special characteristics by deferring enforcement.

(3) The decisions of the enforcement officer pursuant to subsections 1 and 2 shall be considered judicial decisions within the meaning of section 83.

Footnote

Part Four (sections 112c to 112e): Shall not apply in Berlin in accordance with section 123, first sentence.

Section 112d Hearing the disciplinary officer

Before the judge or the enforcement officer imposes instructions or requirements on a soldier in the Federal Armed Forces, orders or declares spent the supervisory measure designated in section 112a, number 2, refrains from enforcing youth detention pursuant to section 112c, subsection 2, or appoints a soldier as probation officer, he should hear the youth or young adult’s next-ranking disciplinary officer.

Footnote

Part Four (sections 112c to 112e): Shall not apply in Berlin in accordance with section 123, first sentence.

Section 112e Proceedings before courts with jurisdiction for general criminal matters

Sections 112a, 112b and 112d shall apply in proceedings against youths or young adults before the courts with jurisdiction for general criminal matters (section 104).

Footnote

Part Four (sections 112c to 112e): Shall not apply in Berlin in accordance with section 123, first sentence.

Part Five Concluding and transitional provisions

Section 113 Probation officers

At least one full-time probation officer shall be appointed for the district of each youth court judge. The appointment may be made for several districts or be dispensed with entirely if disproportionately high expenditure would be incurred as a result of the small number of criminal matters. Details concerning the activities of the probation officer shall be set out in legislation of the Länder.

Section 114 Execution of imprisonment in a facility provided for execution of youth penalty

Custodial sentences imposed under the provisions of general criminal law may also be executed in facility provided for execution of youth penalty in the case of convicted persons who have not yet reached the age of twenty-four and who are suitable for execution of youth penalty.

Section 115 Regulations on execution issued by the German Federal Government

(1) The German Federal Government shall authorised, with the assent of the Bundesrat, to issue provisions for the implementation of section 112b, subsection 2, on the nature, extent and duration of the duties and restrictions which may be imposed on a youth or young adult with respect to their service, leisure time, holidays and the payment of their wages or which can be imposed by the next-ranking disciplinary officer.

Section 116 Temporal application

(1) This Law shall also be applied to misconduct engaged in prior to its entry into force. The minimum term of youth penalty applicable to such misconduct shall be three months.

(2) Youth penalty may not be imposed upon a young adult if the criminal offence was committed prior to the entry into force of this Law and if under the provisions of general criminal law imposition of a custodial sentence of less than three months would have been expected.

Section 117 Composition of the court

(1) The election of lay youth assessors pursuant to section 35 shall take place for the first time within six months of the entry into force of this Law, thereafter at the same time as the election of assessors to the lay assessors’ courts and the criminal panels.

(2) Where a youth welfare committee does not yet exist, the list of candidates pursuant to section 35, subsection 3, shall be drawn up by the youth welfare office.

Section 118

(Out of date)

Section 119 Custodial sentences

Juvenile prison sentences handed down to a youth prior to entry into force of this Law shall be deemed equivalent to youth penalty for the purposes of applying this Law.

Section 120 References

References to provisions of the Reich Youth Court Law of 6 November 1943 (Reich Law Gazette Part I, page 637) shall be considered references to the provisions of this Law which have superseded them.

Section 121 Transitional provision

The provisions of the third chapter of the Introductory Act to the Constitution of the Courts Law in its previous version shall continue to apply to sets of proceedings already pending on 1 January 2008 for a court ruling on the lawfulness of measures in execution of youth penalty, youth detention and placement in a psychiatric hospital or an institution for withdrawal treatment.

Section 122

(Without object)

Section 123 Special provision for Berlin

Part Four (sections 112a to 112e) and section 115, subsection 3, shall not be applied in the Land of Berlin. Part Five (concluding and transitional provisions) shall be applied in the Land of Berlin as Part Four.

Section 124 Berlin clause

This Law shall also apply in the Land Berlin under the proviso set out in section 13, subsection 1, of the Third Transition Law of 4 January 1952 (Federal Law Gazette Part I, page 1). Regulations issued on the basis of the authorisations contained in this Law shall apply in the Land of Berlin pursuant to section 14 of the Third Transition Law.

Section 125 Entry into force

This Law shall enter into force on 1 October 1953.

The above translation was published by the Federal Ministry of Justice. Reproduced with kind permission. This HTML edition by Jens Askan Brückerhoff and © 2011 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.

Courts Constitution Acts (Gerichtsverfassungsgesetz, GVG)

In the version published on 9 May 1975 (Federal Law Gazette (Bundesgesetzblatt), Part I, page 1077), as most recently amended by Article 9 subsection (1) of the Act of 30 July 2009 (Federal Law Gazette, Part I, page 2449)

Translation provided by the Federal Ministry for Justice and Kathleen Müller-Rostin and reproduced with kind permission.


Table of Contents

Title I Jurisdiction

Section 1
Section 2 to 9
Section 10
Section 11
Section 12
Section 13
Section 13a
Section 14
Section 15
Section 16
Section 17
Section 17a
Section 17b
Section 18
Section 19
Section 20
Section 21

Title II General provisions concerning the presidium and the allocation of court business

Section 21a
Section 21b
Section 21c
Section 21d
Section 21e
Section 21f
Section 21g
Section 21h
Section 21i
Section 21j

Title III Local courts

Section 22
Section 22a
Section 22b
Section 22c
Section 22d
Section 23
Section 23a
Section 23b
Section 23c
Section 23d
Section 24
Section 25
Section 26
Section 26a
Section 27

Title IV Courts with lay judges

Section 28
Section 29
Section 30
Section 31
Section 32
Section 33
Section 34
Section 35
Section 36
Section 37
Section 38
Section 39
Section 40
Section 41
Section 42
Section 43
Section 44
Section 45
Section 46
Section 47
Section 48
Section 49
Section 50
Section 51
Section 52
Section 53
Section 54
Section 55
Section 56
Section 57
Section 58

Title V Regional courts

Section 59
Section 60
Section 61-69
Section 70
Section 71
Section 72
Section 73
Section 73a
Section 74
Section 74a
Section 74b
Section 74c
Section 74d
Section 74e
Section 74f
Section 75
Section 76
Section 77
Section 78

Title Va Criminal divisions with jurisdiction over execution of sentences

Section 78a
Section 78b

Title VI Criminal divisions with lay judges

Sections 79 to 92

Title VII Commercial divisions

Section 93
Section 94
Section 95
Section 96
Section 97
Section 98
Section 99
Section 100
Section 101
Section 102
Section 103
Section 104
Section 105
Section 106
Section 107
Section 108
Section 109
Section 110
Section 111
Section 112
Section 113
Section 114

Title VIII Higher regional courts

Section 115
Section 115a
Section 116
Section 117
Section 118
Section 119
Section 120
Section 120a
Section 121
Section 122

Title IX Federal Court of Justice

Section 123
Section 124
Section 125
Section 126 to 129
Section 130
Section 131
Section 131a
Section 132
Section 133
Section 134
Section 134a
Section 135
Section 136
Section 137
Section 138
Section 139
Section 140

Title IXa Jurisdiction over proceedings to reopen cases in criminal matters

Section 140a

Title X Public prosecution office

Section 141
Section 142
Section 142a
Section 143
Section 144
Section 145
Section 145a
Section 146
Section 147
Section 148
Section 149
Section 150
Section 151
Section 152

Title XI Court registry

Section 153

Title XII Officials entrusted with service and execution

Section 154
Section 155

Title XIII Mutual judicial assistance

Section 156
Section 157
Section 158
Section 159
Section 160
Section 161
Section 162
Section 163
Section 164
Section 165
Section 166
Section 167
Section 168

Title XIV Publicity and court officers

Section 169
Section 170
Section 171
Section 171a
Section 171b
Section 172
Section 173
Section 174
Section 175
Section 176
Section 177
Section 178
Section 179
Section 180
Section 181
Section 182
Section 183

Title XV Language of the court, communication with the court

Section 184
Section 185
Section 186
Section 187
Section 188
Section 189
Section 190
Section 191
Section 191a

Title XVI Deliberations and voting

Section 192
Section 193
Section 194
Section 195
Section 196
Section 197
Section 198


Title I

Jurisdiction

Section 1

Judicial power shall be exercised by independent courts that are subject only to the law.

Sections 2-9

(repealed)

Section 10

Under the supervision of a judge, trainee jurists (Referendare) may handle requests for mutual judicial assistance and, except in criminal matters, hear participants in the proceedings, take evidence and conduct the oral hearing. Trainee jurists shall not be authorised to order administration of an oath or to administer an oath.

Section 11

(repealed)

Section 12

Ordinary jurisdiction shall be exercised by local courts (Amtsgerichte), regional courts (Landgerichte), higher regional courts (Oberlandesgerichte) and by the Federal Court of Justice (Bundesgerichtshof, the highest federal court for the area of ordinary jurisdiction).

Section 13

The ordinary courts shall have jurisdiction over the civil disputes, family matters and non-contentious matters (civil matters) as well as criminal matters for which neither the competence of administrative authorities nor the jurisdiction of the administrative courts (Verwaltungsgerichte) has been established and for which no special courts have been created or permitted by provisions of federal law.

Section 13a

Land law may provide that matters of all kinds be assigned either entirely or partially to a single court for the districts of several courts and that external adjudicating bodies of courts be established.

Section 14

Navigation courts (Schifffahrtsgerichte) shall be permitted as special courts for the matters designated in international treaties.

Section 15

(repealed)

Section 16

Extraordinary courts shall not be allowed. No one may be removed from the jurisdiction of his1 lawful judge.

1: Translator’s note: The masculine form is used hereinafter solely in the interest of readability

Section 17

(1) Once an action has been brought before a court, the admissibility of such recourse shall not be affected by any subsequent change in the circumstances upon which it is founded. The matter may not be brought before another court by any party while it is pending.

(2) The court of admissible recourse shall decide the dispute in the light of all relevant legal aspects. Article 14 paragraph (3), fourth sentence, and Article 34, third sentence, of the Basic Law (Grundgesetz) shall remain unaffected.

Section 17a

(1) If a court has declared with final and binding effect that the recourse taken to it is admissible, other courts shall be bound by this decision.

(2) If the recourse taken is inadmissible, the court shall declare this proprio motuafter hearing the parties and shall at the same time refer the legal dispute to the competent court of admissible recourse. If several courts are competent, the dispute shall be referred to the court to be selected by the plaintiff or applicant or, if no selection is made, to the court designated by the referring court. The decision shall be binding upon the court to which the dispute has been referred in respect of the admissibility of the recourse.

(3) If the recourse taken is admissible, the court may give a preliminary decision to this effect. It must give a preliminary decision if a party challenges the admissibility of the recourse.

(4) The decision pursuant to subsections (2) and (3) may be given without an oral hearing. Reasons must be given therefor. The immediate complaint (sofortige Beschwerde) shall be available against the decision pursuant to the provisions of the respective applicable code of procedure. The participants shall only be entitled to lodge a complaint against a decision of a higher regional court at the highest federal court if this has been admitted in the decision. The complaint must be admitted if the legal issue concerned is of fundamental importance or if the court deviates from a decision of one of the highest federal courts or from a decision of the Joint Panel of the Highest Federal Courts (Gemeinsamer Senat der obersten Gerichtshöfe des Bundes). The highest federal court shall be bound by the admission of the complaint.

(5) The court that rules on an appellate remedy against a decision by the court seized of the case shall not review whether the recourse taken was admissible.

(6) Subsections (1) to (5) shall apply mutatis mutandis to adjudicating bodies with jurisdiction over civil disputes, family matters and non-contentious matters in relation to each other.

Section 17b

(1) After the decision on referral has become final and absolute, the legal dispute shall be pending at the court designated in the decision upon receipt of the file by that court. The effects of pendency shall continue to exist.

(2) If a dispute is referred to another court, the costs of the proceedings before the first court shall be treated as part of the costs incurred at the court to which the dispute was referred. The plaintiff shall bear the additional costs incurred even if he prevails on the main issue.

(3) Subsection (2), second sentence, shall not apply to family matters and non-contentious matters.

Section 18

The members of the diplomatic missions established in the territory of application of this Act, the members of their families and their private servants shall be exempt from German jurisdiction under the Vienna Convention on Diplomatic Relations of 18 April 1961 (Federal Law Gazette 1964, Part II, pages 957 et seq.). This shall also apply if their sending state is not a party to this Convention; in such case Article 2 of the Act of 6 August 1964 relating to the Vienna Convention on Diplomatic Relations of 18 April 1961 (Federal Law Gazette 1964, Part II, page 957) shall apply mutatis mutandis.

Section 19

(1) The members of the consular posts established in the territory of application of this Act, including the honorary consular officers, shall be exempt from German jurisdiction under the Vienna Convention on Consular Relations of 24 April 1963 (Federal Law Gazette 1969, Part II, pages 1585 et seq.). This shall also apply if their sending state is not a party to this Convention; in such case Article 2 of the Act of 26 August 1969 relating to the Vienna Convention on Consular Relations of 24 April 1963 (Federal Law Gazette 1969, Part II, page 1585) shall apply mutatis mutandis.

(2) Special international agreements concerning the exemption of the persons designated in subsection (1) from German jurisdiction shall remain unaffected.

Section 20

(1) German jurisdiction also shall not apply to representatives of other states and persons accompanying them who are staying in territory of application of this Act at the official invitation of the Federal Republic of Germany.

(2) Moreover, German jurisdiction also shall not apply to persons other than those designated in subsection (1) and in sections 18 and 19 insofar as they are exempt therefrom pursuant to the general rules of international law or on the basis of international agreements or other legislation.

Section 21

Sections 18 to 20 shall not stand in the way of execution of a request for transfer of a person in custody and for mutual judicial assistance communicated by an international criminal court established by a legal instrument that is binding on the Federal Republic of Germany.

Title II

General provisions concerning the presidium and the allocation of court business

Section 21a

(1) A presidium shall be established at each court.

(2) The presidium shall be composed of the president or supervising judge acting as chairman and,

  1. at courts with at least eighty permanent judicial posts, ten elected judges,
  2. at courts with at least forty permanent judicial posts, eight elected judges,
  3. at courts with at least twenty permanent judicial posts, six elected judges,
  4. at courts with at least eight permanent judicial posts, four elected judges,
  5. at the other courts, the judges eligible to stand for election pursuant to section 21b subsection (1).

Section 21b

(1) Eligible to vote in elections to the presidium are the judges appointed for life and the judges appointed for a specified term upon whom a judicial office has been conferred at the court as well as the judges on probation who are working at the court, the judges by commission and the judges on secondment for a term of at least three months who are performing judicial duties at the court. Eligible to stand for election to the presidium are the judges appointed for life and the judges appointed for a specified term upon whom a judicial office has been conferred at the court. Neither eligible to vote in elections nor eligible to stand for election are judges who have been seconded to another court for more than three months, who have been on leave for more than three months or who have been seconded to an administrative authority.

(2) Each eligible voter may vote for no more than the prescribed number of judges.

(3) The election shall be direct and secret. The persons receiving the most votes shall be deemed elected. Provision for other election procedures for the election to the presidium may be made by Land law. In such case the Land government shall lay down the necessary rules governing the election procedure in an ordinance; it may transfer the authorisation herefor to the Land agency for the administration of justice. In the case of a tie, a decision shall be taken by drawing lots.

(4) Members shall be elected for four years. Half of the members shall resign every two years. The first members to resign shall be determined by drawing lots.

(5) The election procedure shall be regulated in an ordinance that shall be issued by the Federal Government with the approval of the Bundesrat.

(6) In the event that a law is infringed in the course of the election, the election may be challenged by the judges designated in subsection (1), first sentence. Such challenge shall be decided by a division of the competent higher regional court, in the case of the Federal Court of Justice by a panel of that court. If the challenge is declared to be well founded, an appellate remedy lodged against a court decision may not be based on the assertion that the presidium consequently was not properly composed. Otherwise, the provisions of the Act on Procedure in Family Matters and Non-Contentious Matters shall be applicable to the procedure mutatis mutandis.

Section 21c

(1) In the event that the president or supervising judge is unable to be present, he shall be represented by his deputy (section 21h). If the president or supervising judge is present, his deputy, if he has not himself been elected to the presidium, may attend the meetings of the presidium in an advisory capacity. The elected members of the presidium shall not have deputies.

(2) If an elected member of the presidium leaves the court, is seconded to another court for more than three months, is granted leave for more than three months, is seconded to an administrative authority or becomes a member of the presidium by statute, he shall be replaced by the person who is next in line on the basis of the last election.

Section 21d

(1) The size of the presidium shall be governed by the number of permanent judicial posts at the end of the day six months preceding the day on which the business year begins.

(2) If the number of permanent judicial posts at a court with a presidium pursuant to section 21a subsection (2), numbers 1 to 3, has fallen below the respective specified minimum number, the following number of judges shall be elected at the next election held pursuant to section 21b subsection (4):

  1. four judges at a court with a presidium pursuant to section 21a subsection (2), number 1,
  2. three judges at a court with a presidium pursuant to section 21a subsection (2), number 2,
  3. two judges at a court with a presidium pursuant to section 21a subsection (2), number 3.

In addition to the members resigning from the presidium pursuant to section 21b subsection (4), a further member shall resign who shall be selected by drawing lots.

(3) If the number of permanent judicial posts at a court with a presidium pursuant to section 21a subsection (2), numbers 2 to 4, has risen above the maximum number specified for the previous size of the presidium, the following number of judges shall be elected at the next election held pursuant to section 21b subsection (4):

  1. six judges at a court with a presidium pursuant to section 21a subsection (2), number 2,
  2. five judges at a court with a presidium pursuant to section 21a subsection (2), number 3,
  3. four judges at a court with a presidium pursuant to section 21a subsection (2), number 4.

One of these members, who shall be selected by drawing lots, shall resign from the given presidium at the end of two years.

Section 21e

(1) The presidium shall determine the composition of the adjudicating bodies, appoint the investigating judges, regulate representation and allocate court business. It shall make these arrangements prior to the beginning of the business year for the latters duration. The president shall determine which judicial duties he shall perform. Each judge may belong to several adjudicating bodies.

(2) The judges who are not members of the presidium shall be given an opportunity to be heard prior to the allocation of court business.

(3) The arrangements pursuant to subsection (1) may only be changed in the course of the business year if this becomes necessary due to the excessive or insufficient workload of a judge or adjudicating body or as a result of the transfer or prolonged absence of individual judges. The presiding judges of the adjudicating bodies affected by the change in the allocation of court business shall be given an opportunity to be heard prior to such change.

(4) The presidium may order that a judge or adjudicating body that has been handling a case continue to be responsible for that case following a change in the allocation of court business.

(5) If a judge is to be assigned to another adjudicating body or if his sphere of competence is to be changed, he shall, except in urgent cases, be given an opportunity to be heard beforehand.

(6) If a judge is to be released, either entirely or partially, in order to perform judicial administration functions, the presidium shall be heard beforehand.

(7) The presidium shall decide by a majority vote. Section 21i subsection (2) shall apply mutatis mutandis.

(8) The presidium may rule that judges of the court may be present during the deliberations and votes of the presidium, either for the entire duration or for a part thereof. Section 171b shall apply mutatis mutandis.

(9) The roster allocating court business shall be open for inspection at the registry of the court designated by the president or supervising judge; it need not be published.

Section 21f

(1) The adjudicating bodies at the regional courts, at the higher regional courts and at the Federal Court of Justice shall be presided over by the president and the presiding judges.

(2) In the event that the presiding judge is unable to be present, the member of the adjudicating body designated by the presidium shall preside. In the event that this deputy is also unable to be present, the most senior member or, in a case of equal seniority, the oldest member of the adjudicating body shall preside.

Section 21g

1) Within an adjudicating body composed of several judges, court business shall be allocated among the members by a ruling of all the professional judges belonging to the adjudicating body. In the case of a tie, the presidium shall decide.

(2) The ruling shall specify, prior to the beginning of the business year and for the latters duration, the principles governing the participation of the members in the proceedings; it may only be amended if this becomes necessary due to the excessive or insufficient workload, transfer or prolonged absence of individual members of the adjudicating body.

(3) If, pursuant to the provisions of procedural law, proceedings may be assigned by the adjudicating body to one of its members for decision as a judge sitting alone, subsection (2) shall apply mutatis mutandis.

(4) Where a professional judge is unable to present at the time of the ruling, his place shall be taken by the deputy designated in the roster allocating court business.

(5) Section 21i subsection (2) shall apply mutatis mutandis, provided that the arrangements are made by the presiding judge.

(6) The professional judges affected by the ruling shall be given an opportunity to be heard before it is given.

(7) Section 21e subsection (9) shall apply mutatis mutandis.

Section 21h

The president or supervising judge shall, in respect of the court business assigned to him under this Act that is not to be allocated by the presidium, be represented by his permanent deputy; where there are several permanent deputies, he shall be represented by the most senior deputy or, in a case of equal seniority, by the oldest deputy. Where a permanent deputy has not been designated or is unable to be present, the president or supervising judge shall be represented by the most senior judge or, in a case of equal seniority, by the oldest judge.

Section 21i

(1) A quorum of the presidium shall exist if at least half of its elected members are present.

(2) If a timely decision of the presidium cannot be given, the arrangements specified in section 21e shall be made by the president or by the supervising judge. The reasons for the arrangements shall be stated in writing. The arrangements shall be submitted to the presidium for approval without delay. They shall remain in force as long as the presidium does not rule otherwise.

Section 21j

(1) If a court is established, and if the presidium is to be established pursuant to section 21a subsection (2), numbers 1 to 4, the arrangements specified in section 21e shall be made by the president or by the supervising judge until the presidium is established. Section 21i subsection (2), second to fourth sentences, shall apply mutatis mutandis.

(2) A presidium pursuant to section 21a subsection (2), numbers 1 to 4, shall be established within three months after the establishment of the court. The term specified in section 21b subsection (4), first sentence, shall start at the beginning of the business year following the business year in which the presidium is established if the presidium is not established at the beginning of a business year.

(3) The day on which the court is established shall take the place of the time specified in section 21d subsection (1).

(4) When the electoral board is appointed for the first time, the functions pursuant to section 1 subsection (2), second and third sentences, and section 1 subsection (3) of the Election Regulations for the Presidiums of the Courts of 19 September 1972 (Federal Law Gazette, Part I, page 1821) shall be discharged by the president or by the supervising judge. The end of the time period specified in subsection (2), first sentence, shall be taken as the end of the business year specified in section 1 subsection (2), second sentence, and section 3, first sentence, of the Election Regulations for the Presidiums of the Courts.

Title III

Local courts

Section 22

(1) The local courts (Amtsgerichte) shall be presided over by judges sitting alone.

(2) A judge at a local court may at the same time be conferred an additional judicial office at another local court or at a regional court.

(3) Responsibility for general supervision of service may be transferred by the Land agency for the administration of justice to the president of the superior regional court. If this is not done, and if the local court is staffed with several judges, the Land agency for the administration of justice shall transfer responsibility for general supervision of service to one of them.

(4) Each local court judge shall perform the duties incumbent upon him as a judge sitting alone unless otherwise provided under this Act.

(5) Judges by commission may also be employed. Judges on probation may be employed except as otherwise provided under subsection (6), section 23b subsection (3), second sentence, section 23c subsection (2), or section 29 subsection (1), second sentence.

(6) A judge on probation may not handle insolvency matters during the first year after his appointment.

Section 22a

At local courts with a presidium consisting of all the judges eligible to stand for election (section 21a subsection (2), number 5), the president of the superior regional court or, if the president of another local court is vested with responsibility for supervision of service, that president shall belong to the presidium as chairman.

Section 22b

(1) If a local court is staffed with only one judge, the presidium of the regional court shall designate a judge in its district to serve as the permanent representative of the local court judge.

(2) If it is necessary for a judge at a local court to be temporarily represented by a judge at another court, the presidium of the regional court shall designate a judge in its district to represent the local court judge for no longer than two months.

(3) In urgent cases the president of the regional court may appoint a provisional representative. The grounds for the order must be specified in writing.

(4) In the case of local courts where the president of another local court is responsible for general supervision of service, the presidium of the other local court shall be competent in the cases of subsections (1) and (2) and its president shall be competent in the case of subsection (3).

Section 22c

(1) The Land governments shall be authorised to issue ordinances providing that a joint standby duty schedule be compiled for several local courts in the district of one regional court or that a single local court handle standby duty business, either entirely or partially, if this is advisable in order to ensure a more equitable distribution of standby duty assignments among the judges. The judges of the local courts designated in the first sentence shall be scheduled for standby duty. The ordinance issued pursuant to the first sentence may stipulate that the judges of the regional court also be scheduled for standby duty. Standby duty business shall, pursuant to section 21e, be allocated by the presidium of the regional court in agreement with the presidiums of the local courts concerned. If no agreement can be reached, such allocation shall be made by the presidium of the higher regional court to the district of which the regional court belongs.

(2) The Land governments may transfer the authorisation pursuant to subsection (1) to the Land agencies for the administration of justice.

Section 22d

The validity of an act performed by a judge at a local court shall not be affected by the fact that the act should have been performed by another judge according to the roster allocating court business.

Section 23

The jurisdiction of the local courts in civil disputes shall encompass the following, insofar as they have not been assigned to the regional courts irrespective of the value of the matter in dispute:

  1. disputes concerning claims involving an amount or with a monetary value not exceeding the sum of five thousand euros;
  2. irrespective of the value of the matter in dispute:a) disputes concerning claims arising out of a lease of living accommodation or concerning the existence of such a lease; this jurisdiction shall be exclusive;b) disputes between travellers and providers of food or lodging, carriers, shippers or passage brokers at ports of embarkation concerning bills for food or lodging, carriage charges, passage monies, carriage of travellers and their belongings and loss of or damage to the latter, as well as disputes between travellers and artisans arising on the occasion of travel;c) disputes pursuant to section 43, numbers 1 to 4 and 6 of the Condominium Act; this jurisdiction shall be exclusive;d) disputes concerning damage caused by game;e) (repealed)f) (repealed)g) claims arising out of a contract for a life annuity, life endowment or life interest or for vacation of premises that is connected with the transfer of possession of a piece of land.

Section 23a

(1) The local courts shall furthermore have jurisdiction over

  1. family matters;
  2. non-contentious matters, insofar as no other jurisdiction has been established by statutory provisions.

The jurisdiction pursuant to the first sentence, number 1, shall be exclusive.

(2) Non-contentious matters shall be

  1. adult guardianship matters, committal matters and matters relating to adult guardianship appointments;
  2. matters relating to probate and estate division;
  3. register matters;
  4. proceedings under company law pursuant to section 375 of the Act on Procedure in Family Matters and Non-Contentious Matters;
  5. the further non-contentious matters pursuant to section 410 of the Act on Procedure in Family Matters and Non-Contentious Matters;
  6. proceedings in imprisonment matters pursuant to section 415 of the Act on Procedure in Family Matters and Non-Contentious Matters;
  7. proceedings by public notice process;
  8. land register matters;
  9. proceedings under section 1, numbers 1 and 2 to 6, of the Act on Court Procedure in Agricultural Matters;
  10. shipping register matters as well as
  11. other non-contentious matters, insofar as they have been assigned to the courts by federal law.

Section 23b

(1) Divisions for family matters (family courts) shall be established at the local courts.

(2) If several divisions for family matters are established, then all the family matters relating to the same group of persons should be assigned to the same division. If a matrimonial matter becomes pending at one division while another family matter relating to the same group of persons or a common child of both spouses is pending at first instance at another division, the latter matter shall be transferred proprio motu to the division handling the matrimonial matter. If an application in proceedings under sections 10 to 12 of the Act to Implement Certain Legal Instruments in the Field of International Family Law of 26 January 2005 (Federal Law Gazette, Part I, page 162) becomes pending at one division while a family matter relating to the same child is pending at first instance at another division, the latter matter shall be transferred proprio motu to the first-mentioned division; this shall not apply if the application is manifestly inadmissible. Upon concurring application of both parents, the arrangement specified in the third sentence shall also be applied to other family matters in which the parents are involved.

(3) The divisions for family matters shall be composed of family court judges. A judge on probation may not perform the duties of a family court judge during the first year after his appointment.

Section 23c

(1) Divisions for adult guardianship matters, committal matters and matters relating to adult guardianship appointments (adult guardianship courts) shall be established.

(2) The adult guardianship courts (Betreuungsgerichte) shall be composed of adult guardianship court judges. A judge on probation may not perform the duties of an adult guardianship court judge during the first year after his appointment.

Section 23d

The Land governments shall be authorised to issue ordinances assigning to one local court the family matters and, either entirely or partially, the commercial matters and non-contentious matters for the districts of several local courts, insofar as such concentration serves the purpose of material furtherance of the proceedings or appears advisable in order to ensure uniform administration of justice. The Land governments may transfer this authorisation to the Land agencies for the administration of justice.

Section 24

(1) In criminal matters, the local courts shall have jurisdiction unless

  1. the jurisdiction of the regional court is established under section 74 subsection (2) or section 74a or the jurisdiction of the higher regional court is established under section 120,
  2. in an individual case a sentence of imprisonment exceeding four years or committal of the accused to a psychiatric hospital in lieu of or in addition to a penalty or committal of the accused to preventive detention (sections 66 to 66b of the Criminal Code) is to be expected, or
  3. the public prosecution office prefers charges before the regional court due to the particular need for protection of persons aggrieved by the criminal offence who might be considered witnesses or due to the particular scale or the special significance of the case.

(2) The local court may not impose a sentence of imprisonment exceeding four years and may neither order committal to a psychiatric hospital in lieu of or in addition to a penalty nor order committal to preventive detention.

Section 25

A local court judge shall give a decision as a criminal court judge on less serious criminal offences

  1. if they are prosecuted by way of a private prosecution or
  2. if a penalty more severe than a two-year sentence of imprisonment is not to be expected.

Section 26

(1) In the case of criminal offences committed by adults through which a child or a juvenile is injured or directly endangered, and in the case of violations by adults of legal provisions serving the protection or education of young people, the juvenile courts shall also have jurisdiction in addition to the courts with jurisdiction over general criminal matters. Sections 24 and 25 shall apply mutatis mutandis.

(2) In matters relating to the protection of children and juveniles, the public prosecutor should only prefer charges before the juvenile courts if children or juveniles are required as witnesses in the proceedings or if a hearing before the juvenile court appears expedient for other reasons.

Section 26a

(repealed)

Section 27

The jurisdiction and scope of duties of the local courts shall otherwise be determined by the provisions of this Act and the provisions of the procedural codes.

Title IV

Courts with lay judges

Section 28

Courts with lay judges (Schöffengerichte) shall be established at the local courts to hear and decide criminal matters falling under the jurisdiction of the local courts, insofar as such matters are not decided by a criminal court judge.

Section 29

(1) The benchshall consist of a local court judge as presiding judge and two lay judges. A judge on probation may not serve as presiding judge during the first year after his appointment.

(2) Upon application by the public prosecution office, it may be decided at the opening of the main proceedings that a second local court judge be added to the bench (extended bench) if his participation appears necessary in the light of the scale of the matter. An application by the public prosecution office shall not be required if a court of higher rank opens the main proceedings before a court with lay judges.

Section 30

(1) Except where the law provides for exceptions, during the main hearing the lay judges shall exercise judicial office in full and with the same voting rights as the local court judges and shall also participate in the decisions to be made in the course of a main hearing that are entirely unrelated to the delivery of the judgment and may be made without an oral hearing.

(2) The necessary decisions to be made outside the main hearing shall be made by the local court judge.

Section 31

The office of lay judge is an honorary position. It may only be held by Germans.

Section 32

The following persons shall be ineligible for the office of lay judge:

  1. persons who as a result of a judicial decision do not have the capacity to hold public office or who have been sentenced to imprisonment exceeding six months for an intentional act;
  2. persons against whom investigation proceedings are pending for an offence that can result in loss of capacity to hold public office.
  3. (repealed)

Section 33

The following persons should not be appointed to the office of lay judge:

  1. persons who would not yet have attained the age of twenty-five by the beginning of the term of office;
  2. persons who have attained the age of seventy or would have attained the age of seventy by the beginning of the term of office;
  3. persons who are not residing in the municipality at the time the list of nominees is compiled;
  4. persons who are unsuitable candidates for health reasons;
  5. persons who are no longer able to freely dispose over their assets.

Section 34

(1) The following also should not be appointed to the office of lay judge:

  1. the Federal President;
  2. the members of the Federal Government or of a Land government;
  3. civil servants who could be suspended or provisionally retired at any time;
  4. judges, officials of the public prosecution office, notaries and attorneys-at-law;
  5. court bailiffs, police officers and prison staff as well as full-time probation officers and staff of the court assistance agency;
  6. ministers of religion and members of religious associations that by their rules are committed to the common life;
  7. persons who have served as honorary judges in the criminal justice system for two successive terms of office, of which the last term of office is still ongoing at the time the list of nominees is compiled.

(2) In addition to the officials designated hereinbefore, Land legislation may designate higher administrative officials who should not be appointed to the office of lay judge.

Section 35

The following may decline appointment to the office of lay judge:

  1. members of the Bundestag, the Bundesrat, the European Parliament, a Land parliament or a second chamber;
  2. persons who during the previous term of office discharged the obligation to serve as an honorary judge in the criminal justice system on forty days as well as persons who are already serving as honorary judges;
  3. doctors, dentists, nurses, paediatric nurses, orderlies and midwives;
  4. heads of pharmacies that do not employ any other pharmacists;
  5. persons who can credibly demonstrate that their immediate obligation to personally care for their families would make it particularly difficult for them to perform the duties of the office;
  6. persons who have attained the age of sixty-five or would have attained the age of sixty-five by the end of the term of office;
  7. persons who can credibly demonstrate that performing the duties of the office would constitute a particular hardship either for them or for a third party because it would jeopardise or considerably impair an adequate livelihood.

Section 36

(1) The municipality shall compile a list of prospective lay judges every five years. Inclusion in the list shall require the approval of two thirds of the members of the municipal assembly who are present, but at least, however, half of the statutory number of members of the municipal assembly. The respective rules for the adoption of resolutions by the municipal assembly shall remain unaffected.

(2) The list of nominees should adequately reflect all groups within the population in terms of sex, age, occupation and social status. It must contain the names at birth, surnames, first names, date and place of birth, residential address and occupation of the persons nominated.

(3) The list of nominees shall be open to public inspection in the municipality for one week. The time at which it will be laid out for inspection shall be publicly announced in advance.

(4) The lists of nominees for the district of the local court shall contain at least twice as many names as the required number of principal lay judges and alternate lay judges specified in section 43. Their allocation among the municipalities of the district shall be undertaken by the president of the regional court (president of the local court) in keeping with the populations of the municipalities.

Section 37

Objections to the list of nominees may be lodged within one week, calculated from the end of the period of public inspection, either in writing or for the record on the grounds that persons have been included in the list of nominees who are ineligible for inclusion pursuant to section 32 or should not have been included pursuant to sections 33 and 34.

Section 38

(1) The chairman of the municipal council shall send the list of nominees and the objections to the judge at the local court of the district.

(2) If corrections to the list of nominees become necessary after it has been sent, the chairman of the municipal council must notify the judge at the local court accordingly.

Section 39

The judge at the local court shall consolidate the municipalities lists of nominees into a district list and shall prepare the ruling on the objections. He must verify that the provisions of section 36 subsection (3) have been observed and ensure that any defects are remedied.

Section 40

(1) A committee shall convene at the local court every five years.

(2) The committee shall be composed of the judge at the local court as chairman, an administrative official to be designated by the Land government and seven upstanding individuals as associate members. The Land governments shall be authorised to issue ordinances regulating the competence for designation of the administrative official in derogation from the first sentence. They may issue ordinances transferring this authorisation to the highest Landauthorities.

(3) The associate members shall be elected from among the inhabitants of the district of the local court by the representative body of the corresponding administrative subdivision by a two-thirds majority of the members present, but at least, however, by half of the statutory number of members. The respective rules for the adoption of resolutions by this representative body shall remain unaffected. If the district of the local court encompasses several administrative districts or parts of several administrative districts, the competent highest Land authority shall determine the number of associate members to be elected by the representative bodies of these administrative districts.

(4) A quorum of the committee shall exist if at least the chairman, the administrative official and three associate members are present.

Section 41

The committee shall rule on the objections to the list of nominees by a simple majority vote. In the case of a tie, the chairman shall have the casting vote. The decisions shall be placed on record. They shall not be contestable.

Section 42

(1) From the corrected list of nominees, the committee shall, by a two-thirds majority vote, select the following for the next five business years:

  1. the necessary number of lay judges;
  2. the necessary number of persons to take the place of any lay judges who become unavailable or to serve as lay judges in the cases of sections 46 and 47 (alternate lay judges). Persons should be selected who reside at the seat of the local court or in the immediate vicinity.

(2) Care should be taken at the time of selection to ensure that all groups within the population are adequately represented in terms of sex, age, occupation and social status.

Section 43

(1) The number of principal lay judges and alternate lay judges required for each local court shall be determined by the president of the regional court (president of the local court).

(2) The number of principal lay judges should be calculated in such a way that each one is likely to be called to serve on no more than twelve ordinary sitting days per year.

Section 44

The names of the selected principal lay judges and alternate lay judges shall be entered in separate lists (Schöffenlisten) at each local court.

Section 45

(1) The dates of the ordinary sittings of a court with lay judges shall be set in advance for the entire year.

(2) The order in which the principal lay judges are to participate in the years individual ordinary sittings shall be decided by drawing lots in a public sitting of the local court. If several benches with lay judges have been established at a local court, lots may be drawn in such a way that each principal lay judge only participates in the sittings of one bench. Lots are to be drawn in such a way that each principal lay judge selected is called to serve on twelve sitting days if possible. The first sentence shall apply mutatis mutandis to the order in which the alternate lay judges shall take the place of lay judges who become unavailable (list of alternate lay judges); the second sentence shall not apply to alternate lay judges.

(3) Lots shall be drawn by the judge at the local court.

(4) The lists of lay judges shall be maintained by a designated registry clerk of the court registry (Schöffengeschäftsstelle). He shall record the drawing of lots. The judge at the local court shall inform the lay judges of the results of the drawing. At the same time, the principal lay judges shall be informed of the sitting days on which they must serve and advised of the legal consequences of failure to appear. A lay judge who is not called to serve on a sitting day until after the commencement of the business year shall be informed and advised in the same manner once he is called.

Section 46

If an additional bench with lay judges is established at a local court during the business year, the number of principal lay judges required for its ordinary sittings shall be drawn by lots from the list of alternate lay judges pursuant to section 45 subsection (1), subsection (2), first sentence, and subsections (3) and (4). The lay judges selected in this manner shall be deleted from the list of alternate lay judges.

Section 47

If court business necessitates the scheduling of extraordinary sittings or if it becomes necessary for lay judges other than the ones initially appointed or for additional lay judges to be called to serve at individual sittings, they shall be selected from the list of alternate lay judges.

Section 48

(1) Additional lay judges (section 192 subsections (2) and (3)) shall be assigned from the list of alternate lay judges.

(2) In the event that a principal lay judge is unable to be present, the additional lay judge initially assigned from the list shall even then take his place if the unavailability of the principal lay judge becomes known prior to the beginning of the sitting.

Section 49

(1) If it becomes necessary for alternate lay judges to be called to serve at individual sittings (section 47 and section 48 subsection (1)), they shall be assigned from the list of alternate lay judges in the order in which they appear on the list.

(2) If a principal lay judge is deleted from the list of lay judges, he shall be replaced by the alternate lay judge who is next in line on the list of alternate lay judges; the name of the replacement shall then be deleted from the list of alternate lay judges. The designated registry clerk of the court registry shall thereupon inform and advise the new principal lay judge in accordance with section 45 subsection (4), third and fourth sentences.

(3) The order in which alternate lay judges are called shall be determined by the date of receipt by the designated registry clerk of the order or ruling indicating the necessity of calling alternate lay judges. The designated registry clerk shall make a note of the date and time of receipt on the order or ruling. Proceeding in the order of receipt, he shall assign the alternate lay judges to the various sittings in accordance with subsection (1) or transfer them to the list of principal lay judges in accordance with subsection (2). In the event that several orders or rulings are received simultaneously, he shall first transfer names from the list of alternate lay judges to the list of principal lay judges in accordance with subsection (2) in alphabetical order of the surnames of the principal lay judges deleted from the list of lay judges; in all other cases the alphabetical order of the surnames of the primary defendants shall be decisive.

(4) If an alternate lay judge is assigned to a sitting day, he shall not be called again until all the other alternate lay judges have likewise been assigned or released from their service commitment or deemed unreachable (section 54). This shall also be the case even if he himself has been released from his service commitment or deemed unreachable.

Section 50

If a sitting extends beyond the time for which the lay judge was initially called, he must continue to serve until the end of the sitting.

Section 51

(repealed)

Section 52

(1) A lay judge shall be deleted from the list of lay judges if

  1. he becomes ineligible for the office of lay judge or if such ineligibility becomes known, or
  2. circumstances arise or become known that are such that he should not be appointed to the office of lay judge.

In the cases of section 33, number 3, however, this shall only apply if the lay judge gives up his residence in the district of the regional court.

(2) Upon his application, a lay judge shall be deleted from the list of lay judges if he

  1. gives up his residence in the district of the local court in which he is serving, or
  2. has participated in sittings on more than 24 sitting days during one business year.

In the case of principal lay judges, such deletion shall only become effective for the sittings that begin more than two weeks after the day on which the application is received by the designated registry clerk of the court registry. If an alternate lay judge has already been notified that he has been called to serve on a specific sitting day, his deletion from the list shall not become effective until after the conclusion of the main hearing begun on that sitting day.

(3) If the lay judge has died or moved out of the district of the regional court, the judge at the local court shall order his deletion from the list. He shall otherwise rule on the application after hearing the public prosecution office and the lay judge concerned.

(4) The decision shall not be contestable.

(5) If an alternate lay judge is transferred to the list of principal lay judges, he shall first fulfil the service commitments for which he was previously called as an alternate lay judge.

(6) If the number of alternate lay judges on the list of alternate lay judges has declined to half the original number, additional lay judges shall be selected from the existing lists of nominees by the committee that was responsible for selecting the original lay judges. The judge at the local court may dispense with selecting additional lay judges if such selection would have to take place during the last six months of the period for which the lay judges have been selected. The order of succession of the new alternate lay judges shall be determined by section 45 mutatis mutandis with the proviso that the places on the list of lay judges to be filled by drawing lots shall follow the last name on the list of lay judges at the time of the drawing.

Section 53

(1) Grounds for refusing service shall only be considered if they are put forward by the lay judge concerned within one week of the time he was informed of his assignment. If such grounds arise or become known at a later date, the time limit shall be calculated from that point onward.

(2) The judge at the local court shall rule on the request after hearing the public prosecution office. The decision shall not be contestable.

Section 54

(1) The judge at the local court may release a lay judge from his service commitment on specific sitting days upon the latters application due to obstacles that have arisen. An obstacle shall be deemed to have arisen if the lay judge is prevented from serving by circumstances that are beyond his control or if it would be unreasonable to expect him to serve.

(2) For the purposes of calling alternate lay judges, it shall be deemed equivalent to being prevented from serving if a lay judge cannot be reached. A lay judge who does not appear at a sitting and whose appearance probably cannot be effected without considerably delaying commencement of the sitting shall be deemed unreachable. An alternate lay judge shall also then be considered unreachable if calling him would necessitate a postponement of the hearing or a considerable delay in its commencement. The decision as to whether a lay judge is unreachable shall be made by the judge at the local court. Section 56 shall remain unaffected.

(3) The decision shall not be contestable. The application pursuant to subsection (1) and the decision shall be recorded in the files.

Section 55

The lay judges and the associate members of the committee shall receive remuneration pursuant to the Judicial Remuneration and Compensation Act.

Section 56

(1) A coercive fine shall be imposed on lay judges and associate members of the committee who fail to appear at the sittings on time without a sufficient excuse or otherwise shirk their obligations. At the same time they shall be charged with the costs incurred.

(2) The decision shall be made by the judge at the local court after hearing the public prosecution office. If a sufficient excuse is subsequently provided, the decision may be either entirely or partially revoked. A complaint (Beschwerde) by the person concerned against the decision shall be admissible pursuant to the provisions of the Code of Criminal Procedure.

Section 57

The Land agency for the administration of justice shall specify the date by which the lists of nominees are to be compiled and submitted to the judge at the local court as well as the date on which the committee is to be convened and lots are be drawn to select the lay judges.

Section 58

(1) The Land governments shall be authorised to issue ordinances providing that criminal matters, either entirely or partially, as well as certain kinds of decisions in criminal matters and requests for mutual assistance in criminal matters from offices outside the territorial scope of this Act be assigned to a single local court for the districts of several local courts insofar as such concentration serves the purpose of material furtherance or swifter disposal of the proceedings. The Landgovernments may issue ordinances transferring this authorisation to the Land agencies for the administration of justice.

(2) If a joint court with lay judges is established for the districts of several local courts, the president of the regional court (president of the local court) shall determine the necessary number of principal and alternate lay judges and allocate the number of principal lay judges among the individual local court districts. If the seat of the local court at which a joint court with lay judges is established is a city that encompasses districts of the other local courts or parts thereof, the president of the regional court (president of the local court) shall allocate the number of alternate lay judges among these local courts; the Landagency for the administration of justice may exempt certain local courts herefrom. The president of the local court shall only then take the place of the president of the regional court if all the local courts concerned are subject to his supervision of service.

(3) All the other provisions of this Title shall apply mutatis mutandis.

Title V

Regional courts

Section 59

(1) The regional courts (Landgerichte) shall be composed of a president, presiding judges and additional judges.

(2) The judges at a regional court may at the same time be conferred an additional judicial office at a local court.

(3) Judges on probation and judges by commission may be employed.

Section 60

Civil and criminal divisions shall be established at the regional courts.

Section 61 to 69

(repealed)

Section 70

(1) Insofar as the representation of a member by a member of the same court is not possible, it shall, upon application of the presidium, be arranged by the Landagency for the administration of justice.

(2) The assignment of a judge on probation or a judge by commission shall be limited to a specific period of time and may not be revoked prior to the expiration of this period.

(3) The provisions of Land law pursuant to which judicial functions may only be exercised by judges appointed for life and the provisions of Land law governing representation by judges appointed for life shall remain unaffected.

Section 71

(1) The civil divisions, including the commercial divisions, shall have jurisdiction over all civil disputes that are not assigned to the local courts.

(2) The regional courts shall have exclusive jurisdiction over the following, irrespective of the value of the matter in dispute:1. claims brought against the fiscal authorities on the basis of civil service law;2. claims against judges and civil servants for overstepping their official powers or for failing to perform official duties.;3. claims for damages due to false, misleading or omitted public capital market information.;4. proceedings undera) section 324 of the Commercial Code,b) sections 98, 99, 132, 142, 145, 258, 260, 293c and 315 of the Stock Corporation Act,c) section 26 of the SE Implementation Act,d) section 10 of the Company Transformation Act,e) the Award Proceedings Act,f) sections 39a and 39b of the Securities Acquisition and Takeover Act.

(3) It shall be left to Land legislation to assign claims against the state or against a corporation established under public law arising out of dispositions of administrative authorities as well as claims arising out of public charges exclusively to the regional courts, irrespective of the value of the matter in dispute.

(4) The Land governments shall be authorised to issue ordinances assigning the decisions in proceedings pursuant to subsection (2), number 4, letters a to e, to one regional court for the districts of several regional courts if this serves to ensure uniform administration of justice. The Land governments may transfer this authorisation to the Land agencies for the administration of justice.

Section 72

(1) The civil divisions, including the commercial divisions, shall be the courts hearing appeals on fact and law and hearing complaints in the civil disputes heard by the local courts, insofar as the higher regional courts do not have jurisdiction. The regional courts shall furthermore be the courts hearing complaints in imprisonment matters and in the matters decided by the adult guardianship courts.

(2) In disputes pursuant to section 43, numbers 1 to 4 and 6 of the Condominium Act, the regional court with jurisdiction for the seat of the higher regional court shall be the joint court hearing appeals on fact and law and hearing complaints for the district of the higher regional court in which the local court has its seat. This shall also apply to the matters specified in section 119 subsection (1), number 1, letters b and c. The Land governments shall be authorised to issue ordinances designating another regional court in the district of the higher regional court instead of this court. The Land governments may transfer this authorisation to the Land agencies for the administration of justice.

Section 73

(1) The criminal divisions shall rule on complaints against directions of a local court judge, as well as against decisions of a local court judge and decisions of benches with lay judges.

(2) The criminal divisions shall furthermore handle the matters assigned to the regional courts under the Code of Criminal Procedure.

Section 73a

(repealed)

Section 74

(1) The criminal divisions, as adjudicating courts of first instance, shall have jurisdiction over all serious criminal offences that do not fall under the jurisdiction of the local court or the higher regional court. They shall also have jurisdiction over all criminal offences where a sentence of imprisonment exceeding four years or committal of the accused to a psychiatric hospital in lieu of or in addition to a penalty or committal of the accused to preventive detention is to be expected or where the public prosecution office prefers charges before the regional court in the cases of section 24 subsection (1), number 3.

(2) In the case of the serious criminal offences of

  1. sexual abuse of children resulting in death (section 176b of the Criminal Code),
  2. sexual coercion and rape resulting in death (section 178 of the Criminal Code),
  3. sexual abuse of persons incapable of resisting resulting in death (section 179 subsection (7) in conjunction with section 178 of the Criminal Code),
  4. murder (section 211 of the Criminal Code),
  5. manslaughter (section 212 of the Criminal Code),
  6. (repealed)
  7. abandonment resulting in death (section 221 subsection (3) of the Criminal Code),
  8. bodily injury resulting in death (section 227 of the Criminal Code),
  9. child stealing resulting in death (section 235 subsection (5) of the Criminal Code),
  10. deprivation of liberty resulting in death (section 239 subsection (4) of the Criminal Code),
  11. extortionate kidnapping resulting in death (section 239a subsection (2) of the Criminal Code),
  12. hostage taking resulting in death (section 239b subsection (2) in conjunction with section 239a subsection (2) of the Criminal Code),
  13. robbery resulting in death (section 251 of the Criminal Code),
  14. robbery-like theft resulting in death (section 252 in conjunction with section 251 of the Criminal Code),
  15. robbery-like extortion resulting in death (section 255 in conjunction with section 251 of the Criminal Code),
  16. arson resulting in death (section 306c of the Criminal Code),
  17. causing an explosion by nuclear power (section 307 subsections (1) to (3) of the Criminal Code),
  18. causing an explosion by use of explosives resulting in death (section 308 subsection (3) of the Criminal Code),
  19. misuse of ionizing radiation exposing a vast number of human beings to such radiation (section 309 subsections (2) and (4) of the Criminal Code),
  20. defective construction of a nuclear facility resulting in death (section 312 subsection (4) of the Criminal Code),
  21. causing a flood resulting in death (section 313 in conjunction with section 308 subsection (3) of the Criminal Code),
  22. poisoning dangerous to the public resulting in death (section 314 in conjunction with section 308 subsection (3) of the Criminal Code),
  23. robbery-like assault on the driver of a motor vehicle resulting in death (section 316a subsection (3) of the Criminal Code),
  24. assaults on air and sea traffic resulting in death (section 316c subsection (3) of the Criminal Code),
  25. damaging important facilities resulting in death (section 318 subsection (4) of the Criminal Code),
  26. an intentional environmental crime resulting in death (section 330 subsection (2), number 2, of the Criminal Code),

a criminal division with lay judges (Schwurgericht) shall have jurisdiction. Section 120 shall remain unaffected.

(3) The criminal divisions shall furthermore have jurisdiction for hearing and ruling on the legal remedy of appeal on fact and law (Berufung) against decisions of a criminal court judge or a court with lay judges.

Section 74a

(1) At the regional courts in the district of which a higher regional court has its seat, a criminal division for the district of this higher regional court shall be the adjudicating court of first instance with jurisdiction over the criminal offences of

  1. crimes against peace in the cases of section 80a of the Criminal Code,
  2. endangering the democratic state based on the rule of law in the cases of sections 84 to 86, sections 87 to 90, section 90a subsection (3) and section 90b of the Criminal Code,
  3. endangering the national defence in the cases of sections 109d to 109g of the Criminal Code,
  4. violation of a ban of an organisation in the cases of section 129, also in conjunction with section 129b subsection (1), of the Criminal Code and section 20 subsection (1), first sentence, numbers 1 to 4, of the Associations Act; this shall not apply if the same act constitutes a criminal offence under the Narcotics Act,
  5. abduction (section 234a of the Criminal Code) and
  6. casting political suspicion (section 241a of the Criminal Code).

(2) The regional court shall not have jurisdiction if the Federal Prosecutor General takes over the prosecution prior to the opening of the main proceedings due to the special significance of the case, unless jurisdiction has been vested in the regional court through referral pursuant to section 142a subsection (4) or referral pursuant to section 120 subsection (2), second sentence.

(3) In the cases over which a criminal division has jurisdiction pursuant to subsection (1), it shall also give the decisions designated in section 73 subsection (1).

(4) At the regional courts in the district of which a higher regional court has its seat, a division that is not seized of main proceedings in criminal matters shall have jurisdiction for the district of this higher regional court to order measures pursuant to section 100c of the Code of Criminal Procedure.

(5) Within the scope of subsections (1), (3) and (4), the district of the regional court shall encompass the district of the higher regional court.

Section 74b

In matters relating to the protection of children and juveniles (section 26 subsection (1), first sentence), the juvenile division as adjudicating court of first instance shall have jurisdiction along with the criminal division with jurisdiction over general criminal matters. Section 26 subsection (2) and sections 73 and 74 shall apply mutatis mutandis.

Section 74c

(1) For criminal offences1. pursuant to the Patent Law, the Utility Model Act, the Semiconductor Protection Act, the Plant Variety Protection Act, the Trade Mark Act, the Designs Act, the Copyright Act, the Act against Unfair Competition, the Insolvency Statute, the Stock Corporation Act, the Act on the Financial Statements of Certain Enterprises and Groups, the Act on Limited Liability Companies, the Commercial Code, the SE Implementation Act, the Act to Implement Council Regulation (EEC) on the European Economic Interest Grouping (EEIG), the Cooperatives Act, the SCE Implementation Act and the Company Transformation Act,2. pursuant to the laws governing the banking industry, the custody and acquisition of securities, the stock exchanges and the credit system as well as the Act on the Supervision of Insurance Companies and the Securities Trading Act,3. pursuant to the Economic Offences Act of 1954, the Foreign Trade and Payments Act and foreign exchange control legislation as well as fiscal monopoly, tax and customs laws, including cases where their criminal provisions are applicable pursuant to other laws; this shall not apply if the same act constitutes a criminal offence under the Narcotics Act and shall not apply to fiscal offences involving the motor vehicle tax,4. pursuant to the Wine Act and food products legislation,5. involving subsidy fraud, capital investment fraud, credit fraud, bankruptcy offences, preferential treatment for a creditor and preferential treatment for a debtor,5a. involving agreements in restriction of competition upon invitations to tender as well as the taking and offering of a bribe in business transactions,6.a) involving fraud, computer fraud, breach of trust, usury, the granting of a benefit, the offering of a bribe, and the withholding and embezzlement of wages or salaries,b) pursuant to the Labour Leasing Act, Book Three of the Social Code and the Act to Combat Clandestine Employment, to the extent that special knowledge of business operations and practices is required in order to judge the case,

insofar as the regional court has jurisdiction as court of first instance pursuant to section 74 subsection (1) and jurisdiction for hearing and ruling on the legal remedy of appeal on fact and law against judgments of a court with lay judges pursuant to section 74 subsection (3), jurisdiction shall be vested in a criminal division as an economic offences division. Section 120 shall remain unaffected.

(2) In the cases over which an economic offences division has jurisdiction pursuant to subsection (1), it shall also give the decisions designated in section 73 subsection (1).

(3) The Land governments shall be authorised, for the purpose of material furtherance or swifter disposal of the proceedings, to issue ordinances assigning to one regional court, either entirely or partially, the criminal matters for the districts of several regional courts that involve the criminal offences designated in subsection (1). The Land governments may transfer this authorisation to the Land agencies for the administration of justice.

(4) Within the scope of subsection (3), the district of the subsequently designated regional court shall encompass the districts of the other regional courts.

Section 74d

(1) The Land governments shall be authorised to issue ordinances assigning to one regional court the criminal matters designated in section 74 subsection (2) for the districts of several regional courts, insofar as this serves the purpose of material furtherance of the proceedings. The Land governments may transfer this authorisation to the Land agencies for the administration of justice.

(2) (repealed)

Section 74e

Among the various criminal divisions with jurisdiction pursuant to the provisions of sections 74 to 74d, precedence shall be accorded

  1. firstly, to the criminal division with lay judges (section 74 subsection (2) and section 74d),
  2. secondly, to the economic offences division (section 74c),
  3. thirdly, to the criminal division pursuant to section 74a.

Section 74f

(1) If at first instance a criminal division has reserved the order of preventive detention or, in the cases of section 66b of the Criminal Code, has ruled as the trial court, this criminal division shall have jurisdiction at first instance for hearing and ruling on the order of preventive detention reserved in the judgment or on the subsequent order of preventive detention.

(2) If in the cases of section 66b of the Criminal Code the local court exclusively has ruled as the trial court at first instance, a criminal division of the superior regional court shall have jurisdiction at first instance for hearing and ruling on the subsequent order of preventive detention.

(3) In the cases of section 66b of the Criminal Code, section 462a subsection (3), second and third sentences of the Code of Criminal Procedure shall apply mutatis mutandis; section 76 subsection (2) of this Act and section 33b subsection (2) of the Juvenile Courts Act shall not apply.

Section 75

The civil divisions shall, insofar as the provisions of procedural law do not provide for a decision to be given by a judge sitting alone in the place of a full bench, be composed of three members including the presiding judge.

Section 76

(1) The criminal divisions shall be composed of three judges, including the presiding judge, and two lay judges (grand criminal divisions); in proceedings involving appeals on fact and law against a judgment of a criminal court judge or of a court with lay judges, they shall be composed of the presiding judge and two lay judges (small criminal divisions). The lay judges shall not participate in decisions made outside the main hearing.

(2) At the opening of the main proceedings, the grand criminal division shall rule that it will be composed of two judges, including the presiding judge, and two lay judges during the main hearing unless a criminal division in the composition of three judges and two lay judges (Schwurgericht) has jurisdiction or the participation of a third judge appears necessary due to the scale or complexity of the case. If a case has been referred back by a court hearing an appeal on law, the then competent criminal division may once again rule on its composition pursuant to the first sentence.

(3) In cases of an appeal on fact and law against a judgment by an extended bench (section 29 subsection (2)), a second judge must be brought in. Decisions outside the main hearing shall be made by the presiding judge alone.

Section 77

(1) The provisions concerning the lay judges serving on the benches of the local courts shall apply mutatis mutandis to the lay judges serving in the criminal divisions of the regional courts with the following proviso:

(2) The president of the regional court shall allocate the number of principal lay judges required for the criminal divisions among the local court districts belonging to the district of the regional court. The alternate lay judges shall be selected by the committee at the local court in the district of which the regional court has its seat. If the regional court has its seat outside its district, the Land agency for the administration of justice shall determine which one of the committees of the local courts belonging to the district of the regional court shall select the alternate lay judges. If the seat of the regional court is a city encompassing two or more of the local court districts, or parts thereof, belonging to the district of the regional court, the first sentence shall apply mutatismutandis to the selection of the alternate lay judges by the committees established at these local courts; the Land agency for the administration of justice may exempt certain local courts from this arrangement. The names of the selected principal lay judges and alternate lay judges shall be communicated by the judge at the local court to the president of the regional court. The president of the regional court shall consolidate the names of the principal lay judges into the regional courts list of lay judges.

(3) The president of the regional court shall take the place of the local court judge at the drawing of lots to determine the order in which the principal lay judges are to participate in the individual ordinary sittings and the order in which the alternate lay judges are to take the place of lay judges who become unavailable; section 45 subsection (4), third and fourth sentences, shall applymutatis mutandis. If the lay judge has died or moved out of the district of the regional court, the presiding judge of the criminal division shall order his deletion from the list; in other cases the decision as to whether a lay judge should be deleted from the list of lay judges and the ruling on the grounds for refusal of service put forward by a lay judge shall be given by a criminal division. In all other respects the presiding judge of the criminal division shall take the place of the judge at the local court.

(4) An honorary judge may only be designated either lay judge for a bench of a local court or lay judge for a criminal division of a regional court for one and the same business year. If a person has been appointed to more than one such office in a single district, or to such an office in more than one district, for one and the same business year, the appointee must assume the office to which he was first appointed.

(5) Section 52 subsection (2), first sentence, number 1, shall not apply.

Section 78

(1) Where the distance to the seat of a regional court is great, the Landgovernments shall be authorised to issue ordinances providing that a criminal division be established at one local court for the district of one or more local courts and that the workload of the criminal division of the regional court involving that district be assigned, either entirely or partially, to that division. The serious criminal offences designated in section 74 subsection (2) may not be assigned to a criminal division established pursuant to the first sentence. The Land governments may transfer this authorisation to the Land agencies for the administration of justice.

(2) The division shall be composed of members of the regional court or judges at the local court of the district for which it is established. The presiding judge and the other members shall be designated by the presidium of the regional court.

(3) The president of the regional court shall allocate the required number of principal lay judges among the local court districts belonging to the district of the criminal division. The alternate lay judges shall be selected by the committee at the local court where the external criminal division has been established. The other functions assigned in section 77 to the president of the regional court shall be exercised by the presiding judge of the criminal division.

Title Va

Criminal divisions with jurisdiction over execution of sentences

Section 78a

(1) Criminal divisions with jurisdiction over execution of sentences (Strafvollstreckungskammern) shall be established at the regional courts if institutions for adults are maintained in their district in which sentences of imprisonment or custodial measures of reform and prevention are executed or if other prison authorities have their seat there. These shall be competent to give the decisions

  1. pursuant to sections 462a and 463 of the Code of Criminal Procedure, except as otherwise provided by the Code of Criminal Procedure,
  2. pursuant to section 50 subsection (5), section 109 and section 138 subsection (3) of the Prison Act,
  3. pursuant to section 50, section 58 subsection (3) and section 71 subsection (4) of the Law on International Judicial Assistance in Criminal Matters.

If a decision on suspension of execution is to be given for more than one prison sentence at the same time pursuant to section 454b subsection (3) of the Code of Criminal Procedure, one criminal division with jurisdiction over execution of sentences shall give a decision on suspension of execution of all of the sentences.

(2) The Land governments shall issue ordinances assigning the criminal matters pursuant to subsection (1), second sentence, number 3, to the regional courts designated in subsection (1), first sentence, for the districts of the regional courts at which no criminal divisions with jurisdiction over execution of sentences are to be established. The Land governments shall be authorised to issue ordinances assigning to one of the regional courts designated in subsection (1) for the districts of several regional courts the criminal matters falling within the competence of the criminal divisions with jurisdiction over execution of sentences and providing that criminal divisions with jurisdiction over execution of sentences also or exclusively have their seat in places within their district where the regional court does not have its seat, insofar as such provisions serve the purpose of material furtherance or swifter disposal of the proceedings. The Landgovernments may issue ordinances transferring the authorisations pursuant to the first and second sentences to the Land agencies for the administration of justice.

(3) If an institution in which sentences of imprisonment or custodial measures of reform and prevention are executed is maintained by one Land on the territory of another Land, the Länder concerned may agree that competence shall lie with the criminal division with jurisdiction over execution of sentences at that regional court in the district of which the supervisory authority responsible for the institution has its seat.

Section 78b

(1) The criminal divisions with jurisdiction over execution of sentences shall be composed of

  1. three judges, including the presiding judge, in proceedings concerning suspension of execution of the remainder of a sentence of life imprisonment or concerning suspension of execution of committal to a psychiatric hospital or to preventive detention,
  2. one judge in all other cases.

(2) The members of the criminal divisions with jurisdiction over execution of sentences shall be appointed by the presidium of the regional court from among the members of the regional court and the judges in its district who are employed at the local court.

Title VI

Criminal divisions with lay judges

Section 79 to 92

(repealed)

Title VII

Commercial divisions

Section 93

(1) The Land governments shall be authorised to issue ordinances providing that commercial divisions be established at the regional courts for their districts or for geographically limited parts thereof. Such divisions may also have their seat in places within the district of the regional court where the court does not have its seat.

(2) The Land governments may transfer the authorisation pursuant to the first sentence to the Land agencies for the administration of justice.

Section 94

If a commercial division has been established at a regional court, commercial matters shall be handled by this division instead of by the civil divisions subject to the following provisions.

Section 95

(1) Commercial matters within the meaning of this Act shall be civil disputes in which an action is brought to assert a claim:

  1. against a merchant within the meaning of the Commercial Code, insofar as he is registered in the commercial register or the cooperatives register or need not be registered therein pursuant to a special statutory arrangement governing corporate entities established under public law, arising out of transactions that are commercial transactions for both parties;
  2. arsing out of a bill of exchange within the meaning of the Bills of Exchange Act or arising out of one of the documents designated in section 363 of the Commercial Code;
  3. on the basis of the Check Act;
  4. arising out of one of the legal relationships designated hereinafter:a) out of the legal relationship between the members of a commercial partnership or cooperative or between the partnership or cooperative and its members or between the silent partner and the owner of the commercial business, both during the existence of and after the dissolution of the partnership relationship, and out of the legal relationship between the managers or liquidators of a commercial partnership or cooperative and the partnership or cooperative or its members;b) out of the legal relationship concerning the right to use the commercial firm name;c) out of the legal relationships concerning the protection of trademarks, other identifying marks and designs;d) out of the legal relationship originating in the acquisition of an existing commercial business “inter vivos” between the previous owner and the acquirer;e) out of the legal relationship between a third party and the party liable on grounds of lack of proof of statutory authority or commercial power of attorney;f) out of the legal relationships under maritime law, especially those concerning the shipping business, those concerning the rights and obligations of the manager or owner of a ship, the ships husband and the crew of the ship, and those concerning average, compensation for damages in the event of collisions between ships, salvage operations and claims of maritime lien holders;
  5. on the basis of the Act against Unfair Competition, with the exception of claims of the ultimate consumer arising out of section 13a of the Act against Unfair Competition, provided that no mutual commercial transaction pursuant to subsection (1), number 1, exists;
  6. arising out of sections 44 to 47 of the Stock Exchange Act.

(2) Commercial matters within the meaning of this Act shall furthermore be

  1. the legal disputes over which the regional court has jurisdiction pursuant to section 246 subsection (3), first sentence, or section 396 subsection (1), second sentence, of the Stock Corporation Act, pursuant to section 51 subsection (3), third sentence, or section 81 subsection (1), second sentence, of the Cooperatives Act, pursuant to section 87 of the Act against Restraints on Competition and section 13 subsection (4) of the Act implementing the EC Consumer Protection Cooperation Regulation,
  2. the proceedings specified in section 71 subsection (2), number 4, letters b to f.

Section 96

(1) A legal dispute shall be heard by the commercial division if the plaintiff so requests in the statement of claim.

(2) If a legal dispute must be referred by the local court to the regional court pursuant to the provisions of sections 281 and 506 of the Civil Procedure Code, the plaintiff must submit the application for a hearing before the commercial division to the local court.

Section 97

(1) If an action over which the commercial division has no jurisdiction is brought before the commercial division, the legal dispute shall upon application of the defendant be referred to the civil division.

(2) If the action or, in the case of section 506 of the Civil Procedure Code, the cross-action is one over which the commercial division has no jurisdiction, the commercial division shall also be entitled proprio motu to refer the dispute to the civil division as long as no hearing has been held on the main issue and no ruling has been pronounced thereon. The referral proprio motu may not be made on the grounds that the defendant is not a merchant.

Section 98

(1) If an action over which the commercial division has jurisdiction is brought before the civil division, the legal dispute shall upon application of the defendant be referred to the commercial division. A defendant who is not registered in the commercial register or the cooperatives register may not base his application on the assertion that he is a merchant.

(2) The application shall be rejected if the cross-action brought pursuant to section 506 of the Civil Procedure Code would not be an action over which the commercial division has jurisdiction.

(3) The civil division shall not be entitled to make a referral proprio motu.

(4) The civil division shall even then be entitled to reject the application if the plaintiff has consented thereto.

Section 99

(1) If, in a legal dispute pending before the commercial division, the scope of the action is extended pursuant to section 256 subsection (2) of the Civil Procedure Code through an application for determination of the existence or non-existence of a legal relationship or through a cross-action, and if the extended action or cross-action is not an action over which the commercial division has jurisdiction, the dispute shall upon application of the opponent be referred to the civil division.

(2) Subject to the restriction of section 97 subsection (2), the division shall also be entitled to make a referral proprio motu. This authority shall also then accrue if, as a result of amendment of an action, a claim is asserted over which the commercial division has no jurisdiction.

Section 100

Sections 96 to 99 shall apply mutatis mutandis to appellate proceedings before the commercial divisions.

Section 101

(1) An application for referral of a legal dispute to another division shall only be admissible prior to the hearing of the applicant on the matter itself. If the applicant has been set a time limit for responding to an action or an appeal prior to the oral hearing, he must file the application within that time limit. Section 296 subsection (3) of the Civil Procedure Code shall apply mutatis mutandis; the excuse shall be substantiated if the court so requires.

(2) A preliminary decision shall be given on the application. The decision may be given without an oral hearing.

Section 102

The decision on referral of a legal dispute to the civil division or the commercial division shall not be contestable. If the dispute is referred to another division, this decision shall be binding on the division to which the dispute is referred. The date for another oral hearing shall be set proprio motu and announced to the parties.

Section 103

A claim pursuant to section 64 of the Civil Procedure Code may only be asserted before the commercial division if the legal dispute is one over which the commercial division has jurisdiction pursuant to the provisions of sections 94 and 95.

Section 104

(1) Where the commercial division, sitting as the court hearing complaints, is seized of a complaint over which it has no jurisdiction, the complaint shall be referred proprio motu to the civil division. Likewise, where the civil division, sitting as the court hearing complaints, is seized of a complaint relating to a commercial matter, it shall refer the complaint proprio motu to the commercial division. The provisions of section 102, first and second sentences, shall apply mutatis mutandis.

(2) A complaint may not be referred to another division if the case is pending at the division seized of the complaint or if that division has already given a decision on the main issue.

Section 105

(1) The commercial divisions shall give decisions sitting with one member of the regional court as presiding judge and two honorary judges1 , insofar as the presiding judge must not decide in lieu of the division pursuant to the provisions of procedural law.

(2) All members of the commercial division shall have the same voting rights.

(3) (repealed)

1: Italics in section 105 subsection (1): Now “commercial judges”, see Section 45a of the German Judiciary Act 301-1 

Section 106

In the cases of section 93 subsection (1), second sentence, a local court judge may be presiding judge of the commercial division.

Section 107

(1) The honorary judges2 who have neither their residence nor their business establishment at the seat of the commercial division shall receive per diem and overnight accommodation allowances pursuant to the provisions applicable to judges at the regional court.

(2) The honorary judges shall be reimbursed for their travel expenses in analogous application of section 5 of the Judicial Remuneration and Compensation Act.

2: Italics in section 105 subsection (1): Now “commercial judges”, see Section 45a of the German Judiciary Act 301-1 

Section 108

The honorary judges shall be appointed on the qualified recommendation of the chambers of industry and commerce for a term of five years; re-appointment shall not be excluded.

Section 109

(1) A person may be appointed to the office of honorary judge if he

  1. is a German,
  2. has attained the age of thirty and
  3. is or was registered in the commercial register or in the cooperatives register as a merchant, as a member of the board of management or as a managing director of a corporate entity, or as an officer with statutory authority or if, as a member of the board of management of a corporate entity established under public law, he need not be registered in these registers on the basis of a special statutory arrangement for such corporate entities.

(2) A person who fulfils these requirements should only be appointed if he

  1. lives in the district of the commercial division or
  2. has a business establishment in that district or
  3. is employed by a business enterprise that has its domicile or a branch in that district.

Furthermore, appointment should only be possible in the case of

  1. an officer with statutory authority if he holds a position of responsibility in the enterprise that is comparable to the independent position of an entrepreneur,
  2. a member of the board of management of a cooperative if he is employed full time in a cooperative that engages in commercial activity in a manner similar to a commercial partnership.

(3) A person may not be appointed to the office of honorary judge if he is ineligible for the office of lay judge or should not be appointed to the office of lay judge pursuant to section 33, number 4. A person should not be appointed to the office of honorary judge if he should not be appointed to the office of lay judge pursuant to section 33, number 5.

Section 110

At seaports, honorary judges3 may also be appointed from the circle of individuals with a knowledge of shipping and navigation.

3: Italics in section 105 subsection (1): Now “commercial judges”, see Section 45a of the German Judiciary Act 301-1 

Section 111

(repealed)

Section 112

Honorary judges shall have all the rights and duties appurtenant to the office of a judge for the duration of their term of office.

Section 113

(1) An honorary judge shall be removed from office

  1. if he no longer meets one of the necessary criteria for his appointment or if circumstances arise or subsequently become known that constitute an obstacle to an appointment pursuant to section 109 or
  2. if he is guilty of a gross breach of his official duties.

(2) An honorary judge should be removed from office if circumstances arise or become known the existence of which should preclude an appointment pursuant to section 109 subsection (3), second sentence.

(3) The decision shall be given by the first civil division of the higher regional court in a ruling after hearing the person concerned. It shall not be contestable.

(4) If an honorary judge himself asks to be relieved of his office, the decision shall be made by the Land agency for the administration of justice.

Section 114

The commercial division may, on the basis of its own expertise and knowledge, give decisions on matters for which the judgment of a commercial expert is sufficient as well as decisions concerning the existence of commercial practices.

Title VIII

Higher regional courts

Section 115

The higher regional courts (Oberlandesgerichte) shall be composed of a president, presiding judges and additional judges.

Section 115a

(repealed)

Section 116

(1) Civil and criminal divisions shall be established at the higher regional courts. Investigating judges shall be appointed at the higher regional courts with jurisdiction pursuant to section 120; any member of another higher regional court the seat of which is located in the territory designated in section 120 may also be appointed investigating judge.

(2) The Land governments shall be authorised to issue ordinances providing that civil or criminal divisions be established outside the seat of the higher regional court for the district of one or more regional courts and that they be entirely or partially assigned the functions of the civil or criminal divisions of the higher regional court for that district. An external family division may be established for the districts of several family courts.

(3) The Land governments may transfer the authorisation pursuant to subsection (2) to the Land agencies for the administration of justice.

Section 117

The provision of section 70 subsection (1) shall apply mutatis mutandis.

Section 118

The higher regional courts shall have jurisdiction in civil disputes at first instance for hearing and ruling on model case proceedings under the Act on Model Case Proceedings in Disputes under Capital Markets Law.

Section 119

(1) The higher regional courts shall have jurisdiction in civil matters for hearing and ruling on the legal remedies of:

  1. complaint against decisions of the local courtsa) in the matters decided by the family courts;b) in non-contentious matters with the exception of imprisonment matters and the matters decided by the adult guardianship courts;
  2. complaint and appeal on fact and law against decisions of the regional courts.

(2) Section 23b subsections (1) and (2) shall apply mutatis mutandis.

(3) (repealed)

(4) (repealed)

(5) (repealed)

(6) (repealed)

Section 120

(1) In criminal matters, the higher regional courts in the districts of which the Land governments have their seat shall have jurisdiction for the territory of the given Land for hearing and deciding cases at first instance involving

  1. crimes against peace in the cases of section 80 of the Criminal Code,
  2. high treason (sections 81 to 83 of the Criminal Code),
  3. treason and endangering external security (sections 94 to 100a of the Criminal Code) as well as criminal offences pursuant to section 52 subsection (2) of the Patent Law, pursuant to section 9 subsection (2) of the Utility Model Act in conjunction with section 52 subsection (2) of the Patent Law, or pursuant to section 4 subsection (4) of the Semiconductor Protection Act in conjunction with section 9 subsection (2) of the Utility Model Act and section 52 subsection (2) of the Patent Law,
  4. an assault against organs and representatives of foreign states (section 102 of the Criminal Code),
  5. a crime against constitutional organs in the cases of sections 105 and 106 of the Criminal Code,
  6. a violation of a ban of an organisation pursuant to section 129a, also in conjunction with section 129b subsection (1), of the Criminal Code,
  7. failure to report crimes pursuant to section 138 of the Criminal Code if the failure to report concerns a crime falling under the jurisdiction of the higher regional court and
  8. criminal offences pursuant to the Code of Crimes against International Law.

(2) These higher regional courts shall furthermore have jurisdiction for hearing and deciding cases at first instance involving

  1. the criminal offences designated in section 74a subsection (1), if the Federal Prosecutor General takes over the prosecution due to the special significance of the case pursuant to section 74a subsection (2),
  2. murder (section 211 of the Criminal Code), manslaughter (section 212 of the Criminal Code) and the criminal offences designated in section 129a subsection (1), number 2, and section 129a subsection (2) of the Criminal Code, if there is a connection with the activity of an organization not or not only existing in Germany the purpose or activity of which is to commit criminal offences of this kind and the Federal Prosecutor General takes over the prosecution due to the special significance of the case,
  3. murder (section 211 of the Criminal Code), manslaughter (section 212 of the Criminal Code), abduction for the purpose of blackmail (second 239a of the Criminal Code), hostage taking (section 239b of the Criminal Code), serious arson and especially serious arson (sections 306a and 306b of the Criminal Code), arson resulting in death (section 306c of the Criminal Code), causing an explosion by nuclear power in the cases of section 307 subsection (1) and subsection (3), number 1, of the Criminal Code, causing an explosion in the cases of section 308 subsections (1) to (3) of the Criminal Code, misuse of ionizing radiation in the cases of section 309 subsections (1) to (4) of the Criminal Code, acts preparatory to causing an explosion or radiation offence in the cases of section 310 subsection (1), numbers 1 to 3, of the Criminal Code, causing a flood in the cases of the section 313 subsection (2) in conjunction with section 308 subsections (2) and (3) of the Criminal Code, poisoning dangerous to the public in the cases of section 314 subsection (2) in conjunction with section 308 subsections (2) and (3) of the Criminal Code and assaults on air and sea traffic in the cases of section 316c subsections (1) and (3) of the Criminal Code, if under the circumstances the offence is intended to and is capable ofa) undermining the continued existence or security of a state,b) destroying, invalidating or undermining a constitutional principle of the Federal Republic of Germany,c) undermining the security of the troops of the North Atlantic Treaty Organization or of its non-German member states stationed in the Federal Republic of Germany ord) undermining the continued existence or security of an international organisation and the Federal Prosecutor General takes over the prosecution due to the special significance of the case.
  4. criminal offences pursuant to the Foreign Trade and Payments Act and criminal offences pursuant to section 19 subsection (2), number 2, and section 20 subsection (1) of the Act on the Control of Weapons of War, if under the circumstances the offencea) is capable of seriously endangering the external security or the foreign relations of the Federal Republic of Germany orb) is intended to and is capable of disrupting the peaceful coexistence of peoplesand the Federal Prosecutor General takes over the prosecution due to the special significance of the case.

At the opening of the main proceedings they shall, in the cases of number 1, refer the matter to the regional court and, in the cases of numbers 2 to 4, to the regional court or the local court, if the case is not deemed to be of special significance.

(3) In the matters under the jurisdiction of these higher regional courts pursuant to subsections (1) or (2), they shall also give the decisions designated in section 73 subsection (1). They shall furthermore rule on complaints against orders of the investigating judges of the higher regional courts (section 169 subsection (1), first sentence, of the Code of Criminal Procedure) in the cases designated in section 304 subsection (5) of the Code of Criminal Procedure.

(4) These higher regional courts shall also rule on complaints against orders and decisions of the court with jurisdiction pursuant to section 74a. For rulings on complaints against orders and decisions of the court with jurisdiction pursuant to section 74a subsection (4) and in the cases of section 100d subsection (1), sixth sentence, of the Code of Criminal Procedure, a division that is not seized of main proceedings in criminal matters shall have jurisdiction.

(5) The place of jurisdiction shall be governed by the general provisions. The Länder involved may agree to transfer the functions assigned to the higher regional courts under subsections (1) to (4) to the duly competent court of one Land for the territory of another Land as well.

(6) Insofar as the competence of the Federation to prosecute criminal cases has been established pursuant to section 142a, these higher regional courts shall exercise jurisdiction pursuant to Article 96 paragraph (5) of the Basic Law.

(7) Insofar as the Länder, on the basis of criminal proceedings in which the higher regional courts rule in exercise of jurisdiction of the Federation, must bear costs of the proceedings and expenses of participants in the proceedings or pay remuneration, they may request reimbursement from the Federation.

Section 120a

(1) If at first instance a criminal division has reserved the order of preventive detention or, in the cases of section 66b of the Criminal Code, has ruled as the trial court, this criminal division shall have jurisdiction at first instance for hearing and ruling on the order of preventive detention reserved in the judgment or on the subsequent order of preventive detention.

(2) In the cases of section 66b of the Criminal Code, section 462a subsection (3), second and third sentences of the Code of Criminal Procedure shall apply mutatis mutandis.

Section 121

(1) In criminal matters, the higher regional courts shall furthermore have jurisdiction for hearing and ruling on the legal remedies of:

  1. appeal on points of law only againsta) judgments delivered by criminal court judges that cannot be contested with an appeal on fact and law;b) judgments delivered by small criminal divisions and grand criminal divisions in appeals on fact and law;c) judgments delivered by the regional court at first instance if the appeal on law is exclusively based on the violation of a legal norm contained in Land legislation;
  2. complaint against decisions of criminal court judges, except where the criminal divisions or the Federal Court of Justice have jurisdiction;
  3. complaint on points of law only against decisions of the criminal divisions with jurisdiction over execution of sentences pursuant to section 50 subsection (5), section 116 and section 138 subsection (3) of the Prison Act and decisions of the juvenile divisions pursuant to section 92 subsection (2) of the Juvenile Courts Act.

(2) If a higher regional court wishes to deviate in its decision pursuant to subsection (1), number 1a or 1b, from a decision given after 1 April 1950, or in its decision pursuant to subsection (1), number 3, from a decision given after 1 January 1977, by another higher regional court or from a decision of the Federal Court of Justice, it must submit the matter to that court.

(3) A Land in which several higher regional courts have been established may, under an ordinance issued by the Land government, assign to one higher regional court or to the highest regional court the decisions pursuant to subsection (1), number 3, for the districts of several higher regional courts, insofar as such assignment serves the purpose of material furtherance or swifter disposal of the proceedings. The Land governments may issue ordinances transferring this authorisation to the Land agencies for the administration of justice.

Section 122

(1) The divisions of the higher regional courts shall, unless decisions are to be given by a judge sitting alone in lieu of a division pursuant to the provisions of procedural law, give decisions sitting with three members, including the presiding judge.

(2) The criminal divisions shall rule on the opening of the main proceedings at first instance sitting with five judges, including the presiding judge. At the opening of the main proceedings, the criminal division shall rule that it will be composed of three judges, including the presiding judge, during the main hearing unless the participation of two more judges appears necessary due to the scale or complexity of the case. The criminal division shall rule on the termination of the main proceedings due to a procedural impediment in the composition prescribed for the main hearing. If a case has been referred back by a court hearing an appeal on law, the then competent criminal division may once again rule on its composition pursuant to the second sentence.

Title IX

Federal Court of Justice

Section 123

The seat of the Federal Court of Justice (Bundesgerichtshof) shall be Karlsruhe.

Section 124

The Federal Court of Justice shall be composed of a president, presiding judges and additional judges.

Section 125

(1) The members of the Federal Court of Justice shall be chosen jointly by the Federal Minister of Justice and the judicial selection committee pursuant to the Judicial Selection Act and shall be appointed by the Federal President.

(2) A person may only be appointed a member of the Federal Court of Justice if he has attained the age of thirty-five.

Section 126 to 129

(repealed)

Section 130

(1) Civil panels and criminal panels shall be established and investigating judges shall be appointed at the Federal Court of Justice. Their number shall be determined by the Federal Minister of Justice.

(2) The Federal Minister of Justice shall be authorised to also establish civil panels and criminal panels outside the seat of the Federal Court of Justice and to determine the official seats of the investigating judges of the Federal Court of Justice.

Section 131

(repealed)

Section 131a

(repealed)

Section 132

(1) A Grand Panel for Civil Matters and a Grand Panel for Criminal Matters shall be established at the Federal Court of Justice. The Grand Panels shall form the United Grand Panels.

(2) In the event that a panel wishes to deviate from the decision of another panel on a legal issue, the Grand Panel for Civil Matters shall decide if a civil panel wishes to deviate from another civil panel or from the Grand Panel for Civil Matters, the Grand Panel for Criminal Matters shall decide if a criminal panel wishes to deviate from another criminal panel or from the Grand Panel for Criminal Matters, and the United Grand Panels shall decide if a civil panel wishes to deviate from a criminal panel or from the Grand Panel for Criminal Matters or if a criminal panel wishes to deviate from a civil panel or from the Grand Panel for Civil Matters or if a panel wishes to deviate from the United Grand Panels.

(3) A submission to the Grand Panel or to the United Grand Panels shall only be admissible if the panel from whose decision there is to be deviation has declared in response to an inquiry of the adjudicating panel that it stands by its legal opinion. If the panel from whose decision there is to be deviation can no longer be seized of the legal issue due to a change in the roster allocating court business, its place shall be taken by the panel that would be competent pursuant to the roster allocating court business for the case in which the divergent decision was given. The ruling on the inquiry and the response shall be given in a ruling by the respective panel in the composition prescribed for judgments; section 97 subsection (2), first sentence, of the Act on Tax Advisors and section 74 subsection (2), first sentence, of the Auditors Regulations shall remain unaffected.

(4) The adjudicating panel may submit an issue of fundamental importance to the Grand Panel for a decision if it deems this necessary for the development of the law or in order to ensure uniform application of the law.

(5) The Grand Panel for Civil Matters shall be composed of the president and one member from each of the civil panels; the Grand Panel for Criminal Matters shall be composed of the president and two members from each of the criminal panels. If submission is by another panel, or if there is to be deviation from the decision of another panel, a member of that panel shall also sit on the Grand Panel. The United Grand Panels shall be composed of the president and the members of the Grand Panels.

(6) The members and their deputies shall be appointed by the presidium for one business year. This shall also apply to the member of another panel pursuant to subsection (5), second sentence, and to his deputy. The Grand Panels and the United Grand Panels shall be presided over by the president or, in the event that he is unable to be present, by the most senior member. In the case of a tie, the presiding judge shall have the casting vote.

Section 133

In civil matters, the Federal Court of Justice shall have jurisdiction for hearing and ruling on the legal remedies of appeal on points of law only (Revision), immediate appeal on law only in lieu of an appeal on fact and law (Sprungrevision), complaint on points of law only (Rechtsbeschwerde) and immediate complaint on points of law only in lieu of a complaint (Sprungrechtsbeschwerde).

Section 134

(repealed)

Section 134a

(repealed)

Section 135

(1) In criminal matters, the Federal Court of Justice shall have jurisdiction for hearing and ruling on the legal remedy of appeal on points of law only (Revision) against judgments of the higher regional courts at first instance and against judgments of the regional courts at first instance, unless the jurisdiction of the higher regional courts has been established.

(2) The Federal Court of Justice shall furthermore rule on complaints against orders and directions given by the higher regional courts in the cases designated in section 138d subsection (6), first sentence, section 304 subsection (4), second sentence, and section 310 subsection (1) of the Code of Criminal Procedure as well as on complaints against directions of the investigating judge at the Federal Court of Justice (section 169 subsection (1), second sentence, of the Code of Criminal Procedure) in the cases designated in section 304 subsection (5) of the Code of Criminal Procedure.

Section 136

(repealed)

Section 137

(repealed)

Section 138

(1) The Grand Panels and the United Grand Panels shall give a decision on the point of law only. They may decide without an oral hearing. The decision shall be binding on the panel adjudicating the case at hand.

(2) The Federal Prosecutor General shall be heard prior to the decision of the Grand Panel for Criminal Matters or the United Grand Panels and in legal disputes the subject of which is the contestation of a declaration of death. The Federal Prosecutor General may also present his opinion at the sitting.

(3) If a decision on the matter requires another oral hearing before the adjudicating panel, the participants shall be summoned to the hearing and informed in the summons of the decision given on the point of law.

Section 139

(1) The panels of the Federal Court of Justice shall give decisions sitting with five members, including the presiding judge.

(2) The criminal panels shall give decisions on complaints sitting with three members, including the presiding judge. This shall not apply to the decision on complaints against rulings through which the opening of the main proceedings is refused or the proceedings are terminated due to a procedural impediment.

Section 140

The official procedure shall be governed by rules of procedure that shall be adopted by the full court.

Title IXa

Jurisdiction over proceedings to reopen cases in criminal matters

Section 140a

(1) In proceedings to reopen a case, a decision shall be given by another court with the same substantive jurisdiction as the court against whose decision the application for the reopening of proceedings is directed. The decision on an application against a judgment delivered in appellate proceedings on law shall be given by another court of the same rank as the court against whose judgment the appeal on law was filed.

(2) Prior to the beginning of the business year, the presidium of the higher regional court shall designate the courts within its district that shall have local jurisdiction over decisions in proceedings to reopen cases.

(3) If only one regional court has been established within the district of a higher regional court, the decision on an application over which the regional court has jurisdiction pursuant to subsection (1) shall be given by another criminal division of the regional court, which shall be designated by the presidium of the higher regional court prior to the beginning of the business year. The Landgovernments shall be authorised to issue ordinances providing that the decision to be given pursuant to subsection (2) by the presidium of a higher regional court in the district of which only one regional court has been established be assigned to the presidium of a neighbouring higher regional court in respect of those applications over which the regional court has jurisdiction pursuant to subsection (1). The Land governments may issue ordinances transferring this authorisation to the Land agencies for the administration of justice.

(4) In the Länder in which only one higher regional court and only one regional court have been established, subsection (3), first sentence, shall apply mutatismutandis. The Land governments of these Länder shall be authorised to agree with a neighbouring Land that the duties of the presidium of the higher regional court pursuant to subsection (2) shall be transferred to a neighbouring higher regional court of another Land in respect of applications over which the regional court has jurisdiction pursuant to subsection (1).

(5) In the Länder in which only one regional court has been established and in which one local court has been assigned the criminal matters for the districts of the other local courts, subsection (3), first sentence, and section (4), second sentence, shall apply mutatis mutandis.

(6) If the reopening of proceedings is requested for a case that was decided by a higher regional court at first instance, another division of this higher regional court shall have jurisdiction. Section 120 subsection (5), second sentence, shall apply mutatis mutandis.

(7) Subsections (1) to (6) shall apply mutatis mutandis to decisions on applications to prepare for the reopening of proceedings.

Title X

Public prosecution office

Section 141

A public prosecution office should exist at each court.

Section 142

(1) The official duties of the public prosecution office shall be discharged:

  1. at the Federal Court of Justice by a Federal Prosecutor General and by one or more federal prosecutors;
  2. at the higher regional courts and the regional courts by one or more public prosecutors;
  3. at the local courts by one or more public prosecutors or officials of the public prosecution office with a right of audience before the local courts.

(2) The competence of the officials of the public prosecution office with a right of audience before the local courts shall not encompass the local court proceedings to prepare public charges in criminal matters falling under the jurisdiction of courts other than the local courts.

(3) Trainee jurists may be assigned responsibility for discharging the duties of an official of the public prosecution office with a right of audience before the local courts and, in an individual case, for discharging the duties of a public prosecutor under the latters supervision.

Section 142a

(1) The Federal Prosecutor General shall discharge the duties of the public prosecution office in respect of the criminal matters falling under the jurisdiction of the higher regional courts at first instance (section 120 subsections (1) and (2)) at these courts as well. If, in the cases of section 120 subsection (1), the officials of the public prosecution office of a Land and the Federal Prosecutor General cannot agree which of them should take over the prosecution, the Federal Prosecutor General shall decide.

(2) The Federal Prosecutor General shall refer the proceedings to the Land public prosecution office prior to filing a bill of indictment or a written application (section 440 of the Code of Criminal Procedure)

  1. if the following criminal offences are the subject of the proceedings:a) criminal offences pursuant to section 82, section 83 subsection (2) or sections 98, 99 or 102 of the Criminal Code,b) criminal offences pursuant to sections 105 or 106 of the Criminal Code, if the offence is directed against an organ of a Land or against a member of such an organ,c) criminal offences pursuant to section 138 of the Criminal Code in conjunction with one of the provisions of the Criminal Code designated in letter a) ord) criminal offences pursuant to section 52 subsection (2) of the Patent Law, pursuant to section 9 subsection (2) of the Utility Model Act in conjunction with section 52 subsection (2) of the Patent Law, or pursuant to section 4 subsection (4) of the Semiconductor Protection Act in conjunction with section 9 subsection (2) of the Utility Model Act and section 52 subsection (2) of the Patent Law;
  2. in cases of lesser importance.

(3) The proceedings shall not be referred to the Land public prosecution office

  1. if the offence affects the interests of the Federation to a considerable degree or
  2. if it is advisable in the interest of legal uniformity for the Federal Prosecutor General to prosecute the offence.

(4) The Federal Prosecutor General shall refer a case that he has taken over pursuant to section 120 subsection (2), numbers 2 to 4, or pursuant to section 74a subsection (2) back to the Land public prosecution office if the case is no longer of special significance.

Section 143

(1) The local competence of the officials of the public prosecution office shall be determined by the local jurisdiction of the court for which they are appointed.

(2) In exigent circumstances, an official of the public prosecution office who lacks competence must perform the official acts necessary in his district.

(3) If the officials of the public prosecution office from different Länder cannot agree which one of them is to take over the prosecution, the official of the public prosecution office who is their common superior shall decide; otherwise the Federal Prosecutor General shall decide.

(4) The officials of one public prosecution office may be assigned competence for the districts of several regional or higher regional courts for the prosecution of certain kinds of criminal matters, for the execution of sentences in respect of these matters, and for the processing of requests for mutual judicial assistance from offices outside the territorial scope of this Act, insofar as such assignment serves the purpose of material furtherance or swifter disposal of the proceedings; in such cases the local competence of the officials of the public prosecution office for the matters assigned to them shall encompass all the courts of the districts for which they have been assigned these matters.

(5) The Land governments shall be authorised to issue ordinances providing that competence for execution of sentences or for execution of measures of reform and prevention be assigned either entirely or partially to a single public prosecution office for the districts of several Regional or higher regional courts, insofar as such assignment serves the purpose of material furtherance or swifter disposal of the execution proceedings. The Land governments may issue ordinances transferring this authorisation to the Land agencies for the administration of justice.

Section 144

If the public prosecution office of a court is composed of several officials, the persons assigned to the highest-ranking official shall act as his deputy; they shall, when they act in his stead, be authorised to perform all his official tasks without proof of a special commission.

Section 145

(1) The highest-ranking officials of the public prosecution office at the higher regional courts and the regional courts shall be entitled to take over all the official tasks of the public prosecution office at all the courts in their district themselves or to commission an official other than the initially competent official to perform these tasks.

(2) Officials of the public prosecution office with a right of audience before the local courts may only discharge the official duties of the public prosecution office at the local courts.

Section 145a

(repealed)

Section 146

The officials of the public prosecution office must comply with the official instructions of their superiors.

Section 147

The right of supervision and direction shall lie with:

  1. the Federal Minister of Justice in respect of the Federal Prosecutor General and the federal prosecutors;
  2. the Land agency for the administration of justice in respect of all the officials of the public prosecution office of the Land concerned;
  3. the highest-ranking official of the public prosecution office at the higher regional courts and the regional courts in respect of all the officials of the public prosecution office of the given courts district.

Section 148

The Federal Prosecutor General and the federal prosecutors shall be civil servants.

Section 149

The Federal Prosecutor General and the federal prosecutors shall be appointed by the Federal President on the proposal of the Federal Minister of Justice, which shall require the approval of the Bundesrat.

Section 150

The public prosecution office shall be independent of the courts in the performance of its official tasks.

Section 151

The public prosecutors may not perform judicial functions. They also may not be assigned responsibility for supervising the service of judges.

Section 152

(1) The investigative personnel of the public prosecution office shall be obliged in this capacity to comply with the orders of the public prosecution office of their district and the orders of the officials superior thereto.

(2) The Land governments shall be authorised to issue ordinances designating the groups of civil servants and salaried staff who are to be subject to this provision. The salaried staff must be public service employees, must have attained the age of 21 and must have been employed in the designated groups of civil servants or salaried staff for at least two years. The Land governments may issue ordinances transferring this authorisation to the Land agencies for the administrationof justice.

Title XI

Court registry

Section 153

(1) A court registry staffed with the necessary number of registry clerks shall be established at each court and at each public prosecution office.

(2) Anyone who has completed two years of preparatory training (Vorbereitungsdienst) and passed the examination for the intermediate judicial service or for the intermediate service in the area of labour jurisdiction may be entrusted with the duties of a registry clerk of the court registry. Six months of the preparatory training should consist of a specialised course of instruction.

(3) Anyone

  1. who has passed the judicial administration officers examination or the examination for the higher intermediate service in the area of labour jurisdiction,
  2. who has qualified for a career in the intermediate judicial service pursuant to the provisions governing career track changes,
  3. who, as another applicant (section 4 subsection (3) of the Framework Act to Harmonise Civil Service Law), has been admitted to the intermediate judicial service career track pursuant to the provisions of Land law

may also be entrusted with the duties of a registry clerk of the court registry.

(4) The detailed provisions governing implementation of subsections (1) to (3) shall be enacted by the Federation and the Länder for their areas. They may also specify whether and to what extent periods of other training or employment conducive to realisation of the training objective may be credited towards the period of preparatory training.

(5) The Federation and the Länder may furthermore specify that a person may also be entrusted with the duties of a registry clerk of the court registry if he can demonstrate a level of knowledge and proficiency in the area of expertise to be transferred to him that is equivalent to the level imparted through the training pursuant to subsection (2). In the Länder Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and Thuringia, those persons may continue to be entrusted with the duties of a registry clerk of the court registry who were entrusted with such duties until 25 April 2006 pursuant to Annex I Chapter III Subject Area A Section III, number 1, letter q, paragraph (1), of the Unification Treaty of 31 August 1990 (Federal Law Gazette 1990, Part II, pages 889, 922).

Title XII

Officials entrusted with service and execution

Section 154

The status and duties of the officials entrusted with service, summons and execution (court bailiffs) shall be determined at the Federal Court of Justice by the Federal Minister of Justice and at the regional courts by the Land agency for the administration of justice.

Section 155

The court bailiff shall be barred by law from exercising his office:I. in civil disputes:

  1. if he himself is a party or the statutory representative of a party or is jointly entitled or jointly obligated along with a party or is liable for damages to a party;
  2. if his spouse or same sex partner is a party, even if the marriage or same sex partnership no longer exists;
  3. if a party is a person with whom he is or was lineally related or related by marriage, collaterally related to the third degree, or related by marriage to the second degree;

II. in criminal matters:

  1. if he himself was aggrieved by the criminal offence;
  2. if he is or was the spouse or same sex partner of the accused or of the aggrieved party;
  3. if he is or was related or related by marriage to the accused or to the aggrieved party in the manner designated under number I 3.

Title XIII

Mutual judicial assistance

Section 156

The courts shall provide mutual judicial assistance in civil matters and in criminal matters.

Section 156a Costs and Financing of Redevelopment Measures

(1) Where subsequent to implementation of the urban redevelopment measure and the transference of the trust assets of the redevelopment agency to the municipality the municipality finds itself with a surplus resulting from the revenues received in respect of the preparation and implementation of the urban redevelopment measure being in access of the expenditure incurred in connection with this measure, this surplus shall be divided among the owners of the plots located within the redevelopment area. The applicable status of ownership shall be that as of the date of publication of the resolution on the formal designation of the redevelopment area. Where the title to the property has passed by way of sale to another owner subsequent to this point, the amount to be apportioned to the property shall be shared equally between the previous owner and the owner who was required under Section 154 to render a financial settlement.

(2) The surplus shall be apportioned to the individual plots reflecting the initial values of the plots within the meaning of Section 154 para. 2.

(3) In calculating the surplus the municipality shall deduct any subsidies which have been granted out of other public funds either to the municipality or to property owners to cover the costs of preparation and implementation of the redevelopment measure. Other details of the procedure for distribution of the surplus shall be governed by the provisions of state law.

Section 157

(1) A request for mutual judicial assistance shall be addressed to the local court in the district of which the official act is to be performed.

(2) The Land governments shall be authorised to issue ordinances providing that the handling of requests for mutual judicial assistance be assigned either entirely or partially to a single local court for the districts of several local courts insofar as this serves to facilitate or expedite the provision of mutual judicial assistance in general. The Land governments may issue ordinances transferring this authorisation to the Land agencies for the administration of justice.

Section 158

(1) A request may not be refused.

(2) A request by a court that is not a superior appellate instance must, however, be refused if the act to be performed is prohibited by the law of court to which the request has been addressed. If the requested court does not have local jurisdiction, it shall refer the request to the competent court.

Section 159

(1) If a request is refused, or if it is granted in contravention of the provision of section 158 subsection (2), the matter shall be decided by the higher regional court to the district of which the requested court belongs. The decision shall only be contestable if it declares the mutual judicial assistance to be inadmissible and the requesting and requested courts belong to the districts of different higher regional courts. The Federal Court of Justice shall rule on the complaint.

(2) The decisions shall, upon application of the participants or the requesting court, be given without an oral hearing.

Section 160

Execution, summons and service shall be effected pursuant to the provisions of procedural law, irrespective of whether they are to be performed in the Land to which the trial court belongs or in another German Land.

Section 161

Courts, public prosecution offices and court registries may, for the purpose of commissioning a court bailiff, avail themselves of the assistance of the court registry of the local court in the district of which the commission is to be executed. The court bailiff commissioned by the court registry shall be deemed to be directly commissioned.

Section 162

If a person sentenced to a term of imprisonment is staying at a place outside the district of the executing authority, this authority may request the public prosecution office of the regional court in the district of which the convicted person is staying to execute the sentence.

Section 163

If a prison sentence is to be executed in the district of another court or if a convicted person staying in the district of another court is to be apprehended and handed over in order to serve his sentence, the public prosecution office at the regional court of that district shall be asked to perform the act.

Section 164

(1) The costs and expenses entailed in the provision of mutual judicial assistance shall not be reimbursed by the requesting authority.

(2) Fees or other public charges to which the documents (certificates, records) sent by the requesting authority are subject pursuant to the law of the requested authority shall not be levied.

Section 165

(repealed)

Section 166

Within the territorial scope of this Act, a court may also perform official acts outside its district.

Section 167

(1) The police officers of one German Land shall be authorised to continue to pursue a fugitive on the territory of another German Land and to apprehend the fugitive there.

(2) The apprehended person shall be taken without delay to the nearest court or the nearest police authority of the Land in which he was apprehended.

Section 168

The provisions existing in one German Land concerning the communication of files of a public authority to a court of that Land shall also apply in the event that the requesting court belongs to another German Land.

Title XIV

Publicity and court officers

Section 169

The hearing before the adjudicating court, including the pronouncement of judgments and rulings, shall be public. Audio and television or radio recordings as well as audio and film recordings intended for public presentation or for publication of their content shall be inadmissible.

Section 170

(1) Proceedings, discussions and hearings in family matters and in non-contentious matters shall not be public. The court may admit the public but not, however, against the will of a participant. In adult guardianship and committal matters, at the request of the person concerned a person of his confidence shall be permitted to be present.

(2) The court hearing a complaint on points of law only may admit the public unless there is an overriding interest of a participant in non-public discussion.

Section 171

(repealed)

Section 171a

The public may be excluded from the main hearing or from a part thereof if the subject of the proceedings is the committal of the accused to a psychiatric hospital or to an institution for withdrawal treatment in lieu of or in addition to a penalty.

Section 171b

(1) The public may be excluded if circumstances from the private sphere of a participant in the proceedings, a witness or a person aggrieved by an unlawful act (section 11 subsection (1), number 5, of the Criminal Code) are mentioned, the public discussion of which would violate interests that are worthy of protection, unless there is an overriding interest in public discussion of these circumstances. This shall not apply if the persons whose private sphere is affected object to exclusion of the public in the main hearing.

(2) The public shall be excluded if the preconditions of subsection (1), first sentence, exist and the person whose private sphere is affected applies for such exclusion.

(3) The decisions pursuant to subsections (1) and (2) shall not be contestable.

Section 172

The court may exclude the public from a hearing or from a part thereof if1. endangerment of state security, the public order or public morals is to be feared,1a. endangerment of the life, limb or liberty of a witness or another person is to be feared,2. an important business, trade, invention or tax secret is mentioned, the public discussion of which would violate overriding interests worthy of protection,3. a private secret is discussed, the unauthorised disclosure of which by a witness or expert carries a penalty,4. a person under the age of 18 is examined.

Section 173

(1) The pronouncement of the judgment shall in any case be public.

(2) The public may, under the preconditions of sections 171b and 172, also be excluded from the pronouncement of the reasons for the judgment or a part thereof by a special ruling of the court.

Section 174

(1) The issue of exclusion of the public shall be discussed in a non-public sitting if a participant so applies or if the court deems this appropriate. The ruling excluding the public must be pronounced in public; it may be pronounced in a non-public sitting if there is fear that its public pronouncement would seriously disrupt order in the sitting. In the cases of sections 171b, 172 and 173, the reason for exclusion of the public must be stated at the time of pronouncement.

(2) Insofar as the public is excluded on the grounds of endangerment of state security, the press, radio and television may not make public any reports concerning the hearing or the content of an official document relating to the matter.

(3) If the public has been excluded on the grounds of endangerment of state security or on the grounds designated in section 171b and section 172, numbers 2 and 3, the court may obligate the persons present to observe secrecy in respect of facts of which they become aware in the course of the hearing or through an official document relating to the matter. The ruling shall be included in the record of the sitting. It shall be contestable. The complaint shall not have suspensive effect.

Section 175

(1) Access to public hearings may be denied to minors and to persons who appear in a manner that is not in keeping with the dignity of the court.

(2) The court may grant individuals access to non-public hearings. In criminal matters, the aggrieved person should be granted access. The participants need not be heard.

(3) Exclusion of the public shall not constitute an obstacle to the presence of the judicial administration officials responsible for supervision of service at the hearings before the adjudicating court.

Section 176

The maintenance of order in the sitting shall be incumbent upon the presiding judge.

Section 177

Parties, accused persons, witnesses, experts or persons not participating in the hearing who fail to follow the orders given to maintain order may be removed from the courtroom or taken into coercive detention and held for a period of time to be determined; such period may not exceed twenty-four hours. Decisions on measures pursuant to the first sentence in respect of persons who are not participants in the hearing shall be made by the presiding judge and in all other cases by the court.

Section 178

(1) A coercive fine of up to one thousand euros may be imposed or coercive detention of up to one week may be ordered and immediately executed against parties, accused persons, witnesses, experts or persons not participating in the hearing who are found to be in contempt of court at the sitting, subject to prosecution by a criminal court. At the time the coercive fine is imposed, a determination shall also be made concerning the extent to which it shall be replaced by coercive detention in event that the fine cannot be collected.

(2) The decision on imposition of coercive measures in respect of persons who are not participants in the hearing shall be made by the presiding judge and in all other cases by the court.

(3) If a person is later sentenced for the same offence, the coercive fine or coercive detention shall be credited against the sentence.

Section 179

Execution of the coercive measures designated hereinbefore shall be ordered directly by the presiding judge.

Section 180

The powers designated in sections 176 to 179 shall also be vested in a single judge performing official acts outside the sitting.

Section 181

(1) If, in the cases of sections 178 and 180, a coercive measure has been imposed, a complaint may be lodged against the decision within a time limit of one week after its notification unless it has been given by the Federal Court of Justice or by a higher regional court.

(2) The complaint shall not have suspensive effect in the case of section 178 and shall have suspensive effect in the case of section 180.

(3) The higher regional court shall rule on the complaint.

Section 182

If a coercive measure has been imposed for contempt of court, or if a person has been taken into coercive detention, or if a person participating in the hearing has been removed from the courtroom, the ruling of the court and the reasons therefor shall be included in the record of the proceedings.

Section 183

If a criminal offence is committed at the sitting, the court must establish the facts and communicate the record thereof to the competent authority. Where appropriate, the provisional arrest of the perpetrator shall be ordered.

Title XV

Language of the court, communication with the court

Section 184

The language of the court shall be German. The right of the Sorbs to speak Sorbian before the courts in the home districts of the Sorbian population shall be guaranteed.

Section 185

(1) If persons are participating in the hearing who do not have a command of the German language, an interpreter shall be called in. No additional record shall be made in the foreign language; however, testimony and declarations given in the foreign language should also be included in the record or appended thereto in the foreign language if and to the extent that the judge deems this necessary in view of the importance of the case. Where appropriate, a translation to be certified by the interpreter should be annexed to the record.

(2) An interpreter may be dispensed with if all the persons involved have a command of the foreign language.

(3) In family matters and in non-contentious matters, an interpreter need not be called in if the judge has a command of the language in which the persons involved make their statements.

Section 186

(1) Communication with a hearing-impaired or speech-impaired person during the hearing shall, at his choice, take place orally, in writing or with the assistance of a communication facilitator to be called in by the court. The court shall furnish suitable technical aids for oral and written communication. The hearing-impaired or speech-impaired person shall be advised of his right to choose.

(2) The court may require written communication or order a person to be called in as an interpreter if the hearing-impaired or speech-impaired person has not availed himself of his right to choose pursuant to subsection (1) or if adequate communication is not possible in the form chosen pursuant to subsection (1) or would require disproportionate effort.

Section 187

(1) The court shall call in an interpreter or a translator for an accused or convicted person who does not have a command of the German language or is hearing impaired or speech impaired, insofar as this is necessary for the exercise of his rights under the law of criminal procedure.

(2) Subsection (1) shall also apply to persons who have the right to join a public prosecution as a private accessory prosecutor pursuant to section 395 of the Code of Criminal Procedure.

Section 188

Persons who do not have a command of the German language shall swear oaths in the language they speak fluently.

Section 189

(1) The interpreter shall swear an oath affirming that he will translate faithfully and conscientiously. If the interpreter states that he does not wish to swear an oath for reasons of faith or conscience, he shall make an affirmation. This affirmation shall be equivalent to an oath; the interpreter shall be informed of this fact.

(2) If the interpreter has been generally sworn for translations of the kind involved in one Land pursuant to the provisions of Land law, a reference to this oath shall be sufficient before all courts of the Federation and the Länder.

(3) In family matters and in non-contentious matters, the interpreter need not be sworn if the persons involved waive this requirement.

Section 190

The services of an interpreter may be rendered by the registry clerk of the court registry. No special administration of an oath shall be required.

Section 191

The provisions governing the exclusion and rejection of experts shall apply mutatis mutandis to the interpreter. The decision shall be made by the court or by the judge who called in the interpreter.

Section 191a

(1) A blind or visually impaired person may, as provided in the ordinance pursuant to subsection (2), demand that the court documents intended for him also be made available to him in a form accessible to him to the extent that this is necessary in order to safeguard his rights in the proceedings. There shall be no charge for this.

(2) The Federal Ministry of Justice shall specify in an ordinance, which shall require the approval of the Bundesrat, the conditions under which and the manner in which the documents mentioned in subsection (1) and the documents submitted by the parties for the record shall be made accessible to a blind or visually impaired person as well as whether and how this person is to participate in the safeguarding of his rights.

Title XVI

Deliberations and voting

Section 192

(1) Only the statutory number of judges may participate in decisions.

(2) At hearings of lengthy duration, the presiding judge may order that additional judges be called in to attend the hearing and take the place of a judge in the event that he is unable to be present.

(3) These provisions shall also be applicable to lay judges.

Section 193

(1) Except for the judges who have been appointed to give the decision, only those persons who are employed at the same court for the purposes of their judicial training and the specialist auxiliary staff who are employed there may be present during deliberations and voting, insofar as the presiding judge permits them to be present.

(2) Foreign professional judges, public prosecutors and attorneys-at-law who have been assigned to a court in the context of a study visit may be present during deliberations and voting at the same court, insofar as the presiding judge permits them to be present and they are placed under an obligation pursuant to subsections (3) and (4). The first sentence shall apply mutatis mutandis to foreign jurists who are undergoing training in the seconding state.

(3) The persons designated in subsection (2) shall upon their application be placed under a special obligation to observe secrecy. Section 1 subsections (2) and (3) of the Obligations Act of 2 March 1974 (Federal Law Gazette I, page 469, page 547 – Article 42) shall apply mutatis mutandis. Persons who have been placed under a special obligation pursuant to the first sentence shall be deemed to be the equivalent of persons with special public service obligations for the purposes of application of the provisions of the Criminal Code on the violation of private secrets (section 203 subsection (2), first sentence, number 2, section 203 subsection (2), second sentence, section 203 subsections (4) and (5), and section 205), exploitation of secrets of another (sections 204 and 205), violation of official secrecy (section 353b subsection (1), first sentence, number 2, section 353b subsection (1), second sentence, and section 353b subsections (3) and (4)) and violation of tax secrecy (section 355).

(4) The obligation shall be imposed by the president or by the supervising judge of the court. He may transfer this authority to the presiding judge of the adjudicating body or to the judge to whom the persons designated in subsection (2) have been assigned. A renewal of the obligation shall not be required for the duration of the study visit. In the cases of section 355 of the Criminal Code, the judge imposing the obligation shall be entitled to file a complaint collateral to the aggrieved party.

Section 194

(1) The presiding judge shall preside over the deliberations, ask the questions and collect the votes.

(2) Differences of opinion concerning the subject matter, wording and sequence of the questions or concerning the result of the vote shall be resolved by the court.

Section 195

No judge or lay judge may refuse to vote on a question because he was in the minority when a vote was taken on a previous question.

Section 196

(1) The court shall give its decisions by an absolute majority vote unless otherwise provided by statute.

(2) If more than two opinions emerge in connection with amounts to be decided and no one of them can command a majority, the number of votes cast for the largest amount shall be added to the votes initially cast for the next smaller amount(s) until a majority is reached.

(3) If more than two opinions emerge in a criminal matter, aside from the question of guilt, and no one of them can command the necessary majority, the votes cast for the decision most unfavourable to the accused shall be added to those initially cast for the next less unfavourable decision(s) until the necessary majority is reached. If two opinions emerge on the question of sentencing and neither can command the necessary majority, the more lenient opinion shall prevail.

(4) If there is a tie at a court composed of two judges and two lay judges on an issue to be decided by a simple majority, the presiding judge shall have the casting vote.

Section 197

The judges shall vote in order of seniority, and in a case of equal seniority in order of age, whereas the honorary judges and lay judges shall vote in order of age; the younger one shall vote before the older one. The lay judges shall vote before the judges. If a rapporteur has been appointed, he shall vote first. The presiding judge shall vote last.

Section 198

(repealed)

The above translation was published by the the Federal Ministry of Justice. Reproduced with kind permission. This HTML edition by Jens Askan Brückerhoff and © 2011 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.

Criminal Procedure Code (Strafprozeßordnung, StPO)

In the version published on 7 April 1987 (Bundesgesetzblatt (Federal Law Gazette) I, page 1074, as corrected on page 1319)

Translation provided by the Federal Ministry of Justice and reproduced with kind permission.

As amended by the Acts of 22 October 1987 (Federal Law Gazette I, page 2294), 17 May 1988 (Federal Law Gazette I, page 606), 8 June 1989 (Federal Law Gazette I, page 1026), 9 June 1989 (Federal Law Gazette I, page 1059), 15 June 1989 (Federal Law Gazette I, page 1082), 7 March 1990 (Federal Law Gazette I, page 422), 9 July 1990 (Federal Law Gazette I, page 1354), with provisions concerning the territory of the former German Democratic Republic pursuant to Annex I, Chapter III, Subject Area A, Section III, No. 14 and Section IV, No. 3 e) of the Unification Treaty of 31 August 1990 (Federal Law Gazette II, page 889), and the Laws of 12 September 1990 (Federal Law Gazette I, page 2002), 5 November 1990 (Federal Law Gazette I, page 2428), 17 December 1990 (Federal Law Gazette I, page 2847), 28 February 1992 (Federal Law Gazette I, page 372), 14 July 1992 (Federal Law Gazette I, page 1255), 15 July 1992 (Federal Law Gazette I, page 1302), 23 July 1992 (Federal Law Gazette I, page 1366), 27 July 1992 (Federal Law Gazette I, page 1398), 11 January 1993 (Federal Law Gazette I, page 50), 2 August 1993 (Federal Law Gazette I, page 1407, 1994 I 342), 24 June 1994 (Federal Law Gazette I, page 1325), 27 June 1994 (Federal Law Gazette I, page 1440), 14 September 1994 (Federal Law Gazette I, page 2325), 10 October 1994 (Federal Law Gazette I, page 2954), 25 October 1994 (Federal Law Gazette I, page 3082), 28 October 1994 (Federal Law Gazette I, page 3186), 4 November 1994 (Federal Law Gazette I, page 3346), 21 August 1995 (Federal Law Gazette I, page 1050), 19 July 1996 (Federal Law Gazette I, page 1014), 17 March 1997 (Federal Law Gazette I, page 534) and 1 July 1997 (Federal Law Gazette I, page 1606) 17 July 1997 (Federal Law Gazette I, page 1822), 13 August 1997 (Federal Law Gazette I, page 2038), 17 December 1997 (Federal Law Gazette I, page 3039), 17 December 1997 (Federal Law Gazette I, page 3108), 26 January 1998 (Federal Law Gazette I, page 160), 26 January 1998 (Federal Law Gazette I, page 164), 24 April 1998 (Federal Law Gazette I, page 747), 30 April 1998 (Federal Law Gazette I, page 820), 4 May 1998 (Federal Law Gazette I, page 845), 16 June 1998 (Federal Law Gazette I, page 1311), 9 July 1998 (Federal Law Gazette I, page 1802), the Act of 7 September 1998 (Federal Law Gazette I, page 2646)


Table of Contents 

Part One, General Provisions

Chapter I Substantive Jurisdiction of The Courts

Section 1. [Substantive Jurisdiction]
Section 2. [Joinder and Severance of Connected Cases]
Section 3. [Definition of Connection]
Section 4. [Subsequent Joinder or Severance]
Section 5. [Jurisdiction over Connected Cases]
Section 6. [Examination Proprio Motu]
Section 6a. [Jurisdiction of Particular Penal Chambers]

Chapter II Venue

Section 7. [Place of the Commission of the Act]
Section 8. [Domicile, Place of Residence]
Section 9. [Place of Apprehension]
Section 10. [Home Port]
Section 10a. [Environmental Criminal Offenses]
Section 11. [German Officials Abroad]
Section 12. [Concurrence of More than One Venue]
Section 13. [Venue for Connected Cases]
Section 13a. [Determination of the Competent Court by the Federal Court of Justice]
Section 14. [Dispute regarding Jurisdiction]
Section 15. [Impediment of the Competent Court]
Section 16. [Objection of Lack of Jurisdiction]
Section 17. Deleted
Section 18. Deleted
Section 19. [Dispute regarding Lack of Jurisdiction]
Section 20. [Individual Acts of a Court Lacking Jurisdiction]
Section 21. [Exigent Circumstances]

Chapter III Exclusion and Challenge of Court Personnel

Section 22. [Disqualification of a Judge]
Section 23. [Disqualification of Judges Who Participated in Previous Proceedings]
Section 24. [Challenge of a Judge]
Section 25. [Final Date for Challenge]
Section 26. [Procedure concerning Challenge]
Section 26a. [Inadmissible Challenge]
Section 27. [Decision on the Challenge]
Section 28. [Appellate Remedy]
Section 29. [Non-deferable Acts of the Challenged Person]
Section 30. [Self-disqualification; Ex Officio Challenge]
Section 31. [Lay Judges and Registry Clerks]
Section 32. Deleted

Chapter IV Court Decisions and Their Notification

Section 33. [Hearing the Participants]
Section 33a. [Subsequent Hearing]
Section 34. [Reasons for the Decision]
Section 34a. [Entry into Force by virtue of an Order]
Section 35. [Notification of the Decision]
Section 35a. [Instructions on Appellate Remedy]
Section 36. [Service and Execution of Decisions]
Section 37. [Procedure concerning Service]
Section 38. [Direct Summons]
Section 39. Deleted
Section 40. [Service by Publication]
Section 41. [Service on the Public Prosecution Office]

Chapter V Time Limits and Restoration of the Status Quo Ante

Section 42. [Time Limits Determined in Days]
Section 43. [Time Limits Determined in Weeks and Months]
Section 44. [Restoration of the Status Quo Ante]
Section 45. [Application for Restoration of the Status Quo Ante]
Section 46. [Decision and Appellate Remedy]
Section 47. [No Suspension of Execution]

Chapter VI Witnesses

Section 48. [Summons of Witnesses]
Section 49. [Examination of the Federal President]
Section 50. [Examination of Members of Parliament or Government Ministers]
Section 51. [Consequences of Non-Appearance]
Section 52. [Right to Refuse Testimony on Personal Grounds]
Section 53. [Right to Refuse Testimony on Professional Grounds]
Section 53a. [Right of Professional Assistants to Refuse Testimony]
Section 54. [Authorization for Judges and Officials to Testify]
Section 55. [Refusal of Information]
Section 56. [Substantiation of the Grounds for Refusal to Testify]
Section 57. [Instruction regarding Oath]
Section 58. [Examination; Confrontation]
Section 58a. [Examination by Audio-Visual Medium]
Section 59. [Oath]
Section 60. [Prohibition of Oath]
Section 61. [Dispensing with the Oath]
Section 62. [Oath in Proceedings for Petty Offenses]
Section 63. [Privilege of Refusing to Take the Oath]
Section 64. [Recording Reason for not Administering an Oath]
Section 65. [Oath in Preparatory Proceedings]
Section 66. Deleted
Section 66a. [Recording Reason for Administering an Oath]
Section 66b. [Oath on Examination by Commission]
Section 66c. [Form of Oath]
Section 66d. [Affirmation Equivalent to an Oath]
Section 66e. [Form of Oath for Mute Witnesses]
Section 67. [Reliance on the Prior Oath]
Section 68. [Examination as to Witness’ Identity and Personal Particulars]
Section 68a. [Questions concerning Degrading Facts and Previous Convictions]
Section 68b. [Assignment of an Attorney-at-Law]
Section 69. [Examination as to Subject Matter]
Section 70. [Refusal without Reason to Testify or Take the Oath]
Section 71. [Witness’ Expenses]

Chapter VII Experts and Inspection

Section 72. [Application of Provisions concerning Witnesses]
Section 73. [Selection of Experts]
Section 74. [Challenge]
Section 75. [Duty to Render Opinion]
Section 76. [Privilege to Refuse to Render Opinion]
Section 77. [Consequences of Non-Appearance or Refusal]
Section 78. [Judicial Direction]
Section 79. [Oath Administered to an Expert]
Section 80. [Preparation of an Opinion]
Section 80a. [Consultations During the Preparatory Proceedings]
Section 81. [Committal for Observation of the Accused]
Section 81a. [Physical Examination; Blood Test]
Section 81b. [Photographs and Fingerprints]
Section 81c. [Examination of Other Persons]
Section 81d. [Physical Examination of Women]
Section 81e. [Molecular and Genetic Examinations]
Section 81f. [Ordering and Carrying Out Molecular and Genetic Examinations]
Section 81g. [DNA Analysis]
Section 82. [Rendering Opinion in Preliminary Proceedings]
Section 83. [Rendering a New Opinion]
Section 84. [Fees for Experts]
Section 85. [Expert Witnesses]
Section 86. [Judicial Inspection]
Section 87. [Post Mortem Examination; Autopsy]
Section 88. [Identification]
Section 89. [Extent of Autopsies]
Section 90. [Autopsies of New-born Children]
Section 91. [Suspected Poisoning]
Section 92. [Opinions in Counterfeiting Cases]
Section 93. [Comparison of Handwriting]

Chapter VIII Seizure, Interception of Telecommunications, Computer-assisted Search, Use of Technical Devices, Use of Undercover Investigators and Search

Section 94. [Objects Which May Be Seized]
Section 95. [Obligation to Surrender]
Section 96. [Official Documents]
Section 97. [Objects Not Subject to Seizure]
Section 98. [Order of Seizure]
Section 98a. [Automated Comparison and Transmission of Personal Data]
Section 98b. [Competence. Return and Deletion of Data]
Section 98c. [Comparison of Data to Clear Up a Criminal Offense]
Section 99. [Seizure of Mail]
Section 100. [Jurisdiction]
Section 100a. [Conditions regarding Interception of Telecommunications]
Section 100b. [Order to Intercept Telecommunications]
Section 100c. [Measures Implemented Without the Knowledge of the Person Concerned]
Section 100d. [Jurisdiction]
Section 100e. [Duty to Report]
Section 100f. [Use of Personal Data]
Section 101. [Notification]
Section 102. [Search in Respect of the Suspect]
Section 103. [Searches in Respect of Other Persons]
Section 104. [Searches During the Night]
Section 105. [Search Order; Execution]
Section 106. [Calling in the Occupant]
Section 107. [Notification; Inventory]
Section 108. [Seizure of Other Objects]
Section 109. [Marking Seized Objects]
Section 110. [Examination of Papers]
Section 110a. [Undercover investigators]
Section 110b. [Consent of the Public Prosecution Office; Consent of the Judge; Non-Disclosure of Identity]
Section 110c. [Entering Private Premises]
Section 110d. [Notification]
Section 110e. [Use of Information Obtained]
Section 111. [Road Traffic Controls]
Section 111a. [Provisional Withdrawal of Permission to Drive]
Section 111b. [Securing of Objects]
Section 111c. [Securing Seizure]
Section 111d. [Attachment for Equivalent Value; Fine or Costs]
Section 111e. [Order for Seizure or Attachment]
Section 111f. [Effecting Seizure and Enforcing Attachment]
Section 111g. [Compulsory Execution; Enforcement of Attachment by the Aggrieved Person]
Section 111h. [Prior Satisfaction of Claims of the Aggrieved Person on Attachment]
Section 111i. [Maintenance of Seizure]
Section 111k. [Return of Movable Assets to the Aggrieved Person]
Section 111l. [Emergency Sale]
Section 111m. [Writings and Printing Devices]
Section 111n. [Seizure Order; Time Restriction]
Section 111o. [Attachment in Rem for a Property Fine]
Section 111p. [Seizure of Property]

Chapter IX Arrest and Provisional Apprehension

Section 112. [Admissibility of Remand Detention; Grounds for Arrest]
Section 112a. [Further Grounds for Arrest]
Section 113. [Prerequisites Applicable to Less Serious Offenses]
Section 114. [Warrant of Arrest]
Section 114a. [Notification of Accused]
Section 114b. [Notification of Relatives]
Section 115. [Examination by a Judge]
Section 115a. [Examination by the Judge of the Nearest Local Court]
Section 116. [Suspension of Execution of the Warrant of Arrest]
Section 116a. [Suspension on Bail]
Section 117. [Review of Detention]
Section 118. [Oral Hearing]
Section 118a. [Conducting the Oral Hearing]
Section 118b. [Persons Entitled to File Applications]
Section 119. [Serving Remand Detention]
Section 120. [Revocation of the Warrant of Arrest]
Section 121. [Remand Detention Exceeding Six Months]
Section 122. [Special Review of Detention by the Higher Regional Court]
Section 122a. [Maximum Detention Period Pursuant to Article 112a]
Section 123. [Revoking Less Incisive Measures]
Section 124. [Forfeiture of Security]
Section 125. [Competence for Issuing the Arrest Warrant]
Section 126. [Competence for Subsequent Decisions]
Section 126a. [Provisional Committal]
Section 127. [Provisional Arrest]
Section 127a. [Dispensing with Arrest]
Section 127b. [Arrest in Connection with the Main Hearing]
Section 128. [Appearance Before the Judge]
Section 129. [Appearance After Preferring Public Charges]
Section 130. [Arrest Warrant for Offenses Prosecuted on Application]
Section 131. [Wanted Notice]

Chapter IXa Other Measures to Secure Criminal Prosecution And Execution of Sentence

Section 132.

Chapter IXb Provisional Prohibition of Pursuit of an Occupation

Section 132a.

Chapter X Examination of The Accused

Section 133. [Written Summons]
Section 134. [Bringing the Accused Before the Court]
Section 135. [Immediate Examination]
Section 136. [First Examination]
Section 136a. [Prohibited Methods of Examination]

Chapter XI Defense

Section 137. [Defense Counsel]
Section 138. [Choice of Defense Counsel]
Section 138a. [Exclusion of Defense Counsel]
Section 138b. [Exclusion of Defense Counsel for Endangering National Security]
Section 138c. [Procedure for Excluding Defense Counsel]
Section 138d. [Oral Hearing; Immediate Complaint]
Section 139. [Trainee Jurist as Defense Counsel]
Section 140. [Mandatory Defense]
Section 141. [Appointment of Defense Counsel]
Section 142. [Choice of Defense Counsel]
Section 143. [Revocation of appointment]
Section 144. Deleted
Section 145. [Absence of Defense Counsel]
Section 145a. [Service of Documents on Defense Counsel]
Section 146. [Joint Defense Counsel]
Section 146a. [Rejection of Defense Counsel of the Accused’s Own Choice]
Section 147. [Inspection of the Files]
Section 148. [Defense Counsel-Client Communication]
Section 148a. [Implementing Monitoring Measures]
Section 149. [Admission of Assistance]
Section 150. Deleted

Part Two Proceedings at First Instance

Chapter I Public Charges

Section 151. [Principle of Indictment]
Section 152. [Indicting Authority; Principle of Mandatory Prosecution]
Section 152a. [Prosecution of Elected Public Representatives]
Section 153. [Non-Prosecution of Petty Offenses]
Section 153a. [Provisional Dispensing with Court Action; Provisional Termination of Proceedings]
Section 153b. [Dispensing with Court Action; Termination]
Section 153c. [Non-Prosecution of Offenses Committed Abroad]
Section 153d. [Dispensing with Court Action on Political Grounds]
Section 153e. [Dispensing with Court Action in National Security Cases]
Section 154. [Insignificant Secondary Penalties]
Section 154a. [Limitation of Prosecution]
Section 154b. [Extradition and Expulsion]
Section 154c. [Victim of Coercion or Extortion]
Section 154d. [Decision of a Prior Issue Involving Civil Law or Administrative Law]
Section 154e. [Criminal or Disciplinary Proceedings concerning Erroneous Suspicion or Insult]
Section 155. [Scope of the Investigation]
Section 156. [No Withdrawal of the Indictment]
Section 157. [Definition of the Terms “Indicted Accused” and “Defendant”]

Chapter II Preparation of The Public Charges

Section 158. [Criminal Informations; Applications for Prosecution]
Section 159. [Unnatural Death; Discovery of a Corpse]
Section 160. [Investigation Proceedings]
Section 161. [Information and Investigations]
Section 161a. [Witnesses and Experts before the Public Prosecution Office]
Section 162. [Judicial Investigations]
Section 163. [Duties of the Police]
Section 163a. [Examination of the Accused]
Section 163b. [Establishing Identity]
Section 163c. [Duration of Custody. Judicial Review]
Section 163d. [Computer-Assisted Search]
Section 163e. [Police Monitoring Notice]
Section 164. [Apprehension of Persons Disrupting Official Activities]
Section 165. [Judicial Action in an Emergency]
Section 166. [Applications by the Accused to Obtain Evidence]
Section 167. [Further Directions by the Public Prosecution Office]
Section 168. [Recording Clerk]
Section 168a. [Recording of Judicial Investigatory Acts]
Section 168b. [Recording of Investigatory Acts of the Public Prosecution Office]
Section 168c. [Presence During Judicial Examination]
Section 168d. [Presence During Judicial Inspection]
Section 168e. [Separate Examination]
Section 169. [Investigating Judges of the Higher Regional Courts and the Federal Court of Justice]
Section 169a. [Conclusion of Investigation]
Section 170. [Conclusion of the Investigation Proceedings]
Section 171. [Notification of the Applicant]
Section 172. [Proceeding to Compel Public Charges]
Section 173. [Procedure by the Court]
Section 174. [Dismissal of Application]
Section 175. [Order to Prefer Public Charges]
Section 176. [Furnishing Security]
Section 177. [Costs]

Chapter III Deleted

Section 178-197. Deleted 

Chapter IV Decision Concerning The Opening of The Main Proceedings

Section 198. Deleted
Section 199. [Decision to Open the Main Proceedings]
Section 200. [Contents of the Bill of Indictment]
Section 201. [Communication of the Bill of Indictment]
Section 202. [Supplementary Investigations]
Section 203. [Condition for Opening Main Proceedings]
Section 204. [Refusal to Open Main Proceedings]
Section 205. [Provisional Termination]
Section 206. [Applications not Binding]
Section 206a. [Termination in the Case of Impediments]
Section 206b. [Termination on Amendment of the Law]
Section 207. [The Order Opening Main Proceedings]
Section 208. Deleted
Section 209. [Competent Court]
Section 209a. [Special Functional Jurisdictions]
Section 210. [Appellate Remedies]
Section 211. [Effect of the Order Refusing to Open Main Proceedings]
Sections 212 to 212b. Repealed

Chapter V Preparation of The Main Hearing

Section 213. [Setting the Date for the Main Hearing]
Section 214. [Summonses]
Section 215. [Service of the Order Opening the Main Proceedings]
Section 216. [Summoning the Defendant]
Section 217. [Time Limit for Summons]
Section 218. [Summoning Defense Counsel]
Section 219. [Defendant’s Applications to Take Evidence]
Section 220. [Summons by the Defendant]
Section 221. [Taking of Evidence Ex Officio]
Section 222. [Naming Witnesses]
Section 222a. [Information as to Composition of the Court]
Section 222b. [Objections concerning Composition of the Court]
Section 223. [Witness Examination on Commission or by Request]
Section 224. [Notification of Participants]
Section 225. [Judicial Inspection on Commission]
Section 225a. [Change of Jurisdiction Prior to the Main Hearing]

Chapter VI Main Hearing

Section 226. [Uninterrupted Presence]
Section 227. [More than one Public Prosecutor and Defense Counsel]
Section 228. [Suspension and Interruption]
Section 229. [Maximum Duration of an Interruption]
Section 230. [Failure of the Defendant to Appear]
Section 231. [Defendant’s Duty to be Present]
Section 231a. [Unfitness to Stand Trial Caused with Intent]
Section 231b. [Absence because of Disorderly Conduct]
Section 231c. [Absence During Parts of the Proceedings]
Section 232. [Main Hearing Despite the Defendant’s Failure to Appear]
Section 233. [Releasing the Defendant from the Duty to Appear]
Section 234. [Representation of Absent Defendant]
Section 234a. [Defense Counsel’s Rights of Information and Consent]
Section 235. [Restoration of the Status Quo Ante]
Section 236. [Ordering the Defendant’s Personal Appearance]
Section 237. [Joinder of more than one Criminal Case]
Section 238. [Conduct of Hearing]
Section 239. [Cross-Examination]
Section 240. [Right to Ask Questions]
Section 241. [Rejection of Questions]
Section 241a. [Examination of Witnesses under 16 Years of Age]
Section 242. [Doubts concerning Admissibility of Questions]
Section 243. [Course of the Main Hearing]
Section 244. [Taking of Evidence]
Section 245. [Extent of Evidence Taken]
Section 246. [Belated Applications to Take Evidence]
Section 246a. [Medical Expert]
Section 247. [Removal of the Defendant from Courtroom]
Section 247a. [Witness Examination in Another Place]
Section 248. [Dismissal of Witnesses and Experts]
Section 249. [Reading Out Documents]
Section 250. [Principle of Examination in Person]
Section 251. [Reading Out Records]
Section 252. [Improper Reading out of Statement]
Section 253. [Reading out a Statement to Refresh Memory]
Section 254. [Reading out Confessions; Contradictions]
Section 255. [Recording of Statements Read out]
Section 255a. [Showing Audio-Visual Recordings]
Section 256. [Reading out Official and Medical Statements]
Section 257. [Questioning the Defendant, the Public Prosecutor and Defense Counsel]
Section 257a. [Written Form]
Section 258. [Closing Speeches]
Section 259. [Interpreter]
Section 260. [Judgment]
Section 261. [Free Evaluation of Evidence]
Section 262. [Preliminary Civil Law Questions]
Section 263. [Voting]
Section 264. [Subject Matter of the Judgment]
Section 265. [Change in Legal Reference]
Section 265a. [Condition Instructions]
Section 266. [Supplementary Charges]
Section 267. [Reasons for the Judgment]
Section 268. [Pronouncement of the Judgment]
Section 268a. [Probationary Suspension of Sentence; Warning with Sentence Reserved]
Section 268b. [Continuation of Remand Detention]
Section 268c. [Information on a Driving Ban]
Section 269. [Lack of Substantive Jurisdiction]
Section 270. [Referral to a Higher Competent Court]
Section 271. [Record of Proceedings]
Section 272. [Content of the Record]
Section 273. [Additional Contents of the Record]
Section 274. [Probative Value of the Record]
Section 275. [Written Judgment; Official Copy]

Chapter VII Proceedings Against Absent Accused

Section 276. [Definition]
Section 277 to 284. Deleted
Section 285. [Securing Evidence]
Section 286. [Defense Counsel]
Section 287. [Notification of the Absent Accused]
Section 288. [Request to Appear]
Section 289. [Reception of Evidence]
Section 290. [Seizure Instead of Warrant of Arrest]
Section 291. [Publication of Seizure Order]
Section 292. [Effect of Publication]
Section 293. [Revocation of Seizure]
Section 294. [Proceedings After Preferment of Charges]
Section 295. [Safe Conduct]

Part Three Appellate Remedies

Chapter I General Provisions

Section 296. [Persons Entitled to Appellate Remedy]
Section 297. [Defense Counsel]
Section 298. [Statutory Representative]
Section 299. [Arrested Accused]
Section 300. [Incorrect Designation]
Section 301. [Public Prosecution Offices’ Power of Appellate Remedy]
Section 302. [Withdrawal; Waiver]
Section 303. [Opponent’s Consent]

Chapter II Complaint

Section 304. [Admissibility]
Section 305. [Inadmissibility]
Section 305a. [Complaint Against Order Suspending Sentence]
Section 306. [Filing; Redress or Submission]
Section 307. [No Obstacle to Enforcement]
Section 308. [Powers of the Court Hearing the Complaint]
Section 309. [Decision]
Section 310. [Further Complaint]
Section 311. [Immediate Complaint]
Section 311a. [Subsequent Hearing of the Opponent]

Chapter III Appeal on Points of Fact and Law

Section 312. [Admissibility]
Section 313. [Acceptance of Appeal on Fact and Law]
Section 314. [Form and Time Limit]
Section 315. [Appeal on Fact and Law and Application for Restoration of the Status Quo Ante]
Section 316. [Obstacle to Entry in Force]
Section 317. [Grounds for an Appeal on Fact and Law]
Section 318. [Restriction of Appeal on Fact and Law]
Section 319. [Filing Too Late]
Section 320. [Submitting Files to the Public Prosecution Office]
Section 321. [Transmission of Files to the Court Hearing the Appeal]
Section 322. [Dismissal Without Main Hearing]
Section 322a. [Ruling by the Court Hearing the Appeal]
Section 323. [Preparation of the Main Hearing]
Section 324. [Course of the Main Hearing]
Section 325. [Reading out Documents]
Section 326. [Closing Speeches]
Section 327. [Extent of Review of the Judgment]
Section 328. [Content of the Appellate Decision]
Section 329. [Defendant’s Non-Appearance]
Section 330. [Appeal on fact and law by Statutory Representative]
Section 331. [Prohibition of Reformatio in Peius]
Section 332. [Procedural Provisions]

Chapter IV Appeal on Points of Law Only

Section 333. [Admissibility]
Section 334. Deleted
Section 335. [Immediate Appeal on Law in lieu of an Appeal on Fact and Law]
Section 336. [Review of Decisions Preceding the Judgment]
Section 337. [Grounds for Appeal on Law]
Section 338. [Absolute Grounds for Appeal on Law]
Section 339. [Legal Norms for the Defendant’s Benefit]
Section 340. Deleted
Section 341. [Form and Time Limit]
Section 342. [Appeal on Law and Application for Restoration of the Status Quo Ante]
Section 343. [Obstacle to Entry into Force]
Section 344. [Grounds for an Appeal on Law]
Section 345. [Time Limit for Stating Grounds]
Section 346. [Late and Improper Filing]
Section 347. [Service; Response; Submission of Files]
Section 348. [Lack of Jurisdiction]
Section 349. [Dismissal Without Main Hearing]
Section 350. [Main Hearing]
Section 351. [Course of the Main Hearing]
Section 352. [Extent of Review]
Section 353. [Content of the Appellate Judgment on Law]
Section 354. [Decision on the Merits; Referral to a Lower Court]
Section 354a. [Decision in the Event of Amendment of the Law]
Section 355. [Referral to the Competent Court]
Section 356. [Pronouncement of Judgment]
Section 357. [Effect on Persons Convicted in the Same Proceedings]
Section 358. [Binding Effect on Lower Court; Prohibition of Reformatio in Peius]

Part Four Reopening of Proceedings Concluded by a Final Judgment

Section 359. [Reopening for the Convicted Person’s Benefit]
Section 360. [No Obstacle to Execution]
Section 361. [Execution or Death No Bar to Reopening]
Section 362. [Reopening to the Defendant’s Detriment]
Section 363. [Inadmissibility]
Section 364. [Allegation of a Criminal Offense]
Section 364a. [Appointment of Defense Counsel]
Section 364b. [Appointment of Defense Counsel to Prepare Proceedings]
Section 365. [General Provisions on the Application]
Section 366. [Content and Form of the Application]
Section 367. [Court Jurisdiction; Procedure]
Section 368. [Dismissal for Inadmissibility]
Section 369. [Taking Evidence]
Section 370. [Decision on Well-Foundedness]
Section 371. [Acquittal With No Main Hearing]
Section 372. [Immediate Complaint]
Section 373. [Judgment After New Main Hearing; No Reformatio in Peius]
Section 373a. [Procedure for a Penal Order]

Part Five Participation of The Aggrieved Person in The Proceedings

Chapter I Private Prosecution

Section 374. [Admissibility; Persons Entitled to Prosecute]
Section 375. [More then One Person Entitled]
Section 376. [Preferring Public Charges]
Section 377. [Participation of the Public Prosecutor; Taking Over the Proceedings]
Section 378. [Assistance and Representation of the Private Prosecutor]
Section 379. [Furnishing Security; Legal Aid]
Section 379a. [Advance for Fees]
Section 380. [Conciliation Attempt]
Section 381. [Preferring the Charges]
Section 382. [Communication of the Charges]
Section 383. [Order Opening the Main Hearing; Dismissal; Termination]
Section 384. [Further Procedure]
Section 385. [Status of the Private Prosecutor; Summonses; Inspection of the Files]
Section 386. [Summoning Witnesses and Experts]
Section 387. [Representation at the Main Hearing]
Section 388. [Countercharges]
Section 389. [Judgment Terminating Proceedings]
Section 390. [Appellate Remedy for Private Prosecutor]
Section 391. [Withdrawal of Charges; Restoration]
Section 392. [Effect of Withdrawal]
Section 393. [Death of the Private Prosecutor]
Section 394. [Notification to the Accused]

Chapter II Private Accessory Prosecution

Section 395. [Right to Join as a Private Accessory Prosecutor]
Section 396. [Declaration of Joinder]
Section 397. [Rights of the Private Accessory Prosecutor]
Section 397a. [Appointment of an Attorney-at-law as Counsel]
Section 398. [Procedure]
Section 399. [Notification of Previous Decisions]
Section 400. [Private Accessory Prosecutor’s Right to Appellate Remedy]
Section 401. [Appellate Remedy for Private Accessory Prosecutor]
Section 402. [Revocation; Death of Private Accessory Prosecutor]

Chapter III Compensation For The Aggrieved Person

Section 403. [Conditions]
Section 404. [Application by the Aggrieved Person]
Section 405. [Dispensing with a Decision]
Section 406. [Decision]
Section 406a. [Appellate Remedy]
Section 406b. [Execution]
Section 406c. [Reopening]

Chapter IV Other Rights of The Aggrieved Person

Section 406d. [Notification of the Aggrieved Person]
Section 406e. [Inspection of Files]
Section 406f. [Assistance and Representation of the Aggrieved Person]
Section 406g. [Assistance for an Aggrieved Person Entitled to Private Accessory Prosecution]
Section 406h. [Information as to Rights]

Part Six Special Types of Procedure

Chapter I Procedure For Penal Orders

Section 407. [Admissibility]
Section 408. [Judicial Decisions]
Section 408a. [Application for Penal Order After Opening of the Main Proceedings]
Section 408b. [Appointment of Defense Counsel]
Section 409. [Content of the Penal Order]
Section 410. [Time Limit for Lodging Objections; Entry into Force]
Section 411. [Dismissal for Inadmissibility; Date of Main Hearing]
Section 412. [Non-Appearance of the Defendant]

Chapter II Procedure For Preventive Detention

Section 413. [Conditions]
Section 414. [Proceedings]
Section 415. [Main Hearing Without the Accused]
Section 416. [Transition to Criminal Proceedings]

Chapter IIa Accelerated Procedure

Section 417. [Application by the Public Prosecution Office]
Section 418. [Main Hearing]
Section 419. [Maximum Sentence; Decision]
Section 420. [Taking of Evidence]
Sections 421 to 429. Deleted

Chapter III Procedure Concerning Confiscation And Seizure of Property

Section 430. [Waiver of Confiscation]
Section 431. [Participation of Third Persons in Proceedings]
Section 432. [Hearing the Person with an Interest in Confiscation]
Section 433. [Rights and Duties of the Person with an Interest in Confiscation]
Section 434. [Representation by Defense Counsel]
Section 435. [Summons to Main Hearing]
Section 436. [Non-Appearance at the Main Hearing]
Section 437. [Appellate Proceedings]
Section 438. [Confiscation by Penal Order]
Section 439. [Subsequent Proceedings]
Section 440. [Independent Confiscation Proceedings]
Section 441. [Jurisdiction in Subsequent and in Independent Confiscation Proceedings]
Section 442. [Forfeiture; Destruction; Rendering Unusable]
Section 443. [Seizure of Property]

Chapter IV Procedure for Imposing a Regulatory Fine Against Legal Persons and Against Associations

Section 444.
Sections 445-448. Deleted

Part Seven Execution of Sentence And Costs of Proceedings

Chapter I Execution of Sentence

Section 449. [Execution]
Section 450. [Crediting Remand Detention and Withdrawal of Driver’s License]
Section 450a. [Crediting Detention Pending Extradition]
Section 451. [Executing Authorities]
Section 452. [Pardoning Power]
Section 453. [Subsequent Decision on Probationary Suspension of Sentence or on Warning with Sentence Reserved]
Section 453a. [Instruction on Suspension of Sentence or Warning with Sentence Reserved]
Section 453b. [Supervision of the Convicted Person]
Section 453c. [Warrant of Arrest on Revocation]
Section 454. [Suspension of Remainder of Sentence]
Section 454a. [Extension of Probation Period; Revocation of Suspension of Remainder of Sentence]
Section 454b. [Execution of Prison Sentences and of Default Imprisonment]
Section 455. [Postponement of Execution of a Prison Sentence]
Section 455a. [Postponement or Interruption on Grounds of Institutional Organization]
Section 456. [Temporary Postponement]
Section 456a. [Dispensing With Execution in the Case of Extradition or Expulsion]
Section 456b. Deleted
Section 456c. [Postponement and Suspension of Prohibition of Permit of an Occupation]
Section 457. [Arrest Warrant]
Section 458. [Court Decisions on Execution of Sentence]
Section 459. [Execution of Fine]
Section 459a. [Facilitating for Payment]
Section 459b. [Setting off Installments]
Section 459c. [Recovery of Fine]
Section 459d. [No Execution]
Section 459e. [Execution of Default Imprisonment]
Section 459f. [Dispensing with Execution of Default Imprisonment]
Section 459g. [Execution of Incidental Consequences]
Section 459h. [Legal Remedy]
Section 459i. [Execution of Property Fine]
Section 460. [Subsequent Aggregate Penalty]
Section 461. [Credit for Confinement in Hospital]
Section 462. [Procedure in the Case of Court Decision]
Section 462a. [Jurisdiction]
Section 463. [Execution of Measures of Reform and Prevention]
Section 463a. [Powers and Jurisdiction of the Supervisory Agencies]
Section 463b. [Seizure of Driver’s License]
Section 463c. [Public Announcement]
Section 463d. [Court Assistance Agency]

Chapter II Costs of the Proceedings

Section 464. [Decision on Costs]
Section 464a. [Definition of Costs]
Section 464b. [Assessment of Costs]
Section 464c. [Costs of Interpreters]
Section 464d. [Distribution of Expenses]
Section 465. [Duty of Convicted Person to Pay Costs]
Section 466. [Liability of Co-Offenders]
Section 467. [Costs on Acquittal]
Section 467a. [Withdrawal of Charges or Termination by the Public Prosecution Office]
Section 468. [Defendants Not Liable to Punishment]
Section 469. [Costs Charged to Person Laying Criminal Information]
Section 470. [Costs on Withdrawal of Application for Prosecution]
Section 471. [Costs of Private Prosecution]
Section 472. [Costs of Private Accessory Prosecution]
Section 472. [Aggrieved Person’s Expenses]
Section 472a. [Costs of Other Persons Involved]
Section 473. [Unsuccessful Appellate Remedy]

Part Eight National Register of Proceedings Conducted by the Public Prosecution Offices

Section 474. [Content and Maintenance of the Register]
Section 475. [Automated Procedure]
Section 476. [Correction; Erasure]
Section 477. [Information]


Part One General Provisions

Chapter I Substantive Jurisdiction of the Courts

Section 1. [Substantive Jurisdiction]

Substantive jurisdiction of the courts shall be determined by the Courts Constitution Act.

Section 2. [Joinder and Severance of Connected Cases]

(1) Connected criminal cases, which individually would be under the jurisdiction of courts of different rank, may be tried jointly by the court of superior jurisdiction. Connected criminal cases of which individual cases would be under the jurisdiction of particular penal chambers pursuant to Section 74 subsection 2, Section 74a and Section 74c of the Courts Constitution Act, may be tried jointly by the penal chamber which enjoys precedence pursuant to Section 74e of the Courts Constitution Act.

(2) Such court may, by order, sever connected criminal cases on grounds of expediency.

Section 3. [Definition of Connection]

Cases shall be deemed to be connected when a person is accused of more than one criminal offense or if, in the case of one act, more than one person is charged as perpetrator, inciter or accessory or charged with obstruction of justice or handling stolen goods.

Section 4. [Subsequent Joinder or Severance]

(1) The court may, by order, direct the joinder of connected, or the severance of joint, criminal cases even after the opening of the main proceedings, upon application by the public prosecution office, the defendant or proprio motu.

(2) The court of higher rank to whose district the other courts belong shall be competent to give such order. If there is no such court, the common superior court shall give a decision.

Section 5. [Jurisdiction over Connected Cases]

For the duration of joinder the proceedings shall be governed by the criminal case within the jurisdiction of the court of higher rank.

Section 6. [Examination Proprio motu]

At all stages of the proceedings the court shall, proprio motu, review its substantive jurisdiction.

Section 6a. [Jurisdiction of Particular Penal Chambers]

The court shall, proprio motu, review the jurisdiction of particular penal chambers pursuant to the provisions of the Courts Constitution Act (Section 74 subsection 2 and Sections 74a and 74c of the Courts Constitution Act) prior to the opening of the main proceedings. Thereafter it may take account of its lack of jurisdiction only upon an objection being filed by the defendant. The defendant may file such objection during the main hearing only prior to the commencement of his examination on the charge.

Chapter II Venue

Section 7. [Place of the Commission of the Act]

(1) Venue shall be deemed to be established in the court in whose district the criminal offense was committed.

(2) If essential elements of an offense are established by the contents of a publication appearing within the territorial scope of this Federal statute, only the court in whose district the publication appeared shall be deemed to have jurisdiction pursuant to subsection 1. However, in defamation cases, where initiated by private prosecution, the court in whose district the publication was distributed shall also have jurisdiction if the defamed person has his domicile or ordinary place of residence in that district.

Section 8. [Domicile, Place of Residence]

(1) Venue shall also be deemed to be established in the court in whose district the indicted accused has his domicile at the time the charges are preferred.

(2) If the indicted accused has no domicile within the territorial scope of this Federal statute, venue shall also be determined by his ordinary place of residence and, if such place of residence is not known, by his last domicile.

Section 9. [Place of Apprehension]

Venue shall also be deemed to be established in the court in whose district the accused was apprehended.

Section 10. [Home Port]

(1) If the criminal offense was committed on a ship authorized to fly the Federal flag outside the territorial scope of this statute, the competent court shall be the court in whose district the ship’s home port is located, or the port within the territorial scope of this statute first reached by the ship after commission of the offense.

(2) Subsection (1) shall apply mutatis mutandis to aircraft authorized to bear the nationality sign of the Federal Republic of Germany.

Section 10a. [Environmental Criminal Offenses]

If no venue is established for an offense committed at sea outside the territorial scope of this statute, the venue shall be Hamburg; the competent Local Court shall be Hamburg Local Court.

Section 11. [German Officials Abroad]

(1) In the case of Germans who enjoy the right of extraterritoriality, as well as of officials of the Federation or of a German Land, employed abroad, venue shall be determined by the domicile which they had in Germany. If they had no such domicile, the seat of the Federal Government shall be considered their domicile.

(2) These provisions shall not be applied to honorary consuls.

Section 12. [Concurrence of More than One Venue]

(1) If more than one court has jurisdiction pursuant to the provisions of Sections 7 to 11, the court which first opened the investigation shall take precedence.

(2) The investigation and decision may, however, be transferred to one of the other competent courts by the common superior court.

Section 13. [Venue for Connected Cases]

(1) For connected criminal cases each of which, pursuant to the provisions of Sections 7 to 11, would be under the jurisdiction of different courts, venue shall be deemed to be established in each court having jurisdiction over one of the criminal cases.

(2) If more than one connected criminal case is pending in different courts, they may be joined in whole or in part in one of the courts, where such courts so agree upon application of the public prosecution office. If such agreement is not reached, the common superior court, upon application by the public prosecution office or an indicted accused, shall decide whether and in which court the cases shall be joined.

(3) Cases which have been joined may be severed in the same manner.

Section 13a. [Determination of the Competent Court by the Federal Court of Justice]

If venue cannot be established in any court within the territorial scope of this Federal statute, or if such court cannot be ascertained, the Federal Court of Justice shall decide which court shall be competent.

Section 14. [Dispute regarding Jurisdiction]

If a dispute arises between courts as regards jurisdiction, the common superior court shall decide which court is to conduct the investigations and give the decision.

Section 15. [Impediment of the Competent Court]

If a competent court is, in an individual case, legally or factually hindered from exercising its judicial authority, or if it is feared that a hearing before such a court might endanger public security, the next superior court shall assign the investigation and decision to an equivalent court of another district.

Section 16. [Objection of Lack of Jurisdiction]

Prior to the opening of the main proceedings, the court shall, proprio motu, review its local jurisdiction. Thereafter it may declare its lack of jurisdiction only upon an objection being filed by the defendant. The defendant may file such objection during the main hearing only prior to the commencement of his examination on the charge.

Section 17. Deleted

Section 18. Deleted

Section 19. [Dispute regarding Lack of Jurisdiction]

Where more than one court one of which is competent, has stated in decisions that are no longer contestable that it lacks jurisdiction, the common superior court shall designate the competent court.

Section 20. [Individual Acts of a Court Lacking Jurisdiction]

Individual acts of investigation by a court lacking jurisdiction shall not be ineffective by virtue of that lack of jurisdiction alone.

Section 21. [Exigent Circumstances]

A court lacking jurisdiction shall, in exigent circumstances, conduct acts of investigation in its district.

Chapter III Exclusion and Challenge of Court Personnel

Section 22. [Disqualification of a Judge]

(1) A judge shall be barred by law from exercising his judicial office:

1. if he himself was aggrieved by the criminal offense;

2. if he is or was the spouse or the guardian of the accused or of the aggrieved party;

3. if he is or was lineally related or related by marriage, collaterally related to the third degree or related by marriage to the second degree to the accused or the aggrieved party;

4. if he acted in the case as an official of the public prosecution office, as a police officer, as attorney-at-law of the aggrieved party, or as defense counsel;

5. if he was heard in the case as a witness or expert.

Section 23. [Disqualification of Judges Who Participated in Previous Proceedings]

(1) A judge who participated in a decision which has been contested by way of appellate remedy shall be barred by law from participating in the decision of a higher instance.

(2) A judge who has participated in a decision contested by application for reopening of the proceedings shall be barred by law from participating in decisions in the proceedings to reopen the case. If the contested decision has been given at a higher instance, a judge who has participated in an original decision at a lower instance shall be barred. The first and second sentences shall apply mutatis mutandis to the participation in decisions to prepare the reopening of the proceedings.

Section 24. [Challenge of a Judge]

(1) A judge may be challenged both where he has been barred by law from exercising judicial office and for fear of bias.

(2) Challenge for fear of bias shall be justified if there is reason to doubt the impartiality of a judge.

(3) The public prosecution office, the private prosecutor, and the accused may exercise the right of challenge. The court personnel appointed to participate in the decision shall be named upon the request of the party entitled to challenge.

Section 25. [Final Date for Challenge]

(1) A judge hearing the case may be challenged for fear of bias until commencement of examination of the first defendant as to the defendant’s personal circumstances or, in the main hearing on the appeal on fact and law or the appeal on law, until commencement of the rapporteur’s statement. All reasons for the challenge shall be stated at the same time.

(2) Thereafter a judge may be challenged only if:

1. the circumstances on which the challenge is based have occurred later or have become known to the person entitled to challenge at a later date and

2. the challenge is claimed without delay.

After the defendant’s last word a challenge shall no longer be admissible.

Section 26. [Procedure concerning Challenge]

(1) The motion for challenge shall be filed with the court of which the judge is a member; it may be made orally to be recorded by the court registry. Section 257a shall not be applicable.

(2) The ground for challenge, and in the cases of Section 25 subsection (2) the conditions for submitting the request in time must be substantiated. The taking of an oath to substantiate a challenge shall not be admissible. To substantiate a challenge, reference may be made to the testimony of the challenged judge.

(3) The challenged judge shall make an official statement on the grounds for challenge.

Section 26a. [Inadmissible Challenge]

(1) The challenge of a judge shall be rejected by the court as being inadmissible if:

1. the challenge is not made in time;

2. there is no disclosure of the ground for the challenge or of the means by which the challenge could be substantiated; or

3. it is obvious that the challenge is made just to delay the proceedings or for purposes which are irrelevant to the proceedings.

(2) The court shall give the decision with respect to a rejection pursuant to subsection (1) without the challenged judge being excluded from the bench. In a case under subsection (1) number 3, a unanimous decision and a disclosure of the circumstances which constitute the ground for the rejection shall be required. If a commissioned or a requested judge, a judge in preparatory proceedings, or a criminal court judge sitting alone is challenged, he shall himself decide the question whether the challenge shall be rejected as inadmissible.

Section 27. [Decision on the Challenge]

(1) If the challenge is not rejected as inadmissible the court of which the challenged person is a member shall decide on the motion of challenge without the challenged person’s participation.

(2) If a judge of the adjudicating penal chamber is challenged, the penal chamber, in its required composition for decisions made outside the main hearing, shall decide the issue.

(3) If a judge at the Local Court is challenged, another judge of this court shall give a decision. A decision shall not be required if the person challenged considers the motion of challenge to be well-founded.

(4) If the court which is to give a decision lacks a quorum after exclusion of the challenged judge, the next superior court shall give a decision.

Section 28. [Appellate Remedy]

(1) A ruling declaring a challenge well-founded shall not be contestable.

(2) An immediate complaint may be lodged against a ruling rejecting the challenge as inadmissible or unfounded. If the ruling concerns an adjudicating judge, it can be contested only together with the judgment.

Section 29. [Non-deferable Acts of the Challenged Person]

(1) A challenged judge shall, prior to the decision on the motion for challenge, perform only such acts which may not be deferred.

(2) If a judge is challenged at the main hearing and if the decision on the challenge (Sections 26a and 27) would require an interruption of the main hearing, the main hearing may be continued until a decision on the challenge is possible without delaying the main hearing; a decision on the challenge shall be made at the latest by the commencement of the day following the next day of the hearing, and always prior to the commencement of the closing speeches. If the challenge is declared well-founded and if the main hearing need not be suspended for this reason, that part of the hearing completed after submission of the motion for challenge shall be repeated. This shall not apply to such acts which may not be deferred. After submission of the motion for challenge decisions which may also be made separately from the main hearing may be given with the participation of the challenged person only if they may not be deferred.

Section 30. [Self-disqualification; Ex Officio Challenge]

The court competent for the decision on a motion for challenge shall decide also in cases in which, although a motion for challenge has not been filed, a judge reports circumstances which might justify his being challenged, or when for other reasons doubts arise as to whether a judge is barred by law.

Section 31. [Lay Judges and Registry Clerks]

(1) The provisions of this Chapter shall apply mutatis mutandis to lay judges as well as to registry clerks and to other persons assisting as recording clerks.

(2) The decision shall be given by the presiding judge. In the grand penal chamber and the penal division with lay judges the judicial members of the bench shall give a decision. If a recording clerk has been assigned to a judge, the latter shall decide on his challenge or disqualification.

Section 32. Deleted

Chapter IV Court Decisions and their Notification

Section 33. [Hearing the Participants]

(1) A decision of the court rendered in the course of the main hearing shall be given after hearing the participants.

(2) A decision of the court rendered outside a main hearing shall be given after a written or oral declaration by the public prosecution office.

(3) If a decision has been given pursuant to subsection (2), another participant shall be heard before facts or evidentiary conclusions in respect of which he has not yet been heard are used to his detriment.

(4) If remand detention, seizure or other measures have been ordered, subsection (3) shall not be applicable if the prior hearing would endanger the purpose of such an order. Special provisions governing the hearing of the participants shall not be affected by subsection (3).

Section 33a. [Subsequent Hearing]

If the court, in a decision detrimental to a participant, used facts or evidentiary conclusions in respect of which he has not yet been heard and if he is not entitled to lodge a complaint against this decision or to any other legal remedy, the court shall give this participant a subsequent hearing, as far as the detriment still exists, either of proprio motu or upon an application, and decide upon an application. The court may amend its decision without an application.

Section 34. [Reasons for the Decision]

Decisions which may be contested by appellate remedy, as well as those refusing an application, shall include the reasons therefor.

Section 34a. [Entry into Force by virtue of an Order]

If, after an appellate remedy has been sought in time, the contested decision immediately enters into force by virtue of an order, it shall be deemed to have entered into force at the end of the day on which the order was given.

Section 35. [Notification of the Decision]

(1) Decisions which are given in the presence of the person to whom they refer shall be notified to him orally. Upon request a copy shall be given to him.

(2) Other decisions shall be notified by service thereof. Where notification of the decision does not cause commencement of a time limit, the decision may be notified informally.

(3) Documents served on individuals deprived of their liberty shall be read out to them upon request.

Section 35a. [Instructions on Appellate Remedy]

Upon notification of a decision which is contestable by way of appellate remedy within a given time limit, the person concerned shall be informed of the options for contesting such decision and of the relevant prescribed time limits and forms. Where an appeal on fact and law may be filed against the judgment, the defendant shall also be informed of the legal consequences arising out of Section 40 subsection (2) and Sections 329 and 330.

Section 36. [Service and Execution of Decisions]

(1) The service of decisions shall be ordered by the presiding judge. The court registry shall take care that the service is effected.

(2) Decisions requiring execution shall be submitted to the public prosecution office which shall take necessary action. This shall not apply to decisions concerning order at the sittings.

Section 37. [Procedure concerning Service]

(1) The provisions of the Civil Procedure Code shall apply mutatis mutandis to the procedure for service. The statutory time limits shall be considered to be time limits within the meaning of Section 187, second sentence, of the Civil Procedure Code.

(2) Service of documents abroad may also be effected by means of recorded delivery post with acknowledgment of receipt, provided international agreements permit the direct sending of documents via the postal system.

(3) Where documents addressed to a participant are served on several persons authorized to receive them, time limits shall be calculated from the date of the service last effected.

Section 38. [Direct Summons]

Persons participating in criminal proceedings who have the authority to summon witnesses and experts directly shall charge the court bailiff with service of the summons.

Section 39. Deleted

Section 40. [Service by Publication]

(1) If service on an accused, upon whom a summons for the main hearing has not yet been served, cannot be effected in Germany in the prescribed manner, and if compliance with the provisions for service abroad appears impracticable or will presumably be unsuccessful, the service shall be considered effected if the contents of the document to be served have been notified in a German or foreign publication and two weeks have elapsed after publication, or if the document to be served has been affixed for two weeks on the bulletin board of the court of first instance. The official who orders the service shall have the right to choose the publication.

(2) If the summons for the main hearing was previously served upon the defendant, further service on him, if it cannot be effected in Germany in the prescribed manner, shall be considered effected when the document to be served has been affixed for two weeks on the bulletin board of the court of first instance. Only those parts of judgments and rulings containing the operative provisions shall be affixed.

(3) Service by publication shall be admissible in proceedings concerning an appeal on fact and law filed by the defendant if it is not possible to serve documents at an address at which documents were last served or which the defendant last provided.

Section 41. [Service on the Public Prosecution Office]

Service on the public prosecution office shall be made by producing the original copy of the document to be served. Where a time limit begins to run upon service, the public prosecution office shall note the day of production on the original.

Chapter V Time Limits and Restoration of the Status Quo Ante

Section 42. [Time Limits Determined in Days]

In calculating a time limit determined in days, the day of the time or the event determining the beginning of the time limit shall not be counted.

Section 43. [Time Limits Determined in Weeks and Months]

(1) A time limit determined in weeks or months shall expire at the end of the day of the last week or the last month, whose name or number, corresponds to the day on which the time limit began; where the last month lacks such day, the time limit shall expire at the end of the last day of that month.

(2) If the end of a time limit falls on a Sunday, a public holiday or a Saturday, the time limit shall expire at the end of the next workday.

Section 44. [Restoration of the Status quo ante]

If a person was prevented from observing a time limit through no fault of his own, he shall be granted restoration of the status quo ante upon application. Failure to observe the time limit for filing an appellate remedy shall not be considered a fault if instructions pursuant to Section 35a, Section 319 subsection 2, third sentence, or Section 346 subsection 2, third sentence, have not been given.

Section 45. [Application for Restoration of the Status quo ante]

(1) The application for restoration of the status quo ante shall be filed with the court where the time limit should have been observed, within one week after the reason for non-compliance no longer applies. If the time limit is observed, it shall be sufficient for the application to be filed in time with the court which is to decide on the application.

(2) The facts justifying the application shall be substantiated at the time the application is filed or during the proceedings on the application. The omitted act shall subsequently be undertaken within the time limit for filing the application. Where this is done, restoration may also be granted without an application being filed.

Section 46. [Decision and Appellate Remedy]

(1) The decision on the application shall be taken by the court which would have been competent to decide on the facts of the case if the act concerned had been completed on time.

(2) A decision in favor of the application shall not be contestable.

(3) An immediate complaint may be lodged against a decision refusing an application.

Section 47. [No Suspension of Execution]

(1) The application for restoration of the status quo ante shall not suspend execution of a court decision.

(2) The court may, however, order postponement of execution.

Chapter VI Witnesses

Section 48. [Summons of Witnesses]

A witness summons shall denote the legal consequences of non-appearance.

Section 49. [Examination of the Federal President]

The Federal President shall be examined in his residence. He shall not be summoned to the main hearing. The record of his examination by the court shall be read out at the main hearing.

Section 50. [Examination of Members of Parliament or Government Ministers]

(1) Members of the Federal Parliament, of the Federal Council, of a LandParliament or second chamber shall be examined at their place of assembly while present.

(2) Members of the Federal Government or of a Land government shall be examined at their government office or, if they are not there, at the place where they are.

(3) Any deviation from the foregoing provisions shall, in the case of members of a body mentioned in subsection (1), require the approval of that body,

in the case of members of the Federal Government, the approval of the Federal Government,

in the case of members of a Land government, the approval of the Landgovernment.

(4) Members of the legislative bodies in subsection (1), and members of the Federal Government or of a Land government, if examined outside the main hearing, shall not be summoned to it. The record of their judicial examination shall be read out at the main hearing.

Section 51. [Consequences of Non-Appearance]

(1) A witness who fails to appear although he was properly summoned, shall be charged with the costs attributable to his failure to appear. At the same time, a coercive fine shall be imposed on him and if the coercive fine cannot be collected, coercive detention shall be ordered. A witness may also be brought before the court by force. Section 135 shall apply mutatis mutandis. In the case of repeated non-appearance the coercive measure may be imposed a second time.

(2) Costs shall not be charged and a coercive measure shall not be imposed if the witness provides a sufficient and timely excuse for his non-appearance. If such excuse is not made in time pursuant to the first sentence, the charging of the costs and the imposition of a coercive measure shall, be dispensed with only if it is demonstrated that the delayed excuse is not the witness’ fault. If the witness is sufficiently excused thereafter, the orders made shall be revoked under the conditions set out in the second sentence.

(3) Authority to order such measures shall also be vested in the judge in the preliminary proceedings as well as in a commissioned and a requested judge.

Section 52. [Right to Refuse Testimony on Personal Grounds]

(1) The following persons may refuse to testify:

1. the fiancé(e) of the accused;

2. the spouse of the accused, even if the marriage no longer exists;

3. a person who is or was lineally related or related by marriage, collaterally related to the third degree, or related by marriage to the second degree, to the accused.

(2) If minors for want of intellectual maturity, or minors or persons placed in care due to mental illness or mental or emotional deficiency have no sufficient understanding of the importance of their right of refusal to testify, testimony may be taken from such persons only if they are willing to testify and if their statutory representative also agrees to their examination. If the statutory representative is accused himself he may not decide on the exercise of the right of refusal to testify; the same shall apply to the parent who is not accused, if both parents are entitled to act as statutory representative.

(3) Persons entitled to refuse to testify, in the cases of subsection (2) also their representatives authorized to decide on the exercise of the right of refusal to testify, shall be instructed concerning their right prior to each examination. They may revoke the waiver of this right during the examination.

Section 53. [Right to Refuse Testimony on Professional Grounds]

(1) The following persons may also refuse to testify:

1. clergymen, concerning the information that was entrusted to them or became known to them in their capacity as spiritual advisers;

2. defense counsel of the accused, concerning the information that was entrusted to them or became known to them in this capacity;

3. attorneys-at-law, patent attorneys, notaries, auditors, sworn certified accountants, tax consultants and tax representatives, doctors, dentists, psychological psychotherapists, psychotherapists specializing in the treatment of children and juveniles, pharmacists and midwives, concerning information entrusted to them or which became known to them in their professional capacity;

3a. members or representatives of a recognized counseling agency pursuant to sections 3 and 8 of the Act on Pregnancies in Conflict Situations, concerning the information that was entrusted to them or became known to them in this capacity;

3b. drugs dependency counselors in a counseling agency recognized or set up by an authority, a body, institution or foundation under public law, concerning the information that was entrusted to them or became known to them in this capacity;

4. members of the Federal Parliament, of a Land Parliament or a second chamber, concerning persons who confided to them facts in their capacity as members of these bodies, or to whom they confided facts in this particular capacity, as well as the facts themselves;

5. individuals who are or were professionally involved in the preparation, production or dissemination of periodically printed matter or radio broadcasts concerning the author, contributor or informant providing contributions and documentation and concerning information received by them in their professional capacity insofar as this concerns contributions, documentation and information for the editorial element of their activity.

(2) The persons specified in subsection (1), numbers 2 to 3b, may not refuse to testify if they have been released from their obligation of secrecy.

Section 53a. [Right of Professional Assistants to Refuse Testimony]

(1) Assistants and persons being trained for their profession who participate in their respective professional activities shall be considered equivalent to the persons specified in Section 53 subsection (1), numbers 1 to 4. The persons specified in Section 53 subsection (1), numbers 1 to 4, shall decide whether these assistants should exercise their right to refuse to testify, except if such a decision cannot be obtained within a foreseeable period.

(2) Release from the obligation of secrecy (Section 53 subsection (2)) shall also apply to the assistants.

Section 54. [Authorization for Judges and Officials to Testify]

(1) The special provisions of the law concerning public officials shall apply to the examination of judges, officials, and other persons in the public service as witnesses concerning circumstances covered by their official obligation of secrecy, as well as to permission to testify.

(2) Members of the Federal Parliament, of the Land Parliaments, of the Federal Government or a Land Government and the employees of a Federal or Landparliamentary group shall be subject to the special provisions applicable to them.

(3) The Federal President may refuse to testify if his testimony would be disadvantageous to the welfare of the Federation or of a German Land.

(4) These provisions shall also apply if the persons referred to above are no longer members of the public service or employees of a parliamentary group or if their terms of office have expired insofar as matters are involved which occurred during their terms of service, employment or office or which became known to them during their terms of service, employment or office.

Section 55. [Refusal of Information]

(1) Any witness may refuse to answer any questions the reply to which would subject him, or one of the relatives specified in Section 52 subsection (1), to the risk of being prosecuted for a criminal offense or a regulatory offense.

(2) The witness shall be informed of his right to refuse to answer.

Section 56. [Substantiation of the Grounds for Refusal to Testify]

The reason for which the witness in the cases of Sections 52, 53 and 55 refuses to testify shall be substantiated upon request. A sworn affirmation by the witness shall be sufficient.

Section 57. [Instruction regarding Oath]

Before examination, witnesses shall be admonished to tell the truth and shall be informed that their statements must be made under oath, except as otherwise provided or permitted by law. At the same time instruction shall be given on the importance of the oath, on the possibility to choose between the oath with religious affirmation or without religious affirmation, and on the criminal law consequences of incorrect or incomplete statements.

Section 58. [Examination; Confrontation]

(1) Witnesses shall be examined individually and in the absence of those witnesses who shall be heard later.

(2) A confrontation with other witnesses or with the accused in the preliminary proceedings shall be admissible if this is required for the further proceedings.

Section 58a. [Examination by Audio-Visual Medium]

(1) The examination of a witness may be recorded on an audio-visual medium. The examination shall be recorded:

1. in the case of persons of less than sixteen years of age who have suffered injury as result of the criminal offense; or

2. if there is a fear that the person cannot be examined during the main hearing and if the recording is required in order to establish the truth.

(2) Use of the audio-visual recording shall be admissible only for the purposes of criminal prosecution and only to the extent that it is required in order to establish the truth. Section 100b subsection (6) and Sections 147 and 406e shall apply mutatis mutandis.

Section 59. [Oath]

Witnesses shall be placed under oath individually after they have been examined. Except as otherwise provided, the oath shall be taken at the main hearing.

Section 60. [Prohibition of Oath]

An oath shall not be administered:

1. to persons who at the time of the examination are still under the age of sixteen, or who have no sufficient understanding of the nature and importance of the oath due to their deficient intellectual maturity or mental illness or mental or emotional deficiency;

2. to persons who are suspected of having committed the offense which forms the subject of the investigation, of having participated in it, or who are suspected of accessoryship, obstruction of justice or handling stolen goods or who were already sentenced therefor.

Section 61. [Dispensing with the Oath]

The court in its discretion may dispense with administering an oath:

1. to persons who at the time of the examination have reached the age of sixteen, but are still under the age of eighteen;

2. to the aggrieved person, as well as to persons who within the meaning of Section 52 subsection (1) are relatives of the aggrieved person or of the accused;

3. if the court does not attribute special importance to the statement, and is of the opinion that an essential statement cannot be expected even under oath;

4. in the case of persons who have been sentenced for perjury (Sections 154 and 155 of the Penal Code);

5. if the public prosecution office, defense counsel and the defendant dispense with administration of the oath.

Section 62. [Oath in Proceedings for Petty Offenses]

Witnesses shall be sworn in private prosecution proceedings only if it is deemed necessary by the court because of the decisive importance of the statement, or in order to obtain a true statement.

Section 63. [Privilege of Refusing to Take the Oath]

The relatives of the accused specified in Section 52 subsection (1) shall have the right to refuse to give testimony under oath; they shall be informed of this right.

Section 64. [Recording Reason for not Administering an Oath]

The reason for not having administered an oath to a witness shall be indicated in the record.

Section 65. [Oath in Preparatory Proceedings]

Administration of an oath shall only be admissible in the preparatory proceedings:

1. in exigent circumstances;

2. if the oath seems to be necessary for obtaining a true statement on a question of importance for the further proceedings; or

3. if it is be expected that the witness will be unavailable at the main hearing.

Section 66. Deleted

Section 66a. [Recording Reason for Administering an Oath]

The reason for administering an oath to a witness outside the main hearing shall be indicated in the record.

Section 66b. [Oath on Examination by Commission]

(1) If the witness is examined by a commissioned or requested judge, this judge shall initially decide whether to administer the oath.

(2) An oath shall be administered, where admissible, if so demanded in the commission or request from the court. The examining judge may suspend the administration of an oath and reserve it for a new decision of the commissioning or requesting court, if facts appear in the examination which would justify an unsworn examination. These facts shall be noted in the record.

(3) An oath shall not be administered if an unsworn examination is requested.

Section 66c. [Form of Oath]

(1) An oath with religious affirmation shall be administered in such a way that the judge addresses the following words to the witness:

“You swear by God the Almighty and Omniscient that, to the best of your knowledge, you have told the pure truth and have not concealed anything”,

whereupon the witness says the words:

“I swear, so help me God”.

(2) The oath without religious affirmation shall be administered in such a way that the judge addresses the following words to the witness:

“You swear that, to the best of your knowledge, you have told the pure truth and have not concealed anything”,

whereupon the witness says the words:

“I swear”.

(3) If a witness indicates that as a member of a religious denomination or of a community professing a creed he wants to use a formula of affirmation used by such denomination or community, he may add it to the oath.

(4) The person swearing the oath shall raise his right hand when taking the oath.

Section 66d. [Affirmation Equivalent to an Oath]

(1) If a witness states that he does not wish to swear an oath for reasons of faith or conscience he shall affirm the truth of his testimony. The affirmation shall be equivalent to an oath; the witness shall be informed of this fact.

(2) The truth of the statement shall be affirmed in such a way that the judge addresses the following words to the witness:

“You are aware of your responsibility before the court and affirm that, to the best of your knowledge, you have told the pure truth and have not concealed anything”,

whereupon the witness says: “Yes”.

(3) Section 66c subsection (3) shall apply mutatis mutandis.

Section 66e. [Form of Oath for Mute Witnesses]

(1) Mute persons shall take the oath in such a way that they write down and sign the following words:

“I swear by God the Almighty and Omniscient that, to the best of my knowledge, I have told the pure truth and have not concealed anything”.

Mute persons who cannot write shall take the oath by signs with the help of an interpreter.

(2) The provisions of Section 66c subsection (2) and (3) and Section 66d shall apply mutatis mutandis.

Section 67. [Reliance on the Prior Oath]

If a witness, after having been examined under oath, is examined a second time in the same preliminary proceedings or main proceedings, the judge, instead of administering a second oath, may have the witness confirm the correctness of his statement by reference to the oath previously taken.

Section 68. [Examination as to Witness’ Identity and Personal Particulars]

(1) The hearing begins with the witness being asked to state his first name and family name, age, position or trade and place of residence. Witnesses who have made observations in their official capacity may state their place of work instead of their place of residence.

(2) If there is reason to fear that the witness or another person might be endangered by the witness stating his place of residence, the witness may be permitted to state his business address or place of work or another address at which documents can be served instead of stating his place of residence. Under the condition set out in the first sentence, the presiding judge may permit the witness not to state his place of residence during the main hearing.

(3) If there is reason to fear that revealing the identity or the place of residence or whereabouts of the witness would endanger the witness’ or another person’s life, limb or liberty, the witness may be permitted not to state personal particulars or to state particulars only of an earlier identity. However, if so asked at the main hearing, he shall be required to state in what capacity the facts he is indicating became known to him. Documents establishing the witness’ identity shall be kept by the public prosecution office. They shall only be included in the files when the danger ceases.

(4) Where necessary, questions relating to circumstances justifying the witness’ credibility in the case at hand, particularly concerning his relationship with the accused or the aggrieved party, shall be submitted to him.

Section 68a. [Questions concerning Degrading Facts and Previous Convictions]

(1) Questions concerning facts which might dishonor the witness or a person who is his relative within the meaning of Section 52 subsection (1) or which concern their personal sphere of life are to be asked only if essential.

(2) A witness is to be asked about his previous convictions only if their ascertainment is required for a decision on the existence of the conditions of Section 60, number 2, or Section 61, number 4, or to judge his credibility.

Section 68b. [Assignment of an Attorney-at-Law]

With the consent of the public prosecution office a lawyer may be assigned for the duration of the examination to witnesses who previously had no legal counsel if it is evident that they are unable to exercise their rights themselves during the examination and if any of their interests that are worthy of protection cannot be taken into account in another way. Where the examination concerns

1. a serious criminal offense,

2. a less serious criminal offense pursuant to Sections 174 to 174c, 176, 179 subsections (1) to (3), Sections 180, 180b, 182, or Section 225 subsections (1) or (2) of the Penal Code, or

3. another less serious criminal offense of substantial significance committed on a commercial or habitual basis, or by a member of a gang, or in some other way committed in an organized fashion,

assignment of counsel shall be ordered upon application by the witness or the public prosecution office provided the conditions of the first sentence have been fulfilled. Section 141 subsection (4) and Section 142 subsection (1) shall apply mutatis mutandis to the assignment. The decision shall not be contestable.

Section 69. [Examination as to Subject Matter]

(1) The witness shall be directed to state coherently all he knows about the subject of his examination. The subject of the investigation and the name of the accused, if there is an accused, shall be indicated to the witness before the examination.

(2) If so required, further questions shall be asked in order to clarify and complete the statement, as well as to establish the grounds on which the witness’ knowledge is based.

(3) The provisions in Section 136a shall apply mutatis mutandis to the examination of a witness.

Section 70. [Refusal without Reason to Testify or Take the Oath]

(1) A witness who without a legal reason refuses to testify, or to take an oath, shall be charged with the costs caused by this refusal. At the same time a coercive fine shall be imposed on him and if the fine cannot be collected, coercive detention shall be ordered.

(2) Detention may also be ordered to force a witness to testify; such detention shall not, however, extend beyond the termination of those particular proceedings, nor beyond a period of six months.

(3) The judge in the preliminary proceedings and any commissioned or requested judge shall also have the authority to take these measures.

(4) Where these measures have been taken they may not be repeated in the same proceedings or in other proceedings, if the same offense is the subject of these proceedings.

Section 71. [Witness’ Expenses]

The witness shall be compensated pursuant to the Act on Compensation of Witnesses and Experts.

Chapter VII Experts and Inspection

Section 72. [Application of Provisions concerning Witnesses]

Chapter VI concerning witnesses shall apply mutatis mutandis to experts, except as otherwise provided by the following sections.

Section 73. [Selection of Experts]

(1) The judge shall select the experts to be consulted, and shall determine their number. He shall agree with them on a time limit within which their opinions may be rendered.

(2) If experts are publicly appointed for certain kinds of opinions, other persons are to be selected only if this is required by special circumstances.

Section 74. [Challenge]

(1) An expert may be challenged for the same reasons that justify the challenging of a judge. The fact, however, that the expert was examined as a witness shall not be a reason for challenge.

(2) The public prosecution office, the private prosecutor and the accused shall have the right of challenge. The appointed experts shall be made known to the person entitled to challenge if there are no special circumstances to the contrary.

(3) The ground for challenge shall be substantiated; taking an oath to substantiate a challenge shall be precluded.

Section 75. [Duty to Render Opinion]

(1) The person appointed as an expert must comply with the appointment, if he has been publicly appointed to render opinions of the required kind, or if he publicly and commercially practices the science, art, or trade, the knowledge of which is a prerequisite for rendering an opinion, or if he has been publicly appointed or authorized to practice such profession.

(2) The obligation to render an opinion shall also be incumbent upon a person who has stated his willingness to do so before the court.

Section 76. [Privilege to Refuse to Render Opinion]

(1) An expert may refuse to render an opinion for the same reasons for which a witness may refuse to testify. An expert may also be released for other reasons from his obligation to render an opinion.

(2) The provisions applying to public officials in particular shall apply to the examination of judges, officials and other persons in the public service as experts. Members of the Federal Government or of a Land government shall be subject to the special provisions relating to them.

Section 77. [Consequences of Non-Appearance or Refusal]

(1) In the case of non-appearance or refusal of an expert obliged to render an opinion he shall be charged with the costs caused by his non-appearance or refusal. At the same time a coercive fine shall be imposed on him. In the case of repeated disobedience the coercive fine may be assessed a second time in addition to the costs.

(2) If an expert obliged to render the opinion refuses to agree upon a reasonable time limit pursuant to Section 73 subsection (1), second sentence, or if he fails to observe the time limit agreed upon, a coercive fine may be imposed on him. The assessment of a coercive fine must be preceded by an admonition setting an extension of the time limit. In the case of repeated failure to observe the time limit the coercive fine may be assessed again.

Section 78. [Judicial Direction]

The judge shall guide the experts’ participation, so far as he deems this necessary.

Section 79. [Oath Administered to an Expert]

(1) Administration of an oath to the expert shall be left to the discretion of the court. An oath shall be administered to the expert upon application by the public prosecution office, by the defendant, or by defense counsel.

(2) The oath shall be taken after the opinion is rendered; it shall contain the assurance that the expert rendered his opinion impartially and to the best of his knowledge and belief.

(3) If the expert has been sworn generally to render opinions of the kind concerned, a reference to his oath shall be sufficient.

Section 80. [Preparation of an Opinion]

(1) The expert may, at his request, be given further details for the preparation of his opinion by examining witnesses or the accused.

(2) For the same purpose, he may be allowed to examine the file, to be present at the examination of the witnesses or of the accused, and to address questions to them directly.

Section 80a. [Consultations During the Preparatory Proceedings]

An expert is to be given the opportunity, during the course of the preliminary proceedings, to prepare the opinion that he is to render at the main hearing, if it is expected that the committal of the accused to a psychiatric hospital, to an institution for withdrawal treatment or to preventive detention will be ordered.

Section 81. [Committal for Observation of the Accused]

(1) For the preparation of an opinion on the accused’s mental condition the court may, after hearing an expert and defense counsel, order that the accused be brought to a public psychiatric hospital and be held under observation there.

(2) The court shall make the order pursuant to subsection (1) only if the accused is strongly suspected of the offense. The court may not make this order if it is out of relation to the importance of the matter or to the penalty or to the measure of reform and prevention to be expected.

(3) In the preparatory proceedings the court which would be competent for the opening of the main proceedings shall give a decision.

(4) An immediate complaint against the decision shall be admissible. It shall have a delaying effect.

(5) Committal to a psychiatric hospital pursuant to subsection (1) may not exceed a total period of six weeks.

Section 81a. [Physical Examination; Blood Test]

(1) A physical examination of the accused may be ordered for the establishment of facts which are of importance for the proceedings. For this purpose, the taking of blood samples and other bodily intrusions which are effected by a physician in accordance with the rules of medical science for the purpose of examination shall be admissible without the accused’s consent, provided no detriment to his health is to be expected.

(2) The authority to give such order shall be vested in the judge and, if delay were to endanger the success of the examination, also in the public prosecution office including officials assisting it (Section 152 of the Courts Constitution Act).

(3) Blood samples or other body cells taken from the accused may be used only for the purposes of the criminal proceedings for which they are taken or in other criminal proceedings pending; they shall be destroyed without delay as soon as they are no longer required for those uses.

Section 81b. [Photographs and Fingerprints]

Photographs and fingerprints of the accused may be taken, even against his will, and measurements may be made of him and other similar measures taken with regard to him insofar as is required for the purposes of conducting the criminal proceedings or of the police records department.

Section 81c. [Examination of Other Persons]

(1) Persons other than the accused may, if they might be considered witnesses, be examined without giving their consent only insofar as establishing the truth involves ascertaining whether their body shows a particular trace or consequence of a criminal offense.

(2) Examinations to ascertain descent and the taking of blood samples from persons other than the accused shall be admissible without such persons’ consent provided no detriment to their health is to be expected and if the measure is indispensable for establishing the truth. The examination and the taking of blood samples may only ever be carried out by a physician.

(3) Examinations or the taking of blood samples may be refused for the same reasons as testimony may be refused. Where minors lack intellectual maturity or where minors or persons placed in care due to mental illness or mental or emotional deficiency have no sufficient understanding of the importance of their right of refusal, their statutory representative shall give the decision; Section 52 subsection (2), second sentence, and subsection (3) shall apply mutatis mutandis. If the statutory representative is precluded from giving a decision (Section 52 subsection (2), second sentence) or is prevented from giving a decision in time for other reasons, and the immediate investigation or taking of blood samples for securing evidence seems necessary, these measures shall be admissible only upon special order by the judge. The decision ordering the measures shall not be contestable. The evidence furnished pursuant to the third sentence may be used in further proceedings only with the consent of the statutory representative authorized to do so.

(4) Measures pursuant to subsections (1) and (2) shall be inadmissible if on evaluation of all circumstances the person concerned cannot reasonably be expected to undergo such measures.

(5) The authority to give such order shall be vested in the judge and, if a delay were to endanger the success of the investigation – apart from the cases of subsection (3), third sentence – also in the public prosecution office and officials assisting it (Section 152 of the Courts Constitution Act). Section 81a subsection (3) shall apply mutatis mutandis.

(6) The provision in Section 70 shall apply mutatis mutandis to cases where the person concerned refuses to undergo an examination. Direct force may be used only upon special order of the judge. The order shall presuppose either that the person concerned insists upon the refusal despite the imposition of a coercive fine or that there are exigent circumstances.

Section 81d. [Physical Examination of Women]

(1) If the physical examination of a woman may violate her sense of shame, it shall be made by a woman or by a physician. Upon the request of the woman who is to be examined, another woman or a relative is to be admitted.

(2) This provision shall also be applicable to cases where the woman who is to be examined consents to the examination.

Section 81e. [Molecular and Genetic Examinations]

(1) Material obtained by measures pursuant to Section 81a subsection (1) may also be subjected to molecular and genetic examinations, insofar as such measures are necessary to establish descent or to ascertain whether traces found originate from the accused or the aggrieved party. Examinations pursuant to the first sentence shall also be admissible to obtain similar findings on material obtained by measures pursuant to Section 81c. Findings on facts other than those referred to in the first sentence shall not be made; examinations designed to establish such facts shall be inadmissible.

(2) Examinations admissible pursuant to subsection (1) may also be carried out on trace materials which have been found, secured or seized. Subsection (1), third sentence, and Section 81a subsection (3), first part of the first sentence, shall apply mutatis mutandis.

Section 81f. [Ordering and Carrying Out Molecular and Genetic Examinations]

(1) Examinations pursuant to Section 81e may be ordered only by the judge. The written order shall state which expert is to carry out the examination.

(2) The examinations pursuant to Section 81e shall be carried out by experts who are publicly appointed, who are obliged under the Obligations Act or who hold public office and who are not members of the authority conducting the investigation or who belong to an organizational unit of such authority which is separate from the service conducting the investigation both in terms of its organization and its area of work. The experts shall take technical and organizational measures to ensure that inadmissible molecular and genetic examinations cannot be carried out and that unauthorized third parties cannot obtain knowledge of the examinations. The material to be examined shall be given to the expert with no indication of the name, address or day or month of birth of the individual concerned. Where the expert is not a public agency, Section 38 of the Federal Data Protection Act shall apply with the condition that the supervisory authority shall also monitor compliance with data protection rules even if it has no sufficient indication that such rules are being violated and if the expert is not processing personal data in computer files.

Section 81g. [DNA Analysis]

(1) For the purposes of establishing identity in future criminal proceedings cell tissue may be collected from an accused person suspected of a criminal offense of substantial significance, particularly a serious or less serious criminal offense against sexual self-determination, serious bodily injury, theft in a particularly serious case or blackmail and subjected to molecular and genetic examination for the purposes of identifying the DNA code if the nature of the offense or its means of commission, the accused’s personality or other information provide grounds for assuming that new criminal proceedings shall have to be conducted against the accused person for one of the aforementioned criminal offenses.

(2) The cell tissue collected may be used only for the molecular and genetic examination referred to in subsection (1); it shall be destroyed without delay once it is no longer required for that purpose. Information other than that required to establish the DNA code may not be ascertained during the examination; tests to establish such information shall be inadmissible.

(3) Section 81a subsection (2) and Section 81f shall apply mutatis mutandis.

Section 82. [Rendering Opinion in Preliminary Proceedings]

In preliminary proceedings the judge shall decide whether the experts shall render their opinion in writing or orally.

Section 83. [Rendering a New Opinion]

(1) The judge may order that a new opinion be rendered by the same or by other experts if he considers the opinion insufficient.

(2) The judge may order that an opinion be rendered by another expert if the first expert was successfully challenged after rendering his opinion.

(3) In important cases the opinion of a specialist authority may be obtained.

Section 84. [Fees for Experts]

The expert shall be compensated pursuant to the Act on Compensation of Witnesses and Experts.

Section 85. [Expert Witnesses]

The provisions concerning evidence by witnesses shall apply if experienced persons have to be examined to prove past facts or conditions the observation of which required special professional knowledge.

Section 86. [Judicial Inspection]

If a judicial inspection takes place, the facts as found shall be stated in the record and such record shall reflect what traces or signs were missing, although their presence could have been presumed according to the special nature of the case.

Section 87. [Post Mortem Examination; Autopsy]

(1) The post mortem examination shall be made by the public prosecution office and, upon application by the public prosecution office, also by the judge with the assistance of a physician. The physician shall not be called in if this is obviously not necessary for clarification of the facts.

(2) The autopsy shall be performed by two physicians. One of them must be a court physician or the head of a public forensic or pathology institute or a physician of the institute entrusted with this task and having specialist knowledge of forensic medicine. The autopsy shall not be performed by the physician who treated the deceased person during his illness directly preceding his death. However, that physician may be asked to attend the autopsy to give information relating to the medical history. The public prosecution office may attend the autopsy. Upon application by the public prosecution office the autopsy shall be carried out in the judge’s presence.

(3) For the purpose of examination or autopsy it shall be admissible to exhume a corpse that has been interred.

(4) The autopsy and exhumation of an interred corpse shall be ordered by the judge; the public prosecution office shall be authorized to order such action if the success of the investigation were to be endangered by a delay. Where exhumation is ordered, notification of a relative of the deceased person has to be ordered at the same time, if the relative can be located without special difficulty and the purpose of the investigation is not endangered by such notification.

Section 88. [Identification]

Unless there are particular impediments, the identity of the deceased person shall be established before the autopsy specifically by questioning persons who knew the deceased person. If there is an accused, the corpse should be shown to him for the purpose of identification.

Section 89. [Extent of Autopsies]

The autopsy shall extend, if the condition of the corpse permits, to the opening of the head, of the chest cavity and of the abdomen.

Section 90. [Autopsies of New-born Children]

When opening the corpse of a new-born child, the examination shall be directed in particular to the question whether it was alive after or during birth, and whether it was mature or at least capable of continuing its life outside the womb.

Section 91. [Suspected Poisoning]

(1) If there is suspicion of poisoning, the examination of the suspicious substance found in the corpse, or elsewhere, shall be made by a chemist or by a specialist authority appointed for such examination.

(2) It may be ordered that this examination be made with the assistance, or under the direction, of a physician.

Section 92. [Opinions in Counterfeiting Cases]

(1) If there is a suspicion of counterfeiting money or official stamps, the money or official stamps, if so required, shall be submitted to the authority which brings the genuine money or genuine official stamps of that kind into circulation. The opinion of this agency shall be obtained concerning falsity or adulteration as well as concerning the probable method of counterfeiting.

(2) If money or official stamps of a foreign currency are involved, the opinion of a German authority may be requested in lieu of an opinion by the respective foreign authority.

Section 93. [Comparison of Handwriting]

To ascertain the authenticity or falsity of a document, as well as to ascertain the author of a script, a handwriting comparison may be conducted with the assistance of experts.

Chapter VIII Seizure, Interception of telecommunications, Computer-Assisted Search, Use of Technical Devices, Use of Undercover Investigators and Search

Section 94. [Objects Which May Be Seized]

(1) Objects which may have importance as evidence for the investigation shall be impounded or be secured in another manner.

(2) Such objects shall be seized if in the custody of a person and not surrendered voluntarily.

(3) Subsections (1) and (2) shall also apply to driver’s licenses which are subject to confiscation.

Section 95. [Obligation to Surrender]

(1) A person who has an object of the above-mentioned kind in his custody shall be obliged to produce and to deliver it upon request.

(2) In the case of non-compliance, the coercive measures provided by Section 70 may be used against such person. This shall not apply to persons entitled to refuse to testify.

Section 96. [Official Documents]

Submission or delivery of files or of other documents officially impounded by authorities or public officials shall not be requested if their superior authority declares that the publication of these files or documents would be detrimental to the welfare of the Federation or of a German Land. The first sentence shall apply mutatis mutandis to files and other documents held in the custody of a Member of the Federal Parliament or of a Land Parliament or of an employee of a Federal or Land parliamentary group where the agency responsible for authorizing testimony has made a corresponding declaration.

Section 97. [Objects Not Subject to Seizure]

(1) The following objects shall not be subject to seizure:

1. written communications between the accused and the persons who, according to Section 52 or Section 53 subsection (1), numbers 1 to 3b, may refuse to testify,

2. notes by persons specified in Section 53 subsection (1), numbers 1 to 3b, concerning confidential information entrusted to them by the accused or concerning other circumstances covered by the right of refusal to testify,

3. other objects, including the findings of medical examinations, covered by the right of the persons specified in Section 53 subsection (1), numbers 1 to 3b, of refusal to testify.

(2) These restrictions shall apply only if these objects are in the custody of a person entitled to refuse to testify. Objects covered by the right of physicians, dentists, psychological psychotherapists, psychotherapists specializing in the treatment of children and juveniles, pharmacists and midwives to refuse to testify shall also not be subject to seizure if they are in the custody of a hospital, nor are objects to which the right of the person to refuse to testify mentioned in Section 53 subsection (1), numbers 3a and 3b, extends if they are in the custody of the counseling agency referred to in that provision. The restrictions of seizure shall not apply if the persons entitled to refuse to testify are suspected of incitement or accessoryship, obstruction of justice or handling stolen goods or where the objects concerned have been obtained by a criminal offense or have been used or are intended for use in perpetrating a criminal offense or where they emanate from a criminal offense.

(3) The seizure of documents shall be inadmissible, insofar as they are covered by the right of Members of the Federal Parliament, or a Land Parliament or second chamber (Section 53 subsection (1), number 4) to refuse to testify.

(4) Subsections (1) to (3) shall apply mutatis mutandis to the cases where persons mentioned in Section 53a may refuse to testify.

(5) The seizure of documents, audio, visual and data recording media, illustrations and other images in the custody of persons referred to in Section 53 subsection (1), number 5, or of the editorial office, the publishing house, the printing works or the broadcasting company shall be inadmissible insofar as they are covered by the right of such persons to refuse to testify. The third sentence of subsection (2) shall apply mutatis mutandis.

Section 98. [Order of Seizure]

(1) Seizures shall be ordered only by the judge and, in exigent circumstances, by the public prosecution office and officials assisting it (section 152 of the Courts Constitution Act). Seizure pursuant to Section 97 subsection (5), second sentence, in the premises of an editorial office, publishing house, printing works or broadcasting company may be ordered only by the judge.

(2) An official who seized an object without judicial order shall within 3 days apply for judicial approval if neither the person concerned nor an adult relative was present at the seizure, or if the person concerned and, if he was absent, an adult relative of that person raised express objection to the seizure. The person concerned may at any time apply for a judicial decision. As long as public charges are not preferred, the decision shall be made by the Local Court in whose district the seizure took place. If a seizure, seizure of mail or a search has already been made in another district, the Local Court in the district of which the public prosecution office conducting the preliminary proceedings has its seat, shall give a decision. The person concerned may also in this case submit the application to the Local Court in whose district the seizure took place. If this Local Court is not competent pursuant to the fourth sentence the judge shall forward the application to the competent Local Court. The person concerned shall be informed of his rights.

(3) The judge shall be notified of the seizure within 3 days if it was made by the public prosecution office or by one of the officials assisting it after the public charges were preferred; the objects seized shall be put at his disposal.

(4) If it is necessary to make a seizure in an official building or an installation of the Federal Armed Forces which is not open to the general public, the superior official agency of the Federal Armed Forces shall be requested to carry out such seizure. The requesting agency shall be entitled to participate. No such request shall be necessary if the seizure is to be made in places which are inhabited exclusively by persons other than members of the Federal Armed Forces.

Section 98a. [Automated Comparison and Transmission of Personal Data]

(1) Notwithstanding Sections 94, 110 and 161, where there are sufficient factual indications to show that a criminal offense of considerable importance has been committed:

1. relating to the illegal trade in narcotics or weapons or counterfeiting money or official stamps,

2. relating to national security (sections 74a, 120 of the Courts Constitution Act),

3. relating to offenses which pose a danger to the general public,

4. relating to endangerment of life and limb, sexual self-determination or personal liberty,

5. on a commercial or habitual basis, or

6. by a member of a gang or organized in some other way,

personal data relating to individuals fulfilling certain presumed characteristics of the perpetrator may be compared by machine with other data in order to exclude individuals not under suspicion or to identify individuals who meet other characteristics significant to the investigations. This measure may be ordered only if other means of establishing the facts or determining the perpetrator’s whereabouts would be considerably less promising or would be much more difficult.

(2) For the purposes of subsection (1), the storing agency shall isolate the data in the database required for the comparison and transmit them to the law enforcement authorities.

(3) Insofar as isolating the data for transmission from other data would require disproportionate effort, the other data shall, upon order, also be transmitted. Their use shall not be admissible.

(4) Upon request by the public prosecution office, the storing agency shall assist the agency effecting the comparison.

(5) Section 95 subsection (2) shall apply mutatis mutandis.

Section 98b. [Competence. Return and Deletion of Data]

(1) The comparison and transmission of the data may be ordered only by the judge and, in exigent circumstances, also by the public prosecution office. Where the public prosecution office has made the order, it shall request its confirmation by the judge without delay. The order shall become ineffective if it is not confirmed by the judge within three days. The order shall be made in writing. It must name the person obliged to transmit the data and shall be limited to the data and comparison characteristics required for the individual case. The transmission of data whose use runs counter to special Federal, or the corresponding Land, rules on use of data, may not be ordered. Sections 96, 97, 98 subsection (1), second sentence, shall apply mutatis mutandis.

(2) Coercive measures (Section 95 subsection (2)) may be ordered only by the judge and, in exigent circumstances, also by the public prosecution office; the imposition of detention shall be reserved for the judge.

(3) Where data have been transmitted on data carriers these shall be returned without delay upon completion of the comparison. Personal data transferred to other data carriers shall be erased without delay as soon as they are no longer required for the criminal proceedings. Personal data obtained by dint of the comparison may be used as evidence in other criminal proceedings only insofar as during their evaluation information was obtained which is required to clear up a criminal offense referred to in Section 98a subsection (1).

(4) Section 163d subsection (5) shall apply mutatis mutandis. Upon completion of a measure pursuant to Section 98a, the agency responsible for monitoring compliance with data protection rules by public bodies shall be informed.

Section 98c. [Comparison of Data to Clear Up a Criminal Offense]

In order to clear up a criminal offense or to determine the whereabouts of a person sought in connection with criminal proceedings, personal data from criminal proceedings may be compared by machine with other data stored for the purposes of criminal prosecution or execution of sentence, or in order to avert danger. Opposing special Federal or Land rules on use of data shall remain unaffected.

Section 99. [Seizure of Mail]

Seizure of mail and telegrams addressed to the accused held in the custody of persons or enterprises providing, or collaborating in the provision of, postal or telecommunications services on a commercial basis shall be admissible. It shall also be admissible to seize mail and telegrams in relation to which facts exist from which it can be concluded that they originate from the accused or are intended for him and that their content is important for the investigation.

Section 100. [Jurisdiction]

(1) Only the judge shall be authorized to order seizure (Section 99) and, in exigent circumstances, also the public prosecution office.

(2) A seizure ordered by the public prosecution office, even if it has not yet resulted in a delivery, shall become ineffective if not approved by the judge within 3 days.

(3) The judge shall be entitled to open the delivered items. He may transfer this authority to the public prosecution office as far as this is required in order not to endanger the success of the investigation by a delay. The transfer shall not be contestable; it may be revoked at any time. As long as an order has not been made pursuant to the second sentence, the public prosecution office shall immediately submit to the judge the delivered items, i.e. closed mail, unopened.

(4) The judge competent pursuant to Section 98 shall decide on a seizure ordered by the public prosecution office. The judge who ordered or confirmed the seizure shall decide whether to open a delivered item.

Section 100a. [Conditions regarding Interception of Telecommunications]

Interception and recording of telecommunications may be ordered if certain facts substantiate the suspicion that a person was the perpetrator or inciter of, or accessory to

1a. criminal offenses against peace, of high treason, of endangering the democratic state based on the Rule of Law, or of treason and of endangering external security (Section 80 to 82, 84 to 86, 87 to 89, 94 to 100a, Penal Code, section 20 subsection (1), numbers 1 to 4, Associations Act);

1b. criminal offenses against national defense (sections 109d to 109h, Penal Code);

1c. criminal offenses against public order (sections 129 to 130, Penal Code, section 92 subsection (1), number 7, Aliens Act),

1d. incitement or accessoryship to desertion or incitement to disobedience (sections 16, 19 in conjunction with section 1 subsection (3) of the Military Penal Act) without being a member of the Federal Armed Forces;

1e. criminal offenses against the security of the troops of the non-German contracting parties to the North Atlantic Treaty stationed in the Federal Republic of Germany or of the troops of one of the Three Powers present in Land Berlin (sections 89, 94 to 97, 98 to 100, 109d to 109g, Penal Code, sections 16, 19 of the Military Penal Act, in conjunction with Article 7 of the Fourth Criminal Law Amendment Act);

2. counterfeiting money or shares or bonds (sections 146, 151, 152, Penal Code),

aggravated trafficking in human beings pursuant to section 181, numbers 2 and 3 of the Penal Code,

murder, manslaughter or genocide (sections 211, 212, 220a, Penal Code),

a criminal offense against personal liberty (sections 234, 234a, 239a, 239b, Penal Code),

gang theft (section 244 subsection (1), number 3, Penal Code) or aggravated gang theft (section 244a, Penal Code),

robbery or extortion resembling robbery (sections 249 to 251, 255, Penal Code),

extortion (section 253, Penal Code),

commercial handling of stolen goods or gang handling of stolen goods (section 260, Penal Code) or commercial gang handling (section 260a, Penal Code),

money laundering or concealment of unlawfully obtained assets pursuant to section 261 subsection (1), (2) or (4) of the Penal Code,

a criminal offense endangering the general public in the cases of sections 306 to 306c, or section 307 subsection (1) to (3), section 308 subsections (1) to (3), section 309 subsections (1) to (4), section 310 subsection (1), sections 313, 314 or section 315 subsection (3), section 315b subsection (3) or sections 316a or 316c of the Penal Code,

3. a criminal offense pursuant to section 52a subsections (1) to (3), section 53 subsection (1), first sentence, numbers 1, 2, second sentence, Weapons Act, section 34 subsections (1) to (6), Foreign Trade and Payments Act or pursuant to section 19 subsections (1) to (3), section 20 subsection (1) or (2), each also in conjunction with section 21 or section 22a subsections (1) to (3) of the Act on the Control of Weapons of War,

4. a criminal offense pursuant to one of the provisions referred to in section 29 subsection (3), second sentence, number 1, of the Narcotics Act under the conditions set out therein or a criminal offense pursuant to sections 29a, 30 subsection (1), numbers 1, 2, 4, section 30a or section 30b of the Narcotics Act, or

5. a criminal offense pursuant to section 92a subsection (2) or section 92b of the Aliens Act or pursuant to section 84 subsection (3) or section 84a of the Asylum Procedure Act

or, in cases in which the attempt is punishable, has attempted to perpetrate or participate in those acts or has prepared such acts by committing a criminal offense and if other means of establishing the facts or determining the accused’s whereabouts would offer no prospects of success or would be much more difficult. The order may be made only against the accused or against persons about whom it can be assumed, on the basis of particular facts, that they are receiving messages intended for the accused or receiving or transmitting messages from the accused or that the accused is using their connection.

Section 100b. [Order to Intercept Telecommunications]

(1) The interception and recording of telecommunications (Section 100a) may be ordered only by a judge. In exigent circumstances, the order may also be given by the public prosecution office. The order of the public prosecution office shall become ineffective if it is not confirmed by the judge within 3 days.

(2) The order shall be given in writing. It must indicate the name and address of the person against whom it is directed as well as the telephone number or other identification of the person’s telecommunications connection. The type, extent and time of the measures shall be specified in the order. The order shall be limited to a maximum of 3 months. An extension of not more than 3 months shall be admissible if the prerequisites designated under Section 100a continue to exist.

(3) On the basis of this order all persons providing, or collaborating in the provision of, telecommunications services on a commercial basis shall enable the judge, the public prosecution office and officials assisting it working in the police force (section 152, Courts Constitution Act) to intercept and record telephone calls. Whether and to what extent measures are to be taken in this respect shall follow from section 88 of the Telecommunications Act and from the Ordinance issued thereunder for the technical and organizational implementation of intercepting measures. Section 95 subsection (2) shall apply mutatis mutandis.

(4) If the prerequisites of Section 100a no longer prevail, the measures resulting from the order shall be terminated without delay. The judge and the person bound by subsection (3) shall be informed of the termination.

(5) The personal information obtained by the measure may be used as evidence in other criminal proceedings only insofar as during its evaluation information was obtained which is required to clear up one of the criminal offenses listed in Section 100a.

(6) If the records obtained by the measures are no longer required for criminal prosecution purposes they shall be destroyed without delay under the control of the public prosecution office. The destruction shall be recorded in writing.

Section 100c. [Measures Implemented Without the Knowledge of the Person Concerned]

(1) Without the knowledge of the person concerned:

1a. photographs may be taken and visual recordings made,

1b. other special technical means intended for the purposes of surveillance may be used to establish the facts of the case or to determine the whereabouts of the perpetrator provided the investigation concerns a criminal offense of considerable importance, and

if other means of establishing the facts or determining the perpetrator’s whereabouts would be considerably less promising or would be more difficult,

2. private speech may be listened to and recorded using technical means if certain facts substantiate the suspicion that a person has committed a criminal offense pursuant to Section 100a and if other means of establishing the facts or determining the perpetrator’s whereabouts would offer no prospects of success or would be much more difficult.

3. private speech of the accused on private premises may be listened to and recorded using technical means if certain facts substantiate the suspicion that a person has

(a) counterfeited money or securities (sections 146, 151 or 152, Penal Code), counterfeited payment cards and Eurocheck blank checks (section 152a, Penal Code), engaged in aggravated trafficking in human beings pursuant to section 181 subsection (1), numbers 2 and 3, of the Penal Code;

committed murder, manslaughter or genocide (sections 211, 212 and 220a Penal Code);

committed a criminal offense against personal liberty (section 234, 234a, 239a or 239b, Penal Code);

committed gang theft (section 244 subsection 1, number 2, Penal Code) or aggravated gang theft (section 244a, Penal Code);

committed aggravated robbery (section 250 subsection (1) or subsection (2), Penal Code);

committed robbery resulting in death (section 251, Penal Code) or extortion resembling robbery (section 255, Penal Code);

committed extortion (section 253, Penal Code) under the conditions set out in section 253 subsection (4), second sentence, of the Penal Code;

committed commercial handling of stolen goods, gang handling of stolen goods (section 260, Penal Code) or gang handling of stolen goods on a commercial basis (section 260a, Penal Code);

committed money laundering, concealment of unlawfully obtained assets pursuant to section 261 subsections (1) to (4) of the Penal Code;

taken a bribe for performance of an official act in breach of official duties (section 332, Penal Code) or offered a bribe for performance of an official act in breach of official duties (section 334, Penal Code);

(b) committed a criminal offense pursuant to section 52a subsections (1) to (3), section 53 subsection (1), first sentence, numbers 1, 2, second sentence of the Weapons Act, section 34 subsections (1) to (6) of the Foreign Trade and Payments Act or pursuant to section 19 subsections (1) to (3), section 20 subsection (1) or (2), each in conjunction with section 21 or section 22a subsections (1) to (3) of the Act on the Control of Weapons of War;

(c) committed a criminal offense pursuant to one of the provisions referred to in section 29 subsection (3), second sentence, number 1, of the Narcotics Act under the conditions set out therein or a criminal offense pursuant to sections 29a or 30 subsection (1), numbers 1, 2 or 4, section 30a or section 30b of the Narcotics Act;

(d) committed criminal offenses against peace, of high treason, of endangering the democratic state based on the Rule of Law, or of treason and of endangering external security (sections 80 to 82, 85, 87, 88, 94 to 96, also in conjunction with section 97b, sections 97a, 98 to 100a, Penal Code);

(e) committed a criminal offense pursuant to section 129 subsection (4) in conjunction with subsection (1), section 129a of the Penal Code; or

(f) committed a criminal offense pursuant to section 92a subsection (2) or section 92b of the Aliens Act or pursuant to section 84 subsection (3) or section 84a of the Asylum Procedure Act

and if other means of establishing the facts or determining the perpetrator’s whereabouts would be disproportionately more difficult or offer no prospects of success.

(2) Measures pursuant to subsection (1) may be taken only against the accused. Measures pursuant to subsection (1), number 1a, shall be admissible against other persons if other means of establishing the facts or determining the perpetrator’s whereabouts would offer considerably fewer prospects of success or be much more difficult. Measures pursuant to subsection (1), number 1b and number 2, may be ordered against other persons only if it can be assumed, on the basis of specific facts, that they are linked to the perpetrator or if a link can be established and that the measure shall make it possible to establish the facts or to determine the perpetrator’s whereabouts and if other means would offer no prospects of success or would be much more difficult. Measures pursuant to subsections (1) to (3) may be effected only on the accused’s private premises. Measures pursuant to subsection (1), number 3, shall be admissible on other person’s private premises only if it can be assumed on the basis of certain facts that the accused is present on those premises, if applying the measure on the accused’s premises alone would not enable the facts to be established or the perpetrator’s whereabouts to be determined and if other means of establishing the facts or determining his whereabouts would be disproportionately more difficult or offer no prospects of success.

(3) The measures may be implemented even if they unavoidably involve third persons.

Section 100d. [Jurisdiction]

(1) Measures pursuant to Section 100c subsection (1), number 2, may be ordered only by the judge and, in exigent circumstances, also by the public prosecution office and officials assisting it (section 152, Courts Constitution Act). Section 98b subsection (1), second sentence, Section 100b subsection (1), third sentence, subsections (2), (4) and (6) shall apply mutatis mutandis.

(2) Measures pursuant to Section 100c subsection (1), number 3, may be ordered only by the penal chamber of the Regional Court stipulated in Section 74a of the Courts Constitution Act in the district where the public prosecution office is located. In exigent circumstances the order may also be issued by the presiding judge. His order shall become ineffective unless confirmed by the penal chamber within three days. Section 100b subsection (2), first to third sentences, shall apply mutatis mutandis.

(3) A measure pursuant to Section 100c subsection (1), number 3, shall be inadmissible in the cases referred to in Section 53 subsection (1). This shall also apply if it is to be expected that all the information to be gained by the measure shall be subject to a prohibition on use. In the cases referred to in Sections 52 and 53a information gained from a measure pursuant to Section 100c subsection (1), number 3, may be used only if, taking into consideration the significance of the underlying relationship of trust, this is not disproportionate to the interest in establishing the facts or determining the perpetrator’s whereabouts. Where the persons entitled to refuse testimony are suspected of incitement or accessoryship, obstruction of justice or of handling stolen goods, the first sentence shall not apply; moreover, this circumstance must be taken into consideration when proportionality is assessed. A decision on the admissibility of using information shall be given during the preparatory proceedings by the court designated in the first sentence of subsection (2).

(4) An order pursuant to Section 100c subsection (1), number 3, shall be restricted to a maximum time limit of four weeks. Extensions of not more than four weeks each time shall be admissible providing the conditions for the measure continue to exist. Section 100b subsections (4) and (6) shall apply mutatis mutandis.

(5) Personal data obtained by the use of technical means pursuant to Section 100c subsection (1), number 2, may be used for the purposes of evidence in other criminal proceedings only insofar as during their evaluation information emerges which is required to clear up a criminal offense referred to in Section 100a. Personal data obtained by a measure pursuant to Section 100c subsection (1), number 3, may be used for the purposes of evidence in other criminal proceedings only insofar as during their evaluation information emerges which is required to clear up a criminal offense referred to in Section 100c subsection (1), number 3.

(6) Even after a measure pursuant to Section 100c subsection (1), number 3, has been completed the accused and, in the cases referred to in Section 100c subsection (2), fifth sentence, the occupant of the private premises, may apply for examination of the lawfulness of the order and of the way in which it was effected. Prior to preferment of public charges the court designated in subsection (2), first sentence, shall decide; thereafter, the court seized of the case. The latter may express an opinion on the question of lawfulness in the decision concluding the proceedings.

Section 100e. [Duty to Report]

(1) No later than three months after conclusion of a measure pursuant to Section 100c subsection (1), number 3, the public prosecution office shall report to the relevant competent highest judicial authority the reason, extent, duration, result and costs of the measure and report that the participants have been notified of the measure or give the reasons why such persons have so far not been notified of the measures and the time when notification is expected to take place. The report shall be supplemented as appropriate after the proceedings have been concluded. If notification has not taken place within four years following conclusion of the measure, the public prosecution office shall be required to file a new report to that effect each year.

(2) The Federal Government shall, on the basis of notifications from the Laender, each year inform the Federal Parliament of measures effected pursuant to Section 100c subsection (1), number 3.

Section 100f. [Use of Personal Data]

(1) Personal data obtained by dint of a measure pursuant to Section 100c subsection (1), number 3, may be used only for the purposes of criminal proceedings (Section 100d subsection (5), second sentence) and in specific cases to avert an actual danger to the life, limb or liberty of another or to substantial property or assets.

(2) Where personal data have been obtained by a measure pursuant to police law corresponding to the measure pursuant to Section 100c subsection (1), number 3, such data may be used in evidence only insofar as during their evaluation information emerges which is required to clear up a criminal offense referred to in Section 100c subsection (1), number 3.

Section 101. [Notification]

(1) The participants shall be notified of the measures taken (Sections 81e, 99, 100a, 100b, 100c subsection (1), number 1b, numbers 2 and 3, Section 100d) as soon as this can be done without endangering the purpose of the investigation, public security, life or limb of another or endangering the possible continued use of an undercover investigator. Where, in the cases falling under Section 100c subsection (1), number 3, notification does not take place within six months after the measure has been completed, further deferral of notification shall require the consent of a judge. Prior to preferment of public charges the court designated in the first sentence of subsection (2) shall decide; thereafter, the court seized of the case.

(2) Mail which is not ordered to be opened shall be immediately returned to the participant. The same rule shall be followed if, after it was opened, its retention is not required.

(3) A copy of such parts of a retained letter which need not be withheld for the purpose of the investigation shall be forwarded to the addressee.

(4) Decisions and other documents relating to measures pursuant to Section 100c subsection (1), number 1b or numbers 2 and 3, shall be kept by the public prosecution office. They shall only be included in the files if the preconditions set out in subsection (1) have been fulfilled.

Section 102. [Search in Respect of the Suspect]

A body search, a search of the property and of the private and other premises of a person who, as a perpetrator or as an inciter or accessory before the fact, is suspected of committing a criminal offense, or is suspected of accessoryship after the fact or of obstruction of justice or of handling stolen goods, may be made for the purpose of his apprehension and in the cases where it may be presumed that the search will lead to the discovery of evidence.

Section 103. [Searches in Respect of Other Persons]

(1) Searches in respect of other persons shall only be admissible for the purpose of apprehending the accused or to follow up the traces of a criminal offense or to seize certain objects, and only if facts are present which support the conclusion that the person, trace, or object looked for is in the premises which are to be searched. For the purpose of apprehending an accused who is strongly suspected of having committed an offense pursuant to section 129a of the Penal Code, or one of the offenses designated in this provision, a search of private and other premises shall also be admissible if they are in a building where, on the basis of certain facts, the accused is presumed to be.

(2) The restrictions of subsection 1, first sentence, do not apply to premises where the accused was apprehended or which he entered during the pursuit.

Section 104. [Searches During the Night]

(1) Private premises, business premises and fenced-in property may be searched during the night only in pursuit of a person caught in the act, in exigent circumstances, or for the purpose of reapprehending an escaped prisoner.

(2) This restriction shall not apply to premises which are accessible at night to anyone, or which are known to the police as shelters or gathering places of offenders, as depots of property obtained through criminal offenses, or as hiding places for gambling, illegal trafficking in narcotics or weapons, or prostitution.

(3) Night shall include, during the period from 1 April to 30 September, the hours from nine o’clock in the evening to four o’clock in the morning and during the period from 1 October to 31 March, the hours from nine o’clock in the evening to six o’clock in the morning.

Section 105. [Search Order; Execution]

(1) Searches shall be ordered by the judge only and, in exigent circumstances, also by the public prosecution office and officials assisting it (section 152, Courts Constitution Act). Searches pursuant to Section 103 subsection 1, second sentence, shall be ordered by the judge; the public prosecution office shall be authorized to order searches in exigent circumstances.

(2) A municipal official or two members of the community in the district where the search is made shall be called in, if possible, to assist, if private premises, business premises, or fenced-in property are to be searched without the judge or the public prosecutor being present. The persons called in as members of the community shall not be police officers or officials assisting the public prosecution office.

(3) If it is necessary to make a search in an official building or in an installation or establishment of the Federal Armed Forces which is not open to the general public, the superior agency of the Federal Armed Forces shall be requested to carry out such search. The requesting agency shall be entitled to participate. No such request shall be necessary if the search is to be made in places which are inhabited exclusively by persons other than members of the Federal Armed Forces.

Section 106. [Calling in the Occupant]

(1) The occupant of the premises or the possessor of the objects to be searched may be present at the search. If he is absent, his representative or an adult relative, or a person living in his household, or a neighbor shall, if possible, be called in to assist.

(2) In the cases of Section 103 subsection (1), before the search begins, its purpose shall be made known to the occupant or possessor or to the person called in in his absence. This provision shall not apply to the occupants of the premises indicated in Section 104 subsection (2).

Section 107. [Notification; Inventory]

Upon conclusion of the search, the person affected by the search shall, upon his request, be given a written notification in which the reason for the search (Sections 102, 103) and, in the case of Section 102, the criminal offense must be specified. Upon request, he shall also be given a list of the objects which were impounded or seized; if nothing suspicious was found, a certificate indicating this fact shall be given to him.

Section 108. [Seizure of Other Objects]

(1) Objects found by a search which, though not connected with the investigation, indicate the commission of another criminal offense, shall be provisionally seized. The public prosecution office shall be informed thereof. The first sentence shall not be applicable as far as a search is made pursuant to Section 103 subsection (1), second sentence.

(2) Where, on the premises of a physician, objects within the meaning of subsection (1), first sentence, are found in connection with the termination of a patient’s pregnancy, their use in criminal proceedings against the patient for a criminal offense pursuant to section 218 of the Penal Code shall be excluded.

Section 109. [Marking Seized Objects]

Objects impounded or seized shall be exactly listed and, in order to prevent an exchange, shall be marked with an official seal or in another proper manner.

Section 110. [Examination of Papers]

(1) The public prosecution office shall have the authority to examine the papers of the person with respect to whom the search was made.

(2) Other officials shall be authorized to examine papers found by them only if the holder allows such examination. In all other cases they shall deliver any papers, the examination of which they deem necessary, to the public prosecution office in an envelope which shall be closed with the official seal in the presence of the holder.

(3) The holder of the papers, or his representative, shall be allowed to affix his seal; he shall also be requested to attend, if possible, if the seals are subsequently opened and the papers examined.

Section 110a. [Undercover investigators]

(1) Undercover investigators may be used to clear up criminal offenses where there are sufficient factual indications showing that a criminal offense of considerable importance has been committed:

1. in the sphere of illegal trade in drugs or weapons, of counterfeiting money or official stamps,

2. in the sphere of national security (sections 74 a, 120 Courts Constitution Act),

3. on a commercial or habitual basis or

4. by a member of a gang or in some other organized way.

Undercover investigators may also be used to clear up serious criminal offenses where there is a risk of repetition in view of certain facts. Their use shall only be admissible if clearing up the serious criminal offense using some other means would offer no prospects of success or be much more difficult. Undercover investigators may also be used to clear up serious criminal offenses where the special significance of the offense makes the operation necessary and other measures would offer no prospects of success.

(2) Undercover investigators shall be officials in the police force who carry out investigations with a changed and lasting identity (legend) being conferred on them. They shall be entitled to take part in legal transactions using their legend.

(3) Where it is indispensable for building up or maintaining a legend, relevant documents may be drawn up, altered and used.

Section 110b. [Consent of the Public Prosecution Office; Consent of the Judge; Non-Disclosure of Identity]

(1) Use of undercover investigators shall be admissible only after the consent of the public prosecution office has been obtained. In exigent circumstances and if the public prosecution office’s decision cannot be obtained in time, such decision shall be obtained without delay; the measure shall be ended if the public prosecution office does not give its consent within three days. Consent shall be given in writing and for a specified period. Extensions shall be admissible providing the conditions for use of undercover investigators are still fulfilled.

(2) Use of undercover investigators:

1. concerning a specific accused, or

2. which involve the undercover investigator entering private premises which are not generally accessible

shall require the consent of a judge. In exigent circumstances consent of the public prosecution office shall suffice. Where the public prosecution office’s decision cannot be obtained in time, it shall be obtained without delay. The measure shall be ended if the judge does not give his consent within three days. Subsection (1), third and fourth sentences, shall apply mutatis mutandis.

(3) The identity of the undercover investigator may be kept secret even after the operation has ended. The public prosecutor and the judge responsible for the decision whether to give consent may require the identity to be revealed to them. In all other cases, maintaining the secrecy of the identity in criminal proceedings shall be admissible under the terms of Section 96, particularly if there is cause for concern that revealing the identity will endanger the life, limb or liberty of the undercover investigator or of another person or endanger the continued use of the undercover investigator.

Section 110c. [Entering Private Premises]

Undercover investigators may use their legend and enter private premises with the consent of the entitled person. Such consent may not be obtained by any pretense of a right of access extending beyond the use of the legend. The undercover investigator’s powers shall otherwise be determined by this statute and by other legal provisions.

Section 110d. [Notification]

(1) Persons whose private premises, not being generally accessible, have been entered by the undercover investigator, shall be notified of the operation as soon as this can be done without endangering the purpose of the investigation, public security, life or limb of another or the possible continued use of the undercover investigator.

(2) Decisions and other documents relating to use of the undercover investigators shall be kept by the public prosecution office. They shall only be included in the files if the preconditions set out in subsection (1) have been fulfilled.

Section 110e. [Use of Information Obtained]

Personal data obtained by use of undercover investigators may be used as evidence in other criminal proceedings only insofar as during their evaluation information was obtained which is required to clear up one of the criminal offenses listed in Section 110a subsection (1); Section 110d subsection (2) shall remain unaffected.

Section 111. [Road Traffic Controls]

(1) If certain facts substantiate the suspicion that an offense pursuant to section 129a of the Penal Code, one of the offenses designated in this provision or an offense pursuant to section 250 subsection (1), number 1, of the Penal Code has been committed, checkpoints may be established on public roads, squares and at other publicly accessible places, if facts justify the assumption that this measure may lead to the perpetrator’s apprehension or to the securing of evidence which may serve to clear up the offense. At a checkpoint all persons shall be obliged to establish their identity and to subject themselves or objects found on them to a search.

(2) The order to establish a checkpoint shall be made by the judge; the public prosecution office and the officials assisting it (section 152 Courts Constitution Act) shall be authorized to make such order in exigent circumstances.

(3) Section 106 subsection (2), first sentence, Section 107, first half of the second sentence, Sections 108, 109, 110 subsections (1) and (2) shall be applicable to the search and establishment of the identity pursuant to subsection 1; Sections 163b, 163c shall apply mutatis mutandis.

Section 111a. [Provisional Withdrawal of Permission to Drive]

(1) If there are cogent reasons for the assumption that permission to drive will be withdrawn (section 69 Penal Code), the judge may, by order, provisionally withdraw the accused’s permission to drive. Certain types of motor vehicles may be exempted from the provisional withdrawal of permission to drive if special circumstances justify the assumption that the purpose of the measure will not be jeopardized thereby.

(2) The provisional withdrawal of permission to drive shall be set aside if the reason for it no longer applies or if the court does not withdraw permission to drive in the judgment.

(3) Provisional withdrawal of permission to drive shall have the effect of an order or confirmation of the seizure of the driver’s license issued by a German authority. This shall also apply if the driver’s license was issued by an authority of a Member State of the European Union or of another contracting party to the Agreement on the European Economic Area insofar as the license holder’s place of ordinary residence is located in Germany.

(4) If a driver’s license has been seized because it may be confiscated pursuant to section 69 subsection (3), second sentence, of the Penal Code, and if a judicial decision concerning seizure is required, the latter shall be replaced by the decision on the provisional withdrawal of permission to drive.

(5) A driver’s license which has been impounded, secured or seized because it may be confiscated pursuant to section 69 subsection (3), second sentence, of the Penal Code, shall be returned to the accused if the judge refuses to provisionally withdraw permission to drive due to the absence of the prerequisites designated under subsection (1) or revokes the withdrawal, or if the court does not withdraw permission to drive in the judgment. However, where a driving ban is imposed in the judgment pursuant to section 44 of the Penal Code, the return of the driver’s license may be postponed if the accused does not protest.

(6) Provisional withdrawal of permission to drive shall be endorsed on foreign driver’s licenses other than those referred to in subsection (3), second sentence. Pending this endorsement the driver’s license may be seized (Section 94 subsection (3) and Section 98).

Section 111b. [Securing of Objects]

(1) Objects may be secured by seizure pursuant to Section 111c if there are reasons for assuming that the conditions have been fulfilled for their forfeiture or for their confiscation. Section 94 subsection (3) shall remain unaffected.

(2) If there are reasons for assuming that the conditions have been fulfilled for forfeiture of equivalent value or for confiscation of equivalent value attachment in rem may be ordered pursuant to Section 111 d in order to secure such equivalent value.

(3) If there are no cogent reasons for such assumption the judge shall revoke the measures referred to in the first sentence of subsection (1) and in subsection (2) after a maximum period of six months. Where the time limit referred to in the first sentence is not sufficient, given the special difficulties or special extent of the investigations or for another important reason, the judge may, upon application by the public prosecution office, extend the measures by a maximum of three months provided the grounds referred to justify their continuation.

(4) Sections 102 to 110 shall apply mutatis mutandis.

(5) Subsections (1) to (4) shall apply mutatis mutandis so far as forfeiture may not be ordered only for the reason that the conditions under section 73 subsection (1), second sentence, of the Penal Code have been fulfilled.

Section 111c. [Securing Seizure]

(1) Seizure of a movable asset shall be effected in the cases referred to under Section 111 b by impounding the asset or by indicating the seizure by seal or in some other way.

(2) Seizure of a plot of land or of a right subject to the provisions on compulsory execution in respect of immovable property shall be effected by making an entry on the seizure in the Land Register. The provisions of the Act on Compulsory Sale by Public Auction and Compulsory Administration in respect of the extent of seizure on compulsory sale by public auction shall apply mutatis mutandis.

(3) Seizure of a claim or any other property right not subject to the provisions on compulsory execution in respect of immovable property shall be effected by attachment. The provisions of the Civil Procedure Code on compulsory execution in respect of claims and other property rights shall apply mutatis mutandis. The request to make the declarations referred to in section 840 subsection (1) of the Civil Procedure Code shall be linked to seizure.

(4) Seizure of ships, ship constructions and aircraft shall be effected pursuant to subsection (1). The seizure shall be entered in the Register in respect of those ships, ship constructions and aircraft that are entered in the Register of Ships, in the Register of Ship Constructions or in the Register of Liens on Aircraft. Application for such entry may be made in respect of ship constructions or aircraft that have not been entered, but are capable of being entered, in the Register; the provisions governing an application by a person who is entitled to request entry in the Register by virtue of an executory title shall apply mutatis mutandis.

(5) Seizure of an object pursuant to subsections (1) to (4) shall have the effect of a prohibition of alienation within the meaning of section 136 of the Civil Code; the prohibition shall also cover other directions besides alienation.

(6) A movable asset that has been seized may:

1. be handed over to the person concerned against immediate payment of its value or

2. be retained by the person concerned, subject to revocation at any time, for further use in the interim until conclusion of the proceedings.

The sum paid pursuant to the first sentence, number 1, shall be substituted for the asset. The measure pursuant to the first sentence, number 2, may be made dependent on the person concerned providing security or fulfilling certain conditions.

Section 111d. [Attachment for Equivalent Value; Fine or Costs]

(1) Attachment in rem may be ordered by virtue of forfeiture or of confiscation of equivalent value, by virtue of a fine or of the anticipated costs of criminal proceedings. Attachment may only be ordered by virtue of a fine or of the anticipated costs if judgment has been passed against the defendant imposing punishment. Attachment shall not be ordered to secure execution costs or negligible amounts.

(2) Sections 917 and 920 subsection (1) as well as sections 923, 928, 930 to 932, and 934 subsection (1) of the Civil Procedure Code shall apply mutatis mutandis.

(3) If attachment has been ordered by virtue of a fine or of the anticipated costs, an enforcement measure shall be revoked upon application by the defendant if the defendant needs the object of attachment to pay the costs of his defense, his maintenance or the maintenance of his family.

Section 111e. [Order for Seizure or Attachment]

(1) Only the judge, and in exigent circumstances also the public prosecution office, shall be competent to order seizure (Section 111 c) and attachment (Section 111 d). Officials assisting the public prosecution office (section 152 Courts Constitution Act) shall also be competent to order seizure of a movable asset (Section 111 c subsection (1)) in exigent circumstances.

(2) If the public prosecution office has ordered seizure or attachment, it shall apply for judicial confirmation of the order within one week. This shall not apply when seizure of a movable asset has been ordered. In all cases the person concerned may apply for a judicial decision at any time.

(3) The order for seizure or attachment shall be communicated without delay to the person who is aggrieved as a result of the act, insofar as he is known or becomes known during the course of proceedings.

(4) If it is assumed that other aggrieved persons have claims arising from the act, notice shall be given of the seizure or attachment by insertion once in the Federal Gazette or in some other suitable manner.

Section 111f. [Effecting Seizure and Enforcing Attachment]

(1) Effecting seizure (Section 111 c) shall be incumbent on the public prosecution office, in the case of movable assets (Section 111 c subsection (1)) also on the officials assisting them. Section 98 subsection (4) shall apply mutatis mutandis.

(2) The required entries in the Land Register as well as in the registers referred to in Section 111 c subsection (4) shall be made upon application by the public prosecution office or by the court that ordered seizure. The same shall apply mutatis mutandis to the applications referred to in Section 111 c subsection (4).

(3) If enforcement of attachment is to be effected pursuant to the provisions on attachment of movable assets, the authority designated in section 2 of the Ordinance on the Collection of Court Fees shall have jurisdiction. Subsection (2) shall apply mutatis mutandis. The judge, and in exigent circumstances also the public prosecution office, shall be competent to order attachment of a registered ship or ship construction and to order attachment of a claim.

Section 111g. [Compulsory Execution; Enforcement of Attachment by the Aggrieved Person]

(1) Seizure of an object pursuant to Section 111 c shall not take effect against a disposition made by the aggrieved person, by way of compulsory execution or of enforcement of attachment, on the basis of a claim arising from the criminal offense.

(2) Compulsory execution or enforcement of attachment pursuant to subsection (1) shall require the approval of the judge who is competent to order seizure (Section 111 c). The decision shall be given in an order that may be contested by the public prosecution office, the accused and the aggrieved person by means of an immediate complaint. Approval shall be refused if the aggrieved person cannot furnish prima facie evidence that the claim has arisen from the criminal offense. Section 294 of the Civil Procedure Code shall be applied.

(3) The prohibition of alienation pursuant to Section 111 c subsection (5) shall apply from the moment of seizure also for the benefit of aggrieved persons who, during seizure, pursue compulsory execution in respect of the object seized or who enforce attachment. Entry of the prohibition of alienation in the Land Register, for the benefit of the state, shall also apply, in respect of the application of section 892 subsection (2), second sentence, of the Civil Code, as an entry for the benefit of those aggrieved persons who, during seizure, are entered in the Land Register as beneficiaries of the prohibition of alienation. Proof that the claim arose from the criminal offense can be furnished to the Land Registry by submission of the order granting approval. The second and third sentences shall apply mutatis mutandis to the prohibition of alienation in the case of ships, ship constructions and aircraft referred to in Section 111 c subsection (4). The legal force of the prohibition of alienation for the benefit of the aggrieved person shall not be affected by revocation of seizure.

(4) If the object seized is not subject to forfeiture on grounds other than those referred to in section 73 subsection (1), second sentence, of the Criminal Code or if approval was wrongfully granted, the aggrieved person shall be obliged to compensate third persons for the damage caused to them due to the fact that the prohibition of alienation applies for his benefit pursuant to subsection (3).

(5) Subsections (1) to (4) shall apply mutatis mutandis if forfeiture of an object has been ordered but the order has not yet entered into force. They shall not apply if the object is subject to confiscation.

Section 111h. [Prior Satisfaction of Claims of the Aggrieved Person on Attachment]

(1) If the aggrieved person applies for compulsory execution in respect of a claim arising from the criminal offense or if he enforces attachment in respect of a plot of land where attachment has been enforced pursuant to Section 111 d, he may demand that his right shall have priority over the collateral mortgage established by enforcement of that attachment. The priority of such right shall not be lost by virtue of revocation of the attachment. Consent by the owner shall not be required for the change of priority. In all other respects section 880 of the Civil Code shall be applied mutatis mutandis.

(2) The change of priority shall require approval by the judge who is competent to order attachment. Section 111 g subsection (2), second to fourth sentences, and subsection (3), third sentence, shall apply mutatis mutandis.

(3) If approval was wrongfully granted, the aggrieved person shall be obliged to compensate third persons for the damage caused to them due to the change of priority.

Section 111i. [Maintenance of Seizure]

If the judgment does not order forfeiture or forfeiture of equivalent value simply because claims of an aggrieved person within the meaning of section 73 subsection (1), second sentence, of the Criminal Code negate this, or because the proceedings pursuant to Sections 430 and 442 are confined to the other legal consequences, seizure pursuant to Section 111 c may be maintained for a period of not more than three months so far as immediate revocation would be unjust in respect of the aggrieved person.

Section 111k. [Return of Movable Assets to the Aggrieved Person]

Movable assets which have been seized or otherwise secured pursuant to Section 94 or which have been seized pursuant to Section 111 c subsection (1) should be handed over to the aggrieved person, from whom they have been taken as a result of the criminal offense, if he is known, if the claims of third persons are not an obstacle and if the assets are no longer required for the purposes of the criminal proceedings.

Section 111l. [Emergency Sale]

(1) Objects which have been seized pursuant to Section 111c as well as objects which have been attached (Section 111d) may be sold prior to the entering into force of the judgment, if they are subject to deterioration or substantial reduction of their value, or if their preservation, care or maintenance results in disproportionately high costs or difficulties. The proceeds shall be substituted for the objects.

(2) The emergency sale shall be ordered by the public prosecution office in the preparatory proceedings. The officials assisting it (section 152 Courts Constitution Act) shall have the authority to order such sale if the object is subject to deterioration before the decision of the public prosecution office can be obtained.

(3) Upon preferring public charges the order shall be made by the court seized of the case. The public prosecution office shall have the authority to make such order if the object is subject to deterioration before the decision of the court can be obtained; subsection (2), second sentence, shall apply mutatis mutandis.

(4) The accused, the owner and other persons who have rights in relation to the object shall be heard prior to the order. The order, as well as time and place of the sale, shall be made known to them as far as this appears to be practicable.

(5) The emergency sale shall be made according to the provisions of the Civil Procedure Code concerning the use of an attached object. The public prosecution office shall take the place of the court responsible for execution (Section 764 Civil Procedure Code) in the cases of subsections (2) and (3), second sentence; in the cases of subsection (3), first sentence, the court seized of the case. The use admissible pursuant to section 825 of the Civil Procedure Code may be ordered at the same time as the emergency sale or subsequently, either propio motu or upon application of the persons designated in subsection (4), or in the case of subsection (3), first sentence, also upon application of the public prosecution office.

(6) The person concerned may request a court decision pursuant to Section 161a subsection (3) regarding orders of the public prosecution office or the officials assisting it in the preparatory proceedings (subsections (2) and (5)). In respect of orders by the public prosecution office or the officials assisting it after preferring public charges (subsection (3), second sentence, subsection (5)) the person concerned may request the decision of the court seized of the case (subsection (3), first sentence). The court — in urgent cases the presiding judge — may order suspension of the sale.

Section 111m. [Writings and Printing Devices]

(1) Seizure of printed material, of any other writing or object within the meaning of section 74d of the Penal Code, may not be ordered pursuant to Section 111b subsection (1), if its prejudicial consequences, especially the endangering of the public interest in immediate dissemination, is obviously disproportionate to the importance of the matter.

(2) Severable parts of the writing which do not contain anything of a criminal nature shall be excluded from seizure. Seizure may be further restricted in the order.

(3) Those passages of the writing giving rise to seizure shall be designated in the order for seizure.

(4) Seizure may be averted if the person concerned excludes that part of the writing giving rise to seizure from reproduction or dissemination.

Section 111n. [Seizure Order; Time Restriction]

(1) Seizure of periodically printed material or of another object within the meaning of section 74d of the Penal Code, may be ordered by the judge only. Seizure of other printed material or of another object within the meaning of section 74d of the Penal Code may, in exigent circumstances, also be ordered by the public prosecution office. The order of the public prosecution office shall become ineffective if it is not confirmed by the judge within three days.

(2) Seizure shall be revoked if public charges have not been preferred or independent confiscation has not been applied for within two months. If the time limit set in the first sentence is not sufficient due to the particular scale of the investigations the court may, upon application by the public prosecution office, extend the time limit by another two months. The application may be repeated once.

(3) As long as public charges have not been preferred or independent confiscation not been applied for, seizure shall be revoked if the public prosecution office so requests.

Section 111o. [Attachment in Rem for a Property Fine]

(1) If there are reasons for assuming that the prerequisites for imposition of a property fine have been fulfilled, attachment in rem may be ordered in respect thereof.

(2) Sections 917, 928, 930 to 932, and 934 subsection (1) of the Civil Procedure Code shall apply mutatis mutandis. In the attachment order a sum of money shall be specified whose deposit shall have the effect of hindering enforcement of attachment and of entitling the debtor to apply for revocation of enforced attachment. The amount concerned shall be governed by the circumstances of the case in question, namely by the anticipated amount of the property fine. This may be assessed. The request for discharge of attachment should contain the facts required for specifying the sum of money.

(3) Only the judge, and in exigent circumstances also the public prosecution office, shall be competent to order attachment for a property fine. If the public prosecution office has made the order, it shall apply for judicial confirmation of the order within one week. The accused may apply for a judicial decision at any time.

(4) If for a property fine enforcement of attachment is to be effected in respect of movable assets Section 111 f subsection (1) shall apply mutatis mutandis.

(5) Section 111b subsection (3), Section 111e subsections (3) and (4), Section 111f subsections (2) and (3), second and third sentences, and Sections 111g and 111h shall otherwise apply.

Section 111p. [Seizure of Property]

(1) Under the conditions referred to in Section 111o subsection (1) the property of the accused may be seized if execution of the anticipated property fine does not seem secure, having regard to the type and scale of the property concerned or for other reasons, by means of an attachment order pursuant to Section 111o.

(2) Seizure shall be confined to individual property components if this is sufficient in the light of circumstances, namely of the anticipated amount of the property fine, to ensure its execution.

(3) With the order for seizure of property the accused shall lose the right to administer the seized property and to dispose thereof inter vivos. The time of seizure shall be indicated in the order.

(4) Section 111o subsection (3), Sections 291, 292 subsection (2) and Section 293 shall apply mutatis mutandis.

(5) The administrator of the property shall notify the public prosecution office and the court of all information acquired during the course of administering the property that may serve the purpose of seizure.

Chapter IX Arrest and Provisional Apprehension

Section 112. [Admissibility of Remand Detention; Grounds for Arrest]

(1) Remand detention may be ordered against the accused if he is strongly suspected of the offense and if there is a ground for arrest. It may not be ordered if it is disproportionate to the significance of the case or to the penalty or measure of reform and prevention likely to be imposed.

(2) A ground for arrest shall exist if on the basis of certain facts:

1. it is established that the accused has fled or is hiding;

2. considering the circumstances of the individual case, there is a risk that the accused will evade the criminal proceedings (risk of flight); or

3. the accused’s conduct gives rise to the strong suspicion that he will

a) destroy, alter, remove, suppress, or falsify evidence,

b) improperly influence co-accused, witnesses, or experts, or

c) cause others to do so,

and if, therefore, the danger exists that establishment of the truth will be made more difficult (risk of tampering with evidence).

(3) Remand detention may be ordered against an accused strongly suspected of an offense pursuant to section 129a subsection (1) or pursuant to sections 211, 212, 220a subsection (1), number 1, sections 226, 306b or 306c of the Penal Code, or insofar as life and limb of another have been endangered by an offense pursuant to section 308 subsections (1) to (3) of the Penal Code, even if there is no ground for arrest pursuant to subsection (2).

Section 112a. [Further Grounds for Arrest]

(1) A ground for arrest shall also exist if the accused is strongly suspected of:

1. having committed a criminal offense pursuant to sections 174, 174a, 176 to 179 of the Penal Code, or

2. having repeatedly or continually committed a criminal offense which seriously undermines legal order pursuant to section 125a, pursuant to sections 224 to 227, pursuant to sections 243, 244, 249 to 255, 260, pursuant to section 263, pursuant to sections 306 to 306c or section 316a of the Penal Code or pursuant to section 29 subsection (1), numbers 1, 4 or 10, or subsection (3), section 29a subsection (1), section 30 subsection (1), section 30a subsection (1) of the Narcotics Act

and certain facts substantiate the risk that prior to final conviction he will commit further serious criminal offenses of the same nature or will continue the criminal offense, if detention is required to avert the imminent danger, and in the cases of number 2, imprisonment exceeding one year is expected to be imposed.

(2) Subsection (1) shall not be applicable if the prerequisites for issuing a warrant of arrest prevail pursuant to Section 112 and the prerequisites for the suspension of execution of the warrant of arrest pursuant to Section 116 subsections (1) and (2) do not prevail.

Section 113. [Prerequisites Applicable to Less Serious Offenses]

(1) If the offense is punishable only by imprisonment up to 6 months, or by a fine up to one hundred and eighty daily units, remand detention may not be ordered on the ground of a risk of evidence being tampered with.

(2) In such cases, remand detention may be imposed on the ground of a risk of flight only if the accused:

1. has previously evaded the proceedings against him or has made preparations for flight;

2. has no permanent domicile or place of residence within the territorial scope of this statute, or

3. cannot identify himself.

Section 114. [Warrant of Arrest]

(1) Remand detention shall be imposed by the judge in a written warrant of arrest.

(2) The warrant of arrest shall indicate:

1. the accused;

2. the offense of which he is strongly suspected, the time and place of its commission, the statutory elements of the criminal offense and the penal provisions to be applied;

3. the ground for arrest, as well as

4. the facts disclosing the strong suspicion of the offense and the ground for arrest, unless national security is thereby endangered.

(3) If it appears that Section 112 subsection (1), second sentence, is applicable, or if the accused invokes that provision, the grounds for not applying it shall be stated.

Section 114a. [Notification of Accused]

(1) The accused shall be informed of the content of the warrant of arrest at the time of his arrest. If this is not possible he must be provisionally informed of the offense of which he is strongly suspected. In that case he shall subsequently be informed of the content of the warrant of arrest without delay.

(2) The accused shall be provided with a copy of the warrant of arrest.

Section 114b. [Notification of Relatives]

(1) A relative of the arrested person or a person trusted by him shall be notified without delay of the arrest and of every further decision concerning the continuation of detention. The judge shall be competent to make the order.

(2) Moreover, the arrested person himself shall be given an opportunity to notify a relative or a person trusted by him of the arrest, provided the purpose of the investigation is not endangered thereby.

Section 115. [Examination by a Judge]

(1) If the accused is apprehended on the basis of the warrant of arrest, he shall be brought before the competent judge without delay.

(2) The judge shall examine the accused concerning the subject of the accusation without delay following the arrest and not later than on the following day.

(3) During the examination, the incriminating circumstances shall be pointed out to the accused and he shall be informed of his right to reply to the accusation or to remain silent. He shall be given an opportunity to remove grounds for suspicion and arrest and to present those facts which speak in his favor.

(4) If remand detention is continued, the accused shall be informed of the right of complaint as well as of other legal remedies (Section 117 subsections (1) and (2), Section 118 subsections (1) and (2)).

Section 115a. [Examination by the Judge of the Nearest Local Court]

(1) If the accused cannot be brought before the competent judge at the latest on the day after his apprehension, he shall be brought before the judge of the nearest Local Court without delay, not later than on the day after his apprehension.

(2) The judge shall examine the accused without delay, not later than on the following day. At this examination, as far as possible, Section 115 subsection (3) shall be applicable. If the examination shows that the warrant of arrest has been revoked or that the person apprehended is not the person designated in the warrant of arrest, the apprehended person shall be released. If he otherwise makes objections against the warrant of arrest or against its execution which are not manifestly unfounded, or if the judge has doubts regarding the continuation of detention, he shall inform the competent judge accordingly without delay, using the fastest means available in the circumstances.

(3) If the accused is not released, he shall, at his request, be brought before the competent judge for examination in accordance with Section 115. The accused shall be informed of this right and shall be instructed pursuant to Section 115 subsection (4).

Section 116. [Suspension of Execution of the Warrant of Arrest]

(1) The judge shall suspend execution of a warrant of arrest which had been issued only for risk of flight if less incisive measures sufficiently substantiate the expectation that the purpose of remand detention can be achieved thereby. In particular, the following measures may be considered:

1. an instruction to report at certain times to the office of the judge, the prosecuting authority, or to a specific office to be designated by them;

2. an instruction not to leave his place of residence, or wherever he happens to be, or a certain area, without permission of the judge or the prosecuting authority;

3. an instruction not to leave his private premises except under the supervision of a designated person;

4. the furnishing of an adequate security by the accused or another person.

(2) The judge may also suspend execution of a warrant of arrest which is justified for risk of tampering with evidence, if less incisive measures sufficiently substantiate the expectation that they will considerably reduce the risk of tampering with evidence. In particular, an instruction not to have contact with co-accused, witnesses, or experts may be considered.

(3) The judge may suspend execution of a warrant of arrest issued in accordance with Section 112a provided there is sufficient substantiation of the expectation that the accused will comply with certain instructions and that the purpose of detention will be achieved thereby.

(4) In the cases of subsections (1) to (3), the judge shall order execution of the warrant of arrest if:

1. the accused grossly violates the duties and restrictions imposed upon him;

2. the accused makes preparations for flight, remains absent without sufficient excuse upon proper summons to appear, or shows in any other manner that the trust reposed in him was not justified; or

3. new circumstances make the arrest necessary.

Section 116a. [Suspension on Bail]

(1) Bail shall be furnished by depositing cash or securities, by pledging property or in the form of surety by suitable persons.

(2) The judge shall determine the amount and type of bail at his discretion.

(3) The accused who applies for the suspension of execution of the warrant of arrest upon furnishing bail and who does not reside within the territorial scope of this statute shall be obliged to authorize a person residing in the district of the competent court to receive service on his behalf.

Section 117. [Review of Detention]

(1) As long as the accused is in remand detention, he may at any time apply for a court hearing as to whether the warrant of arrest is to be revoked or whether its execution is to be suspended in accordance with Section 116 (review of detention).

(2) A complaint shall be inadmissible where an application has been made for a review of detention. The right of complaint against the decision following the application shall remain unaffected.

(3) The judge may order specific investigations which may be important for the subsequent decision about the continuation of remand detention, and he may make a further review after the completion of such investigations.

(4) If the accused does not yet have defense counsel, he shall be assigned defense counsel for the duration of remand detention, if its execution has lasted for at least 3 months and the public prosecution office or the accused or his statutory representative has requested it. The accused shall be informed about his right to submit a request. Sections 142, 143 and 145 shall apply mutatis mutandis.

(5) If remand detention has lasted for 3 months and the accused has not applied for review of detention or has not lodged a complaint against the remand detention, the review of detention shall be conducted upon the court’s own motion, unless the accused has defense counsel.

Section 118. [Oral Hearing]

(1) In the case of review of detention, a decision shall be given after an oral hearing upon application by the accused, or at the court’s discretion proprio motu.

(2) If a complaint has been lodged against the warrant of arrest, in the proceedings on a complaint a decision may also be given after an oral hearing upon application by the accused or on the court’s own motion.

(3) If after an oral hearing it has been ordered that remand detention be continued, the accused shall have a right to another oral hearing only if remand detention has lasted for at least 3 months and at least 2 months of remand detention have elapsed since the last oral hearing.

(4) A right to an oral hearing shall not exist as long as the main hearing is in process, or after a judgment has been pronounced which imposes imprisonment or a custodial measure of reform and prevention.

(5) The oral hearing shall be held without delay; in the absence of the accused’s consent, it may not be scheduled more than 2 weeks after receipt of the application.

Section 118a. [Conducting the Oral Hearing]

(1) The public prosecution office, as well as the accused and defense counsel, shall be notified of the place and time of the oral hearing.

(2) The accused shall be brought to the hearing unless he has waived his right to be present at the hearing or unless great distance or sickness of the accused or other irremovable impediments prevent his being brought to the hearing. If the accused is not brought to the oral hearing, defense counsel shall safeguard his rights at the hearing. In that case, defense counsel shall be assigned for the oral hearing if the accused does not yet have such counsel. Section 142, 143 and 145 shall apply mutatis mutandis.

(3) The participants present shall be heard during the oral hearing. The court shall determine the type and extent of evidence to be taken. A record shall be made of the hearing; the provisions of Sections 271 to 273 shall apply mutatis mutandis.

(4) The decision shall be pronounced at the end of the oral hearing. If this is not possible, the decision shall be given at the latest within one week.

Section 118b. [Persons Entitled to File Applications]

Sections 297 to 300 and 302 subsection (2) shall apply mutatis mutandis to the application for review of detention (Section 117 subsection (1)) and to the application for an oral hearing.

Section 119. [Serving Remand Detention]

(1) The arrested person shall not be placed in one and the same room with other prisoners. In other respects as well he shall, as far as possible, be kept separate from convicted prisoners.

(2) Upon his express written request he may be placed in the same room with other arrested persons in remand detention. This request may be withdrawn at any time in the same manner. The arrested person may also be placed in one and the same room with other prisoners if his physical or mental condition so requires.

(3) Only such restrictions may be imposed on the arrested person as are required by the purpose of remand detention or by the need for order in the prison.

(4) He may provide for his own comfort and occupation, at his own expense, insofar as this is consistent with the purpose of detention and does not disturb order in the prison.

(5) The arrested person may be shackled if:

1. there is a risk that he will use force against persons or property, or if he offers resistance;

2. he attempts to flee or if, considering the circumstances of the individual case, especially the situation of the accused and the factors hindering flight, there is a risk that he will free himself from custody;

3. there is a risk of suicide or of self-inflicted injury;

and if the risk cannot be averted by some other less incisive measures. He should not be shackled during the main hearing.

(6) Measures required pursuant to the foregoing provisions shall be ordered by the judge. In urgent cases, the public prosecutor, the director of the prison, or another official under whose supervision the arrested person is detained may impose interim measures. These shall require the approval of the judge.

Section 120. [Revocation of the Warrant of Arrest]

(1) The warrant of arrest shall be revoked as soon as the conditions for remand detention no longer exist, or if the continued remand detention would be disproportionate to the importance of the case or to the anticipated penalty or measure of reform and prevention. In particular, it is to be revoked if the accused is acquitted or if the opening of the main proceedings is refused, or if the proceedings are terminated other than provisionally.

(2) The release of the accused shall not be delayed by the fact that an appellate remedy is being sought.

(3) The warrant of arrest shall also be revoked if the public prosecution office makes the relevant application before the public charges have been preferred. Simultaneously with this application, the public prosecution office may order the release of the accused.

Section 121. [Remand Detention Exceeding Six Months]

(1) As long as a judgment has not been given imposing imprisonment or a custodial measure of reform and prevention, remand detention for one and the same offense exceeding a period of six months shall be executed only if the particular difficulty or the unusual extent of the investigation or some other important reason do not yet admit pronouncement of judgment and justify continuation of remand detention.

(2) In the cases of subsection (1), the warrant of arrest shall be revoked upon expiry of the six-month period unless execution of the warrant of arrest is suspended pursuant to Section 116 or the Higher Regional Court orders remand detention to continue.

(3) If the case file is submitted to the Higher Regional Court prior to the expiry of the time limit referred to in subsection (2) the running of the time limit shall be suspended pending that court’s decision. If the main proceedings commenced prior to the expiry of the time limit, the running of the time limit shall be suspended until pronouncement of the judgment. If the main proceedings are suspended and the case file is forwarded to the Higher Regional Court without delay upon suspension of the proceedings, the running of the time limit shall likewise be suspended pending that court’s decision.

(4) In cases over which a penal chamber has jurisdiction pursuant to section 74a of the Courts Constitution Act, the decision shall be given by the Higher Regional Court competent pursuant to section 120 of the Courts Constitution Act. In cases over which a Higher Regional Court has jurisdiction pursuant to section 120 of the Courts Constitution Act, the Federal Court of Justice shall give a decision instead.

Section 122. [Special Review of Detention by the Higher Regional Court]

(1) In the cases of Section 121 the competent court shall submit the files through the public prosecution office to the Higher Regional Court for decision if it deems the continuation of remand detention necessary or if the public prosecution office so requests.

(2) The accused and his defense counsel shall be heard prior to the decision. The Higher Regional Court may decide on the continuation of remand detention after the oral hearing; in that case, Section 118a shall apply mutatis mutandis.

(3) If the Higher Regional Court orders continuation of remand detention, Section 114 subsection (2), number 4, shall apply mutatis mutandis. For the further review of remand detention (Section 117 subsection (1)) the Higher Regional Court shall have jurisdiction until a judgment is given imposing imprisonment or a custodial measure of reform and prevention. It may refer the review of remand detention to the court having jurisdiction according to the general provisions for a period not exceeding three months. In the cases of Section 118 subsection (1) the Higher Regional Court shall decide on an application for an oral hearing at its discretion.

(4) During further proceedings as well the review of the prerequisites pursuant to Section 121 subsection (1) shall be reserved for the Higher Regional Court. This review must be repeated after three months at the latest.

(5) The Higher Regional Court may suspend execution of the warrant of arrest in accordance with Section 116.

(6) If in the same case more than one accused person is in remand detention the Higher Regional Court may decide on the continuation of remand detention even of those accused persons for whom it would not yet be competent pursuant to Section 121 and to the aforementioned provisions.

(7) If the Federal Court of Justice has jurisdiction it shall give a decision instead of the Higher Regional Court.

Section 122a. [Maximum Detention Period Pursuant to Article 112a]

In the cases of Section 121 subsection (1), execution of detention may not be maintained longer than one year, if it is based on the grounds for arrest under Section 112a.

Section 123. [Revoking Less Incisive Measures]

(1) A measure serving to suspend execution of detention (Section 116) shall be revoked if:

1. the warrant of arrest has been withdrawn; or

2. remand detention or imprisonment or the custodial measure of reform and prevention is being executed.

(2) Under the same conditions, a security not yet forfeited shall be discharged.

(3) Anybody who has furnished security for the accused may bring about its discharge either by causing the accused to appear within a time limit to be set by the court or by reporting facts which warrant a suspicion that the accused intends to flee, in time for the accused to be arrested.

Section 124. [Forfeiture of Security]

(1) A security not yet discharged shall be forfeited to the Treasury if the accused evades the investigation or the commencement of imprisonment or custodial measure of reform and prevention.

(2) Prior to the decision, the accused as well as the person who has furnished security for the accused shall be requested to make a statement. They shall be entitled only to lodge an immediate complaint against the decision. Before a decision is given concerning the complaint, those persons and the public prosecution office shall be given an opportunity to support their applications orally and to discuss the investigations which were made.

(3) Regarding the person who has furnished security for the accused, the decision declaring forfeiture shall have the effect of a final judgment passed by a civil court judge and declared provisionally enforceable. After expiry of the time limit for lodging a complaint the decision shall take binding effect as a final civil judgment.

Section 125. [Competence for Issuing the Arrest Warrant]

(1) Before preferring public charges, the judge at the Local Court within whose district venue is vested, or where the accused is residing shall issue the warrant of arrest upon application of the public prosecution office or if a public prosecutor cannot be reached, or in exigent circumstances, ex officio.

(2) After the public charges have been preferred, the warrant of arrest shall be issued by the court seized of the case and, if an appeal on law has been filed, by the court whose judgment is being contested. In urgent cases the presiding judge may issue the warrant of arrest.

Section 126. [Competence for Subsequent Decisions]

(1) Before preferring public charges the judge who has issued the warrant of arrest shall be competent as to further judicial decisions and measures which concern remand detention or the suspension of execution of the warrant of arrest (Section 116). If the warrant of arrest has been issued by a court hearing the complaint, the jurisdiction shall rest with the judge who issued the preceding decision. If the preparatory proceedings are conducted at another place, or if remand detention is executed at another place, the judge may transfer jurisdiction to the judge of the Local Court of that other place, provided the public prosecution office so applies. If that place is divided into more than one court district, the Land government shall issue an ordinance determining which Local Court is to be competent. The Land government may transfer this authorization to the Land department of justice.

(2) After the public charges have been preferred, the court seized of the case shall have jurisdiction. After the filing of an appeal on law, the court whose judgment is contested shall have jurisdiction. Individual measures, particularly those under Section 119, shall be ordered by the presiding judge. In urgent cases he may revoke the warrant of arrest or suspend its execution (Section 116) if the public prosecution office consents; otherwise the decision of the court shall be obtained without delay.

(3) The court hearing the appeal on law may revoke the warrant of arrest if it quashes the contested judgment and if it follows from this decision, without more, that the prerequisites of Section 120 subsection (1) have been fulfilled.

(4) Sections 121 and 122 shall remain unaffected.

Section 126a. [Provisional Committal]

(1) If there are strong grounds to assume that while lacking criminal responsibility or in a state of diminished responsibility (sections 20 and 21 Penal Code) someone has committed an unlawful act and that his committal to a psychiatric hospital or to an institution for withdrawal treatment will be ordered, the court may, in a committal order, direct that he be provisionally committed to one of these institutions, if public security so requires.

(2) Sections 114 to 115a, 117 to 119, 125 and 126 shall apply mutatis mutandiswith respect to provisional committal. If the person to be committed has a statutory representative, the latter shall also be informed of the decision.

(3) The committal order shall be revoked if the conditions for provisional committal no longer exist or if the court does not order committal to a psychiatric hospital or to an institution for withdrawal treatment in its judgment. The release shall not be delayed by the fact that appellate remedies have been sought. Section 120 subsection (3) shall apply mutatis mutandis.

Section 127. [Provisional Arrest]

(1) If a person is caught in the act or is being pursued, any person shall be authorized to arrest him provisionally, even without judicial order, if there is reason to suspect flight or if his identity cannot be immediately established. The establishment of the identity of a person by the public prosecution office or by officials in the police force shall be determined by Section 163b subsection (1).

(2) Furthermore, in exigent circumstances, the public prosecution office and officials in the police force shall be authorized to make a provisional arrest if the prerequisites for the issuance of a warrant of arrest or of a committal order have been fulfilled.

(3) In the case of a criminal offense which can only be prosecuted upon application, provisional arrest shall also be admissible if an application has not yet been filed. This shall apply mutatis mutandis if a criminal offense may be prosecuted only with authorization or upon request for prosecution.

Section 127a. [Dispensing with Arrest]

(1) If the accused has no permanent domicile or place of residence within the territorial scope of this statute and if the prerequisites for a warrant of arrest are fulfilled only because of risk of flight, the court may dispense with ordering or maintaining his arrest if:

1. it is not expected that imprisonment or a custodial measure of reform and prevention will be ordered on account of the offense and

2. the accused furnishes adequate security for the fine to be expected and the costs of the proceedings.

(2) Section 116a subsections (1) and (3) shall apply mutatis mutandis.

Section 127b. [Arrest in Connection with the Main Hearing]

(1) The public prosecution office and officials in the police force shall also be authorized to arrest provisionally a person caught in the act or being pursued:

1. if it is probable that an immediate decision will be taken in accelerated proceedings and

2. if, on the basis of certain facts, it is to be feared that the person arrested will fail to appear at the main hearing.

(2) A warrant of arrest (Section 128 subsection (2), second sentence) may be issued on the grounds set out in subsection (1) against the individual strongly suspected of the offense only if it can be expected that the main hearing will be held within one week of the arrest. The warrant of arrest shall be limited to a maximum period of one week running from the day of the arrest.

(3) The decision to issue the warrant of arrest shall be given by the judge responsible for conducting the accelerated proceedings.

Section 128. [Appearance Before the Judge]

(1) The arrested person shall, without delay, be brought before the judge of the Local Court in whose district he was arrested at the latest on the day after his arrest, unless he has been released. The judge shall examine the person brought before him in accordance with Section 115 subsection (3).

(2) If the judge does not consider the arrest justified, or if he considers that the reasons therefor no longer apply, he shall order release. Otherwise he shall issue a warrant of arrest or a committal order upon application by the public prosecution office or, if the public prosecutor cannot be reached, ex officio. Section 115 subsection (4) shall apply mutatis mutandis.

Section 129. [Appearance After Preferring Public Charges]

If public charges have already been preferred against the arrested person, he shall be brought before the competent court either immediately or upon the direction of the judge before whom he was first brought; this court shall, at the latest on the day after the arrest, give a decision on release, detention, or provisional committal of the arrested person.

Section 130. [Arrest Warrant for Offenses Prosecuted on Application]

If, because of a suspected criminal offense which can only be prosecuted upon application, a warrant of arrest is issued before the application is filed, the person entitled to file such application or, if there is more than one such person, then at least one of them shall be immediately informed of the issuance of the warrant of arrest and be notified that the warrant of arrest will be revoked if the application is not filed within a time limit to be determined by the judge, not to exceed one week. If no application for prosecution is filed within this time limit, the warrant of arrest shall be revoked. This shall apply mutatis mutandis if a criminal offense may be prosecuted only with authorization or upon request for prosecution. Section 120 subsection (3) shall be applied.

Section 131. [Wanted Notice]

(1) On the basis of a warrant of arrest or a committal order, the public prosecution office or the judge may issue a wanted notice if the accused has fled or is hiding.

(2) Pursuit on the basis of a wanted notice without a warrant of arrest or without a committal order shall be admissible only if an arrested person escapes or otherwise evades custody. In these cases the police authorities may also issue a wanted notice.

(3) The person pursued shall be designated in the wanted notice and be described as far as this is possible. The offense of which he is suspected as well as the place and time of its commission shall be stated.

(4) Sections 115 and 115a shall apply mutatis mutandis.

Chapter IXa Other Measures to Secure Criminal Prosecution and Execution of Sentence

Section 132.

(1) If an accused who is strongly suspected of a criminal offense has no permanent domicile or place of residence within the territorial scope of this statute and the prerequisites for a warrant of arrest are not fulfilled, an order may be made to ensure that criminal proceedings are conducted to the effect that the accused:

1. provides an adequate security for the fine to be expected and the costs of the proceedings, and

2. authorizes a person residing in the district of the competent court to receive service of documents. Section 116a subsection (1) shall apply mutatis mutandis.

(2) This order may be issued only by the judge and, in exigent circumstances, also by the public prosecution office and the officials assisting it (section 152 Courts Constitution Act).

(3) If the accused fails to comply with the order, means of transportation and other objects which the accused brings along and which belong to him may be seized. The provisions of Sections 94 and 98 shall apply mutatis mutandis.

Chapter IXb Provisional Prohibition of Persuit of an Occupation

Section 132a.

(1) If there are cogent reasons for the assumption that a prohibition of pursuit of an occupation will be ordered (section 70 Penal Code), the judge may, by order, prohibit the accused, on a provisional basis, from practicing his occupation, profession, trade or branch thereof. Section 70 subsection (3) of the Penal Code shall apply mutatis mutandis.

(2) The provisional prohibition of pursuit of an occupation shall be revoked if the reason therefor no longer exists or if the court does not order in the judgment the prohibition of pursuit of an occupation.

Chapter X Examination of the Accused

Section 133. [Written Summons]

(1) The accused shall be summoned in writing to the examination.

(2) The summons may provide that the accused shall be brought before the court in the case of non-compliance.

Section 134. [Bringing the Accused Before the Court]

(1) It may be ordered that the accused be brought before the court immediately if reasons exist which would justify the issuance of a warrant of arrest.

(2) The accused and the criminal offense with which he is charged shall be exactly specified in this order; the reason for his being brought before the court shall be indicated.

Section 135. [Immediate Examination]

An accused shall be brought before the judge without delay and be examined by him. He shall not be kept in custody by virtue of the order for longer than until the end of the day following the time when he was first brought before the court.

Section 136. [First Examination]

(1) At the commencement of the first examination, the accused shall be informed of the offense with which he is charged and of the applicable penal provisions. He shall be advised that the law grants him the right to respond to the accusation, or not to make any statements on the charges and, even prior to his examination, to consult with defense counsel of his choice. He shall further be instructed that he may request evidence to be taken in his defense. In appropriate cases the accused shall be informed that he may respond in writing.

(2) The examination should give the accused an opportunity to dispel the reasons for suspicion against him and to assert the facts which are in his favor.

(3) At the first examination of the accused, his personal situation should also be ascertained.

Section 136a. [Prohibited Methods of Examination]

(1) The accused’s freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. Coercion may be used only as far as this is permitted by criminal procedure law. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited.

(2) Measures which impair the accused’s memory or his ability to understand shall not be permitted.

(3) The prohibition under subsections (1) and (2) shall apply irrespective of the accused’s consent. Statements which were obtained in breach of this prohibition shall not be used, even if the accused agrees to their use.

Chapter XI Defense

Section 137. [Defense Counsel]

(1) The accused may have the assistance of defense counsel at any stage of the proceedings. Not more than three defense counsel may be chosen.

(2) If the accused has a statutory representative, the latter may also engage defense counsel independently. Subsection (1), second sentence, shall apply mutatis mutandis.

Section 138. [Choice of Defense Counsel]

(1) Attorneys-at-law admitted to practice before a German court as well as professors of law at German universities may be engaged as defense counsel.

(2) Other persons may be admitted only with the approval of the court and, in the cases where the assistance of defense counsel is mandatory and the person chosen is not among the persons who may be appointed as defense counsel, such person may be admitted as counsel of the accused’s own choice only together with one who may be so appointed.

Section 138a. [Exclusion of Defense Counsel]

(1) Defense counsel shall be excluded from participation in proceedings if he is strongly suspected, or suspected to a degree justifying the opening of the main proceedings,

1. of being involved in the offense which constitutes the subject of investigation,

2. of abusing communication with an accused not at liberty for the purpose of committing criminal offenses or substantially endangering the security of a prison, or

3. of having committed an offense which in the case of the conviction of the accused would constitute accessoryship, obstruction of justice, or handling stolen goods.

(2) Defense counsel shall also be excluded from participation in proceedings the subject of which is an offense pursuant to section 129a of the Penal Code, if certain facts substantiate the suspicion that he committed or is committing one of the acts designated in subsection (1), numbers 1 and 2.

(3) Exclusion shall be revoked

1. as soon as its prerequisites no longer exist, but not only on the ground that the accused has been set free;

2. if defense counsel is acquitted in the main proceedings opened on account of the facts leading to exclusion, or if a culpable breach of official duties in relation to these facts is not determined in a judgment of the disciplinary court;

3. if, within one year after exclusion, main criminal proceedings or disciplinary proceedings have not been opened, or a penal order issued, on account of the facts leading to exclusion.

An exclusion which is to be revoked in accordance with number 3 may be maintained for a limited time, at the most however for one more year, if the particular difficulty or the particular scope of the case or another important reason do not yet permit a decision to be taken on the opening of the main proceedings.

(4) Where defense counsel is excluded, he shall not be able to defend the accused in other proceedings regulated by statute as well. In relation to other matters he shall not visit the accused, if the latter is not at liberty.

(5) Where defense counsel is excluded, he shall also not be able to defend other accused persons in the same proceedings or in other proceedings where such proceedings are based on a criminal offense pursuant to section 129a of the Penal Code and where exclusion relates to proceedings which were also based on such a criminal offense. Subsection (4) shall apply mutatis mutandis.

Section 138b. [Exclusion of Defense Counsel for Endangering National Security]

Defense counsel shall also be excluded from participating in proceedings the subject of which is one of the criminal offenses designated under section 74a subsection (1), number 3, section 120 subsection (1), number 3, of the Courts Constitution Act or non-performance of the duties pursuant to section 138 of the Penal Code concerning criminal offenses of high treason or endangering external security pursuant to sections 94 to 96, 97a, 100 of the Penal Code, if in view of certain facts there is reason to assume that his participation would endanger the security of the Federal Republic of Germany. Section 138a subsection (3), first sentence, number 1, shall apply mutatis mutandis.

Section 138c. [Procedure for Excluding Defense Counsel]

(1) Decisions pursuant to Sections 138a and 138b shall be given by the Higher Regional Court. If in the preparatory proceedings the investigations are conducted by the Federal Prosecutor General, or if the proceedings are pending before the Federal Court of Justice, the Federal Court of Justice shall give the decision. If the proceedings are pending before a panel of the Higher Regional Court or the Federal Court of Justice, another panel shall decide.

(2) The court competent pursuant to subsection (1) shall decide after preferment of public charges until final conclusion of the proceedings upon submission by the court before which the proceedings are pending, otherwise upon application by the public prosecution office. The submission shall be made upon application by the public prosecution office or ex officio through intervention of the public prosecution office. If defense counsel who is an attorney-at-law is to be excluded, a copy of the public prosecution office’s application pursuant to the first sentence or the submission by the court shall be communicated to the president of the competent Bar Association of which the attorney-at-law is a member. He may make submissions in the proceedings.

(3) The court before which the proceedings are pending may order the rights of defense counsel under Sections 147 and 148 to be suspended until a decision on exclusion is made by the court competent under subsection (1); it may order the suspension of these rights also with respect to the cases designated under Section 138a subsections (4) and (5). Prior to preferment of public charges and subsequent to final conclusion of the proceedings the order pursuant to the first sentence shall be given by the court that has to decide on exclusion of defense counsel. The order shall be given in a decision which is incontestable. The court shall appoint another defense counsel for the duration of the order to safeguard the rights under Sections 147 and 148. Section 142 shall apply mutatis mutandis.

(4) If the court before which the proceedings are pending makes a submission during the main hearing pursuant to subsection (2), it shall at the same time as the submission interrupt or suspend the main hearing until a decision is given by the court competent pursuant to subsection (1). The main hearing may be interrupted for up to thirty days.

(5) If defense counsel, on his own initiative, or at the request of the accused withdraws from participation in the proceedings after, pursuant to subsection (2), an application for his exclusion has been filed or the matter has been submitted to the court competent to give a decision, this court may continue the exclusion proceedings with the aim of determining whether the participation of defense counsel who has withdrawn is admissible in the proceedings. The determination of inadmissibility shall be equal to exclusion within the meaning of Sections 138a, 138b and 138d.

(6) If defense counsel has been excluded from participation in the proceedings, costs caused by suspension can be imposed on him. The decision on this shall be taken by the court before which the proceedings are pending.

Section 138d. [Oral Hearing; Immediate Complaint]

(1) A decision on the exclusion of defense counsel shall be given after an oral hearing.

(2) Defense counsel shall be summoned to the oral hearing. The time limit for summoning a person shall be one week; it may be reduced to three days. The public prosecution office, the accused and in the cases of Section 138c subsection (2), third sentence, the president of the Bar Association shall be notified of the date of the oral hearing.

(3) The oral hearing may be held without defense counsel if he has been properly summoned and referred to the fact in the summons that the oral hearing may be held in his absence.

(4) At the oral hearing those participants who are present shall be heard. The extent to which evidence is taken shall be determined by the court in the exercise of its duty-bound discretion. Records of the hearing shall be made; Sections 271 to 273 shall apply mutatis mutandis.

(5) The decision shall be pronounced at the end of the oral hearing. If this is not possible the decision shall be given no later than within one week.

(6) An immediate complaint shall be admissible against a decision excluding defense counsel for the reasons designated in Section 138a, or concerning a case of Section 138b. The president of the Bar Association shall not be entitled to lodge a complaint. A decision rejecting the exclusion of defense counsel pursuant to Section 138a shall not be contestable.

Section 139. [Trainee Jurist as Defense Counsel]

The attorney-at-law engaged as defense counsel may, with the consent of the person who selected him, entrust the defense to a jurist who has passed the first examination for the judicial service and has been employed there for at least one year and three months.

Section 140. [Mandatory Defense]

(1) The assistance of defense counsel shall be mandatory if:

1. the main hearing is held at first instance at the Higher Regional Court or at the Regional Court;

2. the accused is charged with a serious criminal offense;

3. the proceedings may result in an order prohibiting pursuit of an occupation;

4. Repealed

5. the accused has been in an institution for at least three months based on judicial order or with the approval of the judge and will not be released from such institution at least two weeks prior to the commencement of the main hearing;

6. committal of the accused pursuant to Section 81 is being considered for the purpose of preparing an opinion on his mental condition;

7. proceedings for preventive detention are conducted;

8. the former defense counsel is excluded from participation in the proceedings by a decision.

(2) In other cases the presiding judge shall appoint defense counsel upon application or ex officio if the assistance of defense counsel appears necessary because of the seriousness of the offense, or because of the difficult factual or legal situation, or if it is evident that the accused cannot defend himself, particularly where an attorney-at-law has been assigned to the aggrieved person pursuant to Sections 397a and 406g subsections (3) and (4). Applications filed by accused persons who are deaf or dumb shall be granted.

(3) The appointment of defense counsel pursuant to subsection (1), number 5, may be revoked if the accused is released from the institution at least two weeks prior to commencement of the main hearing. The appointment of defense counsel pursuant to Section 117 subsection (4) shall remain effective for the further proceedings under the prerequisites designated in subsection (1), number 5, unless another defense counsel is appointed.

Section 141. [Appointment of Defense Counsel]

(1) In the cases of Section 140 subsections (1) and (2), as soon as an indicted accused without defense counsel has been requested according to Section 201 to reply to the bill of indictment, defense counsel shall be appointed.

(2) If it only subsequently appears that defense counsel is needed, he shall be appointed immediately.

(3) Defense counsel may also be appointed during the preliminary proceedings. The public prosecution office shall request such appointment if in its opinion the assistance of defense counsel pursuant to Section 140 subsection (1) or (2) will be necessary. Upon conclusion of the investigations (Section 169a) he shall be appointed upon application by the public prosecution office.

(4) The judge presiding over the court competent for the main proceedings or over the court seized of the case shall decide on the appointment.

Section 142. [Choice of Defense Counsel]

(1) Defense counsel to be appointed shall be chosen by the presiding judge, if possible from the group of attorneys-at-law admitted to practice before a court within the court district. The accused is to be given the opportunity of naming an attorney-at-law within a time limit to be specified. The presiding judge shall appoint defense counsel named by the accused unless there are significant grounds for not doing so.

(2) In the cases of Section 140 subsection (1), numbers 2 and 5, as well as Section 140 subsection (2) jurists who have passed the prescribed first examination for the judicial service and have been employed there for at least one year and three months may also be appointed as defense counsel in proceedings at first instance, but not before the court to whose judges they have been assigned for training.

Section 143. [Revocation of appointment]

The appointment shall be revoked if another defense counsel is soon to be chosen and such counsel accepts the mandate.

Section 144. [Deleted]

Section 145. [Absence of Defense Counsel]

(1) If, in a case where defense is mandatory, defense counsel fails to appear at the main hearing, leaves at an inappropriate time, or refuses to carry on the defense, the presiding judge shall immediately appoint another defense counsel for the defendant. However, the court may also decide to suspend the hearing.

(2) If mandatory defense counsel pursuant to Section 141 subsection (2) is appointed only during the course of the main hearing the court may decide to suspend the main hearing.

(3) The hearing shall be interrupted or suspended if the newly appointed defense counsel declares that he does not have the time needed to prepare the defense.

(4) If a suspension becomes necessary through the fault of defense counsel, he shall be charged with the costs caused thereby.

Section 145a. [Service of Documents on Defense Counsel]

(1) The chosen defense counsel whose power of attorney is recorded in the files, as well as the appointed counsel are considered authorized to receive service of documents and other communications on behalf of the accused.

(2) A summons for the accused may be served on defense counsel only if he is expressly authorized to receive summonses by power of attorney recorded in the files. Section 116a subsection (3) shall remain unaffected.

(3) If pursuant to subsection (1) a decision is served on defense counsel, the accused shall be informed thereof; at the same time he shall be provided with a copy of the decision. If a decision is served on the accused, defense counsel shall be informed thereof even if a written power of attorney is not contained in the file; he shall also be provided with a copy of the decision.

Section 146. [Joint Defense Counsel]

Defense counsel may not appear for more than one person accused of the same offense. In a single proceeding he may also not appear for more than one person accused of different offenses.

Section 146a. [Rejection of Defense Counsel of the Accused’s Own Choice]

(1) Where a person has been chosen as defense counsel although the prerequisites of Section 137 subsection (1), second sentence, or Section 146 have been fulfilled, he shall be rejected as defense counsel as soon as this becomes evident; the same shall apply if the prerequisites of Section 146 are fulfilled after he has been chosen. If, in the cases of Section 137 subsection (1), second sentence, more than one defense counsel give notification of their mandate, and if this means that the maximum number of counsel has been exceeded, they shall all be rejected. The decision to reject shall be taken by the court before which the proceedings are pending or which would be competent to hear the main proceedings.

(2) Acts of defense counsel prior to his rejection shall not be ineffective merely because the prerequisites of Section 137 subsection (1), second sentence, or of Section 146 have been fulfilled.

Section 147. [Inspection of the Files]

(1) Defense counsel shall be entitled to inspect those files which are available to the court, those which would have to be submitted to the court if charges have been preferred, and to inspect officially impounded pieces of evidence.

(2) If the termination of the investigations has not yet been noted in the file, defense counsel may be refused inspection of the files or of individual documents in the files, as well as the inspection of officially impounded pieces of evidence, if this may endanger the purpose of the investigation.

(3) At no stage of the proceedings may defense counsel be refused inspection of records concerning the examination of the accused or concerning such judicial acts of investigation to which defense counsel has been or should have been admitted, nor may he be refused inspection of expert opinions.

(4) Upon application, defense counsel may be permitted to take the files, with the exception of pieces of evidence, to his office or to his private premises for inspection, unless there are significant reasons to the contrary. The decision shall not be contestable.

(5) Regarding permission to inspect the files, the public prosecution office shall decide during the preparatory proceedings; in other cases, the judge presiding over the court seized of the case shall be competent to decide.

(6) If the reason for refusing the inspection of the files has not already ceased to exist, the public prosecution office shall revoke the order no later than upon completion of the investigation. Defense counsel shall be notified as soon as the right to inspect the files exists again without restriction.

Section 148. [Defense Counsel-Client Communication]

(1) The accused, also when he is not at liberty, shall be entitled to communicate with defense counsel in writing as well as orally.

(2) If an accused is not at liberty and if the subject of the investigation is a criminal offense pursuant to section 129a of the Penal Code, documents or other items shall be rejected if the sender does not agree to their being first submitted to a judge. The same shall apply under the conditions set out in the first sentence to written communications between the accused and defense counsel in other proceedings governed by statute. Where written communication pursuant to the first or second sentences is subject to monitoring, devices shall be put in place for conversations between the accused and defense counsel which prevent documents and other items from being handed over.

Section 148a. [Implementing Monitoring Measures]

(1) The judge of the Local Court in the district of which the prison is located shall be competent to implement monitoring measures pursuant to Section 148 subsection (2). Where a criminal information is to be laid pursuant to section 138 of the Penal Code, documents or other items in respect of which there is an obligation to lay a criminal information shall be provisionally impounded. The provisions concerning seizure shall remain unaffected.

(2) The judge who is entrusted with implementing monitoring measures shall not be seized of the subject of the investigation. The judge shall keep secret any knowledge which he obtains during monitoring. Section 138 of the Penal Code shall remain unaffected.

Section 149. [Admission of Assistance]

(1) The spouse of a defendant shall be admitted to the main hearing to give assistance in the defense and shall be heard upon his or her request. Time and place of the main hearing shall be communicated to him or her in time.

(2) The same rule shall apply to the defendant’s statutory representative.

(3) In preliminary proceedings the admission of such assistance shall be left to judicial discretion.

Section 150. Deleted


Part Two Proceedings at First Instance

Chapter I Public Charges

Section 151. [Principle of Indictment]

The opening of a judicial investigation shall be conditional upon preferment of charges.

Section 152. [Indicting Authority; Principle of Mandatory Prosecution]

(1) The public prosecution office shall have the authority to prefer public charges.

(2) Except as otherwise provided by law, the public prosecution office shall be obliged to take action in the case of all criminal offenses which may be prosecuted, provided there are sufficient factual indications.

Section 152a. [Prosecution of Elected Public Representatives]

The law of a Land concerning the conditions under which criminal prosecution may be instituted or continued against members of a legislative body shall also be applicable to the other Laender of the Federal Republic of Germany and to the Federation.

Section 153. [Non-Prosecution of Petty Offenses]

(1) If a less serious criminal offense is the subject of the proceedings, the public prosecution office may dispense with prosecution with the approval of the court competent for the opening of the main proceedings if the perpetrator’s culpability is considered to be of a minor nature and there is no public interest in the prosecution. The approval of the court shall be not required in the case of a less serious criminal offense which is not subject to an increased minimum penalty and where the consequences ensuing from the offense are minimal.

(2) If charges have already been preferred, the court, with the consent of the public prosecution office and the indicted accused, may terminate the proceedings at any stage thereof under the conditions in subsection (1). The consent of the indicted accused shall not be required if the main hearing cannot be conducted for the reasons stated in Section 205, or is conducted in the cases of Section 231 subsection (2) and Sections 232 and 233 in his absence. The decision shall be given in a ruling. The ruling shall not be contestable.

Section 153a. [Provisional Dispensing with Court Action; Provisional Termination of Proceedings]

(1) In a case involving a less serious criminal offense, the public prosecution office may, with the consent of the court competent to order the opening of the main proceedings and with the consent of the accused, dispense with preferment of public charges and concurrently impose a condition upon the accused:

1. to make a certain contribution towards reparation for damage caused by the offense,

2. to pay a sum of money to a non-profit-making institution or to the Treasury,

3. to perform some other service of a non-profit-making nature,

4. to comply with duties to pay maintenance at a certain level, or

5. to participate in a seminar pursuant to section 2b subsection (2), second sentence, or section 4 subsection (8), fourth sentence, of the Road Traffic Act,

if such conditions and instructions are of such nature as to eliminate the public interest in criminal prosecution and if the degree of culpability does not present an obstacle. The public prosecution office shall set a time limit within which the accused is to comply with such conditions and instructions, and which, in respect of the cases referred to in numbers 1 to 3 and 5 of the first sentence, shall be a maximum of six months and, in respect of the cases referred to in number 4 of the first sentence, a maximum of one year. The public prosecution office may subsequently revoke the conditions and instructions and may extend the time limit once for a period of three months; with the consent of the accused it may subsequently impose or change conditions and instructions. If the accused complies with the conditions and instructions, the offense can no longer be prosecuted as a less serious criminal offense. If the accused fails to comply with the conditions and instructions, there shall be no compensation for such contribution as he has made towards compliance. Section 153 subsection (1), second sentence, shall apply mutatis mutandis in the cases referred to in the first sentence, numbers 1 to 4.

(2) If the public charges have already been preferred, the court may, with the consent of the public prosecution office and of the indicted accused, provisionally terminate the proceedings up until the end of the main hearing in which the findings of fact can last be examined, and concurrently impose the conditions and instructions referred to in subsection (1), first sentence, on the indicted accused. Subsection (1), second to fifth sentences, shall apply mutatis mutandis. The decision pursuant to the first sentence shall be given in a ruling. The ruling shall not be contestable. The fourth sentence shall also apply to a finding that conditions and instructions imposed pursuant to the first sentence have been met.

(3) The running of the period of limitation shall be suspended for the duration of the time limit set for compliance with the conditions and instructions.

Section 153b. [Dispensing with Court Action; Termination]

(1) If the conditions exist under which the court may dispense with imposing a penalty, the public prosecution office may, with the consent of the court which would have jurisdiction over the main hearing, dispense with preferment of public charges.

(2) If charges have already been preferred the court may, with the consent of the public prosecution office and of the indicted accused, terminate proceedings prior to the beginning of the main hearing.

Section 153c. [Non-Prosecution of Offenses Committed Abroad]

(1) The public prosecution office may dispense with prosecuting criminal offenses:

1. which have been committed outside the territorial scope of this statute, or which an inciter or accessory to an act committed outside the territorial scope of this statute has committed within the territorial scope thereof;

2. which a foreigner committed in Germany on a foreign ship or aircraft;

3. if a sentence for the offense was already executed against the accused abroad, and the sentence which is to be expected in Germany would be negligible after taking the foreign sentence into account or if the accused has already been acquitted by final judgment abroad in respect of the offense.

(2) The public prosecution office may dispense with prosecuting criminal offenses committed within, but through an act committed outside, the territorial scope of this statute, if the conduct of proceedings would pose the risk of serious detriment to the Federal Republic of Germany or if other predominant public interests present an obstacle to prosecution.

(3) If charges have already been preferred, the public prosecution office may in the cases of subsection (1), numbers 1 and 2, and of subsection (2) withdraw the charges at any stage of the proceedings and terminate the proceedings if the conduct of proceedings would pose the risk of serious detriment to the Federal Republic of Germany, or if other predominant public interests present an obstacle to prosecution.

(4) If criminal offenses of the nature designated under section 74a subsection (1), numbers 2 to 6, and under section 120 subsection (1), numbers 2 to 7, of the Courts Constitution Act are the subject of the proceedings, the Federal Prosecutor General shall have these powers.

Section 153d. [Dispensing with Court Action on Political Grounds]

(1) The Federal Prosecutor General may dispense with prosecuting criminal offenses of the nature designated under section 74a subsection (1), numbers 2 to 6, and under section 120 subsection (1), numbers 2 to 7, of the Courts Constitution Act, if the conduct of proceedings would pose a risk of serious detriment to the Federal Republic of Germany, or if other predominant public interests present an obstacle to prosecution.

(2) If charges have already been preferred, the Federal Prosecutor General may withdraw the charges under the conditions designated in subsection (1) at any stage of the proceedings and terminate the proceedings.

Section 153e. [Dispensing with Court Action in National Security Cases]

(1) If criminal offenses of the nature designated under section 74a subsection (1), numbers 2 to 4, and section 120 subsection (1), numbers 2 to 7, of the Courts Constitution Act are the subject of the proceedings, the Federal Prosecutor General, with the approval of the Higher Regional Court, competent pursuant to section 120 of the Courts Constitution Act, may dispense with prosecuting such an offense if the perpetrator, subsequently to the offense, and before he has learned of the discovery thereof, contributed towards averting a danger to the existence or the security of the Federal Republic of Germany or its constitutional order. The same shall apply if the perpetrator has made such contribution by disclosing to an agency after the offense such knowledge as he had with respect to endeavors involving high treason, endangering the democratic state based on the Rule of Law, treason, and endangering external security.

(2) If charges have already been preferred, the Higher Regional Court, competent pursuant to Section 120 of the Courts Constitution Act, may, with the approval of the Federal Prosecutor General, terminate the proceedings if the conditions designated under subsection (1) are met.

Section 154. [Insignificant Secondary Penalties]

(1) The public prosecution office may dispense with prosecuting an offense:

1. if the penalty or the measure of reform and prevention in which the prosecution might result is not particularly significant in addition to a penalty or measure of reform and prevention which was imposed with binding effect upon the accused for another offense, or which he has to expect for another offense, or

2. beyond that, if a judgment is not to be expected for such offense within reasonable time, and if a penalty or measure of reform and prevention which was imposed with binding effect upon the accused, or which he has to expect for another offense, appears sufficient to have an influence on the perpetrator and to defend the legal order.

(2) If public charges have already been preferred, the court, upon the public prosecution office’s application, may provisionally terminate the proceedings at any stage.

(3) If the proceedings were provisionally terminated on account of a penalty or measure of reform and prevention already imposed with binding effect for another offense, the proceedings may be resumed, unless barred by limitation in the meantime, if the penalty or measure of reform and prevention imposed with binding effect is subsequently not executed.

(4) If the proceedings were provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offense, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offense has entered into force.

(5) If the court has provisionally terminated the proceedings, a court order shall be required for their resumption.

Section 154a. [Limitation of Prosecution]

(1) If individual separable parts of an offense or some of several violations of law committed as a result of the same offense are not particularly significant

1. for the penalty or measure of reform and prevention to be expected, or

2. in addition to a penalty or measure of reform and prevention which has been imposed with binding effect upon the accused for another offense or which he has to expect for another offense,

prosecution may be limited to the other parts of the offense or the other violations of law. Section 154 subsection 1, number 2, shall apply mutatis mutandis. The limitation shall be included in the records.

(2) After filing of the bill of indictment, the court, with the consent of the public prosecution office, may make this limitation at any stage of the proceedings.

(3) At any stage of the proceedings the court may reintroduce into the proceedings those parts of the offense or violations of law which were not considered. An application by the public prosecution office for reintroduction shall be granted. If parts of an offense which were not considered are reintroduced, Section 265 subsection (4) shall apply mutatis mutandis.

Section 154b. [Extradition and Expulsion]

(1) Preferment of public charges may be dispensed with if the accused is extradited to a foreign government because of the offense.

(2) The same rule shall apply if he is to be extradited to a foreign government because of another offense and the penalty or the measure of reform and prevention in which the domestic prosecution might result is negligible in addition to the penalty or measure of reform and prevention which was imposed on him abroad with binding effect or which he is to expect abroad.

(3) Preferment of public charges may also be dispensed with if the accused is expelled from the territorial scope of this Federal statute.

(4) If in the cases of subsections (1) to (3) public charges have already been preferred, the court, upon application by the public prosecution office, shall provisionally terminate the proceedings. Section 154 subsections (3) to (5) shall apply mutatis mutandis, provided that the time limit in subsection (4) amounts to one year.

Section 154c. [Victim of Coercion or Extortion]

If coercion or extortion (sections 240 and 253 Penal Code) was committed by threats to reveal a criminal offense, the public prosecution office may dispense with prosecuting the offense, the disclosure of which was threatened, unless expiation is imperative because of the seriousness of the offense.

Section 154d. [Decision of a Prior Issue Involving Civil Law or Administrative Law]

If the preferring of public charges for a less serious criminal offense depends on the evaluation of a question which must be determined according to civil law or administrative law, the public prosecution office may set a time limit to decide the question in civil proceedings or in administrative court proceedings. The person who reported the criminal offense shall be notified thereof. After this time limit has expired without any result, the public prosecution office may terminate the proceedings.

Section 154e. [Criminal or Disciplinary Proceedings concerning Erroneous Suspicion or Insult]

(1) Public charges shall not be preferred for an erroneous suspicion or insult (sections 164, 185 to 188 Penal Code) as long as criminal or disciplinary proceedings are pending for the reported or alleged offense.

(2) If public charges have already been preferred or a private prosecution has been filed, the court shall terminate the proceedings until the criminal or disciplinary proceedings for the reported or alleged offense are concluded.

(3) Pending the conclusion of the criminal or disciplinary proceedings for the reported or alleged offense, the statute of limitation shall not run in respect of prosecution for the erroneous suspicion or insult.

Section 155. [Scope of the Investigation]

(1) The investigation and decision shall extend only to the offense specified, and to the persons accused, in the charges.

(2) Within these limits, the courts shall be authorized and obliged to act independently; in particular, they shall not be bound by the parties’ applications when applying a penal norm.

Section 156. [No Withdrawal of the Indictment]

The public charges may not be withdrawn after the opening of the main proceedings.

Section 157. [Definition of the Terms “Indicted Accused” and “Defendant”]

Within the meaning of this statute,

the indicted accused shall be an accused person against whom public charges have been preferred,

the defendant shall be an accused person or indicted accused in respect of whom there has been a decision to open the main proceedings.

Chapter II Preparation of the Public Charges

Section 158. [Criminal Informations; Applications for Prosecution]

(1) Information of a criminal offense or an application for criminal prosecution may be filed orally or in writing with the public prosecution office, with authorities and officials in the police force, and with the Local Courts. An oral information shall be recorded in writing.

(2) In the case of criminal offenses which may be prosecuted only upon application, the application shall be made in writing or orally for the records to a court or to the public prosecution office; where the application is made to another authority, it shall be made in writing.

Section 159. [Unnatural Death; Discovery of a Corpse]

(1) If there are indications that a person has died an unnatural death, or if the corpse of an unknown person is found, the police and municipal authorities shall be obliged to inform the public prosecution office or the Local Court immediately.

(2) The written permission of the public prosecution office is required for the burial.

Section 160. [Investigation Proceedings]

(1) As soon as the public prosecution office obtains knowledge of a suspected criminal offense either through a criminal information or by other means it shall investigate the facts to decide whether public charges are to be preferred.

(2) The public prosecution office shall ascertain not only incriminating but also exonerating circumstances, and shall ensure that such evidence is taken the loss of which is to be feared.

(3) The investigations of the public prosecution office should extend also to the circumstances which are important for the determination of the legal consequences. For this purpose it may avail itself of the service of the court assistance agency.

Section 161. [Information and Investigations]

For the purpose indicated in the foregoing section the public prosecution office may request information from all public authorities and may make investigations of any kind, either itself or through the authorities and officials in the police force. The authorities and officials in the police force shall be obliged to comply with the request or order of the public prosecution office.

Section 161a. [Witnesses and Experts before the Public Prosecution Office]

(1) Witnesses and experts shall be obliged to appear before the public prosecution office upon being summoned and to make statements on the subject matter or to render their opinion. Unless otherwise provided, the provisions of Chapters VI and VII of Part One concerning Witnesses and Experts shall apply mutatis mutandis. Examination under oath shall be reserved for the judge.

(2) If a witness or expert fails or refuses to appear without justification, the public prosecution office shall have the authority to take the measures provided in Sections 51, 70 and 77. However, the imposition of detention shall remain reserved for the judge; the Local Court, in the district of which the public prosecution office applying for imposition of detention is located, shall have jurisdiction.

(3) A decision by the court may be requested against the decision of the public prosecution office pursuant to subsection (2), first sentence. The Regional Court in the district of which the public prosecution office is located shall decide on the application unless otherwise provided for in section 120 subsection (3), first sentence, and section 135 subsection (2) of the Courts Constitution Act. Sections 297 to 300, 302, 306 to 309 and 311a as well as the provisions on the imposition of costs in complaint proceedings shall apply mutatis mutandis. The decision of the court shall not be contestable.

(4) If the public prosecution office requests another public prosecution office to examine a witness or expert, the powers pursuant to subsection (2), first sentence, shall also be vested in the requested public prosecution office.

Section 162. [Judicial Investigations]

(1) If the public prosecution office considers a judicial investigation to be necessary, it shall make its applications to the Local Court in the district of which such investigation is to be made. If it considers judicial orders for making investigations in more than one district to be necessary, it shall make its applications to the Local Court in the district of which it is located. The second sentence shall not apply to examinations by the judge or if the public prosecution office considers the success of the investigation to be endangered by a delay which would be caused by an application to the competent Local Court pursuant to the second sentence.

(2) The jurisdiction of the Local Court shall not be affected by a change of the circumstances establishing such jurisdiction, occurring after the filing of the application.

(3) The judge shall examine whether the investigation applied for is permitted by statute, given the circumstances of the case.

Section 163. [Duties of the Police]

(1) The authorities and officials in the police force shall investigate criminal offenses and shall take all measures where there should be no delay, in order to prevent concealment of facts.

(2) The authorities and officials in the police force shall transmit, without delay, their records to the public prosecution office. Direct transmission to the Local Court shall be possible if it appears that a judicial investigation needs to be performed promptly.

Section 163a. [Examination of the Accused]

(1) The accused shall be examined at the latest prior to conclusion of the investigations, unless the proceedings result in termination. In simple matters it shall be sufficient for him to be given the opportunity to respond in writing.

(2) If the accused applies for the taking of evidence in his defense, such evidence shall be taken if it is of importance.

(3) The accused shall be obliged to appear before the public prosecution office upon being summoned. Sections 133 to 136a, 168c subsections (1) and (5) shall apply mutatis mutandis. On application by the accused, the court shall decide on the lawfulness of his being made to appear; Section 161a subsection (3), second to fourth sentences, shall apply.

(4) During the accused’s first examination by officials in the police force, he shall be informed of the offense with which he is charged. Section 136 subsection (1), second to fourth sentences, subsections (2) and (3) and Section 136a shall otherwise apply to the examination of the accused by the police officials.

(5) Section 52 subsection (3), Section 55 subsection (2), Section 81c subsection (3), second sentence, in conjunction with Section 52 subsection (3) and Section 136a, shall apply mutatis mutandis to the examination of a witness or expert by officials in the police force.

Section 163b. [Establishing Identity]

(1) If somebody is suspected of an offense the public prosecution office and the officials in the police force may take the measures which are necessary to establish his identity; Section 163a subsection 4, first sentence, shall apply mutatis mutandis. The suspect may be kept in custody if the identity cannot be established in any other way or only with considerable difficulty. Under the prerequisites of the second sentence, it shall be admissible to search the suspect and the objects found on him as well as to carry out measures for identification purposes.

(2) If and so far as this is necessary to clear up a criminal offense, the identity of a person who is not suspected of an offense may also be established; Section 69 subsection (1), second sentence, shall apply mutatis mutandis. Measures of the kind designated in subsection (1), second sentence, may not be taken if they are disproportionate to the importance of the matter; measures of the kind designated in subsection (1), third sentence, may not be taken against the will of the person concerned.

Section 163c. [Duration of Custody. Judicial Review]

(1) A person affected by a measure pursuant to Section 163b may in no case be kept in custody longer than is necessary to establish his identity. The arrested person shall be brought without delay before the judge at the Local Court in the district of which he has been apprehended for the purpose of deciding on the admissibility and continuation of the deprivation of liberty, unless it would presumably take more time to obtain a decision by the judge than would be necessary to establish his identity.

(2) The arrested person shall be entitled to request that a relative or a person whom he trusts be notified without delay. He shall be given the opportunity to inform a relative or a person whom he trusts unless he is suspected of an offense and the purpose of the investigation would be endangered by the notification.

(3) A deprivation of liberty for the purpose of establishing identity shall not exceed a total period of twelve hours.

(4) If identity has been established the records prepared in connection with the establishment shall be destroyed in the cases of Section 163b subsection (2).

Section 163d. [Computer-Assisted Search]

(1) If certain facts substantiate the suspicion that:

1. one of the criminal offenses listed in Section 111, or

2. one of the criminal offenses listed in Section 100a, first sentence, numbers 3 and 4,

has been committed, the data concerning the identity of persons obtained at a check by the border police, in the case of number 1 also obtained at checkpoints pursuant to Section 111, as well as the circumstances which may be important for clearing up the criminal offense or for apprehending the perpetrator, may be electronically stored if facts justify the assumption that the evaluation of the data may lead to the apprehension of the perpetrator, or to the clearing up of the criminal offense and the measure is not disproportionate to the importance of the matter. This shall also apply if, in the case of the first sentence, passports and identity cards are read by machine. The data shall be transmitted to law enforcement authorities only.

(2) Measures of the nature designated in subsection (1) may be ordered only by the judge, in exigent circumstances also by the public prosecution office and the officials assisting it (section 152 Courts Constitution Act). If the public prosecution office or one of the officials assisting it has given the order, the public prosecution office shall request the judge’s confirmation of the order without delay. The order shall become ineffective if not confirmed by the judge within three days.

(3) The order shall be given in writing. It must describe, by certain features or characteristics, the person whose data are to be stored, as precisely as possible in the light of the information about the suspect or suspects available at the time of the order. The kind and duration of the measure shall be determined. The order shall be limited to a special area and shall apply for a maximum of three months. One extension of not more than three further months shall be admissible if the conditions designated in subsection (1) continue to exist.

(4) If the conditions for the issuance of the order no longer exist, or if the purpose of the measures resulting from the order has been fulfilled, they shall be terminated without delay. The personal data obtained by the measures shall be erased without delay as soon as they are not, or no longer, required for the criminal proceedings; storage of the data exceeding the duration of the measures (subsection (3)) by more than three months, shall be inadmissible. The public prosecution office shall be notified about the erasure. The stored personal data may be used only for the criminal proceedings. Their use for other purposes shall be admissible only as far as an evaluation by the storing agency discloses any knowledge required to clear up another criminal offense, or to identify a person who is on the “wanted” list, or whose whereabouts must be determined for reasons of criminal prosecution or execution of sentence.

(5) The persons against whom further investigations have been conducted after evaluation of the data shall be informed of the measures designated in subsection (1), unless it is to be feared that the purpose of the investigation or public security would be endangered.

Section 163e. [Police Monitoring Notice]

(1) Notice may be ordered for monitoring to take place during police checks where personal particulars may be taken if there are sufficient factual indications to show that a criminal offense of considerable importance has been committed. The order may be made only against the accused person and only if establishing the facts or determining the perpetrator’s whereabouts by other means would offer much less prospect of success or would be made much more difficult. The measure shall be admissible against other individuals if it can be assumed, on the basis of specific facts, that they are linked to the perpetrator or if a link can be established and that the measure will make it possible to establish the facts or to determine the perpetrator’s whereabouts and if other means would offer much less prospect of success or would be much more difficult.

(2) The vehicle license plate number may be included in the notice if the vehicle is registered for a person in respect of whom a notice has been issued pursuant to subsection (1) or is used by that person or another person whose name is so far unknown and who is suspected of committing a criminal offense of considerable importance.

(3) Should the person be encountered, personal information about an individual accompanying the person in the notice or about the person driving the vehicle in the notice may also be communicated.

(4) The order to issue a police monitoring notice may be made only by a judge. In exigent circumstances, it may be ordered by the public prosecution office. Where the public prosecution office has made the order, it shall apply for judicial confirmation without delay. The order shall become ineffective if it is not confirmed by the judge within three days. The order shall be limited to a maximum of one year. Section 100b subsection (2), fifth sentence, shall apply mutatis mutandis.

Section 164. [Apprehension of Persons Disrupting Official Activities]

The official directing official activities on the spot shall be authorized to apprehend persons who willfully disturb his official activity or oppose orders given by him within the scope of his authority, and to have them kept in custody until termination of his official tasks, but not beyond the next day.

Section 165. [Judicial Action in an Emergency.]

In exigent circumstances, the judge may, even without an application, undertake the necessary investigatory acts if a public prosecutor is not available.

Section 166. [Applications by the Accused to Obtain Evidence]

(1) If the accused is examined by the judge and if at this hearing he applies for the taking of certain exonerating evidence, the judge shall, so far as he considers it of importance, take such evidence if loss of evidence is to be feared or if the taking of the evidence may justify the release of the accused.

(2) If the evidence is to be taken in another district, the judge may request the judge in that district to take this evidence.

Section 167. [Further Directions by the Public Prosecution Office]

In the cases of Sections 165 and 166 the authority to give further directions shall lie with the public prosecution office.

Section 168. [Recording Clerk]

A record shall be made of each judicial investigatory act. A registry clerk shall be called in to make such records; the judge may dispense with this, if he considers the presence of a recording clerk not to be necessary. In urgent cases the judge may call in a person to be sworn in by him as recording clerk.

Section 168a. [Recording of Judicial Investigatory Acts]

(1) The record must indicate the place and date of the hearing as well as the names of the persons involved and must state whether the essential formalities of the proceedings have been observed. Section 68 subsections (2) and (3) shall remain unaffected.

(2) The contents of the record may be provisionally recorded in regular shorthand, by stenotype or tape recorder or by comprehensible abbreviations. In this case the record shall be made without delay after the hearing. The provisional records shall be placed on file or, if they are not suitable for such purpose, they shall be kept together with the files, at the registry. Tape recordings may be erased when the proceedings have been concluded with binding effect or have otherwise ended.

(3) The record shall be read for approval to the persons participating in the hearing or be submitted to them for inspection. Their approval shall be recorded. The record shall be signed by the participants or it shall be noted therein why it has not been signed. If the contents of the record have been recorded only provisionally, it shall be sufficient for the records to be read out or played back. The record shall indicate that this happened and that approval was given, or which objections have been raised. The reading or submission for inspection or the playing back may be omitted if the participating persons, as far as they are concerned, dispense with it after the recording; the record shall indicate that such waiver has been pronounced.

(4) The record shall be signed by the judge as well as by the recording clerk. If the contents of the record have been recorded in whole or in part by tape recorder without the presence of a recording clerk, the judge and the person who made the record shall sign it. The latter shall sign with the addendum that he confirms the accuracy of the transcript. Proof of inaccuracy of the transcript shall be admissible.

Section 168b. [Recording of Investigatory Acts of the Public Prosecution Office]

(1) The result of investigatory acts of the public prosecution office shall be made part of the file.

(2) The examination of the accused, the witnesses and experts shall be recorded pursuant to Sections 168 and 168a as far as this can be done without considerably delaying the investigations.

Section 168c. [Presence During Judicial Examination]

(1) The prosecutor and defense counsel shall be permitted to be present during the judicial examination of the accused.

(2) The prosecutor, the accused and defense counsel shall be permitted to be present during the judicial examination of a witness or expert.

(3) The judge may exclude an accused from being present at the hearing if his presence would endanger the purpose of the investigation. This shall apply in particular if it is to be feared that a witness will not tell the truth in the presence of the accused.

(4) If an accused, not being at liberty, has defense counsel he shall be entitled to be present only at such hearings held at the place where he is in custody.

(5) The persons entitled to be present shall be given prior notice of the dates set down for the hearings. The notification shall be dispensed with if it would endanger the success of the investigation. Persons entitled to be present shall not have the right to request a change of the date set down for a hearing when prevented from being present.

Section 168d. [Presence During Judicial Inspection]

(1) The prosecutor, the accused and defense counsel shall be permitted to be present at the hearing when a judicial inspection is made. Section 168c subsection (3), first sentence, subsections (4) and (5) shall apply mutatis mutandis.

(2) If at the judicial inspection experts are consulted, the accused may request that the experts to be proposed by him for the main hearing be summoned to the hearing and if the judge rejects the application, the accused may have them summoned himself. The experts named by the accused shall be permitted to participate in the inspection and the required investigation to the extent that the activity of the experts appointed by the judge is not impeded thereby.

Section 168e. [Separate Examination]

If there is an imminent danger of serious detriment to the well-being of the witness in the event of his being examined in the presence of persons entitled to be present and if that risk cannot be averted in some other way, the judge shall carry out the examination separately from those entitled to be present. There shall be simultaneous audio-visual transmission of the examination to the latter. Their rights of participation shall otherwise remain unaffected. Sections 58a and 241a shall apply mutatis mutandis. The decision pursuant to the first sentence shall be incontestable.

Section 169. [Investigating Judges of the Higher Regional Courts and the Federal Court of Justice]

(1) In cases under the jurisdiction of the Higher Regional Court as the court of first instance pursuant to section 120 of the Courts Constitution Act the duties incumbent upon the judge at the Local Court in preparatory proceedings may also be performed by investigating judges of the Higher Regional Court concerned. If the Federal Prosecutor General conducts the investigations, the investigating judges of the Federal Court of Justice shall take their place.

(2) The investigating judge of the Higher Regional Court competent for a case may also order investigatory acts although they are not to be performed in the district of this court.

Section 169a. [Conclusion of Investigation]

If the public prosecution office is considering preferment of public charges, it shall make a note of the conclusion of the investigation in the files.

Section 170. [Conclusion of the Investigation Proceedings]

(1) If the investigations offer sufficient reason for preferring public charges, the public prosecution office shall prefer them by submitting a bill of indictment to the competent court.

(2) In all other cases the public prosecution office shall terminate the proceedings. The accused shall be notified thereof if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he requested such notice or if there is a particular interest in the notification.

Section 171. [Notification of the Applicant]

If the public prosecution office does not grant an application for preferring public charges, or after conclusion of the investigation it orders the proceedings to be terminated, it shall notify the applicant, indicating the reasons. The decision shall inform the applicant, if he is at the same time the aggrieved party, of the possibility of contesting the decision and of the time limit provided therefor (Section 172 subsection (1)).

Section 172. [Proceeding to Compel Public Charges]

(1) If the applicant is at the same time the aggrieved party, he shall be entitled to lodge a complaint against the notification made pursuant to Section 171 to the official superior of the public prosecution office within two weeks after receipt of such notification. On the filing of the complaint with the public prosecution office the time limit shall be deemed to have been observed. The time limit shall not run if no information has been given pursuant to Section 171, second sentence.

(2) The applicant may, within one month of receipt of notification, apply for a court decision in respect of the dismissal of the complaint by the superior official of the public prosecution office. He shall be informed of this right and of the form provided for such application; the time limit shall not run if no information has been given. The application shall not be admissible when the subject of the proceedings is solely a criminal offense which may be prosecuted by the aggrieved party by way of a private prosecution, or if the public prosecution office dispensed with preferring public charges in accordance with Section 153 subsection (1), Section 153a subsection (1), first and sixth sentences, or Section 153b subsection (1); the same shall apply in cases under Sections 153 c to 154 subsection (1), as well as under Sections 154b and 154c.

(3) The application for a court decision shall indicate the facts which are intended to substantiate preferment of public charges as well as the evidence. The application must be signed by an attorney-at-law; legal aid shall be governed by the same provisions as in civil litigation. The application shall be submitted to the court competent for the decision.

(4) The Higher Regional Court shall be competent to decide on the application. Section 120 of the Courts Constitution Act shall apply mutatis mutandis.

Section 173. [Procedure by the Court]

(1) Upon request of the court the public prosecution office shall submit to the court the records of the hearings conducted so far.

(2) The court may inform the accused of the application and set a time limit for making a statement in reply.

(3) The court may order investigations to prepare its decision and may entrust such investigations to a commissioned or requested judge.

Section 174. [Dismissal of Application]

(1) The court shall dismiss the application if there is no sufficient reason for preferring public charges and shall notify the applicant, the public prosecution office and the accused of the dismissal.

(2) If the application has been dismissed, the public charges may be preferred only on the basis of new facts or evidence.

Section 175. [Order to Prefer Public Charges]

If after hearing the accused, the court considers the application to be well-founded, it shall order preferment of public charges. This order shall be carried out by the public prosecution office.

Section 176. [Furnishing Security]

(1) Prior to a decision on the application, the court may, by order, request the applicant to furnish security for the costs which, due to the proceedings on the application, will presumably be incurred by the Treasury and the accused. Security is to be furnished by depositing cash, shares or bonds. The court, at its free discretion, shall determine the amount of security to be furnished. At the same time the court shall set the time limit within which the security must be furnished.

(2) If the security is not furnished within the time limit set, the court shall declare the application withdrawn.

Section 177. [Costs]

The costs resulting from the proceedings on the application shall be imposed on the applicant in cases under Section 174 and Section 176 subsection (2).

Chapter III Deleted

Sections 178 to 197. Deleted

Chapter IV Decision Concerning the Opening of the Main Proceedings

Section 198. Deleted

Section 199. [Decision to Open the Main Proceedings]

(1) The court which is competent for the main hearing shall decide whether main proceedings are to be opened or whether proceedings are to be provisionally terminated.

(2) The bill of indictment shall contain the application to open the main proceedings. The file shall be submitted to the court with the bill of indictment.

Section 200. [Contents of the Bill of Indictment]

(1) The bill of indictment shall indicate the indicted accused, the criminal offense with which he is charged, the time and place of its commission, its statutory elements and the penal provisions which are to be applied (the charges). In addition, the evidence, the court before which the main hearing is to be held, and defense counsel shall be indicated. In cases under Section 68 subsection (1), second sentence, and subsection (2), first sentence, it shall be sufficient, as regards the designation of witnesses, to indicate an address at which documents can be served. Where a witness is mentioned whose identity is not to be revealed either wholly or in part, this fact shall be indicated; the same shall apply mutatis mutandis to the confidentiality of the witness’s place of residence or whereabouts.

(2) The relevant result of the investigation shall also be presented in the bill of indictment. This may be dispensed with if the charges are preferred before the criminal court judge.

Section 201. [Communication of the Bill of Indictment]

(1) The presiding judge shall communicate the bill of indictment to the indicted accused and at the same time shall summon him to state, within a time limit to be set, whether he wants to apply for individual evidence to be taken before the decision on opening main proceedings, or whether he wants to raise objections to the opening of main proceedings.

(2) The court shall decide on the applications and objections. The decision shall be incontestable.

Section 202. [Supplementary Investigations]

Before the court decides on the opening of main proceedings, it may order individual evidence to be taken to help to clear up the case. The order shall be incontestable.

Section 203. [Condition for Opening Main Proceedings]

The court shall decide to open main proceedings if in the light of the results of the preparatory proceedings there appears to be sufficient suspicion of the indicted accused having committed a criminal offense.

Section 204. [Refusal to Open Main Proceedings]

(1) If the court decides not to open main proceedings, the order must show whether its decision is based on factual or on legal grounds.

(2) The indicted accused shall be notified of the order.

Section 205. [Provisional Termination]

The court may, by order, provisionally terminate the proceedings if the absence of the indicted accused or other personal impediment would prevent the holding of the main hearing for a considerable time. The presiding judge shall secure the evidence, so far as this is necessary.

Section 206. [Applications not Binding]

The court shall not be bound in giving its decision by the public prosecution office’s application.

Section 206a. [Termination in the Case of Impediments]

(1) Where a procedural impediment arises after the main proceedings have been opened, the court may terminate the proceedings by an order made outside the main hearing.

(2) The order shall be contestable by immediate complaint.

Section 206b. [Termination on Amendment of the Law]

If a penal norm applicable at the time the offense was committed is amended prior to the decision and if pending criminal court proceedings concern an offense which was punishable under the former law but which is no longer punishable under the new law, the court shall terminate the proceedings by an order made outside the main hearing. The order shall be contestable by immediate complaint.

Section 207. [The Order Opening Main Proceedings]

(1) In the order opening main proceedings, the court shall admit the charges for the main hearing and designate the court before which the main hearing is to take place.

(2) The court shall specify in the order what changes are to be made to enable it to admit the charges for the main hearing, if:

1. charges have been preferred for more than one offense and for some of them the opening of the main proceedings is refused,

2. in accordance with Section 154a, prosecution is limited to individual severable parts of an offense, or such parts are reintroduced into the proceedings,

3. the act is legally evaluated differently from the bill of indictment, or,

4. in accordance with Section 154a, prosecution is limited to some of several violations of the law committed through the same criminal offense, or such violations of law are reintroduced into the proceedings.

(3) In the case of subsection (2), numbers 1 and 2, the public prosecution office shall submit a new bill of indictment corresponding to the order. The presentation of the relevant result of investigations may be dispensed with.

(4) At the same time the court shall decide proprio motu whether remand detention or provisional committal shall be ordered or continued.

Section 208. Deleted

Section 209. [Competent Court]

(1) If the court with which the bill of indictment has been filed considers that a court of lower rank in its district has jurisdiction, it shall open the main proceedings before such court.

(2) If the court with which the bill of indictment has been filed considers that a court of higher rank in its district has jurisdiction, it shall submit the files through the public prosecution office to this court for decision.

Section 209a. [Special Functional Jurisdictions]

Within the meaning of Section 4 subsection 2, section 209 as well as section 210 subsection 2

1. the special penal chambers, pursuant to section 74 subsection 2, section 74a, 74c of the Courts Constitution Act, shall, in relation to the general penal chambers and inter se, rank in their district in the order as designated in section 74e of the Courts Constitution Act, and

2. the youth courts, for the decision on whether cases

a) under section 33 subsection (1), section 103 subsection (2), first sentence, and section 107 of the Youth Court Act, or

b) as youth protection matters (section 26 subsection (1), first sentence, section 74b, first sentence, of the Courts Constitution Act)

are to be tried before the youth courts, shall be deemed equivalent to courts of a higher rank in relation to the courts of the same rank competent for general criminal cases.

Section 210. [Appellate Remedies]

(1) The order by which the main proceedings were opened cannot be contested by the defendant.

(2) The public prosecution office shall be entitled to lodge an immediate complaint against an order refusing the opening of the main proceedings or an order by which, in deviation from the application of the public prosecution office, the proceedings have been referred to a court of lower rank.

(3) If the court hearing the complaint allows the complaint, it may at the same time decide that the main hearing is to be held before another chamber of the court which issued the order pursuant to subsection (2), or by a neighboring court of the same rank and in the same Land. In proceedings in which a Higher Regional Court has decided in the first instance the Federal Court of Justice may decide that the main hearing shall be held before another panel of the same court.

Section 211. [Effect of the Order Refusing to Open Main Proceedings]

If the opening of the main proceedings was refused by an order which is no longer contestable, the charges may be resumed only on the basis of new facts or evidence.

Sections 212 to 212b. Repealed

Chapter V Preparation of the Main Hearing

Section 213. [Setting the Date for the Main Hearing]

The date for the main hearing shall be set down by the presiding judge.

Section 214. [Summonses]

(1) The summonses required for the main hearing shall be ordered by the presiding judge. The registry shall ensure that the summonses are issued.

(2) If it is to be expected that the main hearing will last a long time, the presiding judge may decide that all or individual witnesses and experts be summoned on a date later than the beginning of the main hearing.

(3) The public prosecution office shall be entitled directly to summon additional persons.

(4) The public prosecution office shall cause the items serving as evidence to be produced. This can also be done by the court.

Section 215. [Service of the Order Opening the Main Proceedings]

The order concerning the opening of the main proceedings shall be served on the defendant at the latest with the summons. In the cases of Section 207 subsection (3) this shall apply mutatis mutandis to the bill of indictment subsequently submitted.

Section 216. [Summoning the Defendant]

(1) The summoning of a defendant who is at liberty shall be made in writing with the warning that he shall be arrested and brought before the court in the case of his unexcused failure to appear. The warning may be omitted in the cases of Section 232.

(2) A defendant who is not at liberty shall be summoned by being notified of the date of the main hearing pursuant to Section 35. The defendant shall then be asked what applications, if any, he wants to make for his defense at the main hearing.

Section 217. [Time Limit for Summons]

(1) A time limit of at least 1 week must elapse between service of the summons (Section 216) and the day of the main hearing.

(2) If this time limit has not been observed, the defendant may request suspension of the hearing at any time prior to the commencement of his examination on the charges.

(3) The defendant may waive observance of this time limit.

Section 218. [Summoning Defense Counsel]

In addition to the defendant, court-appointed defense counsel shall always be summoned; chosen defense counsel shall be summoned if the court was notified of such choice. Section 217 shall apply mutatis mutandis.

Section 219. [Defendant’s Applications to Take Evidence]

(1) If the defendant requests that witnesses or experts be summoned or that other evidence be produced for the main hearing, he shall make his applications to the presiding judge, indicating the facts on which evidence is to be taken. He shall be notified of the direction made following this request.

(2) If the defendant’s applications concerning evidence are granted, they shall be communicated to the public prosecution office.

Section 220. [Summons by the Defendant]

(1) If the presiding judge rejects the application for summoning a person, the defendant may have him summoned directly. He shall be authorized to do so even without a previous application.

(2) A person directly summoned shall be obliged to appear only if, at the time of the summons, statutory reimbursement for travel expenses and absence from work is offered him in cash or proven to have been deposited at the registry.

(3) If it appears at the main hearing that the examination of a directly summoned person was useful for the purpose of clearing up the case, the court shall, upon application, order that statutory reimbursement from the Treasury be granted to such person.

Section 221. [Taking of Evidence Ex Officio]

The presiding judge may also order ex officio the production of further items serving as evidence.

Section 222. [Naming Witnesses]

(1) The court shall, in due time, indicate to the public prosecution office and the defendant the summonsed witnesses and experts and indicate their place of residence or whereabouts. If the public prosecution office makes use of its right pursuant to Section 214 subsection (3) it shall, in due time, indicate to the court and to the defendant the names of the summonsed witnesses and experts and indicate their place of residence or whereabouts. Section 200 subsection (1), third and fourth sentences, shall apply mutatis mutandis.

(2) The defendant shall, in due time, indicate to the court and to the public prosecution office the names of the witnesses and experts directly summoned by him or to be brought to the main hearing, and indicate their place of residence or whereabouts.

Section 222a. [Information as to Composition of the Court]

(1) If the main hearing at first instance is held before the Regional Court or the Higher Regional Court, the composition of the court shall be communicated no later than on commencement of the main hearing, indicating the presiding judge and the additional judges and additional lay judges called in. The composition may, by order of the presiding judge, be communicated prior to the main hearing; for the defendant, such communication shall be made to his defense counsel. If the composition, as communicated, changes this shall be indicated no later than on commencement of the main hearing.

(2) If the communication about composition or about a change of composition has been received later than one week prior to the commencement of the main hearing the court may, upon application by the defendant, defense counsel or the public prosecution office, interrupt the main hearing to examine the composition, if this is requested at the latest prior to the commencement of the examination of the first defendant on the charges.

(3) For the defendant, only his defense counsel or an attorney-at-law may inspect the documents which are decisive for the composition; for the private accessory prosecutor only an attorney-at-law may make such inspection.

Section 222b. [Objections concerning Composition of the Court]

(1) If the composition of the court has been communicated pursuant to Section 222a, the objection that the court is composed contrary to the rules may be raised only prior to the commencement of the examination of the first defendant on the charges at the main hearing. The facts which allegedly resulted in the composition contrary to the rules shall be indicated. All objections shall be raised at the same time. Outside the main hearing the objection shall be raised in writing; Section 345 subsection (2), and for the private accessory prosecutor Section 390 subsection (2), shall apply mutatis mutandis.

(2) The court being composed as required for decisions made outside the main hearing shall decide on the objection. If it considers the objection to be well-founded it shall declare that it is not composed according to the rules. If an objection results in a change of the composition, Section 222a shall not be applicable to the new composition.

Section 223. [Witness Examination on Commission or by Request]

(1) The court may order that a witness or expert be examined by a commissioned or a requested judge if illness or infirmity or other insurmountable impediments prevent him from appearing at the main hearing for a long or indefinite period of time.

(2) The same rule shall apply if a witness or an expert cannot reasonably be expected to appear because of the great distance involved.

(3) The witnesses shall be heard under oath unless exceptions are prescribed or admitted.

Section 224. [Notification of Participants]

(1) The public prosecution office, the defendant, and defense counsel shall be notified beforehand of the dates set down for the examination; their presence at the examination shall not be required. There shall be no notification if it would endanger the success of the investigation. The record made thereof shall be submitted to the public prosecution office and defense counsel.

(2) If a defendant, not being at liberty, has defense counsel, he shall be entitled to be present only at such hearings held at the place where he is in custody.

Section 225. [Judicial Inspection on Commission]

The provisions of Section 224 shall be applied if a judicial inspection is to be made for the preparation of the main hearing.

Section 225a. [Change of Jurisdiction Prior to the Main Hearing]

(1) If a court, prior to the commencement of a main hearing, considers the substantive jurisdiction of a court of higher rank to be established, it shall submit the files to this court through the public prosecution office; Section 209a, number 2a, shall apply mutatis mutandis. The court to which the matter has been referred shall decide in a ruling whether it accepts the case.

(2) If the files are submitted to a court of higher rank by a criminal court judge or by a court with lay judges, the defendant may request the taking of specific evidence within a certain time limit to be determined with the submission. The presiding judge of the court to which the case has been referred shall decide on the application.

(3) The defendant and the court before which the main hearing is to be held shall be named in the ruling accepting the case. Section 207 subsection (2), numbers 2 to 4, subsections (3) and (4) shall apply mutatis mutandis. The contestability of the ruling shall be governed by Section 210.

(4) The procedure pursuant to subsections (1) to (3) shall also apply if the court, prior to the commencement of the main hearing, considers an objection of the defendant pursuant to Section 6a to be well-founded and a special penal chamber which has priority pursuant to section 74e of the Courts Constitution Act would be competent. If the court that considers the jurisdiction of another penal chamber to be established has priority over the latter pursuant to section 74e of the Courts Constitution Act, it shall refer the case to that chamber with binding effect; the contestability of the decision on the referral shall be governed by Section 210.

Chapter VI Main Hearing

Section 226. [Uninterrupted Presence]

The main hearing shall be held during the uninterrupted presence of the persons called upon to reach a judgment and of the public prosecutor and of a registry clerk.

Section 227. [More than one Public Prosecutor and Defense Counsel]

More than one official of the public prosecution office and more than one defense counsel may participate in the main hearing and share their duties.

Section 228. [Suspension and Interruption]

(1) The court shall decide on the suspension of a main hearing and its interruption pursuant to Section 229 subsection (2). The presiding judge shall be competent to order short interruptions.

(2) An impediment to defense counsel’s appearance shall, without prejudice to the provision in Section 145, not entitle to the defendant to request suspension of the hearing.

(3) If the time limit set in Section 217 subsection (1) has not been complied with, the presiding judge should inform the defendant of his right to request suspension of the hearing.

Section 229. [Maximum Duration of an Interruption]

(1) The main hearing may be interrupted for a period of up to ten days.

(2) If the main hearing has been conducted for at least ten days, it may then be interrupted once for up to thirty days, notwithstanding the provision in subsection (1). If, thereafter, the main hearing has been continued for at least ten days, it may be interrupted a second time pursuant to the first sentence. In addition to the interruptions pursuant to subsections (1) and (2), first and second sentences, the main hearing may, upon expiry of twelve months since its commencement, be interrupted once within each twelve month period for a maximum of thirty days, if the hearing has been conducted for at least ten days prior to the interruption.

(3) If a defendant, due to sickness, is unable to appear at the main hearing which has already been conducted for at least ten days, the running of the time limits referred to in subsections (1) and (2) shall be suspended for six weeks at the most; these time limits shall expire at the earliest ten days after the suspension has ended. The court shall, in an incontestable ruling, determine when the suspension begins and ends.

(4) If the main hearing has not been continued at the latest on the day following expiry of the time limit referred to in the previous subsections, the main hearing shall commence de novo. If the day following expiry of the time limit is a Sunday, a public holiday or a Saturday, the main hearing may be continued on the next working day.

Section 230. [Failure of the Defendant to Appear]

(1) No main hearing shall be held against a defendant who fails to appear.

(2) If there is no sufficient excuse for the defendant’s failure to appear, an order shall be made to bring him before the court, or a warrant of arrest shall be issued.

Section 231. [Defendant’s Duty to be Present]

(1) A defendant who has appeared may not absent himself from the hearing. The presiding judge may take proper measures to prevent him from absenting himself; he may also have the defendant kept in custody during an interruption of the hearing.

(2) If the defendant nevertheless absents himself, or fails to appear when an interrupted main hearing is continued, the main hearing may be concluded during his absence if he was already heard on the indictment and the court does not consider his further presence to be necessary.

Section 231a. [Unfitness to Stand Trial Caused with Intent]

(1) If the defendant intentionally and culpably placed himself in a condition precluding his fitness to stand trial, and if, as a result, he knowingly prevents the proper conduct or continuation of the main hearing in his presence, the main hearing shall, in a case where he has not yet been heard on the charges, be conducted or continued in his absence, unless the court considers his presence to be indispensable. The procedure pursuant to the first sentence shall only apply if the defendant, after the opening of main proceedings, had the opportunity to make statements concerning the charges before a court or a commissioned judge.

(2) As soon as the defendant is again fit to stand trial, the presiding judge shall inform him of the essential contents of the proceedings during his absence unless pronouncement of judgment has commenced.

(3) The court shall decide on the hearing to be held in the absence of the defendant pursuant to subsection (1) after having heard a physician as an expert. The decision may already be given prior to the beginning of the main hearing. An immediate complaint against the decision shall be admissible; it shall have a delaying effect. A main hearing which has already been commenced shall be interrupted until a decision on the immediate complaint is made; the interruption may last up to thirty days even if the conditions in Section 229 subsection (2) have not been fulfilled.

(4) Defense counsel shall be appointed for the defendant who is not represented by counsel where a hearing may be held without the defendant pursuant to subsection (1).

Section 231b. [Absence because of Disorderly Conduct]

(1) If the defendant, because of disorderly conduct, is removed from the courtroom or committed to prison (section 177 of the Courts Constitution Act), the hearing may be held in his absence, if the court considers his further presence not to be indispensable and as long as it is to be feared that the defendant’s presence would be seriously detrimental to the course of the main hearing. In any case the defendant shall be given the opportunity to make a statement on the charges.

(2) As soon as the defendant is allowed back, the procedure pursuant to Section 231a subsection (2) shall apply.

Section 231c. [Absence During Parts of the Proceedings]

If the main hearing is held in respect of more than one defendant, the court may order that individual defendants — in the case of mandatory defense also their defense counsel — be permitted, upon application, to absent themselves during individual parts of the hearing unless they are affected by these parts of the hearing. The order shall indicate those parts of the hearing for which permission is given. The permission may be revoked at any time.

Section 232. [Main Hearing Despite the Defendant’s Failure to Appear]

(1) The main hearing may be held in the defendant’s absence if he was properly summoned and the summons referred to the fact that the hearing may take place in his absence and if only a fine up to 180 daily units, a warning with sentence reserved, a driving ban, forfeiture, confiscation, destroying or making an item unusable, or a combination thereof, is to be expected. A higher penalty or a measure of reform and prevention may not be imposed in these proceedings. Withdrawal of permission to drive shall be admissible if the defendant has been made aware of this possibility in the summons.

(2) The main hearing shall not take place without the defendant if the summons was effected by publication.

(3) The record of a judicial examination of the defendant shall be read out at the main hearing.

(4) A judgment given in the defendant’s absence must be served on him personally, together with reasons for the judgment, if it is not served on his defense counsel pursuant to Section 145a subsection (1).

Section 233. [Releasing the Defendant from the Duty to Appear]

(1) The defendant may, upon his application, be released from the obligation to appear at the main hearing, if only imprisonment up to six months, a fine up to 180 daily units, a warning with sentence reserved, a driving ban, forfeiture, confiscation, destroying or making an item unusable, or a combination thereof, is to be expected. A higher penalty or a measure of reform and prevention may not be imposed in his absence. Withdrawal of permission to drive shall be admissible.

(2) If the defendant is released from the obligation to appear at the main hearing, he may be heard on the indictment by a commissioned or a requested judge. In this connection he shall be advised of the legal consequences admissible at the hearing in his absence and be asked whether he maintains his application to be released from appearing at the main hearing.

(3) The public prosecution office and defense counsel shall be informed of the date set down for the examination at which the defendant is to be heard; their presence at the examination shall not be required. The records of the examination shall be read out at the main hearing.

Section 234. [Representation of Absent Defendant]

If the main hearing may be held in the defendant’s absence, he shall be entitled to be represented by defense counsel with a written power of attorney.

Section 234a. [Defense Counsel’s Rights of Information and Consent]

If the main hearing is held in the defendant’s absence, it shall be sufficient for the information required under Section 265 subsections (1) and (2) to be given to defense counsel; the defendant’s waiver pursuant to Section 61, number 5 and his consent pursuant to Section 245 subsection (1), second sentence, and pursuant to Section 251 subsection (1), number 4, and subsection (2), shall not be required if defense counsel takes part at the main hearing.

Section 235. [Restoration of the Status quo ante]

If the main hearing was held without the defendant pursuant to Section 232, he may, in respect of the judgment and within one week of its service, apply for restoration of the status quo ante under the same conditions as in the case of failure to comply with a time limit; he may at any time request restoration of the status quo ante if he did not obtain knowledge of the summons to the main hearing. The defendant shall be instructed of this right when the judgment is served on him.

Section 236. [Ordering the Defendant’s Personal Appearance]

The court shall always have the power to order the defendant’s appearance in person and to enforce this by an order to bring him before the court or by a warrant of arrest.

Section 237. [Joinder of more than one Criminal Case]

If there is a connection between more than one criminal case pending at the same court, the court may order that they be joined for the purpose of being heard together, even if this connection is not the one specified in Section 3.

Section 238. [Conduct of Hearing]

(1) The presiding judge shall conduct the hearing, examine the defendant and take the evidence.

(2) The court shall give a decision on an objection by a participant in the proceedings that an order by the presiding judge relating to the conduct of the hearing is inadmissible.

Section 239. [Cross-Examination]

(1) The presiding judge shall leave the examination of witnesses and experts named by the public prosecution office and by the defendant to the public prosecution office and defense counsel upon concurring application by both. Witnesses and experts named by the public prosecution office shall first be examined by the public prosecution office, those named by the defendant shall first be examined by defense counsel.

(2) After this examination the presiding judge shall also ask the witnesses and experts such questions as he deems necessary for further clarification in the case.

Section 240. [Right to Ask Questions]

(1) The presiding judge shall permit the associate judges, upon request, to address questions to the defendant, witnesses and experts.

(2) The presiding judge shall give similar permission to the public prosecution office, to the defendant, and to defense counsel, as well as to the lay judges. Direct questioning of a defendant by a co-defendant shall be inadmissible.

Section 241. [Rejection of Questions]

(1) A person who in the case of Section 239 subsection (1) abuses his right of examination may be deprived of this right by the presiding judge.

(2) In the cases of Section 239 subsection (1) and Section 240 subsection (2) the presiding judge may reject inappropriate or irrelevant questions.

Section 241a. [Examination of Witnesses under 16 Years of Age]

(1) The examination of witnesses under 16 years of age shall be conducted solely by the presiding judge.

(2) The persons referred to in Section 240 subsections (1) and (2), first sentence, may request the presiding judge to ask the witnesses further questions. The presiding judge may permit these persons to put questions to witnesses directly if, according to his duty-bound discretion, prejudice to the well-being of the witness is not to be expected.

(3) Section 241 subsection (2) shall apply mutatis mutandis.

Section 242. [Doubts concerning Admissibility of Questions]

The court shall decide in all cases of doubt relating to the admissibility of a question.

Section 243. [Course of the Main Hearing]

(1) The main hearing shall begin when the case is called up. The presiding judge shall determine whether the defendant and defense counsel are present and whether the evidence has been produced, especially whether the summoned witnesses and experts have appeared.

(2) The witnesses shall leave the courtroom. The presiding judge shall examine the defendant on his personal situation.

(3) Thereupon the public prosecutor shall read the charges. In the cases of Section 207 subsection (3) he shall use the new bill of indictment for this purpose. In the cases of Section 207 subsection (2), number 3, the public prosecutor shall read out the charges and submit the legal assessment on which the order to open the main hearing has been based. In addition, he may express his own divergent legal opinion. In the cases of Section 207 subsection (2), number 4, he shall take into account the amendments made by the court when admitting the case for a main hearing.

(4) The defendant shall then be informed that he may choose to respond to the charges or not to make any statement on the charges. If the defendant is ready to respond, he shall be examined on the charges, having regard to Section 136 subsection (2). Any previous conviction of the defendant should be disclosed only insofar as it is relevant to the decision. The presiding judge shall decide when such condition is to be disclosed.

Section 244. [Taking of Evidence]

(1) Evidence shall be taken after the defendant’s examination.

(2) In order to establish the truth, the court shall, proprio motu, extend the taking of evidence to all facts and means of proof relevant to the decision.

(3) An application to take evidence shall be rejected if the taking of such evidence is inadmissible. In all other cases, an application to take evidence may be rejected only if the taking of such evidence is superfluous because the matter is common knowledge, if the fact to be proved is irrelevant to the decision or has already been proved, if the evidence is wholly inappropriate or unobtainable, if the application is made to protract the proceedings, or if an important allegation which is intended to offer proof in exoneration of the defendant can be treated as if the alleged fact were true.

(4) Except as otherwise provided, an application to take evidence by examining an expert may also be rejected if the court itself possesses the necessary specialist knowledge. Hearing another expert may also be refused if the opposite of the alleged fact has already been proved by the first expert opinion; this rule shall not apply to cases where the professional competence of the first expert is in doubt, where his opinion is based upon incorrect factual suppositions, where the opinion contains contradictions, or where the new expert has means of research at his disposal which seem to be superior to the ones of an earlier expert.

(5) An application to take evidence by inspection in loco may be rejected if the court, in the exercise of its duty-bound discretion, deems the inspection not to be necessary for establishing the truth. Under the same condition an application to take evidence by examining a witness may be rejected if the witness would have to be summoned from abroad.

(6) A court ruling shall be required for rejecting an application to take evidence.

Section 245. [Extent of Evidence Taken]

(1) The taking of evidence shall be extended to all witnesses and experts who were summoned by the court and who appeared, as well as to other evidence produced by the court or the public prosecution office pursuant to Section 214 subsection (4), unless the taking of evidence is inadmissible. The taking of certain evidence may be dispensed with if the public prosecution office, defense counsel and the defendant agree.

(2) The court shall be obliged to extend the taking of evidence to the witnesses and experts who appeared upon being summoned by the defendant or the public prosecution office, as well as to other evidence produced, only if an application to take evidence is submitted. The application shall be rejected if the taking of evidence is inadmissible. It may otherwise be rejected only if the fact for which evidence is to be furnished has already been proved or is common knowledge, if there is no connection between the fact and the matter being adjudicated, if the evidence is completely unsuitable, or if the application has been filed for the purpose of protracting the proceedings.

Section 246. [Belated Applications to Take Evidence]

(1) The taking of evidence may not be refused on the grounds that the evidence or the fact which is to be proved was submitted too late.

(2) Until such time as all evidence has been taken, the applicant’s opponent may, however, apply for suspension of the main hearing for the purpose of collecting information if a witness or expert who is to be examined was named so late, or a fact which is to be proved was submitted so late that the opponent lacked the time needed to collect information.

(3) The public prosecution office and the defendant shall have the same right in respect of witnesses and experts summoned at the direction of the presiding judge or the court.

(4) The court shall decide on these applications in the exercise of its unfettered discretion.

Section 246a. [Medical Expert]

An expert shall be examined at the main hearing on defendant’s condition and his treatment prospects if it is expected that the defendant’s committal to a psychiatric hospital, an institution for withdrawal treatment or preventive detention will be ordered. If the expert has not previously examined the defendant, he is to be given the opportunity to do so before the main hearing.

Section 247. [Removal of the Defendant from Courtroom]

The court may order that the defendant leave the courtroom during an examination if it is to be feared that a co-defendant or a witness will not tell the truth when examined in the presence of the defendant. The same shall apply if, on examination of a person under sixteen years of age as a witness in the defendant’s presence, considerable detriment to the well-being of such witness is to be feared or if an examination of another person as a witness in the defendant’s presence poses an imminent risk of serious detriment to that person’s health. The defendant’s removal may be ordered for the duration of discussions concerning the defendant’s condition and his treatment prospects, if substantial detriment to his health is to be feared. When the defendant is present again the presiding judge shall inform him of the essential contents of the proceedings, including the testimony, during his absence.

Section 247a. [Witness Examination in Another Place]

If there is an imminent risk of serious detriment to the well-being of the witness were he to be examined in the presence of those attending the main hearing and if that risk cannot be averted in some other way, namely by removing the defendant and by excluding the public, the court may order that the witness remain in another place during the examination; such order shall also be admissible under the conditions set out in Section 251 subsection (1), numbers 2, 3 or 4, insofar as this is necessary for establishing the truth. The decision shall be incontestable. A simultaneous audio-visual transmission of the testimony shall be provided in the courtroom. The testimony shall be recorded if there are grounds to fear that it will not be possible to examine the witness at a future main hearing and if the recording is necessary for establishing the truth. Section 58a subsection (2) shall apply mutatis mutandis.

Section 248. [Dismissal of Witnesses and Experts]

The witnesses and experts who have been examined may absent themselves from the place where the court is sitting, only with permission or upon instruction by the presiding judge. The public prosecution office and the defendant shall be heard beforehand.

Section 249. [Reading Out Documents]

(1) Certificates and other documents serving as evidence shall be read out at the main hearing. This rule shall apply in particular to previous criminal judgments, criminal records and extracts from parish registers and registers of births, deaths and marriages and to written records of a judicial inspection.

(2) Except in the cases of Sections 253 and 254, the reading may be dispensed with if the judge and the lay judges have taken cognizance themselves of the wording of the certificate or the document and the other participants had an opportunity to do so. If the public prosecutor, the defendant or defense counsel object without delay to the presiding judge’s order to proceed in accordance with the first sentence, the court shall give a decision. A record shall be made of the presiding judge’s order, the findings as to cognizance and opportunity, and of the objection.

Section 250. [Principle of Examination in Person]

If the proof of a fact is based on the observation of a person, such person shall be examined at the main hearing. The examination shall not be replaced by reading out the record of a previous examination or reading out a written statement.

Section 251. [Reading Out Records]

(1) Examination of a witness, expert, or co-accused may be replaced by reading out the written record of his previous examination by a judge if:

1. the witness, expert, or co-accused has died or become mentally ill, or if his whereabouts cannot be determined;

2. illness, infirmity, or other insurmountable impediments prevent the witness, expert or co-accused from appearing at the main hearing for a long or indefinite period;

3. the witness or expert cannot reasonably be expected to appear at the main hearing because of the great distance involved, having regard to the importance of his statement;

4. the public prosecutor, defense counsel and the defendant agree to the reading out.

(2) Where the defendant has defense counsel, the examination of a witness, expert or co-accused may be replaced by reading out a record of another examination or of a certificate containing a written statement originating from him, if the public prosecutor, defense counsel and the defendant agree. In other cases, such reading shall be admissible only if the witness, expert or co-accused has died or cannot be examined by the court for another reason within a foreseeable period of time.

(3) Where the reading is to serve purposes other than specifically reaching a judgment, particularly the purpose of preparing the decision on whether an individual is to be summoned and examined, records of examinations, certificates and other documents serving as evidence may also be read out.

(4) In the cases of subsections (1) and (2), the court shall decide whether the reading shall be ordered. The reason for reading out shall be announced. If the record of a judicial examination is read out, it shall be stated whether the person concerned was examined under oath. If not, an oath shall be administered where the court deems this necessary and can still administer such oath.

Section 252. [Improper Reading out of Statement]

The statement of a witness examined prior to the main hearing, who makes use of his right to refuse to testify only at the main hearing, shall not be read out.

Section 253. [Reading out a Statement to Refresh Memory]

(1) If a witness or an expert states that he can no longer remember a fact, the pertinent part of the written record of his previous examination may be read out to refresh his memory.

(2) The same procedure may be followed if a contradiction to the previous statement arises during at the examination and cannot otherwise be established or eliminated without the main hearing being interrupted.

Section 254. [Reading out Confessions; Contradictions]

(1) Statements of the defendant which are contained in a judicial record may be read out for the purpose of taking evidence regarding a confession.

(2) The same procedure may be followed if a contradiction to the previous statement arises during the examination and cannot otherwise be established or eliminated without the main hearing being interrupted.

Section 255. [Recording of Statements Read out]

In the cases of Sections 253 and 254, upon application by the public prosecution office or by the defendant, the reading out and reason therefor shall be mentioned in the record.

Section 255a. [Showing Audio-Visual Recordings]

(1) The provisions on the reading out of a record of an examination pursuant to Sections 251, 252, 253 and 255 shall apply to showing an audio-visual recording of a witness examination mutatis mutandis.

(2) In proceedings relating to criminal offenses against sexual self-determination (sections 174 to 184c Penal Code) or against life (sections 211 to 222 Penal Code) or for ill-treatment of an individual placed in the charge of another (section 225 Penal Code), examination of witnesses under sixteen years of age may be replaced by showing an audio-visual recording of his previous judicial examination if the defendant and his defense counsel were able to participate in such examination. Supplementary witness examination shall be admissible.

Section 256. [Reading out Official and Medical Statements]

(1) Statements containing a certificate or an opinion from public authorities as well as from physicians of the court medical services — excluding certificates of conduct — as well as medical certificates concerning minor bodily injuries may be read out. The same shall apply to expert opinions with regard to the evaluation of a log book, the determination of the blood group or the blood alcohol content including its conversion as well as to medical reports on the taking of blood samples.

(2) If the opinion of a specialist authority was commissioned, the court may request the authority to appoint one of its staff to present the opinion at the main hearing, and to designate such person to the court.

Section 257. [Questioning the Defendant, the Public Prosecutor and Defense Counsel]

(1) After each co-defendant has been examined and after evidence has been taken in each individual case the defendant should be asked whether he has anything to add.

(2) Upon request, the public prosecutor and defense counsel shall also be given the opportunity to make their statements after the examination of the defendant and after evidence has been taken in each individual case.

(3) The statements shall not anticipate the closing speech.

Section 257a. [Written Form]

The court may require participants in the proceedings to file applications and proposals regarding questions of procedure in written form. This shall not apply to the applications referred to in Section 258. Section 249 shall apply mutatis mutandis.

Section 258. [Closing Speeches]

(1) After the taking of evidence has been concluded, the public prosecutor and subsequently the defendant shall be given the opportunity to present their arguments and to file applications.

(2) The public prosecutor shall have the right to reply; the defendant shall have the last word.

(3) The defendant shall be asked, even if defense counsel has spoken for him, whether he himself has anything to add to his defense.

Section 259. [Interpreter]

(1) A defendant who has no command of the language of the court shall be informed by an interpreter at least of the applications made in the closing speeches by the public prosecutor and by defense counsel.

(2) The same rule shall apply to a deaf defendant, unless there is written communication.

Section 260. [Judgment]

(1) The main hearing shall close with delivery of judgment following the deliberations.

(2) If there is an order prohibiting pursuit of an occupation, the judgment shall specify the occupation, profession or trade or branch thereof, the exercise of which is prohibited.

(3) Termination of the proceedings shall be pronounced in the judgment if there is a procedural impediment.

(4) The operative provisions of the judgment shall indicate the legal designation of the offense of which the defendant has been convicted. If a criminal offense has a statutory title, it should be used for the legal designation of the offense. If a fine is imposed, the number and the amount of daily units shall be included in the operative provisions of the judgment. If the sentence or the measure of reform and prevention is suspended on probation, or if the defendant has been warned with sentence reserved, or if imposition of a penalty is dispensed with, this shall be indicated in the operative provisions of the judgment. The wording of the operative provisions of the judgment shall otherwise be left to the discretion of the court.

(5) Following the operative provisions of the judgment, the provisions applied shall be listed according to section, subsection, number and letter together with the designation of the statute. If, in the case of a conviction imposing a sentence of imprisonment or an aggregate sentence of imprisonment not exceeding two years, the offense or, where there is more than one offense, the predominant offense(s), having regard to their gravity, were committed on the basis of a drug addiction, reference shall also be made to section 17 subsection (2) of the Federal Central Criminal Register Act.

Section 261. [Free Evaluation of Evidence]

The court shall decide on the result of the evidence taken according to its free conviction gained from the hearing as a whole.

Section 262. [Preliminary Civil Law Questions]

(1) If the criminal liability for an act depends on the evaluation of a legal relationship under civil law, the criminal court shall also give a decision thereon according to the provisions applicable to procedure and evidence in criminal cases.

(2) The court, however, shall be entitled to suspend the investigation and to set a time limit within which one of the participants is to bring a civil action, or to await the judgment of the civil court.

Section 263. [Voting]

(1) A majority of two-thirds of the votes shall be required for any decision against a defendant which concerns the question of guilt and the legal consequences of the offense.

(2) The question of guilt shall also include such special circumstances provided by the penal norm which exclude, diminish, or increase criminal liability.

(3) The question of guilt shall not cover the conditions applying to the period of limitations.

Section 264. [Subject Matter of the Judgment]

(1) The subject of adjudication shall be the offense specified in the charges and apparent in the light of the outcome of the hearing.

(2) The court shall not be bound by the offense’s evaluation which formed the basis of the order opening the main proceedings.

Section 265. [Change in Legal Reference]

(1) The defendant may not be sentenced on the basis of a penal norm other than the one referred to in the charges admitted by the court without first having his attention specifically drawn to the change in the legal reference and without having been afforded an opportunity to defend himself.

(2) The same procedure shall be followed if special circumstances appear only at the hearing which in accordance with the penal norm increase criminal liability or justify an order imposing a measure of reform and prevention.

(3) The main hearing shall be suspended upon the defendant’s application if, alleging insufficient preparation for defense, he contests newly discovered circumstances which admit the application of a more severe penal norm against the defendant than the one referred to in the charges admitted by the court, or which forms part of the circumstances indicated in subsection (2).

(4) The court shall, in other cases as well, suspend the main hearing upon an application or proprio motu, if in consequence of the change in circumstances it appears reasonable for adequate preparation of the charges or of the defense.

Section 265a. [Conditions. Instructions]

If conditions or instructions (section 56b, 56c, 59a subsection (2) Penal Code) are conceivable, the defendant shall be asked in appropriate cases whether he will make efforts towards atonement for the wrong committed by him or make promises in respect of his future conduct. If an instruction is conceivable to the effect that the defendant is to undergo curative or withdrawal treatment or is to take up residence in a suitable home or institution, he shall be asked whether he consents to this.

Section 266. [Supplementary Charges]

(1) If the public prosecutor at the main hearing adds new charges of further criminal offenses committed by the defendant, the court may, in an order, include them in the proceedings, if it has jurisdiction and the defendant consents thereto.

(2) The supplementary charges may be preferred orally. Their contents shall correspond to Section 200 subsection (1). They shall be included in the record made at the sitting. The presiding judge shall give the defendant the opportunity to defend himself.

(3) The hearing shall be interrupted if the presiding judge considers it necessary or if the defendant so applies and the application is not clearly vexatious or solely dilatory. The defendant shall be instructed of his right to apply for an interruption.

Section 267. [Reasons for the Judgment]

(1) If the defendant is convicted, the reasons for the judgment must show the facts deemed to be proven and establishing the statutory elements of the criminal offense. So far as the evidence is inferred from other facts, these facts should also be indicated. With regard to details reference may be made to pictures which are included in the files.

(2) If special circumstances specified by the penal norm were alleged at the hearing which exclude, diminish, or increase criminal liability, the reasons for the judgment must state whether these circumstances are deemed to have been established or not.

(3) The reasons for the criminal judgment must further specify the penal norm which was applied, and show the circumstances which were decisive in assessing the penalty. If the penal norm makes mitigation dependent on the existence of a less serious case, the reasons for the judgment must indicate why these circumstances are deemed to exist or are denied contrary to an application filed at the hearing; this shall apply mutatis mutandis to the imposition of a sentence of imprisonment in the cases under section 47 of the Penal Code. The reasons for the judgment must also indicate why an especially serious case is not deemed to exist when the prerequisites are met, according to which, as a rule, such a case shall exist pursuant to the penal norm; in a case where these prerequisites have not been met but where an especially serious case is nevertheless deemed to exist, the second sentence shall apply mutatis mutandis. The reasons for the judgment must further indicate why the penalty was suspended on probation, or was not suspended contrary to an application filed at the hearing; this shall apply mutatis mutandis to a warning with sentence reserved and to the dispensing with punishment.

(4) If all parties entitled to appellate remedy waive their right of appellate remedy or if no appellate remedy is sought within a certain time limit, the proven facts establishing the statutory elements of the criminal offense and the penal norm applied must be indicated; in the case of judgments imposing only a fine or a fine plus a driving ban or withdrawal of permission to drive and in connection therewith confiscation of the driver’s license, reference can be made here to charges admitted, to the charges pursuant to Section 418 subsection (3), second sentence, or to the penal order as well as to the application for a penal order. The further content of the reasons for the judgment shall be determined by the court taking into consideration – at its discretion – the circumstances of the individual case. The reasons for the judgment may be supplemented within the time limit provided in Section 275 subsection (1), second sentence, if restoration of the status quo ante is granted in order to remedy the failure to observe the time limit for seeking an appellate remedy.

(5) If the defendant is acquitted, the reasons for the judgment shall show whether the defendant’s guilt was deemed not proven or whether, and for what reasons, the act deemed proven was considered not to give rise to criminal liability. If all parties entitled to appellate remedy waive their right of appellate remedy or if no appellate remedy is sought within a certain time limit, it shall only be necessary to state whether it was for factual or legal reasons that the criminal offense the defendant is charged with has not been established. Subsection (4), third sentence, shall apply.

(6) The reasons for the judgment must also indicate why a measure of reform and prevention was ordered, or was not ordered contrary to an application filed at the hearing. If permission to drive has not been withdrawn or a bar pursuant to Section 69a subsection (1), third sentence, of the Penal Code has not been ordered, although such measure was possible given the nature of the criminal offense, the reasons for the judgment must always indicate why such measure has not been ordered.

Section 268. [Pronouncement of the Judgment]

(1) The judgment shall be pronounced in the name of the people.

(2) The judgment shall be pronounced by reading out the operative provisions of the judgment and disclosing the reasons for the judgment. Reasons for the judgment shall be disclosed by their being read out or by oral communication of their essential content. Reading the operative provisions of the judgment shall in each case precede communication of the reasons for the judgment.

(3) The judgment should be pronounced at the end of the hearing. It must be pronounced at the latest on the eleventh day thereafter, or else the main hearing shall be recommenced. Section 229 subsection (3) and subsection (4), second sentence, shall apply mutatis mutandis.

(4) If pronouncement of judgment has been suspended, the reasons for the judgment shall, if possible, be stated in writing beforehand.

Section 268a. [Probationary Suspension of Sentence; Warning with Sentence Reserved]

(1) If a judgment provides for the suspension of sentence or if the defendant is warned with sentence reserved, the court shall give the decisions designated in sections 56a to 56d and 59a of the Penal Code in an order which shall be pronounced together with the judgment.

(2) Subsection (1) shall apply mutatis mutandis if, in the judgment, a measure of reform and prevention has been suspended on probation or if, in addition to the sentence supervision of conduct is ordered, and the court gives decisions pursuant to sections 68a to 68c of the Penal Code.

(3) The presiding judge shall inform the defendant of the meaning of probationary suspension of sentence or of the measure, of a warning with sentence reserved or of supervision of conduct, of the duration of the probation period or of supervision of conduct, of conditions and instructions as well as of the possibility of revocation of suspension or of imposition of the sentence reserved (section 56f subsection (1), sections 59b, 67g subsection (1) Penal Code). If the court gives the defendant instructions pursuant to section 68b subsection (1) of the Penal Code, the presiding judge shall also inform him of the possibility of a penalty pursuant to section 145a of the Penal Code. The instruction shall, as a rule, be given following pronouncement of the order pursuant to subsection (1) or (2). If committal to a psychiatric hospital is suspended on probation, the presiding judge may dispense with giving information about the possibility of revoking suspension.

Section 268b. [Continuation of Remand Detention]

When passing judgment the court shall, proprio motu, decide on continuation of remand detention or provisional committal. The order shall be pronounced with the judgment.

Section 268c. [Information on a Driving Ban]

If a driving ban is ordered in the judgment, the presiding judge shall inform the defendant of the commencement of the duration of the ban (section 44 subsection (3), first sentence, Penal Code). This information shall be given following pronouncement of judgment. If the judgment is pronounced in the defendant’s absence, he shall be informed in writing.

Section 269. [Lack of Substantive Jurisdiction]

The court may not decline jurisdiction on the grounds that the case should be brought before a court of lower rank.

Section 270. [Referral to a Higher Competent Court]

(1) If after the commencement of a main hearing a court deems a court of higher rank to have substantive jurisdiction, it shall, in an order, refer the case to the competent court; Section 209a, number 2a, shall apply mutatis mutandis. The same procedure shall apply if the court considers a timely objection by the defendant pursuant to Section 6a to be well-founded.

(2) In the order, the court shall name the defendant and the criminal offense pursuant to Section 200 subsection (1), first sentence.

(3) The order shall have the effect of an order opening the main proceedings. The possibility of contesting the order shall be governed by Section 210.

(4) If the order referring the case to a higher court was made by a criminal court judge or a court with lay judges, the defendant may apply, within a time limit to be determined when the order is pronounced, for certain evidence be taken prior to the main hearing. The judge presiding over the court to which the case has been referred shall decide on the application.

Section 271. [Record of Proceedings]

(1) A record shall be made of the main hearing, and be signed by the presiding judge and by the registry clerk. The date of its completion shall be stated therein.

(2) If the presiding judge is prevented from signing, the most senior associate judge shall sign for him. In a case where the presiding judge is the only judge of the court, the signature of the registry clerk shall suffice if the former is prevented from signing.

Section 272. [Content of the Record]

The record of the main hearing shall contain:

1. the place and the day of the hearing;

2. the names of the professional judges and lay judges, of the official of the public prosecution office, of the registry clerk of the court registry, and of the assisting interpreter;

3. the designation of the criminal offense in the charges;

4. the names of the defendants, of their defense counsel, of private prosecutors, of private accessory prosecutors, of aggrieved persons asserting claims arising from the criminal offense, of other persons involved, of statutory representatives, of legal representatives, and of persons rendering assistance;

5. an indication that the hearing is being held in public or that the public have been excluded.

Section 273. [Additional Contents of the Record]

(1) The record must indicate the course and the results of the main hearing in essence, and show that all essential formalities have been observed; it must also specify the documents read out or those documents the reading of which has been dispensed with pursuant to Section 249 subsection (2), as well as the applications filed during the course of the hearing, the decisions given, and the operative provisions of the judgment.

(2) The main outcome of examinations at the main hearing before the criminal court judge and in a court with lay judges shall also be included in the record; this shall not apply if all those entitled to appellate remedy have waived their right of appellate remedy or if no appellate remedy has been sought within a certain time limit.

(3) If it is important that an occurrence at the main hearing or the wording of testimony or of a statement be registered, the presiding judge ex officio or upon application by a participant in the hearing shall order that a complete record be made and that it be read out. If the presiding judge refuses to make the order, the court shall, upon application by a participant in the hearing, give the decision. It shall be noted in the record that the reading took place and approval was given or whether, and if so, what objections were raised.

(4) The judgment may not be served until the record has been drawn up.

Section 274. [Probative Value of the Record]

Observance of the formalities required for the main hearing can only be proved by the record. Only proof of forgery shall be admissible in respect of the content of that part of the record relating to these formalities.

Section 275. [Written Judgment; Official Copy]

(1) If the judgment including reasons has not been fully incorporated in the record, it shall be placed on file without delay. This must be done five weeks at the latest after pronouncement; this time limit shall be extended by two weeks if the main hearing lasted longer than three days, and, if the main hearing lasted longer than ten days, by another two weeks for every ten days of the main hearing or part thereof. Upon expiry of the time limit the reasons for the judgment may no longer be amended. The time limit may be exceeded only if and as long as the court, due to a circumstance which cannot be anticipated or averted in an individual case, has been prevented from observing it. The date of receipt and any amendment of the reasons shall be noted by the registry.

(2) The judgment shall be signed by the judges who participated in the decision. If a judge is prevented from adding his signature, this fact, with the reason therefor, shall be noted under the judgment by the presiding judge and, if he is prevented from doing so, by the most senior associate judge. The signatures of the lay judges are not required.

(3) The day of the sitting and the names of the judges, of the lay judges, of the official of the public prosecution office, of defense counsel, and of the registry clerk who took part in the sitting shall be included in the judgment.

(4) Copies and extracts of judgments shall be signed by the registry clerk and shall be stamped with the court’s seal.

Chapter VII Proceedings against Absent Accused

Section 276. [Definition]

An accused shall be deemed to be absent if his whereabouts are unknown, or if he is abroad and his presence before the competent court does not appear to be feasible or reasonable.

Section 277 to 284. Deleted

Section 285. [Securing Evidence]

(1) No main hearing shall be held in respect of a person who is absent. Proceedings instituted against an absent accused shall serve the purpose of securing evidence in anticipation of his future presence in court.

(2) The provisions of Sections 286 to 294 shall apply to these proceedings.

Section 286. [Defense Counsel]

(1) Defense counsel may act for the defendant. Relatives of the defendant shall also be permitted to act as representatives, even without a power of attorney.

(2) Witnesses shall be examined under oath, unless exceptions are provided or admitted.

Section 287. [Notification of the Absent Accused]

(1) The absent accused shall not be entitled to notifications about the course of the proceedings.

(2) The judge shall, however, be authorized to have notifications sent to an absent accused whose whereabouts are known.

Section 288. [Request to Appear]

An absent accused whose whereabouts are unknown may, through one or more newspapers, be requested to appear before the court or to report his whereabouts.

Section 289. [Reception of Evidence]

If the defendant appears to be absent only after the main proceedings have been opened, the evidence that still needs to be taken shall be taken by a commissioned or a requested judge.

Section 290. [Seizure Instead of Warrant of Arrest]

(1) The property of an absent defendant against whom charges were preferred, which is located within the territorial scope of this Federal statute, may be seized by order of the court if there are grounds for suspicion against him which would justify issuing a warrant of arrest.

(2) There shall be no seizure of property for criminal offenses carrying imprisonment not exceeding six months or a fine not exceeding one hundred and eighty daily units.

Section 291. [Publication of Seizure Order]

The seizure order shall be published in the Federal Gazette and, at the discretion of the court, may also be published in newspapers.

Section 292. [Effect of Publication]

(1) The indicted accused shall lose the right to dispose of the seized property inter vivos on the date of first publication in the Federal Gazette.

(2) The seizure order shall be communicated to the authority competent to establish a curatorship over absent persons. This authority shall establish a curatorship.

Section 293. [Revocation of Seizure]

(1) Seizure shall be revoked if the reasons therefor no longer apply.

(2) Revocation of seizure shall be made public through the Federal Gazette or the same newspapers in which the seizure was published.

Section 294. [Proceedings After Preferment of Charges]

(1) The provisions on the opening of the main proceedings shall apply mutatis mutandis to the proceedings following preferment of the public charges.

(2) In the order made after these proceedings have ended (Section 199), a decision shall at the same time be given on continuation or revocation of seizure.

Section 295. [Safe Conduct]

(1) The court may grant safe conduct to an absent accused; it may attach conditions to such grant.

(2) Safe conduct shall entail exemption from remand detention, however, only in respect of the criminal offense for which it is granted.

(3) It shall expire if a sentence of imprisonment is imposed, or if the accused is getting ready to flee, or if he does not fulfill the conditions under which the safe conduct was granted.


Part Three Appellate Remedies

Chapter I General Provisions

Section 296. [Persons Entitled to Appellate Remedy]

(1) Both the public prosecution office and the accused shall be entitled to file the remedies admissible against court decisions.

(2) The public prosecution office may also make use of them for the accused’s benefit.

Section 297. [Defense Counsel]

Defense counsel may file an appellate remedy on behalf of the accused, but not against the latter’s express will.

Section 298. [Statutory Representative]

(1) The statutory representative of an accused may independently make use of the admissible appellate remedies within the time limit applying to the accused.

(2) The provisions applicable to the appellate remedies available to the accused shall apply mutatis mutandis to such appellate remedies and to the proceedings.

Section 299. [Arrested Accused]

(1) An accused who is not at liberty may make oral statements relating to appellate remedies to be recorded by the registry of the Local Court in whose district the institution where he is detained upon official order is located.

(2) For observance of a time limit it shall be sufficient for the record to be made within the time limit.

Section 300. [Incorrect Designation]

An error in the designation of the admissible appellate remedy shall not be prejudicial.

Section 301. [Public Prosecution Offices’ Power of Appellate Remedy]

Any appellate remedy filed by the public prosecution office shall have the effect that the contested decision may be amended or revoked, also for the accused’s benefit.

Section 302. [Withdrawal; Waiver]

(1) Withdrawal of an appellate remedy as well as waiver of the right to file such appellate remedy may also take effect before expiry of the time limit for filing. An appellate remedy filed by the public prosecution office for the benefit of the accused cannot, however, be withdrawn without his consent.

(2) Defense counsel shall have express authorization for such withdrawal.

Section 303. [Opponent’s Consent]

If the decision on the appellate remedy has to be given on the basis of an oral hearing, withdrawal after the beginning of the main hearing may be effected only with the consent of the opposing party. Withdrawal of the defendant’s appellate remedy shall not, however, require the private accessory prosecutor’s consent.

Chapter II Complaint

Section 304. [Admissibility]

(1) A complaint shall be admissible against all orders made by the courts at first instance or in appellate proceedings on fact and law and against directions given by the presiding judge, by the judge in preliminary proceedings, and by a commissioned or a requested judge, unless expressly exempted from appellate remedy by law.

(2) Witnesses, experts, and other persons may also lodge a complaint against orders and directions by which they are affected.

(3) A complaint against decisions concerning the obligation to bear costs or necessary expenses shall be admissible only if the value of the subject matter of the complaint exceeds two hundred Deutsche Mark. A complaint against other decisions on costs and necessary expenses shall be admissible only if the value of the subject matter of the complaint exceeds one hundred Deutsche Mark.

(4) No complaint shall be admissible against orders and directions given by the Federal Court of Justice. The same shall apply to orders and directions given by the Higher Regional Courts; in cases in which the Higher Regional Courts have jurisdiction at first instance, a complaint shall, however, be admissible against orders and directions:

1. concerning arrest, provisional committal, committal for observation, seizure or search;

2. declining to open the main proceedings or terminating the proceedings because of an impediment;

3. ordering the main hearing in the defendant’s absence (Section 231a) or referring a case to a court of lower rank;

4. concerning inspection of files; or

5. concerning revocation of suspension of sentence, revocation of remission of sentence and imposition of the reserved sentence (Section 453 subsection (2), third sentence), an order for interim measures to secure revocation (Section 453c), suspension of the remainder of sentence and its revocation (Section 454 subsections (3) and (4)), the reopening of the proceedings (Section 372, first sentence), or forfeiture, confiscation or making an item unusable pursuant to Sections 440, 441 subsection (2), Section 442.

Section 138 d subsection (6) shall remain unaffected.

(5) A complaint against the directions of the investigating judge at the Federal Court of Justice or the Higher Regional Court (Section 169 subsection (1)) shall be admissible only if it concerns arrest, provisional committal, seizure or search.

Section 305. [Inadmissibility]

Decisions of the adjudicating courts prior to judgment shall not be subject to complaint. Excepted herefrom shall be decisions concerning arrest, provisional committal, seizures, interim withdrawal of permission to drive, interim prohibition of pursuit of an occupation, or imposition of regulatory or coercive measures, as well as all decisions by which third parties are affected.

Section 305a. [Complaint Against Order Suspending Sentence]

(1) A complaint shall be admissible against an order given pursuant to Section 268a subsections (1) and (2). It may only be based on the ground that the order made was illegal.

(2) If a complaint is lodged against an order and an admissible appeal on law is filed against the judgment, the court hearing the appeal on law shall also be competent to decide on the complaint.

Section 306. [Filing; Redress or Submission]

(1) The complaint shall be lodged at the court which, or the presiding judge of which, gave the contested decision, either orally to be recorded by the registry or in writing.

(2) If the court or the presiding judge who gave the contested decision considers the complaint to be well-founded, they shall redress it; in all other cases the complaint shall be submitted immediately, at the latest within three days, to the court hearing the complaint.

(3) These provisions shall also be applicable to the decisions of the judge in the preliminary proceedings and of the commissioned or the requested judge.

Section 307. [No Obstacle to Enforcement]

(1) Lodging a complaint shall not constitute an obstacle to enforcement of the contested decision.

(2) The court, the presiding judge, or the judge whose decision is contested, as well as the court hearing the complaint, may, however, order that enforcement of the contested decision be suspended.

Section 308. [Powers of the Court Hearing the Complaint]

(1) The court hearing the complaint may not amend the contested decision to the detriment of the complainant’s opponent without having communicated the complaint to him for submissions in response. This shall not apply in the cases of Section 33 subsection (4), first sentence.

(2) The court hearing the complaint may order investigations or conduct them itself.

Section 309. [Decision]

(1) The decision on the complaint shall be made without an oral hearing, in appropriate cases after hearing the public prosecution office.

(2) If the complaint is considered to be well-founded, the court hearing the complaint shall at the same time make the decision on the merits.

Section 310. [Further Complaint]

(1) Orders made upon a complaint by a Regional Court or by the Higher Regional Court competent pursuant to section 120 subsection (3) of the Courts Constitution Act may be contested by further complaint so far as they concern arrests or provisional committal.

(2) In all other cases the decisions given upon a complaint shall not be contestable.

Section 311. [Immediate Complaint]

(1) The following special provisions shall apply to cases of immediate complaint.

(2) The complaint shall be lodged within one week; the time limit shall begin to run upon notification (Section 35) of the decision.

(3) The court shall not be competent to amend its decision contested by a complaint. It shall, however, redress the complaint if, to the detriment of the complainant, it has used facts or evidentiary conclusions in respect of which the complainant has not yet been heard and if, as a result of subsequent submissions, it considers the complaint to be well-founded.

Section 311a. [Subsequent Hearing of the Opponent]

(1) If the court hearing the complaint has granted redress without having heard the complainant’s opponent, and if its decision is not contestable and the resulting detriment to the opponent still exists, the court shall proprio motu, or upon application, give him a subsequent hearing and give a decision upon application. The court hearing the complaint may amend its decision even if no application has been made.

(2) Section 307, Section 308 subsection (2) and Section 309 subsection (2) shall apply to the proceedings mutatis mutandis.

Chapter III Appeal on Points of Fact and Law

Section 312. [Admissibility]

An appeal on fact and law shall be admissible against judgments of the criminal court judge and of the court with lay judges.

Section 313. [Acceptance of Appeal on Fact and Law]

(1) Where the defendant has been sentenced to a fine not exceeding fifteen daily units, where in the case of a warning the reserved fine does not exceed fifteen daily units or a regulatory fine has been imposed, an appeal on fact and law shall be admissible only if accepted for adjudication. The same shall apply where the defendant has been acquitted or the proceedings terminated and the public prosecution office has applied for a fine not exceeding thirty daily units.

(2) The appeal on fact and law shall be accepted for adjudication if it is not manifestly ill-founded. In other cases it shall be rejected as inadmissible.

(3) An appeal on fact and law against a judgment imposing a regulatory fine, acquitting the defendant or terminating the proceedings in respect of a regulatory offense shall always be accepted for adjudication if a legal complaint were admissible pursuant to section 79 subsection (1) of the Regulatory Offenses Act or would have to be admitted pursuant to section 80 subsections (1) and (2) of the Regulatory Offenses Act. In other cases subsection (2) shall apply.

Section 314. [Form and Time Limit]

(1) The appeal on fact and law shall be filed with the court of first instance, either orally to be recorded by the registry or in writing, within one week after the pronouncement of the judgment.

(2) If judgment was not pronounced in the defendant’s presence, the time limit shall begin to run for him upon service thereof.

Section 315. [Appeal on Fact and Law and Application for Restoration of the Status quo ante]

(1) Commencement of the time limit for filing an appeal on fact and law shall not be excluded by the fact that an application for restoration of the status quo antemay be made in respect of a judgment pronounced in the defendant’s absence.

(2) If the defendant files an application for restoration of the status quo ante, the appeal on fact and law shall be available if immediately filed in time in the event of this application being rejected. Further disposition in regard to the appeal on fact and law shall then be suspended until the decision has been given on the application for restoration of the status quo ante.

(3) Filing an appeal on fact and law not in conjunction with an application for restoration of the status quo ante shall be deemed to be a waiver of the latter.

Section 316. [Obstacle to Entry in Force]

(1) Where an appeal on fact and law is filed in time, the judgment shall not enter into force so far as it is contested.

(2) If the judgment including reasons has not yet been served on the complainant, it shall immediately be served on him after he has filed an appeal on fact and law.

Section 317. [Grounds for an Appeal on Fact and Law]

The grounds for appeal on fact and law may be given at the court of first instance orally to be recorded by the registry or in a notice of complaint within a further week after expiry of the time limit for seeking an appellate remedy or, if at that time the judgment has not yet been served, after the service thereof.

Section 318. [Restriction of Appeal on Fact and Law]

An appeal on fact and law may be restricted to certain points of complaint. If this was not done, or no grounds were given, the entire judgment shall be deemed to be contested.

Section 319. [Filing Too Late]

(1) If an appeal on fact and law is filed too late, the court of first instance shall dismiss the appeal as inadmissible.

(2) Within a week after service of the ruling, the complainant may apply for a decision of the court hearing the appeal. In this case, the file shall be sent to the court hearing the appeal; this, however, shall form no obstacle to execution of judgment. The provision in Section 35a shall apply mutatis mutandis.

Section 320. [Submitting Files to the Public Prosecution Office]

If the appeal on fact and law was filed in time, the court registry, after expiry of the time limit for giving the grounds, shall submit the files to the public prosecution office regardless of whether grounds were given or not. If the appeal on fact and law was filed by the public prosecution office, it shall serve upon the defendant the documents concerning the filing of the appeal and the grounds therefor.

Section 321. [Transmission of Files to the Court Hearing the Appeal]

The public prosecution office shall transmit the files to the public prosecution office at the court hearing the appeal. The latter shall pass the files to the presiding judge within one week.

Section 322. [Dismissal Without Main Hearing]

(1) Where the court hearing the appeal considers that the provisions on filing an appeal on fact and law have not been observed it may, in a ruling, dismiss the appeal as inadmissible. In all other cases it shall decide in the form of a judgment; Section 322a shall remain unaffected.

(2) The ruling may be contested by immediate complaint.

Section 322a. [Ruling by the Court Hearing the Appeal]

The court hearing the appeal shall decide in a ruling whether to accept the appeal on fact and law (Section 313). The decision shall be incontestable. No reasons need to be given for the ruling accepting the appeal on fact and law.

Section 323. [Preparation of the Main Hearing]

(1) The provisions of Sections 214 and 216 to 225 shall be applicable to the preparation of the main hearing. The summons shall expressly inform the defendant of the consequences of non-appearance.

(2) Summoning the witnesses and experts examined at first instance may be omitted only if their repeated examination does not seem to be necessary for clearing up the case.

(3) New evidence shall be admissible.

(4) When selecting the witnesses and experts who are to be summoned, consideration shall be given to those persons named by the defendant in the grounds for his appeal on fact and law.

Section 324. [Course of the Main Hearing]

(1) After the beginning of the main hearing pursuant to the provision in Section 243 subsection (1), a rapporteur shall, in the absence of the witnesses, give a report on the results of the previous proceedings. The judgment of the court of first instance shall be read out as far as it is of importance for the appeal on fact and law; the reasons for the judgment need not be read out if the public prosecution office, defense counsel and the defendant dispense with it.

(2) Thereafter, the defendant shall be examined and evidence be taken.

Section 325. [Reading out Documents]

(1) Documents may be read out when the rapporteur is giving his report and when evidence is being taken; records concerning statements of the witnesses and experts examined at the main hearing at first instance, apart from the cases of Sections 251 and 253, may not be read out without the consent of the public prosecution office and of the defendant, provided the witnesses or experts were summoned again or an application to do so was made by the defendant in time prior to the main hearing.

Section 326. [Closing Speeches]

After concluding the taking of evidence, the arguments and applications of the public prosecution office as well as of the defendant and his defense counsel shall be heard, with the complainant being heard first. The defendant shall have the last word.

Section 327. [Extent of Review of the Judgment]

The judgment shall be subject to the court’s review only to the extent contested.

Section 328. [Content of the Appellate Decision]

(1) If the appeal on fact and law is held to be well-founded, the court hearing the appeal shall give its own decision on the merits and shall quash the judgment.

(2) If the court of first instance erroneously assumed jurisdiction, the court hearing the appeal shall refer the case to the competent court and shall quash the judgment.

Section 329. [Defendant’s Non-Appearance]

(1) If at the beginning of a main hearing neither the defendant nor, in cases where this is admissible, a representative of the defendant appeared, and if there is no sufficient excuse for their failure to appear, the court shall dismiss an appeal by the defendant on fact and law without hearing the merits. This shall not apply if the court hearing the appeal on fact and law holds a new hearing after the case has been referred back to it by the court hearing the appeal on law. If a conviction for an individual offense has been overturned, the content of that part of the judgment that has been upheld shall be clearly identified when the appeal on fact and law is dismissed; the penalties imposed may be combined into a new aggregate sentence by the court hearing the appeal on fact and law.

(2) Under the conditions in subsection (1), first sentence, a hearing may also be held without the defendant, upon appeal on fact and law by the public prosecution office. An appeal on fact and law by the public prosecution office may in these cases also be withdrawn without the defendant’s consent unless the conditions in subsection (1), second sentence, prevail.

(3) Within one week after service of the judgment, the defendant may request restoration of the status quo ante under the conditions specified in Sections 44 and 45.

(4) If the procedure pursuant to subsection (1) or (2) is not followed, an order shall be made for the defendant to be brought before the court or to be arrested. This shall be dispensed with if it is to be expected that he will appear at the new main hearing without coercive measures having to be taken.

Section 330. [Appeal on fact and law by Statutory Representative]

(1) If the appeal on fact and law was filed by a statutory representative, the court shall also summon the defendant to the main hearing and may have him forcibly brought before the court in the event of his non-appearance.

(2) If it is only the statutory representative who fails to appear at the main hearing, the main hearing shall be conducted without him. If at the beginning of a hearing neither the statutory representative nor the defendant appeared, Section 329 subsection (1) shall apply mutatis mutandis; if it is only the defendant who has not appeared, Section 329 subsection (2), first sentence, shall apply mutatis mutandis.

Section 331. [Prohibition of Reformatio in Peius]

(1) The judgment, insofar as it relates to the type and degree of the legal consequences of the offense, shall not be amended to the defendant’s detriment only in those cases where the defendant or his statutory representative filed the appeal on fact and law or the public prosecution office appealed on fact and law in his favor.

(2) This provision shall not prevent an order committing the defendant to a psychiatric hospital or an institution for withdrawal treatment.

Section 332. [Procedural Provisions]

The provisions concerning the main hearing, set forth in Chapter VI of Part Two, shall otherwise apply.

Chapter IV Appeal on Points of Law Only

Section 333. [Admissibility]

An appeal on law may be filed against judgments of the penal chambers and of the penal divisions with lay judges and against judgments of the Higher Regional Courts pronounced at first instance.

Section 334. Deleted

Section 335. [Immediate Appeal on Law in lieu of an Appeal on Fact and Law]

(1) A judgment against which an appeal on fact and law is admissible, may be contested by an appeal on law in lieu of an appeal on fact and law.

(2) The court which would be competent to decide if an appeal on law were filed after an appeal on fact and law had been heard shall decide on the appeal on law.

(3) If one of the participants files an appeal on law against the judgment, and another participant files an appeal on fact and law, the appeal on law, if filed in time and in the prescribed form, shall be treated as an appeal on fact and law as long as the appeal on fact and law is not withdrawn or dismissed as inadmissible. Notices of appeal on law including the grounds therefor shall nevertheless be submitted in the form and within the time limit provided and be served on the opponent (Sections 344 to 347). An appeal on law against a judgment given in an appeal on fact and law shall be admissible pursuant to the provisions generally applicable.

Section 336. [Review of Decisions Preceding the Judgment]

Decisions preceding the judgment, insofar as the judgment is based on them, shall also be subject to review by the court hearing the appeal on law. This shall not apply to decisions which were expressly declared to be incontestable, or which may be contested by immediate complaint.

Section 337. [Grounds for Appeal on Law]

(1) An appeal on law may only be filed on the ground that the judgment was based upon a violation of the law.

(2) The law shall have been violated if a legal norm was not applied, or was erroneously applied.

Section 338. [Absolute Grounds for Appeal on Law]

A judgment shall always be considered to be based on a violation of the law:

1. if the adjudicating court was not composed in the prescribed form; where pursuant to Section 227 notification of composition is required, the appeal on law may be based on composition not being in the prescribed form only so far as

a. the provisions governing notification have been violated,

b. an objection, made in time and in the proper form, to a composition not being in the prescribed form has been disregarded or rejected,

c. the main hearing has not been interrupted pursuant to Section 222a subsection (2) for an examination of composition, or

d. the court gave its decision while not composed in the prescribed form and has determined, pursuant to Section 222b subsection (2), second sentence, that it was not composed in the prescribed form;

2. if a professional judge or lay judge barred from exercising judicial office by operation of law participated in drafting the judgment;

3. if a professional judge or lay judge participated in drafting the judgment after he was challenged for bias and the motion for challenge was either declared to be well-founded or erroneously rejected;

4. if the court erroneously assumed jurisdiction;

5. if the main hearing was held in the absence of the public prosecutor or of a person whose presence is required by law;

6. if the judgment was given on the basis of an oral hearing and the provisions concerning the public nature of the proceedings were violated;

7. if the judgment does not contain the reasons for the decision or the reasons have not been placed on file within a period pursuant to Section 275 subsection (1), second and fourth sentences.

8. if the defense was inadmissibly restricted by an order of the court on a question important for the decision.

Section 339. [Legal Norms for the Defendant’s Benefit]

The violation of legal norms existing solely for the defendant’s benefit may not be invoked by the public prosecution office for the purpose of quashing the judgment to the defendant’s detriment.

Section 340. Deleted

Section 341. [Form and Time Limit]

(1) The appeal on law shall be filed with the court whose judgment is being contested either orally to be recorded by the registry or in writing within one week after pronouncement of judgment.

(2) If pronouncement of judgment did not take place in the defendant’s presence, the time limit in respect of the defendant shall begin to run upon service of the judgment.

Section 342. [Appeal on Law and Application for Restoration of the Status quo ante]

(1) Commencement of the time limit for filing an appeal on law shall not be excluded by the fact that an application for restoration of the status quo antemay be made in respect of a judgment pronounced in the defendant’s absence.

(2) If the defendant files an application for restoration of the status quo ante, the appeal on law shall be available if immediately filed in time in the event of this application being rejected. Further disposition in regard to the appeal on law shall then be suspended until the decision has been given on the application for restoration of the status quo ante.

(3) Filing an appeal on law not in conjunction with an application for restoration of the status quo ante shall be deemed to be a waiver of the latter.

Section 343. [Obstacle to Entry into Force]

(1) Where an appeal on law is filed in time, the judgment shall not enter into force so far as it is contested.

(2) If the judgment including reasons has not yet been served on the complainant it shall be served on him after he has filed an appeal on law.

Section 344. [Grounds for an Appeal on Law]

(1) The complainant shall make a statement on the extent to which he contests the judgment and is applying for it to be quashed (notices of appeal on law) and he shall state the grounds for such applications.

(2) The grounds must show whether the judgment is contested because of a violation of a legal norm concerning the proceedings or because of a violation of another legal norm. In the former case the facts containing the defect must be indicated.

Section 345. [Time Limit for Stating Grounds]

(1) Notices of appeal on law together with the grounds therefor shall be submitted to the court whose judgment is being contested no later than one month after expiry of the time limit for seeking the appellate remedy. If the judgment has not been served by then, the time limit shall commence upon service thereof.

(2) In the case of the defendant this may only be done in the form of a notice signed by defense counsel or by an attorney-at-law, or orally to be recorded by the court registry.

Section 346. [Late and Improper Filing]

(1) The court whose judgment is being contested shall, in an order, dismiss the appellate remedy as inadmissible if the appeal on law was filed too late or the notices of appeal on law were not submitted in time or not in the form prescribed in Section 345 subsection (2).

(2) The complainant may, within one week after service of the order, apply for a decision of the court hearing the appeal on law. In this case the files shall be sent to the court hearing the appeal on law; this, however, shall not constitute an obstacle to execution of the judgment. The provision in Section 35a shall apply mutatis mutandis.

Section 347. [Service; Response; Submission of Files]

(1) The notice of appeal on law including the grounds therefor shall be served on the complainant’s opponent if the appeal on law and the notices of appeal on law were submitted in time and in the prescribed form. The opponent may submit a written response within one week. The defendant may also submit his response orally to be recorded by the court registry.

(2) The public prosecution office shall send the file to the court hearing the appeal on law after receipt of the response or after expiry of the time limit.

Section 348. [Lack of Jurisdiction]

(1) If the court to which the files were sent finds that a hearing and decision on the appellate remedy fall under the jurisdiction of another court, it shall declare, in an order, that it lacks jurisdiction.

(2) This order, which shall indicate the competent appellate court, shall not be contestable and shall be binding on the court specified therein.

(3) Transmission of the files shall be effected by the public prosecution office.

Section 349. [Dismissal Without Main Hearing]

(1) The court hearing the appeal on law may, in an order, dismiss the appellate remedy as inadmissible, if it is of the opinion that the provisions on filing an appeal on law or on submission of the notices of appeal on law were not complied with.

(2) Upon the public prosecution office’s application, for which grounds have to be given, the court hearing the appeal on law may also give its decision in an order if it unanimously deems the appeal on law to be manifestly ill-founded.

(3) The public prosecution office shall inform the complainant of the application pursuant to subsection (2) and of the grounds therefor. The complainant may submit a written response to the court hearing the appeal on law within two weeks.

(4) If the court hearing the appeal on law unanimously deems an appeal on law filed for the defendant’s benefit to be well-founded, it may set aside the contested judgment in an order.

(5) If the court hearing the appeal on law does not apply subsection (1), (2) or (4) it shall decide on the appellate remedy in a judgment.

Section 350. [Main Hearing]

(1) The place and time of the main hearing shall be communicated to the defendant and to defense counsel. If communication to the defendant is not feasible, notification of defense counsel shall be sufficient.

(2) The defendant may appear at the main hearing or may be represented by defense counsel who has been provided with a written power of attorney. A defendant not at liberty shall not be entitled to be present.

(3) If the defendant who is not at liberty and who is not brought to the main hearing has not chosen defense counsel, the presiding judge, upon the defendant’s application, shall appoint defense counsel for the main hearing. The application shall be filed within one week after the defendant has been notified of the date and time of the main hearing, such notification including information regarding his right to have defense counsel appointed.

Section 351. [Course of the Main Hearing]

(1) The main hearing shall begin with submissions by a rapporteur.

(2) Thereafter, the arguments and applications of the public prosecution office as well as of the defendant and his defense counsel shall be heard, with the complainant being heard first. The defendant shall have the last word.

Section 352. [Extent of Review]

(1) Only the notices of appeal on law shall be subject to review by the court hearing the appeal and, if the appeal on law is based on defects in the proceedings, only the facts which were specified when submitting the notices of appeal on law.

(2) Substantiation of the notices of appeal on law going beyond what is required by Section 344 subsection (2) shall not be necessary and, if incorrect, shall not be prejudicial.

Section 353. [Content of the Appellate Judgment on Law]

(1) The contested judgment shall be quashed insofar as the appeal on law is considered well-founded.

(2) At the same time, the findings on which the judgment is based shall be quashed insofar as they are affected by the violation of law by virtue of which the judgment is quashed.

Section 354. [Decision on the Merits; Referral to a Lower Court]

(1) Where the judgment is quashed solely because of a violation of the law occurring on its application to the findings on which the judgment was based, the court hearing the appeal on law shall itself give a decision on the merits if, without further discussion of the facts, the judgment is to take the form of an acquittal or termination of proceedings or imposition of a mandatory penalty, or if, in accordance with the public prosecution office’s application, the court hearing the appeal on law deems the statutory minimum penalty or dispensing with punishment to be reasonable.

(2) Otherwise the case shall be referred back to the division or chamber of the court whose judgment is being quashed or to another court of the same rank located in the same Land. In proceedings where the decision at first instance was given by a Higher Regional Court, the case shall be referred back to a different panel of the same court.

(3) The case may be referred back to a court of a lower rank if such court has jurisdiction over the criminal offense still to be dealt with.

Section 354a. [Decision in the Event of Amendment of the Law]

The court hearing the appeal on law shall also proceed pursuant to Section 354 when quashing the judgment on the ground that at the time of its decision a legal norm applies which is different from the one applying at the time of the contested decision.

Section 355. [Referral to the Competent Court]

If a judgment is quashed because the court of the previous instance erroneously assumed jurisdiction, the court hearing the appeal on law shall refer the case to the competent court.

Section 356. [Pronouncement of Judgment]

Judgment shall be pronounced pursuant to the provisions of Section 268.

Section 357. [Effect on Persons Convicted in the Same Proceedings]

Where the judgment is quashed in favor of one defendant because of a violation of law occurring on application of a penal norm and where that part of the judgment which has been quashed also covers other defendants who have not filed an appeal on law, the court shall give its decision as if these persons had also filed an appeal on law.

Section 358. [Binding Effect on Lower Court; Prohibition of Reformatio in Peius]

(1) The court to which the case was referred for another hearing and decision shall also base its decision on the legal assessment which formed the basis for quashing of judgment.

(2) The contested judgment, in so far as it relates to the type and degree of the legal consequences of the offense, may not be amended to the defendant’s detriment only in those cases where the defendant or his statutory representative filed the appeal on law or the public prosecution office appealed on law in his favor. This provision shall not prevent an order committing the defendant to a psychiatric hospital or an institution for withdrawal treatment.


Part Four Re-opening of Proceedings Concluded by a Final Judgment

Section 359. [Reopening for the Convicted Person’s Benefit]

Reopening of the proceedings concluded by a final judgment shall be admissible for the convicted person’s benefit:

1. if a document produced as genuine, to his detriment, at the main hearing was false or forged;

2. if a witness or expert, when giving testimony or an opinion to the convicted person’s detriment, was guilty of willful or negligent violation of the duty imposed by the oath, or of willfully making a false, unsworn statement;

3. if a judge or lay judge participated in drafting the judgment who was guilty of a criminal violation of his official duties in relation to the case, unless the violation was caused by the convicted person himself;

4. if a civil court judgment on which the criminal judgment is based is quashed by another judgment which has entered into force;

5. if new facts or evidence were produced, which, independently or in connection with the evidence previously taken, tend to support the defendant’s acquittal, or, upon application of a less severe penal norm, a lower penalty or an essentially different decision on a measure of reform and prevention;

6. if the European Court of Human Rights has found that there was a violation of the European Convention on the Protection of Human Rights and Fundamental Freedoms or of its Protocols and if the judgment was based on that violation.

Section 360. [No Obstacle to Execution]

(1) An application for reopening the proceedings shall not constitute an obstacle to execution of the judgment.

(2) The court may, however, order postponement or interruption of execution.

Section 361. [Execution or Death No Bar to Reopening]

(1) An application for reopening the proceedings shall not be barred either by execution of sentence or by the convicted person’s death.

(2) In the event of death, the spouse, relatives in ascending and descending line, as well as the brothers and sisters of the deceased person shall be entitled to file the application.

Section 362. [Reopening to the Defendant’s Detriment]

Reopening of proceedings concluded by a final judgment shall be admissible to the defendant’s detriment:

1. if a document produced as genuine, for his benefit, at the main hearing was false or forged;

2. if a witness or expert, when giving testimony or an opinion for the defendant’s benefit, was guilty of willful or negligent violation of the duty imposed by the oath, or of willfully making a false, unsworn statement;

3. if a judge or lay judge participated in drafting the judgment who was guilty of a criminal violation of his official duties in relation to the case;

4. if the person acquitted made a credible confession, in or outside the court, that he committed the criminal offense.

Section 363. [Inadmissibility]

(1) Reopening the proceedings shall not be admissible for the purpose of imposing another sentence on the basis of the same penal norm.

(2) Reopening of the proceedings for the purpose of mitigating sentence on account of diminished criminal responsibility (section 21 Penal Code) shall also be excluded.

Section 364. [Allegation of a Criminal Offense]

An application to reopen the proceedings which is to be based upon an allegation of a criminal offense shall only be admissible if a final conviction has been imposed for this offense, or if criminal proceedings cannot be commenced or conducted for reasons other than lack of evidence. This shall not apply in the case of Section 359, number 5.

Section 364a. [Appointment of Defense Counsel]

The court competent to give decisions in the reopened proceedings shall, upon application, appoint defense counsel for the reopened proceedings to represent a convicted person who has no defense counsel, if due to the complexity of the factual or legal position the participation of defense counsel appears to be necessary.

Section 364b. [Appointment of Defense Counsel to Prepare Proceedings]

(1) The court competent to give decisions in the reopened proceedings shall, upon application, appoint defense counsel for the convicted person who has no defense counsel, also for the purpose of preparing the proceedings to be reopened, if:

1. there are sufficient factual indications that certain investigations will result in facts or evidence which may substantiate the admissibility of an application to reopen the proceedings;

2. due to the complexity of the factual or legal position the participation of defense counsel appears to be necessary and

3. the convicted person is unable to engage defense counsel at his own expense without detriment to his and his family’s necessary maintenance.

If defense counsel has already been appointed for the convicted person, the court shall, upon application, determine, in an order, that the conditions in numbers 1 to 3 of the first sentence have been fulfilled.

(2) Section 117 subsections (2) to (4) and section 118 subsection (2), first sentence, and subsections (2) and (4) of the Civil Procedure Code shall apply mutatis mutandis to the procedure to determine whether the conditions in subsection (1), first sentence, number 3, have been fulfilled.

Section 365. [General Provisions on the Application]

The general provisions on appellate remedies shall also be applicable to the application to reopen proceedings.

Section 366. [Content and Form of the Application]

(1) The application must show the statutory ground for reopening proceedings, as well as the evidence.

(2) The defendant and the persons specified in Section 361 subsection (2) may submit the application for reopening only in the form of a document signed by defense counsel or by an attorney-at-law, or orally to be recorded by the court registry.

Section 367. [Court Jurisdiction; Procedure]

(1) Jurisdiction of the court to give decisions in the reopened proceedings and on the application to prepare the proceedings to be reopened shall be governed by the special provisions of the Courts Constitution Act. The convicted person may submit applications pursuant to Sections 364a and 364b or an application for leave to reopen of the proceedings also to the court whose judgment is contested; it shall forward the application to the competent court.

(2) The decisions on applications pursuant to Sections 364a and 364b and the application for leave to reopen proceedings shall be given without an oral hearing.

Section 368. [Dismissal for Inadmissibility]

(1) The application shall be dismissed as inadmissible if it is not submitted in the prescribed form or does not invoke a statutory ground for reopening proceedings or does not adduce appropriate evidence.

(2) In all other cases it shall be served on the applicant’s opponent with a time limit being set for a response.

Section 369. [Taking Evidence]

(1) If the application is found to be admissible, the court shall, where necessary, commission a judge to take the evidence adduced.

(2) It shall be left to the court’s discretion whether the witnesses and experts are to be examined under oath.

(3) The public prosecution office, the defendant, and defense counsel shall be allowed to be present at the examination of a witness or expert and at a judicial inspection. Section 168c subsection (3), Section 224 subsection (1) and Section 225 shall apply mutatis mutandis. If the defendant is not at liberty, he shall not be entitled to be present if the hearing is not held at the place where he is in custody and if his assistance will not serve to clarify the matter for which evidence is being taken.

(4) After the taking of evidence has been concluded, the public prosecution office and the defendant shall be called upon to make further statements with a time limit being set.

Section 370. [Decision on Well-Foundedness]

(1) The application to reopen proceedings shall be dismissed as unfounded, without an oral hearing, if the allegations made therein are not sufficiently substantiated, or if in the cases of Section 359, numbers 1 and 2, or Section 362, numbers 1 and 2, the assumption that the act specified in these provisions had an influence on the decision is precluded in the circumstances that pertain.

(2) In all other cases the court shall order the reopening of the proceedings and recommencement of the main hearing.

Section 371. [Acquittal With No Main Hearing]

(1) If the convicted person dies, the court shall, without recommencing the main hearing and after taking any evidence that may still be needed, either enter an acquittal or dismiss the application for reopening the proceedings.

(2) In other cases, too, the court may acquit the convicted person immediately if there already is sufficient evidence therefor; where public charges are preferred, however, it may only do so with the consent of the public prosecution office.

(3) The acquittal shall be combined with the quashing of the original judgment. If there was solely a decision imposing a measure of reform and prevention, the original judgment shall be quashed instead of entry of an acquittal.

(4) Upon request by the applicant the quashing of the judgment shall be published in the Federal Gazette and may, at the court’s discretion, also be published in newspapers.

Section 372. [Immediate Complaint]

All decisions given by the court at first instance in connection with an application to reopen the proceedings may be contested by immediate complaint. The decision of the court ordering the reopening of the proceedings and recommencement of the main hearing may not be contested by the public prosecution office.

Section 373. [Judgment After New Main Hearing; No Reformatio in Peius]

(1) In the new main hearing, the original judgment shall be either upheld or quashed with a new decision being given on the merits.

(2) The original judgment, in so far as it relates to the type and degree of the legal consequences of the offense, may not be amended to the convicted person’s detriment only in those cases where the defendant or his statutory representative applied to reopen the proceedings or the public prosecution office so applied. This provision shall not prevent an order committing the defendant to a psychiatric hospital or an institution for withdrawal treatment.

Section 373a. [Procedure for a Penal Order]

(1) Reopening of proceedings concluded by final penal order to the convicted person’s detriment shall also be admissible if new facts or evidence were produced which, either alone or in conjunction with earlier evidence, tend to substantiate conviction for a serious criminal offense.

(2) In other cases Sections 359 to 373 shall apply mutatis mutandis to the reopening of the proceedings concluded by a final penal order.


Part Five Participation of the Aggrieved Person in the Proceedings

Chapter I Private Prosecution

Section 374. [Admissibility; Persons Entitled to Prosecute]

(1) An aggrieved party may bring a private prosecution in respect of the following offenses without needing to have recourse to the public prosecution office first:

1. trespass (section 123 Penal Code);

2. defamation (section 185 to 189 Penal Code) unless it is directed against one of the political bodies specified in section 194 subsection (4) of the Penal Code;

3. violation of the privacy of correspondence (section 202 Penal Code);

4. bodily injury (sections 223 and 229 Penal Code);

5. threat (section 241 Penal Code);

5a. taking or offering a bribe in business transactions (section 299 Penal Code);

6. criminal damage to property (section 303 Penal Code);

7. criminal offenses pursuant to sections 4, 6c, 15, 17, 18 and 20 of the Act against Unfair Competition;

8. criminal offenses pursuant to section 142 subsection (1) of the Patent Act, section 25 subsection (1) of the Utility Models Act, section 10 subsection (1) of the Semi-Conductor Protection Act, section 39 subsection (1) of the Plant Variety Protection Act, section 143 subsections (1) and (1a) and section 144 subsections (1) and (2) of the Trade Mark Act, section 14 subsection (1) of the Designs Act, sections 106 to 108 of the Copyright Act and section 33 of the Act on the Copyright of Works of Fine Art and Photography.

(2) A person who in addition to the aggrieved person or on his behalf is entitled to file an application for criminal prosecution may also file a private prosecution. The persons designated in section 77 subsection (2) of the Penal Code may also bring a private prosecution if the person with prior entitlement has filed the application for criminal prosecution.

(3) If the aggrieved person has a statutory representative, the right to bring a private prosecution shall be exercised by the latter or, if the aggrieved party is a corporation, a company, or another association which as such may sue in civil litigation, by those persons who represent them in civil litigation.

Section 375. [More then One Person Entitled]

(1) If more than one person is entitled to bring a private prosecution in respect of the same criminal offense, each such person shall be independent of the others when exercising this right.

(2) If, however, one of those entitled has brought a private prosecution, the others shall be entitled to join the initiated proceedings at the stage they have reached at the time the declaration of joinder is made.

(3) Any decision on the merits shall, for the accused’s benefit, also take effect in respect of entitled persons who did not bring a private prosecution.

Section 376. [Preferring Public Charges]

In respect of the criminal offenses specified in Section 374 the public prosecution office shall prefer public charges only if it is in the public interest.

Section 377. [Participation of the Public Prosecutor; Taking Over the Proceedings]

(1) The public prosecutor shall not be obliged to participate in private prosecution proceedings. The court shall submit the files to him if it is of the opinion that he should take over the prosecution.

(2) The public prosecution office may take over the prosecution by an express statement at any stage of the proceedings before the judgment enters into force. Seeking an appellate remedy shall entail taking over the prosecution.

Section 378. [Assistance and Representation of the Private Prosecutor]

The private prosecutor may be assisted by an attorney-at-law or may be represented by an attorney-at-law provided with a written power of attorney. In the latter case, service on the private prosecutor may legally be effected on the attorney-at-law.

Section 379. [Furnishing Security; Legal Aid]

(1) The private prosecutor shall furnish security for the costs expected to arise for the accused under the same conditions applying to the plaintiff in civil litigation who, at the defendant’s request, is required to furnish security for the costs of litigation.

(2) Security shall be furnished by a deposit of cash, shares or bonds.

(3) The same provisions as in civil litigation shall apply to the amount of security and the time limit for furnishing security, as well as to legal aid.

Section 379a. [Advance for Fees]

(1) The court is to set a time limit for payment of the advance for fees pursuant to section 67 subsection (1) of the Court Costs Act, unless the private prosecutor has been granted legal aid or is exempted from payment of fees; reference shall be made here to the consequences under subsection (3).

(2) No court action is to be taken before the advance payment is made, unless it is substantiated that the delay would cause the private prosecutor a disadvantage which cannot be undone or can only be undone with difficulty.

(3) The private prosecution shall be dismissed after the time limit set under subsection (1) has expired with no result. The order may be contested by immediate complaint. The court which made the order shall quash it proprio motu if it turns out that the payment was received within the time limit set.

Section 380. [Conciliation Attempt]

(1) Prosecution for trespass, defamation, violation of privacy of correspondence, bodily injury (sections 223 and 229 Penal Code), threats and criminal damage to property may be brought only after a conciliation was unsuccessfully attempted by a conciliation board which is to be designated by the Land department of justice. When bringing his private prosecution, the plaintiff shall submit a certificate showing that conciliation has been attempted.

(2) The Land department of justice may stipulate that the conciliation board may make its involvement dependent upon payment of a reasonable advance on costs.

(3) The provisions of subsections (1) and (2) shall not apply where an official superior has the authority to apply for criminal prosecution pursuant to section 194 subsection (3) or section 230 subsection (2) of the Penal Code.

(4) If the parties do not live in the same municipal district, a conciliation attempt may be dispensed with in a specific order by the Land department of justice.

Section 381. [Preferring the Charges]

The charges shall be preferred orally to be recorded by the court registry or by submitting a bill of indictment. The charges must comply with the requirements specified in Section 200 subsection (1). The bill of indictment shall be submitted with two copies.

Section 382. [Communication of the Charges]

If the charges were properly preferred, the court shall communicate them to the accused with a time limit being set for a response.

Section 383. [Order Opening the Main Hearing; Dismissal; Termination]

(1) After receiving the accused’s response, or after expiry of the time limit, the court shall decide whether to open the main proceedings or to dismiss the charges, in accordance with the provisions which are applicable when charges are directly preferred by the public prosecution office. In an order opening the main proceedings the court shall specify the defendant and the offense in accordance with Section 200 subsection (1), first sentence.

(2) The court may terminate the proceedings if the perpetrator’s guilt is negligible. The proceedings may be terminated even during the main hearing. The order may be contested by immediate complaint.

Section 384. [Further Procedure]

(1) The further procedure shall be governed by the provisions on the procedure for preferred public charges. Measures of reform and prevention, however, may not be ordered.

(2) Section 243 shall be applied with the proviso that the presiding judge reads out the order opening the main proceedings.

(3) The court shall determine the extent to which evidence shall be taken notwithstanding Section 244 subsection (2).

(4) The provision in Section 265 subsection (3) on the right to request a suspension of the main hearing shall not be applicable.

(5) A private prosecution cannot be heard at the same time as a public prosecution before a penal division with lay judges.

Section 385. [Status of the Private Prosecutor; Summonses; Inspection of the Files]

(1) To the same extent as the public prosecution office shall participate and be heard in the proceedings on preferred public charges, the private prosecutor shall participate and be heard in the proceedings on the private charges brought. All decisions which are brought to the attention of the public prosecution office in the former case shall be brought to the attention of the private prosecutor in the latter case.

(2) A period of at least one week must elapse between service of the summons on the private prosecutor to attend the main hearing and the day of the main hearing.

(3) The private prosecutor may exercise the right to inspect the files through an attorney-at-law only.

(4) In the cases under Sections 154a and 430 the second sentence of subsection (3) of those Sections shall not apply.

(5) In an appeal on law an application by the private prosecutor pursuant to Section 349 subsection (2) shall not be necessary. Section 349 subsection (3) shall not apply.

Section 386. [Summoning Witnesses and Experts]

(1) The presiding judge shall decide which persons are to be summoned to the hearing as witnesses or experts.

(2) The private prosecutor and the defendant shall have the right to summon such persons directly.

Section 387. [Representation at the Main Hearing]

(1) At the main hearing the defendant may also be assisted by an attorney-at-law or may be represented by an attorney-at-law on the basis of a written power of attorney.

(2) The provision in Section 139 shall apply to the private prosecutor’s attorney-at-law as well as to the defendant’s attorney-at-law.

(3) The court shall have the authority to order private prosecutor’s personal appearance as well as the defendant’s and shall also have the authority to have the defendant brought before the court.

Section 388. [Countercharges]

(1) Where the private prosecution was brought by the aggrieved person, the accused may, before completion of the last word (Section 258 subsection (2), second part of the sentence) at first instance, bring countercharges requesting imposition of a penalty on the prosecutor, if the accused is aggrieved by the latter’s commission of a criminal offense which may be the subject of private prosecution and is connected with the criminal offense giving rise to the charges.

(2) Where the prosecutor is not the aggrieved person (Section 374 subsection (2)), the accused may bring countercharges against the aggrieved person. In that case the countercharges shall be served on the aggrieved person and he shall be summoned to the main hearing if the countercharges are not preferred at the main hearing in the aggrieved person’s presence.

(3) The decision on the countercharges shall be given at the same time as the decision on the charges.

(4) Withdrawal of the charges shall have no influence on the proceedings on the countercharges .

Section 389. [Judgment Terminating Proceedings]

(1) If after hearing the case the court finds that the facts to be deemed as having been established constitute a criminal offense to which the procedure provided in this Chapter shall not be applicable, it shall terminate the proceedings in a judgment in which these facts must be clearly indicated.

(2) The public prosecution office shall be informed of the hearings in such cases.

Section 390. [Appellate Remedy for Private Prosecutor]

(1) The private prosecutor may avail himself of the same appellate remedies as the public prosecution office in proceedings on preferred public charges. The same shall apply to the application to reopen the proceedings in the cases under Section 362. The provision in Section 301 shall be applied to the private prosecutor’s appellate remedy.

(2) Notices of appeal on law and applications to reopen proceedings concluded by a final judgment may be filed by the private prosecutor only in a document signed by an attorney-at-law.

(3) Submission and transmission of the files in accordance with Sections 320, 321, and 347 shall be made to and by the public prosecution office as in the proceedings on preferred public charges. Service of the notices of appeal on fact and law and of appeal on law on the complainant’s opponent shall be effected by the court registry.

(4) The provision in Section 379a on payment of an advance for fees and the consequences of late payment shall apply mutatis mutandis.

(5) The provision in Section 383 subsection (2), first and second sentences, on termination of proceedings in view of negligibility shall also apply to appellate proceedings on fact and law. The order shall not be contestable.

Section 391. [Withdrawal of Charges; Restoration]

(1) The private prosecution may be withdrawn at any stage of the proceedings. The defendant’s consent shall be required for the withdrawal after his examination has begun at the main hearing at first instance.

(2) The private prosecutor shall be deemed to have withdrawn the charges if in proceedings at first instance and, where the defendant filed an appeal on fact and law, in proceedings at second instance he fails to appear at the main hearing or is not represented by an attorney-at-law, or, although the court has ordered his personal appearance, fails to appear at the main hearing or at another hearing, or fails to comply with a time limit set for him, non-compliance with which shall result in termination of proceedings.

(3) If the appeal on fact and law was filed by the private prosecutor it shall immediately be dismissed in the event of the defaults referred to above notwithstanding the provision in Section 301.

(4) The private prosecutor may demand restoration of the status quo ante within one week after the default under the conditions specified in Sections 44 and 45.

Section 392. [Effect of Withdrawal]

A private prosecution once withdrawn may not be brought a second time.

Section 393. [Death of the Private Prosecutor]

(1) The private prosecutor’s death shall result in termination of the proceedings.

(2) A private prosecution may, however, be continued after the private prosecutor’s death by the persons entitled to bring a private prosecution pursuant to Section 374 subsection (2).

(3) The court shall be notified of a continuation by the person entitled within two months after the private prosecutor’s death, and if no such notification is made this right shall be lost.

Section 394. [Notification to the Accused]

The accused shall be notified of the withdrawal of the private prosecution, of the private prosecutor’s death, and of continuation of the private prosecution.

Chapter II Private Accessory Prosecution

Section 395. [Right to Join as a Private Accessory Prosecutor]

(1) Whoever

1. by an unlawful act

a) pursuant to sections 174 to 174c, 176 to 180, 180b, 181 and 182 of the Penal Code,

b) pursuant to sections 185 to 189 of the Penal Code,

c) pursuant to sections 221, 223 to 226 and 340 of the Penal Code,

d) pursuant to sections 234 to 235 and 239 subsections (3) and (4), section 239a and 239b of the Penal Code,

2. by an attempted unlawful act pursuant to section 211 and 212 of the Penal Code

is aggrieved or

3. through an application for a court decision (Section 172) gave rise to preferment of public charges

may join a public prosecution as a private accessory prosecutor.

(2) The same right shall vest in:

1. the parents, children, siblings, and the spouse of a person killed through an unlawful act,

2. the Federal President in the case of section 90 of the Penal Code, and the person concerned in the case of section 90b of the Penal Code,

3. the person who, pursuant to Section 374 in the cases designated in Section 374 subsection (1), numbers 7 and 8, is entitled to act as a private prosecutor and persons aggrieved by an unlawful act pursuant to section 142 subsection (2) of the Patent Act, section 25 subsection (2) of the Utility Models Act, section 10 subsection (2) of the Semi-Conductor Protection Act, section 39 subsection (2) of the Plant Variety Protection Act, section 143 subsection (2) of the Trade Mark Act, section 14 subsection (2) of the Designs Act and section 108a of the Copyright Act.

(3) Whoever is aggrieved by an unlawful act pursuant to section 229 of the Penal Code may join the public prosecution as a private accessory prosecutor if for special reasons, especially because of the serious consequences of the act, this appears to be imperative to safeguard his interests.

(4) Joinder shall be admissible at any stage of the proceedings. It may also be effected for the purpose of seeking appellate remedy after judgment has been given.

Section 396. [Declaration of Joinder]

(1) The declaration of joinder shall be submitted to the court in writing. A declaration of joinder received by the public prosecution office or the court prior to preferment of public charges shall take effect on preferment of public charges. In the proceedings involving penal orders the joinder shall take effect when a date for the main hearing has been set down (Section 408 subsection (3), second sentence, Section 411 subsection (1)) or the application for issuance of a penal order has been refused.

(2) After hearing the public prosecution office the court shall decide whether a person is entitled to join as a private accessory prosecutor. In the cases under Section 395 subsection (3) it shall decide, after also hearing the indicted accused, whether joinder is imperative on the grounds referred to there; this decision shall be incontestable.

(3) If the court considers termination of the proceedings pursuant to Section 153 subsection (2), Section 153a subsection (2), Section 153b subsection (2), or Section 154 subsection (2), it shall first decide on entitlement to joinder.

Section 397. [Rights of the Private Accessory Prosecutor]

(1) The private accessory prosecutor shall, after joinder, be entitled to be present at the main hearing even if he is to be examined as a witness. In other respects Sections 378 and 385 subsections (1) to (3) shall apply mutatis mutandis. The private accessory prosecutor shall also be entitled to challenge a judge (Sections 24 and 31) or an expert (Section 74), to ask questions (Section 240 subsection (2)), to object to orders by the presiding judge (Section 238 subsection (2)) and to object to questions (Section 242), to apply for evidence to be taken (Section 244 subsections (3) to (6)), and to make statements (Sections 257 and 258).

(2) If prosecution is limited pursuant to Section 154a, the right to join the public prosecution as a private accessory prosecutor shall remain unaffected. If the private accessory prosecutor is admitted to the proceedings, a limitation pursuant to Section 154a subsection (1) or (2) shall no longer apply insofar as it concerns the private accessory prosecution.

Section 397a. [Appointment of an Attorney-at-law as Counsel]

(1) Upon application of the private accessory prosecutor an attorney-at-law shall be appointed as his counsel if his right to join the proceedings as a private accessory prosecutor is based on Section 395 subsection (1), number 1a or number 2, and if the act which gave rise to the right to join the proceedings was a serious criminal offense. If, at the time of his application, the private accessory prosecutor is under the age of sixteen, an attorney-at-law shall be appointed as his counsel even if the act within the meaning of the first sentence is a less serious offense or if the private accessory prosecutor is aggrieved by an unlawful act pursuant to section 225 of the Penal Code. The application may be made even before the declaration of joinder is issued. Section 142 subsection (1) shall apply mutatis mutandis to the appointment of the attorney-at-law.

(2) Where the conditions for an appointment pursuant to subsection (1) have not been fulfilled, the private accessory prosecutor shall, upon application, be granted legal aid for calling in an attorney-at-law under the same provisions as those applicable in civil litigation if the legal and factual situation is complex, if the aggrieved person cannot sufficiently safeguard his own interests, or if this cannot reasonably be expected of him. Subsection (1), third and fourth sentences, shall apply mutatis mutandis. Section 114, second part of the sentence, and section 121 subsections (1) to (3) of the Civil Procedure Code shall not be applicable.

(3) The court seized of the case shall decide on the appointment of the attorney-at-law and on the granting of legal aid. In cases referred to in subsection (2) the decision shall be incontestable.

Section 398. [Procedure]

(1) The course of the proceedings shall not be held up by joinder.

(2) A main hearing which has already been scheduled, as well as other scheduled hearings, shall be held on the dates set down, even if the private accessory prosecutor could not be summoned or notified at short notice.

Section 399. [Notification of Previous Decisions]

(1) Notification to the private accessory prosecutor of the decisions made and brought to the attention of the public prosecution office prior to joinder shall not be required except in the cases of Section 401 subsection (1), second sentence.

(2) Once the time limit has expired for the public prosecution office to contest such decisions, the private accessory prosecutor shall also not be entitled to contest them.

Section 400. [Private Accessory Prosecutor’s Right to Appellate Remedy]

(1) The private accessory prosecutor may not contest the judgment with the objective of another legal consequence of the offense being imposed, or of the defendant being sentenced for a violation of the law which does not justify joinder by the private accessory prosecutor.

(2) The private accessory prosecutor shall have the right to lodge an immediate complaint against the order refusing to open the main proceedings or terminating the proceedings pursuant to Sections 206a and 206b, insofar as the order concerns the offense on the basis of which the private accessory prosecutor is entitled to joinder. In other respects the decision by which the proceedings are terminated cannot be contested by the private accessory prosecutor.

Section 401. [Appellate Remedy for Private Accessory Prosecutor]

(1) The private accessory prosecutor may avail himself of an appellate remedy independently of the public prosecution office. If joinder for the purpose of appellate remedy occurs after judgment, the contested judgment shall immediately be served upon the private accessory prosecutor. The time limit for stating the grounds for an appellate remedy shall begin to run on expiry of the time limit to be observed by the public prosecution office for filing an appellate remedy or, if the judgment has not yet been served upon the private accessory prosecutor, on service of the judgment upon him even if a decision has not yet been given on the private accessory prosecutor’s entitlement to joinder.

(2) If the private accessory prosecutor was present at the main hearing or was represented by an attorney-at-law the time limit for filing an appellate remedy shall begin to run for him on pronouncement of judgment even if he was no longer present or represented when judgment was pronounced; he may not claim restoration of the status quo ante in respect of non-observance of the time limit on the ground that he was not instructed on his right to appellate remedy. If the private accessory prosecutor was not present or represented at all at the main hearing the time limit shall begin to run when the operative provisions of the judgment are served on him.

(3) Where only the private accessory prosecutor has filed an appeal on fact and law, such appeal shall immediately be dismissed, notwithstanding the provision in Section 301, if at the beginning of a main hearing neither the private accessory prosecutor nor an attorney-at-law representing him appeared. The private accessory prosecutor may, within one week after non-appearance, demand restoration of the status quo ante under the conditions of Sections 44 and 45.

(4) Further action in the case shall be incumbent on the public prosecution office if the contested decision is quashed by virtue of an appellate remedy filed by the private accessory prosecutor alone.

Section 402. [Revocation; Death of Private Accessory Prosecutor]

A declaration of joinder shall become ineffective through revocation and upon the death of the private accessory prosecutor.

Chapter III Compensation for the Aggrieved Person

Section 403. [Conditions]

(1) The aggrieved person or his heir may, in criminal proceedings, bring a property claim against the accused arising out of the criminal offense if the claim falls under the jurisdiction of the ordinary courts and is not yet pending before another court, in proceedings before the Local Court irrespective of the value of the matter in dispute.

(2) The aggrieved person or his heir is to be notified of the criminal proceedings as early as possible; at the same time he is to be informed that he may also of bring his claim in the criminal proceedings.

Section 404. [Application by the Aggrieved Person]

(1) The application asserting the claim may be made in writing or orally to be recorded by the registry clerk, or orally at the main hearing before the closing speeches begin. The application must specify the subject of, and the grounds for, the claim and should set forth the evidence. If the application is not made at the main hearing, it shall be served on the accused.

(2) Making an application shall have the same effects as bringing an action in civil litigation.

(3) The applicant shall be notified of the place and time of the main hearing if the application is made before the main hearing begins. The applicant, his statutory representative, and the spouse of the person entitled to make the application may take part in the main hearing.

(4) The application may be withdrawn prior to pronouncement of the judgment.

(5) The applicant and the indicted accused shall, upon application, be granted legal aid under the same provisions as in civil litigation as soon as public charges have been preferred. Section 121 subsection (2), first sentence, of the Civil Procedure Code shall be applicable with the proviso that, if the indicted accused has defense counsel, the latter shall be assigned to him; if the applicant avails himself of the assistance of an attorney-at-law in the main proceedings, the latter shall be assigned to him. The court seized of the case shall be competent to decide; the decision shall not be contestable.

Section 405. [Dispensing with a Decision]

The court shall dispense with a decision on the application in the judgment if the defendant is not found guilty of a criminal offense and no measure of reform and prevention is ordered against him, or if the application appears unfounded. The court shall also dispense with a decision if the application is not suitable to be dealt with in criminal proceedings, particularly if its examination would protract the proceedings or if the application is inadmissible; this may also be done in an order at any stage of the proceedings.

Section 406. [Decision]

(1) If the result of the main hearing shows that the application is well-founded, the court shall grant it in the judgment. The decision may be limited to the ground for, and part of, the asserted claim; section 318 of the Civil Procedure Code shall apply mutatis mutandis.

(2) The court may declare the decision to be enforceable executable. It may make provisional enforcement subject to the furnishing of security; it may also allow the defendant to avoid provisional enforcement by furnishing security. These measures may be taken subsequently or may be amended or revoked in an order which shall be incontestable.

(3) The decision on the application shall be equivalent to a judgment in civil litigation. If the claim has not been awarded, it may be asserted elsewhere. If a final decision has been given on the ground for the claim, the hearing concerning the amount shall be held before the competent civil court pursuant to section 304 subsection (2) of the Civil Procedure Code.

(4) The applicant shall be provided with a copy of the judgment with reasons, or with an excerpt therefrom.

Section 406a. [Appellate Remedy]

(1) The applicant shall not be entitled to an appellate remedy also where the court dispenses with a decision.

(2) If the court grants the application, the defendant may contest the decision by an appellate remedy which would otherwise be admissible, also without contesting that part of the judgment which concerns the criminal offense. In this case the decision on the appellate remedy may be given in an order at a sitting held in camera.

(3) If, following an appeal, the conviction is quashed and the defendant is found not guilty of a criminal offense, and no measure of reform and prevention is ordered against him, the decision granting the application shall be quashed, even if the judgment has not been contested in this respect.

Section 406b. [Execution]

Execution shall be governed by the provisions which apply to the execution of judgments in civil litigation. The court of civil jurisdiction in whose district the criminal court of first instance is located shall have jurisdiction over proceedings pursuant to sections 731, 767, 768, and 887 to 890 of the Civil Procedure Code. Objections which concern the claim itself shall only be admissible to the extent that the reasons on which they are based arose after conclusion of the main hearing at first instance and, if the court hearing the appeal on fact and law has given its decision, after conclusion of the appellate hearing on fact and law.

Section 406c. [Reopening]

(1) The application to reopen the proceedings may be limited by the defendant for the purpose of obtaining an essentially different decision on the claim. The court shall then give a decision in an order without a new main hearing.

(2) Section 406a subsection (3) shall apply mutatis mutandis if the application to reopen the proceedings is directed only against that part of the judgment which concerns the criminal offense.

Chapter IV Others Rights of the Aggrieved Person

Section 406d. [Notification of the Aggrieved Person]

(1) The aggrieved person shall, upon application, be notified of the outcome of the court proceedings to the extent that they relate to him.

(2) Notification need not be furnished if delivery is not possible at the address which the aggrieved person indicated. If the aggrieved person has selected an attorney-at-law as counsel, if counsel has been assigned to him or if he is legally represented by counsel, Section 145a shall apply mutatis mutandis.

(3) Repealed

Section 406e. [Inspection of Files]

(1) An attorney-at-law may inspect for the aggrieved person the files which are available to the court or, if public charges were preferred, would have to be submitted to it, and may inspect officially impounded pieces of evidence, if he shows a legitimate interest. In the cases mentioned in Section 395 such legitimate interest need not be shown.

(2) Inspection of the files shall be refused if overriding interests worthy of protection, either of the accused or of other persons, constitute an obstacle thereto. It may be refused if the purpose of the investigation appears to be jeopardized or if the proceedings would be considerably delayed thereby.

(3) Upon application and unless important reasons constitute an obstacle, the attorney-at-law may be handed the files, but not the pieces of evidence, to take to his office or private premises.

(4) The public prosecution office shall decide whether to grant inspection of the files in preparatory proceedings and after final conclusion of the proceedings, or otherwise the presiding judge of the court seized of the case. If the public prosecution office refuses inspection of the files, a court decision pursuant to Section 161a subsection (3), second to fourth sentences, may be applied for; the presiding judge’s decision shall be incontestable.

(5) Under the conditions in subsection (1) the aggrieved person may be given information and copies from the files; subsections (2) and (4), first sentence, shall apply mutatis mutandis.

Section 406f. [Assistance and Representation of the Aggrieved Person]

(1) The aggrieved person may avail himself of the assistance of an attorney-at-law or be represented by such attorney in criminal proceedings.

(2) The attorney-at-law shall be permitted to be present at the aggrieved person’s examination by the court or by the public prosecution office. He may exercise the aggrieved person’s right to object to questions (Section 238 subsection (2), Section 242) and may submit an application to exclude the public pursuant to section 171b of the Courts Constitution Act, but not if the aggrieved person objects thereto.

(3) If the aggrieved person is examined as a witness, a person whom he trusts may, at his request, be permitted to be present. The decision shall be made by the person conducting the examination; it shall not be contestable.

Section 406g. [Assistance for an Aggrieved Person Entitled to Private Accessory Prosecution]

(1) Whoever is entitled to join the proceedings as a private accessory prosecutor pursuant to Section 395 may, also prior to preferment of public charges, avail himself of the assistance of an attorney-at-law or be represented by such attorney, also where joinder as a private accessory prosecutor is not declared.

(2) In addition to the rights of the attorney-at-law designated in Section 406f subsection (2), he shall be entitled to be present at the main hearing, also if the main hearing is not held in public. He shall be permitted to be present at judicial examinations and judicial inspections if the purpose of the investigation is not jeopardized thereby; the decision shall be incontestable. Section 168c subsection (5) and Section 224 subsection (1) shall apply mutatis mutandis to the notification.

(3) Section 397a shall apply mutatis mutandis to:

1. the appointment of an attorney-at-law and

2. the granting of legal aid for calling in an attorney-at-law.

In preparatory proceedings the court which would be competent to open the main proceedings shall give a decision.

(4) Upon application by the person entitled to join the proceedings as a private accessory prosecutor an attorney-at-law may, in the cases under Section 397a subsection (2), be appointed as counsel provisionally if:

1. this is imperative for special reasons,

2. the assistance of counsel is urgently required and

3. the granting of legal aid appears to be possible, but a decision cannot be expected on it in time.

Section 142 subsection (1) and Section 162 shall apply mutatis mutandis to the appointment. The appointment shall end unless an application for granting legal aid is filed within a time limit to be set by the judge, or if the granting of legal aid is refused.

Section 406h. [Information as to Rights]

The aggrieved person shall be informed of his rights pursuant to Sections 406d, 406e, 406f and 406g, as well as of his right to join the public prosecution as a private accessory prosecutor (Section 395) and to apply for an attorney-at-law to be appointed or called in as counsel (Section 397a).

Part Six Special Types of Procedure

Chapter I Procedure for Penal Orders

Section 407. [Admissibility]

(1) In proceedings before the criminal court judge and in proceedings under the jurisdiction of a court with lay judges, the legal consequences of the offense may, in the case of less serious offenses, be imposed, upon written application by the public prosecution office, in a written penal order without a main hearing. The public prosecution office shall file such application if it does not consider a main hearing to be necessary given the outcome of the investigations. The application shall refer to specific legal consequences. The application shall constitute preferment of the public charges.

(2) A penal order may impose only the following legal consequences of the offense, either on their own or in combination:

1. fine, warning with sentence reserved, driving ban, forfeiture, confiscation, destruction, making something unusable, announcement of the decision, and imposition of a regulatory fine against a legal person or an association,

2. withdrawal of permission to drive, where the bar does not exceed two years, as well as

3. dispensing with punishment.

Where the indicted accused has defense counsel, imprisonment not exceeding one year may also be imposed, provided its execution is suspended on probation.

(3) The court shall not be required to give the indicted accused a prior hearing (Section 33 subsection (3)).

Section 408. [Judicial Decisions]

(1) If the presiding judge of the court with lay judges considers the criminal court judge to have jurisdiction, he shall refer the case to the latter through the public prosecution office; the ruling shall be binding on the criminal court judge, and the public prosecution office shall be entitled to lodge an immediate complaint. If the criminal court judge considers the court with lay judges to have jurisdiction, he shall, through the public prosecution office, submit the files to the presiding judge for a decision.

(2) If the judge does not consider that there are sufficient grounds for suspecting the indicted accused, he shall refuse to issue a penal order. The decision shall be equivalent to the ruling declining to open to the main proceedings (Section 204, Section 210 subsection (2), Section 211).

(3) The judge shall comply with the public prosecution office’s application if there are no objections to issuing the penal order. He shall set down a date for the main hearing if he has objections to deciding the case without a main hearing, if he wishes to deviate from the legal assessment in the application to issue the penal order, or if he wishes to impose a legal consequence other than that applied for and the public prosecution office insists on its application. In addition to the summons, the defendant shall be provided with a copy of the application to issue a penal order, not including the legal consequence applied for.

Section 408a. [Application for Penal Order After Opening of the Main Proceedings]

(1) Where the main proceedings have already been opened, the public prosecution office may, in proceedings before the criminal court judge and before the court with lay judges, apply for issuance of a penal order if the conditions in Section 407 subsection (1), first and second sentences, obtain, and if the defendant’s failure to appear or his absence or another important reason constitutes an obstacle to the main hearing being conducted. Section 407 subsection (1), fourth sentence, and Section 408 shall not apply.

(2) The judge shall grant the application if the conditions in Section 408 subsection (3), first sentence, obtain. In other cases he shall refuse the application in an incontestable ruling and continue the main proceedings.

Section 408b. [Appointment of Defense Counsel]

Where the judge is considering granting the public prosecution office’s application to issue a penal order with the legal consequence set out in Section 407 subsection (2), second sentence, he shall appoint defense counsel for an indicted accused who does not yet have defense counsel. Section 141 subsection (3), shall apply mutatis mutandis.

Section 409. [Content of the Penal Order]

(1) The penal order shall contain:

1. the personal data of the defendant and of any other persons involved;

2. the defense counsel’s name;

3. the designation of the offense the defendant is charged with, time and place of commission and designation of the statutory elements of the criminal offense;

4. the applicable provisions by section, subsection, number, letter and designation of the statute;

5. the evidence;

6. the legal consequences imposed;

7. information on the possibility of objection and the relevant time limit and form of the objection as well as an indication that the penal order shall become effective and executable unless an objection is lodged against it pursuant to Section 410.

If a sentence of imprisonment is imposed on the defendant, or if he is given a warning with sentence reserved or if a driving ban is imposed on him, he shall be given the information referred to in Section 268a subsection 3 or Section 268c, first sentence. Section 267 subsection 6, second sentence, shall apply mutatis mutandis.

(2) The penal order shall also be communicated to the defendant’s statutory representative.

Section 410. [Time Limit for Lodging Objections; Entry into Force]

(1) Within two weeks following service of the penal order the defendant may lodge an objection against the penal order at the court which issued it, either in writing or orally to be recorded by the registry. Sections 297 to 300 and Section 302 subsection (1), first sentence, and subsection (2) shall apply mutatis mutandis.

(2) The objection may be limited to certain points of complaint.

(3) Where objections to the penal order are not lodged in time the order shall be equivalent to a judgment that has entered into force.

Section 411. [Dismissal for Inadmissibility; Date of Main Hearing]

(1) Where the objection was lodged too late or is otherwise inadmissible it shall be dismissed in an order with no main hearing; an immediate complaint shall be admissible against the order. In other cases a date shall be set down for the main hearing.

(2) The defendant may be represented at the main hearing by defense counsel provided with a written power of attorney. Section 420 shall apply.

(3) The complaint and the objection may be withdrawn prior to pronouncement of the judgment by the court of first instance. Section 303 shall apply mutatis mutandis. Where the penal order has been issued in proceedings pursuant to Section 408a, the complaint cannot be withdrawn.

(4) Where an objection has been lodged, the court when giving judgment shall not be bound by the decision contained in the penal order.

Section 412. [Non-Appearance of the Defendant]

If at the beginning of the main hearing the defendant has not appeared and is not represented by defense counsel and has no sufficient excuse for the non-appearance, Section 329 subsections (1), (3) and (4) shall apply mutatis mutandis. If the statutory representative has lodged an objection, Section 330 shall also apply mutatis mutandis.

Chapter II Procedure for Preventative Detention

Section 413. [Conditions]

If the public prosecution office does not conduct criminal proceedings because of the perpetrator’s lack of criminal responsibility or his unfitness to stand trial, it may file an application for an order imposing measures of reform and prevention on their own, if this is admissible by virtue of a statute and the order is to be anticipated in the light of the result of the investigations (procedure for preventive detention).

Section 414. [Proceedings]

(1) The provisions governing criminal proceedings shall apply to preventive detention proceedings mutatis mutandis unless otherwise provided.

(2) The application shall be equivalent to public charges. Instead of an indictment a written application shall be submitted complying with the requirements for an indictment. The application shall indicate the measure of reform and prevention applied for by the public prosecution office. If the judgment does not impose a measure of reform and prevention the application shall be refused.

(3) An expert shall be given the opportunity in the preliminary proceedings to prepare the opinion to be rendered at the main hearing.

Section 415. [Main Hearing Without the Accused]

(1) If in the preventive detention proceedings the appearance of the accused in court is impossible due to his condition or is inappropriate for reasons of public order or security, the court may conduct the main hearing without the accused being present.

(2) In this case the accused shall be examined prior to the main hearing by a commissioned judge with the assistance of an expert. The public prosecution office, the accused, defense counsel and the statutory representative shall be informed of the date for the examination. It shall not be necessary for the public prosecutor, defense counsel and the statutory representative to be present.

(3) If the condition of the accused so requires or if the proper conduct of the main hearing is otherwise not possible, the court may conduct the main hearing in the preventive detention proceedings after examination of the accused on the charges, also in a case where the accused is not, or is only temporarily, present.

(4) If a main hearing takes place without the accused, his previous statements contained in a judicial record may be read out. The record of his prior examination pursuant to subsection (2), first sentence, shall be read out.

(5) An expert shall be examined at the main hearing concerning the accused’s condition. If the expert has not previously examined the accused he shall be given the opportunity for an examination prior to the main hearing.

Section 416. [Transition to Criminal Proceedings]

(1) If, in the preventive detention proceedings, the accused’s criminal responsibility becomes apparent after main proceedings were opened and if the court has no jurisdiction over the criminal proceedings, it shall declare, in an order, that it lacks jurisdiction and shall refer the matter to the competent court. Section 270 subsections (2) and (3) shall apply mutatis mutandis.

(2) If, in the preventive detention proceedings the accused’s criminal responsibility becomes apparent after the main proceedings were opened and if the court also has jurisdiction over the criminal proceedings, the accused shall be informed of the new legal situation and shall be given the opportunity to defend himself. If he states that he has not sufficiently prepared his defense, the main hearing shall be suspended upon his application. If pursuant to Section 415 the main hearing has been held in the accused’s absence, those parts of the main hearing shall be repeated during which the accused was not present.

(3) Subsections (1) and (2) shall apply mutatis mutandis if, in the preventive detention proceedings, it becomes apparent after the main proceedings were opened that the accused is fit to stand trial and that the preventive detention proceedings are being conducted because of his unfitness to stand trial.

Chapter IIa Accelerated Procedure

Section 417. [Application by the Public Prosecution Office]

In proceedings before the criminal court judge and the court with lay judges the public prosecution office shall file an application, in writing or orally, for a decision to be taken in an accelerated procedure if, given the simple factual situation or the clarity of the evidence, the case is appropriate for an immediate hearing.

Section 418. [Main Hearing]

(1) Where the public prosecution office files the application, the main hearing shall be held immediately or at short notice, without a decision to open main proceedings being required.

(2) The accused shall be summoned only if he does not appear at the main hearing of his own volition or is not brought before the court. He shall be informed in the summons of the charges against him. The time limit set in the summons shall be twenty-four hours.

(3) It shall not be necessary to file a bill of indictment. Where such bill is not filed, the charges shall be preferred orally at the beginning of the main hearing and their essential content shall be included in the record made at the sitting.

(4) Where imprisonment of at least six months is to be anticipated, defense counsel shall be appointed for an accused who does not yet have defense counsel for the accelerated proceedings before the Local Court.

Section 419. [Maximum Sentence; Decision]

(1) The criminal court judge or the court with lay judges shall grant the application if the case is appropriate for a hearing using this procedure. A custodial sentence exceeding imprisonment of one year or a measure of reform and prevention shall not be imposed in such proceedings. Withdrawal of permission to drive shall be admissible.

(2) Adjudication using the accelerated procedure may be refused in the main hearing until such time as judgment is pronounced. The ruling shall not be contestable.

(3) Where adjudication using the accelerated procedure is refused, the court shall decide to open main proceedings if there are sufficient grounds for suspecting the indicted accused of having committed a criminal offense (Section 203); where main proceedings are not opened and adjudication using the accelerated procedure is refused, submission of a new bill of indictment may be dispensed with.

Section 420. [Taking of Evidence]

(1) Examination of a witness, expert or co-accused may be replaced by reading out records of an earlier examination as well as of documents containing written statements originating from them.

(2) Statements from public authorities and other agencies about their own observations, investigations and findings made in an official context and about those made by their staff may be read out, also in cases where the conditions of Section 256 are not fulfilled.

(3) The procedure pursuant to subsections (1) and (2) shall require the consent of the defendant, his defense counsel and the public prosecution office if they are present at the main hearing.

(4) In proceedings before the criminal court judge, the latter shall, notwithstanding Section 244 subsection (2), determine the extent to which evidence shall be taken.

Sections 421 to 429. Deleted

Chapter III Procedure Concerning Confiscation and Seizure of Property

Section 430. [Waiver of Confiscation]

(1) If confiscation is deemed insignificant in addition to the anticipated penalty or measure of reform and prevention, and if the proceedings so far as they relate to confiscation are considered to be disproportionate or to make a decision on the other legal consequences of the offense unreasonably difficult, the court may, with the public prosecution office’s consent, limit prosecution of the offense to the other legal consequences at any stage of the proceedings.

(2) The public prosecution office may make such limitation in the preparatory proceedings. The limitation shall be recorded in the files.

(3) The court may revoke the limitation at any stage of the proceedings. An application to this effect by the public prosecution office shall be granted. If the limitation is revoked again, Section 265 shall apply mutatis mutandis.

Section 431. [Participation of Third Persons in Proceedings]

(1) If in the criminal proceedings a decision has to be made on confiscation of an object and it appears to be credible that:

1. the object is owned by a person who is not the indicted accused, or to which such person is entitled, or

2. another person has some other right to the object, the extinguishment of which could be ordered in the event of confiscation (section 74e subsection (2), second and third sentences, Penal Code),

the court shall order that the other person shall participate in the proceedings as far as confiscation is concerned (person with an interest in the confiscation). The court may dispense with the order if due to certain facts it is to be assumed that participation is not feasible. The court may also dispense with the order if a party, association, or institution outside the territorial scope of this statute pursuing action against the existence or security of the Federal Republic of Germany or any constitutional principles designated in section 92 subsection (2) of the Penal Code would have to participate, and if it is to be assumed according to the circumstances such party, association or institution, or one of its agents, made available the object to promote their action; in this case it shall be sufficient to hear the owner of the object or the person authorized to exercise the right prior to the decision on confiscation of the object, if this is feasible.

(2) The court may order that participation shall not extend to the question of the indicted accused’s guilt if:

1. confiscation in the case of subsection (1), number 1, is possible only on the condition that the indicted accused owns, or is entitled to, the object, or

2. the object according to the circumstances which may substantiate confiscation can be taken away permanently, without compensation, from the person with an interest in the confiscation also by virtue of legal provisions outside the criminal law.

(3) If a decision has to be given against a legal person or an association (section 75, in conjunction with section 74c Penal Code) on confiscation of an equivalent sum of money, the court shall order their participation.

(4) Participation in the proceedings may be ordered prior to pronouncement of confiscation and, if an admissible appeal on fact and law has been filed, before the closing speeches have been completed in such appellate proceedings.

(5) The decision ordering participation in the proceedings cannot be contested. If participation in the proceedings is refused or an order is made pursuant to subsection (2), an immediate complaint shall be admissible.

(6) If a person states before the court or the public prosecution office, either in writing or orally for the record, or before any other authority in writing that he does not want to object to the confiscation of the object, his participation in the proceedings shall not be ordered or the order shall be revoked.

(7) The course of the proceedings shall not be delayed by participation in the proceedings.

Section 432. [Hearing the Person with an Interest in Confiscation]

(1) If there are indications in the preparatory proceedings that somebody might have an interest in the confiscation, he shall be heard if this appears feasible. Section 431 subsection (1), third sentence, shall apply mutatis mutandis.

(2) If the person who might have an interest in the confiscation states that he wants to object to the confiscation and if it appears credible that he has a right to the object, the provisions on the examination of the accused shall, in the event of his examination, apply mutatis mutandis to the extent that he could become a participant in the proceedings.

Section 433. [Rights and Duties of the Person with an Interest in Confiscation]

(1) With the opening of the main proceedings, a person with an interest in the confiscation shall have the rights which a defendant enjoys unless otherwise provided by this statue. In accelerated proceedings this shall apply from the beginning of the main hearing, and in proceedings for a penal order, from the issuance of the penal order.

(2) The court may order the personal appearance of a person with an interest in the confiscation for the purpose of clarifying the facts. If such person’s personal appearance has been ordered and he fails to appear without sufficient excuse, the court may order that he be brought before it if a summons has been served upon him also drawing his attention to this possibility.

Section 434. [Representation by Defense Counsel]

(1) A person with an interest in the confiscation may at any stage of the proceedings be represented, on the basis of a written power of attorney, by an attorney-at-law or any other person who may be chosen as defense counsel. The provisions in Sections 137 to 139, 145a to 149, and 218 applying to the defense shall apply mutatis mutandis.

(2) The court may assign to a person with an interest in the confiscation an attorney-at-law or any other person who may be appointed as defense counsel if the factual or legal situation is complex or if he cannot exercise his rights himself.

Section 435. [Summons to Main Hearing]

(1) Notification of the date set down for the main hearing shall be served on the person with an interest in the confiscation; Section 40 shall apply mutatis mutandis.

(2) On notification of the date of the hearing he shall, as far as he is a participant in the proceedings, be furnished with the bill of indictment and, in the cases under Section 207 subsection (2), with the order opening proceedings.

(3) At the same time, the person with an interest in the confiscation shall be advised of the fact that:

1. the hearing may be conducted in his absence; and

2. a decision shall be given on the confiscation in relation to him as well.

Section 436. [Non-Appearance at the Main Hearing]

(1) If a person with an interest in the confiscation fails to appear at the main hearing despite being properly informed of the date of the hearing, the hearing may be conducted in his absence; Section 235 shall not be applicable.

(2) Section 244 subsection (3), second sentence, and subsections (4) to (6) shall not apply to applications made by the person with an interest in the confiscation for evidence to be taken regarding the question of the defendant’s guilt.

(3) If the court orders confiscation on the basis of circumstances constituting an obstacle to compensation of the person with an interest in the confiscation, it shall also declare that such person shall not be entitled to compensation. This shall not apply if the court considers compensation of such person to be necessary because it would be an undue hardship to refuse such compensation; in this case the court shall also determine the amount of compensation (section 74f subsection (3) Penal Code). The court shall, in advance, advise persons with an interest in the confiscation of the possibility of such a decision and shall give them the opportunity to make submissions.

(4) If a person with an interest in the confiscation was neither present nor represented when the judgment was pronounced, the judgment shall be served on him. The court may order parts of the judgment not concerning the confiscation to be struck out.

Section 437. [Appellate Proceedings]

(1) In appellate proceedings the examination as to whether confiscation is justified with respect to a person with an interest in the confiscation shall extend to the verdict of guilt in the contested judgment only if such person makes objections in this respect and, through no fault of his own, was not heard concerning the question of guilt earlier in the proceedings. If the examination also extends to the question of guilt, the court shall refer to the findings of guilt unless such person’s submissions require renewed examination.

(2) Subsection (1) shall not apply to appellate proceedings on fact and law if at the same time a decision has to be given with respect to the verdict of guilt upon an appellate remedy filed by another participant.

(3) In appellate proceedings on law, objections to the verdict of guilt shall be made within the time limit set for the submission of grounds of appeal.

(4) Where it is only the decision on the amount of compensation that is contested, a decision can be given on the appellate remedy in a ruling unless the participants object. The court shall, in advance, advise them of the possibility of such procedure and of making an objection, and shall give them the opportunity to make submissions.

Section 438. [Confiscation by Penal Order]

(1) If confiscation is ordered by penal order, the penal order shall also be served upon persons with an interest in the confiscation; Section 435 subsection (3), number 2, shall apply mutatis mutandis.

(2) If a decision is required only on the objection made by a person with an interest in the confiscation, Section 439 subsection (3), first sentence, and Section 441 subsections (2) and (3) shall apply mutatis mutandis.

Section 439. [Subsequent Proceedings]

(1) If confiscation of an object has been ordered with binding effect and if someone substantiates:

1. that at the time when the decision entered into force he had a right to the object, which right is negatively affected by the decision or no longer exists, and

2. that he could not exercise the rights of a person with an interest in the confiscation through no fault of his own, either in the proceedings at first instance or in the appellate proceedings on fact and law,

he may claim in subsequent proceedings that the confiscation, insofar as it relates to him, was not justified; Section 360 shall apply mutatis mutandis.

(2) The subsequent proceedings shall be applied for within a month after the day on which the applicant obtained knowledge of the final decision. The application shall be inadmissible if two years have elapsed since the decision entered into force and its execution has been effected.

(3) The court shall not examine the verdict of guilt if, according to the circumstances that substantiated the confiscation, an order pursuant to Section 431 subsection (2) would have been admissible in criminal proceedings. In all other cases Section 437 subsection (1) shall apply mutatis mutandis.

(4) If the right claimed by the applicant is not proved, the application shall be unfounded.

(5) Prior to the decision, the court may revoke the confiscation order with the public prosecution office’s consent, if the subsequent proceedings are considered disproportionate.

(6) Reopening of the proceedings pursuant to Section 359, number 5, for the purpose of making objections pursuant to subsection (1) shall be precluded.

Section 440. [Independent Confiscation Proceedings]

(1) The public prosecution office and the private prosecutor may file the application to order confiscation independently if this is admissible by virtue of a statue and the order is to be anticipated in the light of the result of the investigations.

(2) The object must be designated in the application. The facts substantiating the admissibility of the independent confiscation shall also be stated. Otherwise Section 200 shall apply mutatis mutandis.

(3) Sections 431 to 436 and 439 shall apply mutatis mutandis.

Section 441. [Jurisdiction in Subsequent and in Independent Confiscation Proceedings]

(1) The decision on confiscation in subsequent proceedings (Section 439) shall be given by the court of first instance; the decision on independent confiscation (Section 440) shall be given by the court which would be competent in the case of criminal prosecution of a particular person. For the decision on independent confiscation, the court in whose district the object has been secured shall also have local jurisdiction.

(2) The court shall give its decision in a ruling, against which an immediate complaint shall be admissible.

(3) A decision on an admissible application shall, however, be given in a judgment after an oral hearing if the public prosecution office or any other participant so applies, or if the court so orders; the provisions governing the main hearing shall apply mutatis mutandis. Whoever filed an admissible appeal on fact and law against the judgment may no longer file an appeal on law against the appellate judgment on fact and law.

(4) If the decision has been given in a judgment, Section 437 subsection (4) shall apply mutatis mutandis.

Section 442. [Forfeiture; Destruction; Rendering Unusable]

(1) Forfeiture, destruction, rendering something unusable and eliminating a situation that is illegal shall be equivalent to confiscation within the meaning of Sections 430 to 441.

(2) If forfeiture pursuant to section 73 subsection (3) or section 73a of the Penal Code is directed against a person other than the indicted accused the court shall order that such person shall participate in the proceedings. He may state his objections to the order of forfeiture in subsequent proceedings, if through no fault of his own he was not in a position, either in proceedings at first instance or in appellate proceedings on fact and law, to exercise the rights of a participant in the proceedings. If under these conditions subsequent proceedings are applied for, execution measures shall not be taken against the applicant prior to the conclusion of such proceedings.

Section 443. [Seizure of Property]

(1) Property or individual items of property may be seized, if located in the territorial scope of this statute and if they belong to an accused against whom public charges were preferred or a warrant of arrest was issued for a criminal offense pursuant to:

1. sections 81 to 83 subsection (1), sections 94 or 96 subsection (1), section 97a or 100 of the Penal Code,

2. one of the provisions referred to in section 330 subsection (1), first sentence, of the Penal Code, provided that the accused is suspected of intentionally endangering life or limb of another or another person’s property of considerable value, or under the conditions in section 330 subsection (1), second sentence, numbers 1 to 3, of the Penal Code, or pursuant to section 330 subsection (2) or section 330a subsections (1) or (2) of the Penal Code,

3. section 52a subsections (1) to (3), section 53 subsection (1), first sentence, numbers 1 and 2, second sentence, of the Weapons Act, section 34 subsections (1) to (6) of the Foreign Trade and Payments Act or pursuant to section 19 subsections (1) to (3), section 20 subsections (1) or (2), each also in conjunction with section 21 or section 22a subsections (1) to (3) of the Act on the Control of Weapons of War, or

4. a provision referred to in section 29 subsection (3), second sentence, number 1, of the Narcotics Act under the conditions set out therein or a criminal offense pursuant to sections 29a, section 30 subsection (1), numbers 1, 2, 4, section 30a or Section 30b of the Narcotics Act.

The seizure shall also include any property subsequently acquired by the accused. The seizure shall be revoked after conclusion of the main hearing at first instance at the latest.

(2) Seizure shall be ordered by the judge. In exigent circumstances, the public prosecution office can make a provisional order for seizure; the provisional order shall become ineffective if it is not confirmed by the judge within three days.

(3) The provisions in Sections 291 to 293 shall apply mutatis mutandis.

Chapter IV Procedure for Imposing a Regulatory Fine against Legal Persons and against Associations

Section 444.

(1) If in criminal proceedings a decision has to be given on imposition of a regulatory fine against a legal person or an association (section 30 of the Regulatory Offenses Act), the court shall order their participation in the proceedings in respect of the offense; Section 431 subsections (4) and (5) shall apply mutatis mutandis.

(2) The legal person or the association shall be summoned to the main hearing; if their representative fails to appear with no sufficient excuse, the hearing may be conducted in their absence. Sections 432 to 434, Section 435 subsections (2) and (3), number 1, Section 436 subsections (2) and (4), Section 437 subsections (1) to (3), Section 438 subsection (1) shall apply to their participation in the proceedings and, insofar as a decision has to be given on their objection, Section 441 subsections (2) and (3), shall apply mutatis mutandis.

(3) Sections 440 and 441 subsections (1) to (3) shall apply to the independent proceedings mutatis mutandis. The court in whose district the legal person or the association has its seat or a branch office shall also have local jurisdiction.

Sections 445 to 448. Deleted


Part Seven Execution of Sentence and Costs of Proceedings

Chapter I Execution of Sentence

Section 449. [Execution]

Criminal judgments shall not be enforceable before they have entered into force.

Section 450. [Crediting Remand Detention and Withdrawal of Driver’s License]

(1) Where a defendant has undergone remand detention after he waived the right to seek an appellate remedy or after he has withdrawn an appellate remedy, or after the time limit for seeking an appellate remedy has expired without the defendant having made a statement, the period of such detention shall be deducted in full from an enforceable prison sentence.

(2) If, pursuant to the judgment, the impounding, securing, or seizure of the driver’s license pursuant to Section 111a subsection (5), second sentence, has continued, such period shall be deducted in full from the duration of the driving ban (section 44 Penal Code).

Section 450a. [Crediting Detention Pending Extradition]

(1) The deprivation of liberty undergone by the convicted person abroad in extradition proceedings for the purpose of execution of sentence shall also be credited against the enforceable prison sentence. This shall also apply if the convicted person has been extradited also for the purpose of criminal prosecution.

(2) In the case of extradition for the purpose of execution of more than one sentence, the deprivation of liberty undergone abroad shall be credited against the highest sentence, in the case of sentences of equal severity against the sentence which, after the convicted person’s committal, was executed first.

(3) The court may, upon application by the public prosecution office, order that no, or only partial, credit shall be given, where such credit is not justified in view of the convicted person’s conduct after pronouncement of the judgment in which the underlying findings of fact were last examined. If the court gives such an order, credit shall not be given in any other proceedings, for deprivation of liberty undergone abroad, so far as its duration does not exceed the sentence.

Section 451. [Executing Authorities]

(1) The sentence shall be executed by the public prosecution office as the executing authority on the basis of a certified copy of the operative provisions of the judgment containing an endorsement of enforceability, to be issued by the registry clerk.

(2) The prosecutors at the Local Courts shall be authorized to execute the sentence only insofar as such authority has been conferred on them by the Landdepartment of justice.

(3) The public prosecution office which is the executing authority shall exercise the duties incumbent on the public prosecution office also vis-à-vis the penal chamber responsible for execution of sentences at another Regional Court. It may assign its duties to the public prosecution office competent at that court if this appears to be imperative in the interest of the convicted person and if that public prosecution office gives its consent.

Section 452. [Pardoning Power]

The power of pardoning shall be vested in the Federation in cases decided at first instance in the exercise of jurisdiction by the Federation; in all other cases it shall be vested in the Laender.

Section 453. [Subsequent Decision on Probationary Suspension of Sentence or on Warning with Sentence Reserved]

(1) The subsequent decisions relating to the suspension of a sentence on probation or a warning with sentence reserved (sections 56a to 56g, 58, 59a, 59b Penal Code) shall be given by the court, with no oral hearing, in an order. The public prosecution office and the defendant shall be heard. If the court has to decide on a revocation of suspension of sentence because of a violation of conditions or instructions, it shall give the convicted person an opportunity to be heard orally. Where a probation officer has been appointed the court shall inform him if a decision on the revocation of suspension of sentence or of remission of sentence is being considered; the court should give him information obtained from other criminal proceedings if the objective of probationary supervision makes this seem appropriate.

(2) A complaint shall be admissible against decisions pursuant to subsection (1). The complaint may be based only on the ground that an order made is unlawful or that the probation period has been subsequently prolonged. Revocation of suspension, remission of sentence, revocation of remission, conviction with sentence reserved and a ruling that a warning shall be sufficient (sections 56f, 56g, 59b Penal Code) may be contested by immediate complaint.

Section 453a. [Instruction on Suspension of Sentence or Warning with Sentence Reserved]

(1) If the defendant was not instructed pursuant to Section 268a subsection (3), such instruction shall be given by the court competent to give the decision pursuant to Section 453. The presiding judge may entrust a commissioned or a requested judge with giving the instruction.

(2) The instruction shall be given orally except in cases of minor significance.

(3) The defendant should also be instructed in respect of the subsequent decisions. Subsection (1) shall apply mutatis mutandis.

Section 453b. [Supervision of the Convicted Person]

(1) The court shall supervise the conduct of the convicted person during the probation period and especially compliance with conditions and instructions as well as with offers made and assurances given.

(2) Supervision shall be the responsibility of the court competent to give the decisions pursuant to Section 453.

Section 453c. [Warrant of Arrest on Revocation]

(1) If there are sufficient reasons for assuming that the suspension will be revoked, the court may, until the revocation order enters into force, take provisional measures to ensure that the convicted person will not abscond, and, if necessary, issue a warrant of arrest under the prerequisites of Section 112 subsection (2), number 1 or 2, or if certain facts substantiate the risk that the convicted person will commit offenses of considerable importance.

(2) The detention served on the basis of a warrant of arrest pursuant to subsection (1) shall be credited against the sentence of imprisonment to be executed. Section 33 subsection (4), first sentence, Sections 114 to 115a, Section 119 shall apply mutatis mutandis.

Section 454. [Suspension of Remainder of Sentence]

(1) The decision whether execution of the remainder of a prison sentence is to be suspended on probation (sections 57 to 58 Penal Code) as well as the decision that prior to expiry of a certain time limit an application by the convicted person to this effect shall be inadmissible, shall be given by the court with no oral hearing, in an order. The public prosecution office, the convicted person and the penal institution shall be heard. The convicted person shall be heard orally. The oral hearing of the convicted person may be dispensed with if:

1. the public prosecution office and the penal institution support suspension of a determinate prison sentence and the court proposes suspension;

2. the convicted person has applied for suspension and at the time of the application has served

a) less than half, or less than two months, of a determinate prison sentence,

b) less than thirteen years of a sentence of life imprisonment

and the court refuses the application because it has been submitted prematurely, or

3. the application by the convicted person is inadmissible (section 57 subsection (6), section 57a subsection (4) Penal Code).

(2) The court shall obtain the opinion of an expert concerning the convicted person if it is considering suspending execution of the remainder of:

1. a sentence of life imprisonment, or

2. a determinate prison sentence of more than two years for a criminal offense of the type referred to in Section 66 subsection (3), first sentence, of the Penal Code and it cannot be ruled out that reasons of public security might preclude the convicted person’s early release.

The opinion shall, in particular, express a view as to whether a risk that the convicted person is still posing the danger apparent from his offense no longer exists. The expert shall be heard orally. The convicted person, his defense counsel, the public prosecution office and the penal institution shall be informed of the date set down for the hearing. They shall not be entitled to request the date of the hearing to be changed on the ground that they are unable to attend. At the hearing they shall be given the opportunity to put questions to the expert and to make statements. The court may dispense with the oral hearing of the expert if the convicted person, his defense counsel and the public prosecution office waive such hearing.

(3) An immediate complaint shall be admissible against the decisions pursuant to subsection (1). A complaint lodged by the public prosecution office against the decision ordering suspension of the remainder of sentence shall have suspensive effect.

(4) In all other cases, the provisions in Section 453, Section 453a subsections (1) and (3) as well as in Sections 453b, 453c and 268a subsection (3) shall apply mutatis mutandis. Instruction on suspension of remainder of sentence shall be given orally; the duty to give such instruction may also be assigned to the penal institution. The instruction should be given immediately prior to release.

Section 454a. [Extension of Probation Period; Revocation of Suspension of Remainder of Sentence]

(1) If the court orders suspension of execution of the remainder of a prison sentence at least three months before the date of release, the probation period shall be extended by the period lasting from entry into force of the decision on suspension until release.

(2) The court may revoke suspension of execution of the remainder of a prison sentence up until the convicted person’s release if, by virtue of new facts or facts that have subsequently come to light, responsibility can no longer be taken for suspension, having due regard to the security interests of the general public; Section 454 subsection (1), first and second sentences, and subsection (3), first sentence, shall apply mutatis mutandis. Section 57 subsection (3), first sentence, in conjunction with section 56f of the Penal Code shall remain unaffected.

Section 454b. [Execution of Prison Sentences and of Default Imprisonment]

(1) Prison sentences and default imprisonment for failure to pay a fine should be executed consecutively.

(2) Where more than one prison sentence, or a prison sentence and default imprisonment for failure to pay a fine are to be executed consecutively, the executing authority shall interrupt execution of the first prison sentence to be executed, if:

1. under the conditions of section 57 subsection (2), number 1, of the Penal Code one half, but at least six months of the sentence,

2. in the case of a determinate prison sentence two-thirds, but at least two months of the sentence, or

3. in the case of a sentence of life imprisonment fifteen years of the sentence

have been served. This shall not apply to a remainder of sentence executed because its suspension has been revoked.

(3) Where the executing authority has interrupted execution pursuant to subsection (2), the court shall give the decisions pursuant to section 57 and section 57a of the Penal Code only if a decision can be given at the same time on suspension of execution of the remainder of all sentences.

Section 455. [Postponement of Execution of a Prison Sentence]

(1) Execution of a prison sentence shall be postponed if the convicted person becomes insane.

(2) The same shall apply with respect to any other illness if imminent risk to the convicted person’s life is to be feared in the case of execution.

(3) Execution may also be postponed if the convicted person is in such a physical condition as would make immediate execution incompatible with the facilities of the penal institution.

(4) The executing authority may interrupt execution of a prison sentence if:

1. the convicted person becomes insane,

2. due to an illness imminent risk to the convicted person’s life is to be feared in the case of execution, or

3. the convicted person falls seriously ill and the illness cannot be diagnosed or treated in a penal institution or in the hospital of such institution,

and if it is to be expected that the illness will presumably continue to exist for a considerable time. Execution shall not be interrupted if overriding reasons, especially reasons of public security, so dictate.

Section 455a. [Postponement or Interruption on Grounds of Institutional Organization]

(1) The executing authority may postpone execution of a prison sentence or a custodial measure of reform and prevention or interrupt it without the prisoner’s agreement if this is necessary on grounds of institutional organization and if overriding reasons of public security do not run counter to this.

(2) If the decision of the executing authority cannot be obtained in time, the director of the institution may provisionally interrupt execution under the conditions referred to in subsection (1) without the prisoner’s agreement.

Section 456. [Temporary Postponement]

(1) Execution may be postponed upon application by the convicted person if immediate execution would cause substantial detriment, unintended by the penalty, to himself or his family.

(2) Postponement of sentence shall not exceed a period of four months.

(3) Approval may be made contingent on the furnishing of security or on other conditions.

Section 456a. [Dispensing With Execution in the Case of Extradition or Expulsion]

(1) The executing authority may dispense with executing a prison sentence, default imprisonment or a measure of reform and prevention if the convicted person is to be extradited to a foreign government for another offense or if he is expelled from the territorial scope of this Federal statute.

(2) Execution may subsequently take place if the extradited or expelled person returns. Section 67c subsection (2) of the Penal Code shall apply mutatis mutandis to subsequent execution of a measure of reform and prevention. On dispensing with execution the executing authority may, at the same time, order subsequent execution in the event of the extradited or expelled person’s return, and it may issue a warrant of arrest or a committal order for such purpose. The convicted person shall be so informed.

Section 456b. Deleted

Section 456c. [Postponement and Suspension of Prohibition of Permit of an Occupation]

(1) When giving judgment, the court may, upon the convicted person’s application or with his agreement, postpone, in an order, entry into force of the prohibition of pursuit of an occupation if immediate entry into force would mean a considerable hardship to the convicted person or his relatives, unintended by the prohibition and avoidable by postponed entry into force. If the convicted person has a statutory representative, the latter’s consent shall be required. Section 462 subsection (3) shall apply mutatis mutandis.

(2) The executing authority may suspend the prohibition of pursuit of an occupation under the same conditions.

(3) Postponement and suspension may made contingent on the furnishing of security or on other conditions. Postponement and suspension shall not exceed a period of six months.

(4) The period of postponement and of suspension shall not be deducted from the period specified for the prohibition of pursuit of an occupation.

Section 457. [Arrest Warrant]

(1) Section 161 shall apply mutatis mutandis for the purposes of this Chapter.

(2) The executing authority shall be authorized to issue an order for the convicted person to be brought before it or a warrant of arrest for execution of a prison sentence if the convicted person, after being summoned to commence his sentence, has not appeared or is suspected of having absconded. It may also issue an order that the convicted person be brought before it or issue a warrant of arrest if a prisoner escapes or otherwise evades serving the sentence.

(3) In the cases of subsection (2) the executing authority shall have the same powers as the law enforcement authority insofar as the measures are intended and appropriate for the purpose of arresting the convicted person. In assessing the proportionality of measures, special consideration shall be given to the length of the prison sentence still to be served. Court decisions that may become necessary shall be given by the court of first instance.

Section 458. [Court Decisions on Execution of Sentence]

(1) A court decision shall be obtained if doubts arise concerning the interpretation of a criminal judgment or the calculation of the sentence imposed, or if objections are raised against the admissibility of executing the sentence.

(2) The court shall also decide, in the cases under Section 454b subsections (1) and (2) and under Sections 455, 456 and 456c subsection (2), on objections raised against the executing authority’s decision or on objections raised against the executing authority’s order that a sentence or a measure of reform and prevention shall subsequently be executed against an extradited or expelled person.

(3) The course of execution shall not be hindered as a result of this; the court may, however, order postponement or suspension of execution. In the cases under Section 456c subsection (2), the court may make a provisional order.

Section 459. [Execution of Fine]

The provisions of the Ordinance on Recovery of Claims of the Judicial Authorities shall apply to the execution of a fine unless otherwise provided under this statute.

Section 459a. [Facilitating for Payment]

(1) After the judgment has entered into force the executing authority shall decide whether to grant relaxation of conditions of payment of a fine (section 42 Penal Code). It may also grant relaxation of conditions of payment if, without such grant, reparation by the convicted person for damage caused as a result of the offense would be considerably jeopardized; the convicted person may be required to furnish proof of reparation.

(2) The executing authority may subsequently amend or revoke a decision concerning relaxation of payment conditions pursuant to subsection (1) or section 42 of the Penal Code. Here it may deviate from a preceding decision to the convicted person’s detriment only on the basis of new facts or evidence.

(3) Where relaxation in the form of payment in specified installments is revoked pursuant to section 42, second sentence, of the Penal Code, this shall be noted in the files. The executing authority may grant relaxation of conditions of payment again.

(4) The decision concerning relaxation of conditions of payment shall also extend to the costs of the proceedings. It may also be given with regard to costs alone.

Section 459b. [Setting off Installments]

Installments shall be first set off against the fine, then against possible incidental consequences requiring payment of money and finally against the costs of the proceedings, unless the convicted person makes other dispositions regarding payment.

Section 459c. [Recovery of Fine]

(1) The fine or part thereof shall be recovered within two weeks after the amount became due only if, on the basis of certain facts, it is apparent that the convicted person wishes to evade payment.

(2) Execution may be disposed with if it is to be expected that it will not lead to any success in the foreseeable future.

(3) The fine may not be executed in respect of the convicted person’s estate.

Section 459d. [No Execution]

(1) The court may order that there shall be no execution of the full fine or of part thereof, if:

1. in the same proceedings a prison sentence has been executed or suspended on probation, or

2. a prison sentence has been imposed in other proceedings and the conditions in section 55 of the Penal Code have not been fulfilled and execution of the fine may make the convicted person’s reintegration more difficult.

(2) The court may give a decision pursuant to subsection (1) also with regard to the costs of the proceedings.

Section 459e. [Execution of Default Imprisonment]

(1) Default imprisonment shall be executed on the basis of an order made by the executing authority.

(2) The execution order shall be contigent on the fine not being recoverable or on execution being dispensed with pursuant to Section 459c subsection (2).

(3) Execution of default imprisonment may not be ordered for part of a fine not corresponding to a full day of imprisonment.

(4) Default imprisonment shall not be executed to the extent that the fine is paid or recovered or execution is dispensed with pursuant to Section 459d. Subsection (3) shall apply mutatis mutandis.

Section 459f. [Dispensing with Execution of Default Imprisonment]

The court shall order that there shall be no execution of default imprisonment, if execution would constitute an undue hardship for the convicted person.

Section 459g. [Execution of Incidental Consequences]

(1) If there is an order for forfeiture, confiscation or the rendering unusable of an object, it shall be executed by taking the object away from the convicted person or from a person with an interest in the forfeiture or confiscation. The provisions of the Ordinance on Recovery of Claims of the Judicial Authorities shall apply to execution.

(2) Sections 459, 459a, 459c subsections (1) and (2) and Section 459d shall apply mutatis mutandis to execution of incidental consequences requiring payment of money.

Section 459h. [Legal Remedy]

The court shall decide on objections against the decisions of the executing authority pursuant to Sections 459a, 459c, 459e and 459g.

Section 459i. [Execution of Property Fine]

(1) Sections 459, 459a, 459b, 459c, 459e, 459f and 459h shall apply mutatis mutandis to execution of a property fine (section 43a Penal Code).

(2) In the cases under Sections 111o and 111p the measure shall only be revoked after conclusion of execution.

Section 460. [Subsequent Aggregate Penalty]

Where a person has been sentenced in different final judgments and the provisions concerning an aggregate sentence (section 55 Penal Code) were not taken into account, the sentences imposed shall be combined into an aggregate sentence in a subsequent court decision. Where several property fines are combined into an aggregate property fine, the latter shall not be lower than the amount of the highest single fine imposed even if that amount exceeds the value of the convicted person’s property at the time of the subsequent court decision.

Section 461. [Credit for Confinement in Hospital]

(1) If, after beginning to serve his sentence, the convicted person was brought to a hospital outside the penal institution on account of illness, the duration of his stay in such hospital shall be included in the time served, unless the convicted person caused the illness with the intention of interrupting execution of sentence.

(2) The public prosecution office shall obtain a decision from the court in the latter case.

Section 462. [Procedure in the Case of Court Decision]

(1) The decisions required pursuant to Section 450a subsection (3), first sentence, and Sections 458 to 461 shall be given in a court order with no an oral hearing. This shall also apply to the restoration of eligibility and rights previously enjoyed (section 45b Penal Code), to revocation of the reservation of confiscation and to the subsequent order of confiscation of an object (section 74b subsection (2), third sentence, Penal Code), to the subsequent order of forfeiture or confiscation of the equivalent sum of money (section 76 Penal Code) as well as to the extension of the limitation period (section 79b Penal Code).

(2) Prior to the decision, the public prosecution office and the convicted person shall be heard. The court may dispense with hearing the convicted person in the case of a decision pursuant to section 79b of the Penal Code, if due to certain facts it is to be assumed that the hearing will not be feasible.

(3) The court order shall be contestable by immediate complaint. An immediate complaint lodged by the public prosecution office against the order imposing interruption of execution shall have suspensive effect.

Section 462a. [Jurisdiction]

(1) Where a prison sentence is executed in respect of a convicted person, the penal chamber responsible for execution of sentences, in whose district the penal institution is located where the convicted person is being held at the time the court is seized of the case, shall be competent to give the decisions pursuant to Sections 453, 454, 454a, and 462. Such penal chamber shall also remain competent for decisions which have to be given after execution of a prison sentence has been interrupted or execution of the remainder of a prison sentence has been suspended on probation. The penal chamber may refer individual decisions pursuant to Section 462 in conjunction with Section 458 subsection (1) to the court of first instance; referral shall be binding.

(2) In cases other than those designated in subsection (1), the court of first instance shall be competent. The court may entirely or partially refer the decisions to be given pursuant to Section 453 to the Local Court in whose district the convicted person has his domicile or, if he has no domicile, his ordinary place of residence; referral shall be binding.

(3) In the cases under Section 460 the court of first instance shall give a decision. If judgments were pronounced by different courts, the decision shall be given by the court which imposed the severest type of penalty or in the case of penalties of the same type, the highest sentence, and if more than one court were then competent, the decision shall be given by the last court to pronounce judgment. If the relevant judgment was pronounced by a court of higher instance, the court of first instance shall determine the aggregate sentence; if one of the judgments was pronounced by a Higher Regional Court at first instance, the Higher Regional Court assesses the aggregate penalty. If a Local Court were competent to determine the aggregate sentence and if its sentencing power does not suffice, the penal chamber of its superior Regional Court shall give a decision.

(4) If different courts imposed a final sentence on the convicted person in cases other than those designated in Section 460 or if they gave him a warning with sentence reserved, only one such court shall be competent for the decisions to be given pursuant to Sections 453, 454, 454a and 462. Subsection (3), second and third sentences, shall apply mutatis mutandis. In cases under subsection (1) the penal chamber responsible for execution of sentences shall give a decision; subsection (1), third sentence, shall remain unaffected.

(5) In lieu of the penal chamber responsible for execution of sentences the court of first instance shall give a decision if the judgment was pronounced by a Higher Regional Court at first instance. The Higher Regional Court may entirely or partially refer the decision to be given pursuant to subsections (1) and (3) to the penal chamber responsible for execution of sentences. Referral shall be binding; it may, however, be revoked by the Higher Regional Court.

(6) The court of first instance in the cases under Section 354 subsection (2) and Section 355 shall be the court to which the case has been referred back, and in the cases in which a decision was given in reopened proceedings pursuant to Section 373, the court which gave that decision.

Section 463. [Execution of Measures of Reform and Prevention]

(1) The provisions on execution of sentence shall be applicable to the execution of measures of reform and prevention mutatis mutandis unless otherwise provided.

(2) Section 453 shall also be applicable to decisions to be given pursuant to Section 68a to 68d of the Penal Code.

(3) Section 454 subsections (1), (3) and (4) shall also be applicable to decisions to be given pursuant to section 67c subsection (1), section 67d subsections (2) and (3), section 67e subsection (3), section 68e, section 68f subsection (2) and section 72 subsection (3) of the Penal Code. In the cases under section 68e of the Penal Code there shall be no need for an oral hearing of the convicted person. Irrespective of the criminal offenses referred to therein, Section 454 subsection (2) shall be applicable mutatis mutandis in the cases referred to in section 67d subsections (2) and (3), section 67c subsection (1) and section 72 subsection (3) of the Penal Code. In preparing the decision pursuant to section 67d subsection (3) of the Penal Code and the subsequent decisions pursuant to section 67d subsection (2) of the Penal Code the court shall obtain an opinion from an expert focusing in particular on the question of whether it is to be expected that the convicted person will continue, given his inclinations, to commit serious unlawful acts. If the convicted person has no defense counsel, such counsel shall be appointed by the court for the proceedings pursuant to the preceding sentence.

(4) Section 455 subsection (1) shall not be applicable if committal to a psychiatric hospital has been ordered. If committal to an institution for withdrawal treatment or preventive detention has been ordered and if the convicted person becomes insane, execution of the measure may be postponed. Section 456 shall not be applicable if an order has been made committing the convicted person to preventive detention.

(5) Section 462 shall also be applicable to decisions to be given pursuant to section 67 subsection (3) and subsection (5), second sentence, sections 67a and 67c subsection (2), section 67d subsection (5), sections 67g and 69a subsection (7) and sections 70a and 70b of the Penal Code.

(6) Supervision of conduct in the cases under section 67c subsection (1), section 67d subsections (2) and (4) and section 68f of the Penal Code shall be equivalent to the suspension of the remainder of a sentence for the purposes of the application of Section 462a subsection (1).

Section 463a. [Powers and Jurisdiction of the Supervisory Agencies]

(1) The supervisory agencies (section 68a Penal Code) may request information from all public authorities for the supervision of the convicted person’s conduct and of his compliance with instructions and may make investigations of any kind, excluding examinations under oath, or have them made by other agencies within the framework of their competence.

(2) The supervisory agency may order, for the duration of supervision or for a shorter period, that the convicted person be identified for the purpose of observation during police checks where personal particulars may be verified. Section 163e subsection (2) shall apply mutatis mutandis. The order shall be made by the head of the supervisory agency. The need for continuation of the measure shall be reviewed at least once a year.

(3) The supervisory agency in whose district the convicted person has his domicile shall have local jurisdiction. If the convicted person has no domicile within the territorial scope of this statute, local jurisdiction shall lie with the supervisory agency in whose district he has his ordinary place of residence or, if this is not known, had his last domicile or ordinary place of residence.

Section 463b. [Seizure of Driver’s License]

(1) If a driver’s license has to be officially impounded pursuant to Section 44 subsection (2), second and third sentences, of the Penal Code, and if it is not voluntarily surrendered it shall be seized.

(2) Foreign driver’s licenses may be seized so that the driving ban, or the withdrawal of permission to drive and the bar, can be endorsed thereon (section 44 subsection (2), fourth sentence, section 69b subsection (2) Penal Code).

(3) Where the convicted person does not have his driver’s license with him, he shall, upon application of the executing authority, make an affirmation in lieu of an oath to the Local Court regarding its whereabouts. Section 883 subsections (2) to (4), section 899, section 900 subsections (1) and (4), and Sections 901, 902, and 904 to 910 and 913 of the Civil Procedure Code shall apply mutatis mutandis.

Section 463c. [Public Announcement]

(1) Where there is an order for public announcement of the conviction and sentence the decision shall be served on the person entitled.

(2) The order pursuant to subsection (1) shall be executed only if the applicant or a person entitled to file an application in his place so requests within one month after service of the final decision.

(3) If the publisher or responsible editor of a periodical publication fails to comply with his obligation to include such an announcement in his publication, the court shall, upon application by the executing authority, induce him to do so by imposing a coercive fine not exceeding fifty thousand Deutsche Mark or imposing coercive detention not exceeding six weeks. A coercive fine may be imposed more than once. Section 462 shall apply mutatis mutandis.

(4) Subsection (3) shall apply mutatis mutandis to public announcement by broadcasting if the person responsible for the program fails to comply with his obligation.

Section 463d. [Court Assistance Agency]

To prepare the decisions to be given pursuant to Sections 453 to 461 the court or the executing authority may avail itself of the services of the court assistance agency; this shall apply in particular before a decision is given on revocation of suspension of sentence or of suspension of the remainder of a sentence, unless a probation officer has been appointed.

Chapter II Costs of the Proceedings

Section 464. [Decision on Costs]

(1) Every judgment, every penal order and every decision terminating an investigation must indicate the person who is to bear the costs of the proceedings.

(2) The decision as to who shall bear the necessary expenses shall be made by the court in the judgment or in the order concluding the proceedings.

(3) An immediate complaint shall be admissible against the decision regarding costs and necessary expenses; it shall not be admissible if the main decision referred to in subsection (1) cannot be contested by the complainant. The court hearing the complaint shall be bound by the findings of fact on which the decision is based. If an immediate complaint, in addition to an appeal on fact and law, or an appeal on law, is lodged against the judgment as far as it relates to the decision on costs and necessary expenses, the appellate court, while seized of the appeal on fact and law or the appeal on law, shall also be competent to give the decision on the immediate complaint.

Section 464a. [Definition of Costs]

(1) Costs of the proceedings shall include fees and Treasury expenditure. They shall also include the costs arising for the preparation of public charges as well as the costs of executing a legal consequence of the offense. The costs of an application to reopen proceedings concluded by final judgment shall also include the costs arising for the preparation of the proceedings to be reopened (Section 364a and 364b) so as far as they are caused by an application by the convicted person.

(2) Necessary expenses of a participant shall also include:

1. compensation for inevitable loss of time pursuant to the provisions applying to the compensation of witnesses, and

2. fees and expenses of an attorney-at-law so far as they are to be reimbursed pursuant to section 91 subsection (2) of the Civil Procedure Code.

Section 464b. [Assessment of Costs]

The amount of the costs and expenses for which one participant must reimburse another participant shall, upon application by a participant, be assessed by the court of first instance. Upon application the court shall declare that 4% interest shall be paid on the assessed costs and expenses from the time the application for assessment was made. The provisions of the Civil Procedure Code shall apply mutatis mutandis to the proceedings and to execution of the decision.

Section 464c. [Costs of Interpreters]

Where an interpreter or translator has been called in for an indicted accused who does not speak German or who is deaf or dumb, the expenditure incurred thereby shall be charged to the indicted accused insofar as he has unnecessarily given rise to such expenditure by culpable omission or culpably in some other way; this shall be stated expressly except in the case of Section 467 subsection (2).

Section 464d. [Distribution of Expenses]

Treasury expenditure and necessary expenses of the participants may be apportioned in percentages.

Section 465. [Duty of Convicted Person to Pay Costs]

(1) The defendant shall bear the costs of the proceedings insofar as they were caused by the trial for an offense of which he has been convicted or for which a measure of reform and prevention has been ordered. A conviction for the purposes of this provision shall also be deemed to have been pronounced where the defendant has been warned with sentence reserved or where the court has dispensed with punishment.

(2) If particular expenses have been caused by investigations conducted to clear up certain incriminating or exonerating circumstances and if the outcome of such investigations was in the defendant’s favor, the court shall charge the expenses in part or in full to the Treasury if it would be inequitable to charge them to the defendant. This shall apply in particular where the defendant is not convicted for individual serverable parts of an offense or is not convicted of one or more of a number of violations of the law. The preceding sentences shall apply mutatis mutandis to the defendant’s necessary expenses.

(3) If a convicted person dies before the judgment enters into force his estate shall not be liable for the costs.

Section 466. [Liability of Co-Offenders]

Co-defendants who have been sentenced or in respect of whom a measure of reform and prevention has been ordered for the same offense shall be jointly and severally liable for the expenses. This rule shall not apply to the costs caused by the services of appointed defense counsel or of an interpreter and to the costs for execution, provisional committal or remand detention as well as to expenses which were caused by investigations directed exclusively against a co-defendant.

Section 467. [Costs on Acquittal]

(1) If the indicted accused is acquitted or if the opening of the main proceedings against him is refused or if the proceedings against him are terminated, Treasury expenditure and the indicted accused’s necessary expenses shall be borne by the Treasury.

(2) The costs of the proceedings caused by the indicted accused’s culpable default shall be borne by him. To that extent, the expenses he has caused shall not be charged to the Treasury.

(3) The indicted accused’s necessary expenses shall not be charged to the Treasury if the indicted accused caused the preferring of public charges by filing a criminal information in which he pretended to have committed the offense he was charged with. The court may dispense with charging the indicted accused’s necessary expenses to the Treasury if:

1. he caused the preferring of public charges by falsely incriminating himself with regard to material points or in contraction to his later statement or by concealing material exonerating circumstances despite having made a statement in response to the accusation, or

2. he is not sentenced for a criminal offense only because there is a procedural impediment.

(4) If the court terminates the proceedings pursuant to a provision permitting this at the court’s discretion, it may dispense with charging the indicted accused’s necessary expenses to the Treasury.

(5) The indicted accused’s necessary expenses shall not be charged to the Treasury if the proceedings are terminated with final effect after previous provisional termination (Section 153a).

Section 467a. [Withdrawal of Charges or Termination by the Public Prosecution Office]

(1) If the public prosecution office withdraws the public charges and terminates the proceedings, the court where the public charges have been preferred shall charge to the Treasury the necessary expenses incurred by the indicted accused upon application by the public prosecution office or by the indicted accused. Section 467 subsections (2) to (5) shall apply mutatis mutandis.

(2) In the cases under subsection (1), first sentence, the court may charge the necessary expenses incurred by a person involved (Section 431 subsection (1), first sentence, Section 442, Section 444 subsection (1), first sentence) to the Treasury or to another participant upon application by the public prosecution office or by the person involved.

(3) The decision pursuant to subsections (1) and (2) shall be incontestable.

Section 468. [Defendants Not Liable to Punishment]

In the cases of mutual insults or bodily injury, charging the costs to one or both defendants shall not be precluded by one or both of them being declared not liable to punishment.

Section 469. [Costs Charged to Person Laying Criminal Information]

(1) If proceedings, even if conducted out of court, were caused by an untrue criminal information laid intentionally or recklessly, the court shall, after hearing the person who laid the criminal information, charge to such person the costs of the proceedings and the accused’s necessary expenses. The court may charge the necessary expenses of a person involved (Section 431 subsection (1), first sentence, Section 442, Section 444 subsection (1), first sentence) to the person who laid the criminal information.

(2) If no court has been seized of the case yet, the decision shall, upon application by the public prosecution office, be given by the court which would have been competent for opening the main proceedings.

(3) The decision pursuant to subsections (1) and (2) shall be incontestable.

Section 470. [Costs on Withdrawal of Application for Prosecution]

If the proceedings are terminated due to the withdrawal of the application upon which they were contingent, the applicant shall bear the costs as well as the necessary expenses of the accused and of a person involved (Section 431 subsection (1), first sentence, Section 442, Section 444 subsection (1), first sentence). They may be charged to the defendant or to a person involved as far as he declares himself willing to pay such costs, or to the Treasury if it would be inequitable to charge these costs to the participants.

Section 471. [Costs of Private Prosecution]

(1) The convicted person in proceedings conducted by private prosecution shall reimburse the private prosecutor for necessary expenses incurred.

(2) If the charges against the accused are dismissed or if the accused is acquitted or the proceedings terminated, the costs of the proceedings and the accused’s necessary expenses shall be charged to the private prosecutor.

(3) The court may appropriately apportion the costs of the proceedings and the participants’ necessary expenses or, in the exercise of its duty-bound discretion, charge such costs to one of the participants if:

1. the court only partly granted the private prosecutor’s applications,

2. it terminated the proceedings pursuing to Section 383 subsection (2) (Section 390 subsection (5)) on account of negligibility, or

3. countercharges were preferred.

(4) Several private prosecutors shall be jointly and severally liable. The same shall apply in respect of the liability of several accused for the private prosecutor’s necessary expenses.

Section 472. [Costs of Private Accessory Prosecution]

(1) The private accessory prosecutor’s necessary expenses shall be charged to the defendant if he is sentenced for an offense affecting the private accessory prosecutor. This may be wholly or partly dispensed with if it would be inequitable to charge these expenses to the defendant.

(2) If the court terminates the proceedings pursuant to a provision permitting this at the court’s discretion, it may wholly or partly charge the necessary expenses referred to in subsection (1) to the indicted accused as far as this is equitable for special reasons. If the court finally terminates the proceedings after a previous provisional termination (Section 153a) subsection (1) shall apply mutatis mutandis.

(3) Subsections (1) and (2) shall apply mutatis mutandis to the necessary expenses which have arisen for a person entitled to join proceedings as a private accessory prosecutor in exercising his rights pursuant to Section 406g. The same shall apply to a private prosecutor’s necessary expenses if the public prosecution office has taken over prosecution pursuant to Section 377 subsection (2).

(4) Section 471 subsection (4), second sentence, shall apply mutatis mutandis.

Section 472a. [Aggrieved Person’s Expenses]

(1) Where an application for awarding a claim arising from the criminal offense is granted, the defendant shall also bear the special costs incurred thereby and the aggrieved person’s necessary expenses.

(2) Where the court dispenses with a decision on the application or where part of the aggrieved person’s claim is not awarded or where the aggrieved person withdraws his application, the court shall give a decision in the exercise of its duty-bound discretion as to who is to bear the relevant court expenditure and the relevant necessary expenses of the participants. Court expenditure may be charged to the Treasury if it would be inequitable to charge such expenditure to the participants.

Section 472b. [Costs of Other Persons Involved]

(1) Where there is an order for forfeiture, confiscation, reservation of confiscation, destruction, rendering unusable or eliminating of a situation that is illegal, the special costs arising from involvement of another person may be charged to such person. That person’s necessary expenses may, if this is equitable, be charged to the defendant, and in independent proceedings, also to another person involved.

(2) Where a regulatory fine is imposed on a legal person or an association, the latter shall bear the costs of the proceedings pursuant to Sections 465 and 466.

(3) Where an order for one of the incidental consequences pursuant to subsection (1), first sentence, or imposition of a regulatory fine on a legal person or an association is dispensed with, the necessary expenses of other persons involved may be charged to the Treasury or to another participant.

Section 473. [Unsuccessful Appellate Remedy]

(1) The costs of an appellate remedy which has been withdrawn or which proved to be unsuccessful shall be borne by the person who filed such appellate remedy. If the appellate remedy filed by the accused has proved to be unsuccessful or has been withdrawn, the necessary expenses incurred by the private accessory prosecutor or the person entitled to join the proceedings as a private accessory prosecutor in exercising his rights pursuant to Section 406g shall be charged to that person. If, in the case of the first sentence, the private accessory prosecutor has filed or pursued the appellate remedy alone, the accused’s necessary expenses shall be charged to him.

(2) If, in the case of subsection (1), the public prosecution office files the appellate remedy to the detriment of the accused or of a person involved (Section 431 subsection (1), first sentence, Section 442, Section 444 subsection (1), first sentence), his necessary expenses shall be charged to the Treasury. The same shall apply if the appellate remedy filed by the public prosecution office for the benefit of the accused or of a person involved proves to be successful.

(3) If the accused or any other participant limited the appellate remedy to certain points of complaint and if such appellate remedy is successful, the participant’s necessary expenses shall be charged to the Treasury.

(4) If the appellate remedy is partly successful, the court shall reduce the fees and charge the costs wholly or partly to the Treasury if it would be inequitable to charge such costs to the participants. This shall apply mutatis mutandis to the participants’ necessary expenses.

(5) An appellate remedy shall be deemed unsuccessful if an order pursuant to section 69 subsection (1) or section 69b subsection (1) of the Penal Code is not upheld solely because its preconditions are no longer fulfilled on account of the duration of a provisional withdrawal of permission to drive (Section 111a subsection (1)) or of a measure to impound, secure, or seize the driver’s license (section 69a subsection (6) Penal Code).

(6) Subsections (1) to (4) shall apply mutatis mutandis to the costs and necessary expenses caused by an application:

1. to reopen the proceedings concluded by final judgment, or

2. for subsequent proceedings (Section 439).

(7) The costs for restoration of the status quo ante shall be borne by the applicant unless they were caused by an unfounded objection by the opponent.


Part Eight National Register of Proceedings Conducted by the Public Procesucion Offices

Section 474. [Content and Maintenance of the Register]

(1) A central register of proceedings conducted by the public prosecution offices shall be maintained at the Federal Central Criminal Registry.

(2) The following shall be entered in the register:

1. the accused’s personal data and, where necessary, other distinguishing characteristics,

2. the competent agency and the file reference number,

3. the time(s) of commission of the offense(s),

4. the charges including reference to the statutory provisions and detailed specification of the criminal offenses,

5. the initiation of the proceedings as well as the outcome of proceedings dealt with at the public prosecution office and in court, including reference to the statutory provisions.

The data may be stored and modified only in respect of criminal proceedings.

(3) The public prosecution office shall communicate the registrable data to the Registry for the purpose referred to in subsection (2), second sentence. Information from the register of proceedings shall only be given to the law enforcement authorities for the purposes of criminal proceedings.

(4) Upon request, the data referred to in subsection (2), first sentence, numbers 1 and 2, may -in accordance with section 18 subsection (3) of the Federal Act on Protection of the Constitution, also in conjunction with section 10 subsection (2) of the Act on the Armed Forces Counterintelligence Service and section 8 subsection (3) of the Federal Intelligence Service Act – also be transmitted to the Federal and Land authorities for the protection of the constitution, to the Federal Armed Forces Counterintelligence Office and the Federal Intelligence Service. Section 18 subsection (5), second sentence, of the Federal Act on Protection of the Constitution shall apply mutatis mutandis.

(5) Responsibility for the admissibility of transmission shall lie with the recipient. The Registry shall examine the admissibility of transmission only if there is a special reason for doing so.

(6) Without prejudice to subsection (4), the data may be used only in criminal proceedings.

Section 475. [Automated Procedure]

(1) The establishment of an automated procedure enabling transmission of personal data by retrieval shall be admissible for transmissions to public prosecution offices pursuant to Section 474 subsection (3), second sentence, provided that this form of data transmission is appropriate, having due regard to affected persons’ interests meriting protection, given the large number of transmissions or their special urgency, and if it is ensured that the data can effectively be protected against unauthorized access by third persons during transmission.

(2) Section 10 subsection (2) of the Federal Data Protection Act shall apply regarding the specifications for setting up the automated retrieval procedure. The Registry shall transmit the specifications to the Federal Commissioner for Data Protection.

(3) Responsibility for the admissibility of each automated retrieval shall lie with the recipient. The Registry shall examine the admissibility of retrievals only where there is cause for doing so. For every tenth retrieval a record shall be made of at least the time, the data retrieved, the retrieving agency’s code and the recipient’s file reference. The data recorded may be used only to monitor admissibility of the retrievals and are to be erased after six months.

(4) Section 474 subsection (6) shall not apply.

Section 476. [Correction; Erasure]

(1) If incorrect, the data shall be corrected. The competent agency shall inform the Registry without delay of inaccuracies; it shall bear responsibility for data being correct and up-to-date.

(2) The data shall be erased:

1. if their storage is inadmissible, or

2. as soon as it is evident from the Federal Central Criminal Register that a court decision or directive of the law enforcement authority which is notifiable pursuant to section 20 of the Federal Central Criminal Register Act has been given in the criminal proceedings from which the data were transmitted.

If the accused is finally acquitted or if the opening of main proceedings against him has been refused with incontestable effect or if the proceedings have not been only provisionally terminated, the data shall be erased two years after the proceedings were concluded, unless there is notification of further registrable proceedings before the time limit for erasure begins to run. In this event the data shall remain stored until the erasure requirements have been fulfilled in respect of all entries. The public prosecution office shall inform the Registry without delay of the fulfillment of the erasure requirements or of the beginning of the time limit for erasure pursuant to the second sentence above.

(3) Instead of erasure data shall be blocked if:

1. there are grounds for believing that detriment would be caused to an affected person’s
interest meriting protection,

2. the data are needed for on-going research, or

3. given the special storage method, erasure would not be possible, or only with
disproportionate effort.

Personal data shall also be blocked insofar as they are stored only for the purposes of securing or monitoring data protection. Blocked data may be used only for the purpose for which they were blocked or insofar as their use is indispensable for remedying an existing lack of evidence.

(4) Where the Registry establishes that personal data have been transmitted which are incorrect or are to be erased or blocked, the recipient is to be informed of the correction, erasure or block, if such action is necessary to safeguard the affected person’s interests meriting protection.

(5) Further details, in particular:

1. the type of data to be processed,

2. the supply of the data to be processed,

3. the conditions under which data processed in the file will be transmitted to recipients who are to be determined by a procedure to be determined as well,

4. the establishment of an automated retrieval procedure,

5. the technical and organizational measures required pursuant to section 9 of the Federal Data Protection Act,

shall be determined by the Federal Ministry of Justice, with the approval of the Federal Council, and set out in an order establishing the register.

Section 477. [Information]

The Registry, in agreement with the public prosecution office which notified the data for entry in the register, shall decide on whether information from the register of proceedings pursuant to section 19 of the Federal Data Protection Act can be provided.

The above translation was published by the Federal Ministry of Justice. Reproduced with kind permission. This HTML edition by Lawrence Schäfer and © 2001 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.

Criminal Code (Strafgesetzbuch, StGB)

As promulgated on 13 November 1998 (Federal Law Gazette I, p. 945, p. 3322).

Translation provided by the Federal Ministry of Justice and reproduced with kind permission.


Table of Contents 

General Part 

Chapter One The Criminal Law

Title One Area of Applicability

Section 1 No Punishment Without a Law
Section 2 Temporal Applicability
Section 3 Applicability to Domestic Acts
Section 4 Applicability to Acts on German Ships and Aircraft
Section 5 Acts Abroad Against Domestic Legal Interests
Section 6 Acts Abroad Against Internationally Protected Legal Interests
Section 7 Applicability to Acts Abroad in Other Cases
Section 8 Time of the Act
Section 9 Place of the Act
Section 10 Special Provisions for Juveniles and Young Adults

Title Two Terminology

Section 11 Terms Relating to Persons and Subject Matter
Section 12 Serious Criminal Offenses and Less Serious Criminal Offenses

Chapter Two The Act

Title One Bases of Punishability

Section 13 Commission by Omission
Section 14 Acting for Another
Section 15 Intentional and Negligent Conduct
Section 16 Mistake about Circumstances of the Act
Section 17 Mistake of Law
Section 18 More Serious Punishment Due to Particular Results of the Act
Section 19 A Child’s Lack of Capacity to be Adjudged Guilty
Section 20 Lack of Capacity to be Adjudged Guilty due to Emotional Disorders
Section 21 Diminished Capacity to be Adjudged Guilty

Title Two Attempt

Section 22 Definition of Terms
Section 23 Punishability for an Attempt
Section 24 Abandonment

Title Three Perpetration And Incitement Or Accessoryship

Section 25 Perpetration
Section 26 Incitement
Section 27 Accessoryship
Section 28 Special Personal Characteristics
Section 29 Independent Punishability of the Participant
Section 30 Attempted Participation
Section 31 Abandonment of Attempted Participation

Title Four Necessary Defense And Necessity

Section 32 Necessary Defense
Section 33 Excessive Necessary Defense
Section 34 Necessity as Justification
Section 35 Necessity as Excuse

Title Five Immunity For Parliamentary Utterances And Reports

Section 36 Parliamentary Utterances
Section 37 Parliamentary Reports

Chapter Three Legal Consequences of The Act

Title One Punishments

Imprisonment

Section 38 Length of Imprisonment
Section 39 Determination of Terms of Imprisonment

Fine

Section 40 Imposition in Daily Rates
Section 41 Fine Collateral to Imprisonment
Section 42 Facilitation of Payment
Section 43 Default Imprisonment

Property Fine

Section 43a Imposition of Property Fine

Collateral Punishment

Section 44 Driving Ban

Collateral Consequences

Section 45 Loss of the Capacity to Hold, or be Elected to Public Office and the Right to Vote
Section 45a Entry into Force and Calculation of the Period of Loss
Section 45b Restoration of Capacities and Rights

Title Two Determination of Punishment

Section 46 Principles for Determining Punishment
Section 46a Mediation Between the Perpetrator and the Victim, Restitution for Harm Caused
Section 47 Short Terms of Imprisonment only in Exceptional Cases
Section 48 (Repealed)
Section 49 Special Statutory Mitigating Circumstances
Section 50 Concurrence of Mitigating Circumstances
Section 51 Crediting

Title Three Determining Punishment For More Than One Violation of The Law

Section 52 Act Constituting More than One Violation
Section 53 Commission of More than One Violation
Section 54 Formation of the Aggregate Punishment
Section 55 Subsequent Formation of the Aggregate Punishment

Title Four Suspended Execution of Punishment And Probation

Section 56 Suspended Execution of Punishment
Section 56a Term of Probation
Section 56b Conditions
Section 56c Instructions
Section 56d Probation Assistance
Section 56e Subsequent Decisions
Section 56f Revocation of Suspended Execution of Punishment
Section 56g Remission of Punishment
Section 57 Suspension of the Remainder of a Fixed Term of Imprisonment
Section 57a Suspension of the Remainder of a Punishment of Imprisonment for Life
Section 57b Suspension of the Remainder of a Punishment of Imprisonment for Life as an Aggregate Punishment
Section 58 Aggregate Punishment and Suspended Execution of Punishment

Title Five Warning With Punishment Reserved; Dispensing With Punishment

Section 59 Prerequisites for Warning with Punishment Reserved
Section 59a Term of Probation, Conditions and Instructions
Section 59b Imposition of Reserved Punishment
Section 59c Aggregate Punishment and Warning with Punishment Reserved
Section 60 Dispensing with Punishment

Title Six Measures of Reform And Prevention

Section 61 Summary
Section 62 Principle of Proportionality Measures Involving Deprivation of Liberty
Section 63 Placement in a Psychiatric Hospital
Section 64 Placement in an Institution for Withdrawal Treatment
Section 65 (repealed)
Section 66 Placement in Preventive Detention
Section 67 Sequence of Execution
Section 67a Transfer for the Purpose of Executing Another Measure
Section 67b Suspension Simultaneous with the Order
Section 67c Delayed Commencement of the Placement
Section 67d Length of Placement
Section 67e Review
Section 67f Multiple Orders of a Measure
Section 67g Revocation of Suspension

Supervision of Conduct

Section 68 Prerequisites for Supervision of Conduct
Section 68a Supervisory Agency, Probation Officer
Section 68b Instructions
Section 68c Length of Supervision of Conduct
Section 68d Subsequent Decisions
Section 68e Termination of Supervision of Conduct
Section 68f Supervision of Conduct without Suspension of the Remainder of Punishment
Section 68g Supervision of Conduct, Suspension of Sentence and Probation

Withdrawal of Permission to Drive

Section 69 Withdrawal of Permission to Drive
Section 69a Bar to Granting Permission to Drive
Section 69b Effect of Withdrawal on Foreign Permission to Drive
Section 70 Order of Prohibition of Engagement in a Profession
Section 70a Suspension of the Prohibition of Engagement in a Profession
Section 70b Revocation of the Suspension and Termination of the Prohibition of Engagement in a Profession

Common Provisions

Section 71 Independent Orders
Section 72 Combination of Measures

Title Seven Forfeiture And Confiscation

Section 73 Prerequisites for Forfeiture
Section 73a Forfeiture of the Replacement Value
Section 73b Estimation
Section 73c Hardship Provision
Section 73d Extended Forfeiture
Section 73e Effect of Forfeiture
Section 74 Prerequisites for Confiscation
Section 74a Extended Prerequisites for Confiscation
Section 74b Principle of Proportionality
Section 74c Confiscation of Replacement Value
Section 74d Confiscation of Writings and Rendering Unusable
Section 74e Effect of Confiscation
Section 74f Compensation
Section 75 Special Provision for Entities and Representatives

Common Provisions

Section 76 Subsequent Order of Forfeiture or Confiscation of Replacement Value
Section 76a Independent Orders

Chapter Four Criminal Complaint, Authorization, Request For Prosecution

Section 77 Persons Entitled to File a Complaint
Section 77a Complaint by a Superior in the Public Service
Section 77b Period for Filing a Complaint
Section 77c Acts Committed Reciprocally
Section 77d Withdrawal of the Complaint
Section 77e Authorization and Request for Prosecution

Chapter Five Statutes of Limitations Title One Statute of Limitations For Prosecution

Title One Statute of Limitations for Prosecution

Section 78 Period of Limitation
Section 78a Commencement
Section 78b Tolling
Section 78c Interruption

Title Two Statute of Limitations For Execution

Section 79 Period of Limitation
Section 79a Tolling
Section 79b Extension


Special Part

Chapter One Crimes against Peace, High Treason and Endangering the Democatic Rule of Law

Title One Crimes Against Peace

Section 80 Preparation of a War of Aggression
Section 80a Incitement to a War of Aggression

Title Two High Treason

Section 81 High Treason Against the Federation
Section 82 High Treason Against a Land
Section 83 Preparation of a High Treasonous Undertaking
Section 83a Active Remorse

Title Three Endangering The Democratic Rule of Law

Section 84 Continuation of a Party Which Has Been Declared to be Unconstitutional
Section 85 Violation of a Ban of an Organization
Section 86 Dissemination of Means of Propaganda of Unconstitutional Organizations
Section 86a Use of Symbols of Unconstitutional Organizations
Section 87 Activity as an Agent for the Purpose of Sabotage
Section 88 Anti-Constitutional Sabotage
Section 89 Anti-Constitutional Influence on the Federal Armed Forces and Public Security Organs
Section 90 Disparagement of the Federal President
Section 90a Disparagement of the State and its Symbols
Section 90b Anti-Constitutional Disparagement of Constitutional Organs
Section 91 Area of Application

Title Four Common Provisions

Section 92 Definition of Terms
Section 92a Collateral Consequences
Section 92b Confiscation

Chapter Two Treason And Endangering External Security

Section 93 Definition of State Secret
Section 94 Treason
Section 95 Disclosure of State Secrets
Section 96 Treasonous Espionage; Gathering Information About State Secrets
Section 97 Revelation of State Secrets
Section 97a Betrayal of Illegal Secrets
Section 97b Mistaken Assumption of Betrayal of an Illegal Secret
Section 98 Treasonous Activity as an Agent
Section 99 Activity as an Agent for an Intelligence Service
Section 100 Peace-endangering Relationships
Section 100a Treasonous Falsification
Section 101 Collateral Consequences
Section 101a Confiscation

Chapter Three Crimes Against Foreign States

Section 102 Assault Against Organs and Representatives of Foreign States
Section 103 Insult to Organs and Representatives of Foreign States
Section 104 Injury to Flags or National Emblems of Foreign States
Section 104a Prerequisites for Criminal Prosecution

Chapter Four Crimes Against Constitutional Organs As Well As During Elections And Ballots

Section 105 Coercion of Constitutional Organs
Section 106 Coercion of the Federal President and Members of Constitutional Organs
Section 106a Violation of a Protected Zone
Section 106b Disturbing the Activity of a Legislative Body
Section 107 Obstruction of an Election
Section 107a Election Fraud
Section 107b Falsification of Election Papers
Section 107c Violation of the Secrecy of Elections
Section 108 Coercion of Voters
Section 108a Deception of Voters
Section 108b Bribery of Voters
Section 108c Collateral Consequences
Section 108d Area of Application
Section 108e Bribery of Members of Parliament

Chapter Five Crimes Against The National Defense

Section 109 Evasion of Military Service through Maiming
Section 109a Evasion of Military Service through Deception
Sections 109b and 109c (repealed)
Section 109d Disruptive Propaganda against the Federal Armed Forces
Section 109e Acts of Sabotage against Means of Defense
Section 109f Security-Endangering Intelligence Activities
Section 109g Security-Endangering Illustrations
Section 109h Recruiting for Foreign Military Service
Section 109i Collateral Consequences
Section 109k Confiscation

Chapter Six Resistance to State Authority

Section 110 (repealed)
Section 111 Public Incitement to Crime
Section 112 (repealed)
Section 113 Resistance to Law Enforcement Officials
Section 114 Resistance to Persons Equivalent to Law Enforcement Officials
Sections 115 to 119 (repealed)
Section 120 Freeing of Prisoners
Section 121 Mutiny by Prisoners
Section 122 (repealed)

Chapter Seven Crimes Against Public Order

Section 123 Breach of the Peace of the Home
Section 124 Serious Breach of the Peace of the Home
Section 125 Breach of the Peace
Section 125a Especially Serious Case of Breach of the Peace
Section 126 Disturbance of the Public Peace by Threatening to Commit Crimes
Section 127 Formation of Armed Groups
Section 128 (repealed)
Section 129 Formation of Criminal Organizations
Section 129a Formation of Terrorist Organizations
Section 130 Agitation of the People
Section 130a Instructions for Crimes
Section 131 Representation of Violence
Section 132 Usurpation of Office
Section 132a Misuse of Titles, Professional Designations and Insignia
Section 133 Breach of Official Custody
Section 134 Tampering with Official Announcements
Section 135 (repealed)
Section 136 Breach of Attachment; Breach of Seals
Section 137 (repealed)
Section 138 Failure to Report Planned Crimes
Section 139 Exemption from Punishment for Failure to Report Planned Crimes
Section 140 Rewarding and Approving Crimes
Section 141 (repealed)
Section 142 Unauthorized Leaving of the Scene of an Accident
Sections 143 and 144 (repealed)
Section 145 Misuse of Emergency Calls and Impairment of Means for Emergency
Section 145a Violation of Instructions during Supervision of Conduct
Section 145b (repealed)
Section 145c Violation of a Prohibition of Engagement in a Profession
Section 145d Feigning a Crime

Chapter Eight Counterfeiting of Money and Stamps

Section 146 Counterfeiting of Money
Section 147 Bringing Counterfeit Money into Circulation
Section 148 Counterfeiting of Stamps
Section 149 Preparation of the Counterfeiting of Money and Stamps
Section 150 Property Fine, Extended Forfeiture and Confiscation
Section 151 Securities
Section 152 Money, Stamps and Securities of a Foreign Currency Area
Section 152a Counterfeiting of Eurocheck Guarantee Cards and Blank Checks

Chapter Nine False Unsworn Testimony And Perjury

Section 153 False Unsworn Testimony
Section 154 Perjury
Section 155 Affirmations Equivalent to an Oath
Section 156 False Affirmations in Lieu of an Oath
Section 157 Testimonial Necessity
Section 158 Rectification of a False Statement
Section 159 Attempted Incitement of False Testimony
Section 160 Subornation of False Testimony
Section 161 and 162 (repealed)
Section 163 Negligent False Oath; Negligent False Affirmation in Lieu of an Oath

Chapter Ten Casting False Suspicion

Section 164 Casting False Suspicion
Section 165 Publication of the Conviction

Chapter Eleven Crimes Which Relate to Religion And Philosophy of Life

Section 166 Insulting of Faiths, Religious Societies and Organizations Dedicated to a Philosophy of Life
Section 167 Disturbing the Practice of Religion
Section 167a Disturbing a Funeral Service
Section 168 Disturbing the Peace of the Dead

Chapter Twelve Crimes Against Personal Status, Marriage And The Family

Section 169 Falsification of Personal Status
Section 170 Violation of Maintenance Obligations
Section 171 Violation of the Duty to Provide Care or Upbringing
Section 172 Bigamy
Section 173 Sexual Intercourse between Relatives

Chapter Thirteen Crimes Against Sexual Self-determination

Section 174 Sexual Abuse of Wards
Section 174a Sexual Abuse of Prisoners, Persons in the Custody of a Public Authority, and Persons in Institutions Who are Ill or in Need of Assistance
Section 174b Sexual Abuse By Exploiting a Position in a Public Office
Section 174c Sexual Abuse By Exploiting a Counseling, Treatment or Care Relationship
Section 175 (repealed)
Section 176 Sexual Abuse of Children
Section 176a Serious Sexual Abuse of Children
Section 176b Sexual Abuse of Children Resulting in Death
Section 177 Sexual Coercion; Rape
Section 178 Sexual Coercion and Rape Resulting in Death
Section 179 Sexual Abuse of Persons Incapable of Resisting
Section 180 Promoting Sexual Acts by Minors
Section 180a Promoting Prostitution
Section 180b Trafficking in Human Beings
Section 181 Serious Trafficking in Human Beings
Section 181a Pimping
Section 181b Supervision of Conduct
Section 181c Property Fine and Extended Forfeiture
Section 182 Sexual Abuse of Youths
Section 183 Exhibitionist Acts
Section 183a Creating a Public Nuisance
Section 184 Dissemination of Pornographic Writings
Section 184a Engaging in Prohibited Prostitution
Section 184b Youth-Endangering Prostitution
Section 184c Definition of Terms

Chapter Fourteen Insult

Section 185 Insult
Section 186 Malicious Gossip
Section 187 Defamation
Section 188 Malicious Gossip and Defamation Against Persons in Political Life
Section 189 Disparagement of the Memory of Deceased Persons
Section 190 Judgment of Conviction as Proof of Truth
Section 191 (repealed)
Section 192 Insult Despite Proof of Truth
Section 193 Safeguarding Legitimate Interests
Section 194 Application for Criminal Prosecution
Section 195 to 198 (repealed)
Section 199 Insults Committed Reciprocally
Section 200 Publication of the Conviction

Chapter Fifteen Violation of The Realm of Personal Privacy And Confidentiality

Section 201 Violation of the Confidentiality of the Spoken Word
Section 202 Violation of the Confidentiality of Letters
Section 202a Data Espionage
Section 203 Violation of Private Secrets
Section 204 Exploitation of Secrets of Another
Section 205 Application for Criminal Prosecution
Section 206 Violation of the Postal or Telecommunications Confidentiality
Sections 207 to 210 (repealed)

Chapter Sixteen Crimes Against Life

Section 211 Murder
Section 212 Manslaughter
Section 213 Less Serious Case of Manslaughter
Section 214, 215 (repealed)
Section 216 Homicide upon Request
Section 217 (repealed)
Section 218 Termination of Pregnancy
Section 218a Exemption from Punishment for Termination of Pregnancy
Section 218b Termination of Pregnancy Without a Medical Determination; Incorrect Medical Determination
Section 218c Breach of Medical Duties During a Termination of Pregnancy
Section 219 Counseling of Pregnant Women in an Emergency or Conflict Situation
Section 219a Advertising for Termination of Pregnancy
Section 219b Bringing Means for Termination of Pregnancy into Circulation
Section 220 (repealed)
Section 220a Genocide
Section 221 Abandonment
Section 222 Negligent Homicide

Chapter Seventeen Crimes Against Bodily Integrity

Section 223 Bodily Injury
Section 224 Dangerous Bodily Injury
Section 225 Maltreatment of Wards
Section 226 Serious Bodily Injury
Section 227 Bodily Injury Resulting in Death
Section 228 Consent
Section 229 Negligent Bodily Injury
Section 230 Application for Criminal Prosecution
Section 231 Participation in a Brawl
Sections 232 and 233 (repealed)

Chapter Eighteen Crimes Against Personal Freedom

Section 234 Kidnapping
Section 234a Abduction
Section 235 Child Stealing
Section 236 Trafficking in Children
Sections 237 and 238 (repealed)
Section 239 Deprivation of Liberty
Section 239a Extortionate Kidnapping
Section 239b Hostage Taking
Section 239c Supervision of Conduct
Section 240 Coercion
Section 241 Threat
Section 241a Casting Political Suspicion

Chapter Nineteen Theft And Misappropriation

Section 242 Theft
Section 243 Especially Serious Case of Theft
Section 244 Armed Theft; Theft by a Gang; Theft by Burglary of a Dwelling
Section 244a Serious Theft by a Gang
Section 245 Supervision of Conduct
Section 246 Misappropriation
Section 247 Theft from Home and Family
Section 248 (repealed)
Section 248a Theft and Misappropriation of Things of Slight Value
Section 248b Unauthorized Use of a Vehicle
Section 248c Tapping of Electrical Energy

Chapter Twenty Robbery and Extortion

Section 249 Robbery
Section 250 Serious Robbery
Section 251 Robbery Resulting in Death
Section 252 Robbery-Like Theft
Section 253 Extortion
Section 254 (repealed)
Section 255 Robbery-Like Extortion
Section 256 Supervision of Conduct, Property Fine and Extended Forfeiture

Chapter Twenty-one Accessory After the Fact and Receiving Stolen Property

Section 257 Accessory After the Fact
Section 258 Obstruction of Punishment
Section 258a Obstruction of Punishment in a Public Office
Section 259 Receiving Stolen Property
Section 260 Professional Receiving Stolen Property; Receiving Stolen Property by a Gang
Section 260a Professional Receiving Stolen Property by a Gang
Section 261 Money Laundering; Concealment of Unlawfully Acquired Assets
Section 262 Supervision of Conduct

Chapter Twenty-two Fraud And Breach of Trust

Section 263 Fraud
Section 263a Computer Fraud
Section 264 Subsidy Fraud
Section 264a Capital Investment Fraud
Section 265 Abuse of Insurance
Section 265a Obtaining Benefits by Devious Means
Section 265b Credit Fraud
Section 266 Breach of Trust
Section 266a Withholding and Embezzlement of Wages or Salaries
Section 266b Misuse of Check and Credit Cards

Chapter Twenty-three Falsification of Documents

Section 267 Falsification of Documents
Section 268 Falsification of Technical Recordings
Section 269 Falsification of Legally Relevant Data
Section 270 Deception in Legal Relations through Data Processing
Section 271 Constructive False Certification
Section 272 (repealed)
Section 273 Modification of Official Identification Documents
Section 274 Suppression of Documents; Alteration of a Boundary Marker
Section 275 Preparation for Counterfeiting of Official Identification Documents
Section 276 Procuring False Official Identification Documents
Section 276a Residence Status Documents; Vehicle Documents
Section 277 Falsification of Health Certificates
Section 278 Issuing Incorrect Health Certificates
Section 279 Use of Incorrect Health Certificates
Section 280 (repealed)
Section 281 Misuse of Identification Papers
Section 282 Property Fine, Extended Forfeiture and Confiscation

Chapter Twenty-four Crimes of Insolvency

Section 283 Bankruptcy
Section 283a Especially Serious Case of Bankruptcy
Section 283b Violation of the Duty to Keep Books
Section 283c Preferential Treatment for a Creditor
Section 283d Preferential Treatment for a Debtor

Chapter Twenty-five Punishable Greed

Section 284 Unauthorized Organization of a Game of Chance
Section 285 Participation in an Unauthorized Game of Chance
Section 286 Property Fine, Extended Forfeiture and Confiscation
Section 287 Unauthorized Organization of a Lottery or Raffle
Section 288 Obstruction of the Execution of Judgment
Section 289 Recovery of the Pledge
Section 290 Unauthorized Use of Pledged Property
Section 291 Usury
Section 292 Game Poaching
Section 293 Fish Poaching
Section 294 Application for Criminal Prosecution
Section 295 Confiscation
Section 296 (repealed)
Section 297 Endangering Ships, Motor Vehicles or Aircraft with Banned Goods

Chapter Twenty-six Crimes Against Competition

Section 298 Agreements in Restriction of Competition upon Invitations to Tender
Section 299 Taking and Offering a Bribe in Business Transactions
Section 300 Especially Serious Cases of Taking and Offering a Bribe in Business Transactions
Section 301 Application for Criminal Prosecution
Section 302 Property Fine and Extended Forfeiture

Chapter Twenty-seven Damaging Property

Section 303 Damaging Property
Section 303a Alteration of Data
Section 303b Computer Sabotage
Section 303c Application for Criminal Prosecution
Section 304 Damaging Property Which Is Harmful to the Public
Section 305 Destruction of Structures
Section 305a Destruction of Important Means of Work

Chapter Twenty-eight Crimes Dangerous to The Public

Section 306 Arson
Section 306a Serious Arson
Section 306b Especially Serious Arson
Section 306c Arson Resulting in Death
Section 306d Negligent Arson
Section 306e Active Remorse
Section 306f Causing a Danger of Fire
Section 307 Causing an Explosion by Nuclear Power
Section 308 Causing an Explosion by Use of Explosives
Section 309 Misuse of Ionizing Radiation
Section 310 Preparation of a Serious Criminal Offense involving an Explosion or Radiation
Section 311 Release of Ionizing Radiation
Section 312 Defective Construction of a Nuclear Facility
Section 313 Causing a Flood
Section 314 Poisoning Dangerous to the Public
Section 314a Active Remorse
Section 315 Dangerous Interference with Rail, Ship and Air Traffic
Section 315a Endangering Rail, Ship and Air Traffic
Section 315b Dangerous Interference with Road Traffic
Section 315c Endangering Road Traffic
Section 316 Drunkenness in Traffic
Section 316a Robbery-Like Assault on the Driver of a Motor Vehicle
Section 316b Interference with Public Operations
Section 316c Assaults on Air and Sea Traffic
Section 317 Interference with Telecommunications Facilities
Section 318 Damaging Important Facilities
Section 319 Endangerment in Construction
Section 320 Active Remorse
Section 321 Supervision of Conduct
Section 322 Confiscation
Section 323 (repealed)
Section 323a Total Intoxication
Section 323b Endangering Withdrawal Treatment
Section 323c Failure to Render Assistance

Chapter Twenty-nine Crimes Against The Environment

Section 324 Water Pollution
Section 324a Soil Pollution
Section 325 Air Pollution
Section 325a Causing Noise, Vibrations and Non-ionizing Radiation
Section 326 Unauthorized Dealing with Dangerous Wastes
Section 327 Unauthorized Operation of Facilities
Section 328 Unauthorized Dealing with Radioactive Substances and Other Dangerous Substances and Goods
Section 329 Endangering Areas Requiring Protection
Section 330 Especially Serious Case of an Environmental Crime
Section 330a Serious Endangerment by Release of Poisons
Section 330b Active Remorse
Section 330c Confiscation
Section 330d Definition of Terms

Chapter Thirty Crimes in Public Office

Section 331 Acceptance of a Benefit
Section 332 Taking a Bribe
Section 333 Granting a Benefit
Section 334 Offering a Bribe
Section 335 Especially Serious Cases of Taking or Offering Bribes
Section 336 Failure to Perform an Official Act
Section 337 Compensation of Arbitrators
Section 338 Property Fine and Extended Forfeiture
Section 339 Perversion of the Course of Justice
Section 340 Bodily Injury in Public Office
Sections 341 and 342 (repealed)
Section 343 Extortion of Testimony
Section 344 Prosecution of the Innocent
Section 345 Execution against the Innocent
Sections 346 and 347 (repealed)
Section 348 False Certification in Public Office
Sections 349 to 351 (repealed)
Section 352 Overcharging of Fees
Section 353 Fiscal Overcharging; Curtailment of Benefits
Section 353a Breach of Trust in the Foreign Service
Section 353b Violation of Official Secrecy and of a Special Duty of Secrecy
Section 353c (repealed)
Section 353d Forbidden Communications about Judicial Hearings
Section 354 (repealed)
Section 355 Violation of Tax Secrecy
Section 356 Betrayal of a Party
Section 357 Subornation of a Subordinate to Commit a Crime
Section 358 Collateral Consequences


General Part 

Chapter One The Criminal Law

Title One Area of Applicability

Section 1 No Punishment Without a Law

An act may only be punished if its punishability was determined by law before the act was committed.

Section 2 Temporal Applicability

(1) The punishment and its collateral consequences are determined by the law which is in force at the time of the act.

(2) If the threatened punishment is amended during the commission of the act, then the law shall be applicable which is in force at the time the act is completed.

(3) If the law in force upon the completion of the act is amended before judgment, then the most lenient law shall be applicable.

(4) A law, which was intended to be in force only for a determinate time, shall be applicable to acts committed while it was in force, even if it is no longer in force. This shall not apply to the extent a law provides otherwise.

(5) Subsections (1) through (4) shall apply, correspondingly, to forfeiture, confiscation and rendering unusable.

(6) Unless the law provides otherwise, decisions as to measures of reform and prevention shall be according to the law which is in force at the time of judgment.

Section 3 Applicability to Domestic Acts

German criminal law shall apply to acts, which were committed domestically.

Section 4 Applicability to Acts on German Ships and Aircraft

German criminal law shall apply, regardless of the law of the place where the act was committed, to acts which are committed on a ship or in an aircraft, which is entitled to fly the federal flag or the national insignia of the Federal Republic of Germany.

Section 5 Acts Abroad Against Domestic Legal Interests

German criminal law shall apply, regardless of the law of the place the act was committed, to the following acts committed abroad:

1. preparation of a war of aggression (Section 80);

2. high treason (Sections 81 to 83);

3. endangering the democratic rule of law:

(a) in cases under Sections 89 and 90a subsection (1), and Section 90b, if the perpetrator is a German and has his livelihood in the territorial area of applicability of this law; and

(b) in cases under Sections 90 and 90a subsection (2);

4. treason and endangering external security (Sections 94 to 100a);

5. crimes against the national defense:

(a) in cases under Sections 109 and 109e to109g; and

(b) in cases under Sections 109a, 109d and 109h, if the perpetrator is a German and

has his livelihood in the territorial area of applicability of this law;

6. abduction and casting political suspicion on another (Sections 234a, 241a), if the act is directed against a person who has his domicile or usual residence in Germany;

6a. child stealing in cases under Section 235 subsection (2), no. 2, if the act is directed against a person who has his domicile or usual residence in Germany;

7. violation of business or trade secrets of a business located within the territorial area of applicability of this law, an enterprise, which has its registered place of business there, or an enterprise with its registered place of business abroad, which is dependent on an enterprise with its registered place of business within the territorial area of applicability of this law and constitutes with it a group;

8. crimes against sexual self-determination:

(a) in cases under Section 174 subsections (1) and (3), if the perpetrator and the person, against whom the act was committed are Germans at the time of the act and have their livelihoods in Germany; and

(b) in cases under Sections 176 to 176b and 182, if the perpetrator is a German;

9. termination of pregnancy (Section 218), if the perpetrator at the time of the act is a German and has his livelihood in the territorial area of applicability of this law;

10. false unsworn testimony, perjury and false affirmations in lieu of an oath (Sections 153 to 156) in a proceeding pending before a court or other German agency within the territorial area of applicability of this law, which is competent to administer oaths or affirmations in lieu of an oath;

11. crimes against the environment in cases under Sections 324, 326, 330 and 330a, which were committed in the area of Germany’s exclusive economic zone, to the extent that international conventions on the protection of the sea permit their prosecution as crimes;

11a. crimes under Section 328 subsection (2), nos. 3 and 4 subsections (4) and (5), also in conjunction with Section 330, if the perpetrator is a German at the time of the act;

12. acts, which a German public official or a person with special public service obligations commits during his official stay or in connection with his duties;

13. acts committed by a foreigner as a public official or as a person with special public service obligations;

14. acts which someone commits against a public official, a person with special public service obligations, or a soldier in the Federal Armed Forces during the discharge of his duties or in connection with his duties;

14a. bribery of a member of parliament (Section 108e) if the perpetrator is a German at the time of the act or the act was committed in relation to a German;

15. trafficking in organs (section 18 of the Transplantation Law), if the perpetrator is a German at the time of the act.

Section 6 Acts Abroad Against Internationally Protected Legal Interests

German criminal law shall further apply, regardless of the law of the place of their commission, to the following acts committed abroad:

1. genocide (Section 220a);

2. serious criminal offenses involving nuclear energy, explosives and radiation in cases under Sections 307 and 308 subsections (1) to (4),Section 309 subsection (2) and Section 310;

3. assaults against air and sea traffic (Section 316c);

4. trafficking in human beings (Section 180b) and serious trafficking in human beings (Section 181);

5. unauthorized distribution of narcotics;

6. dissemination of pornographic writings in cases under Section 184 subsection (3) and (4);

7. counterfeiting of money and securities (Sections 146, 151 and152), payment cards and blank Eurochecks (Section 152a subsections (1) to (4), as well as their preparation (Sections 149,151,152 and 152a subsection (5);

8. subsidy fraud (Section 264);

9. acts which, on the basis of an international agreement binding on the Federal Republic of Germany, shall also be prosecuted if they are committed abroad.

Section 7 Applicability to Acts Abroad in Other Cases

(1) German criminal law shall apply to acts, which were committed abroad against a German, if the act is punishable at the place of its commission or the place of its commission is subject to no criminal law enforcement.

(2) German criminal law shall apply to other acts, which were committed abroad if the act is punishable at the place of its commission or the place of its commission is subject to no criminal law enforcement and if the perpetrator:

1. was a German at the time of the act or became one after the act; or

2. was a foreigner at the time of the act, was found to be in Germany and, although the Extradition Act would permit extradition for such an act, is not extradited, because a request for extradition is not made, is rejected, or the extradition is not practicable.

Section 8 Time of the Act

An act is committed at the time the perpetrator or the inciter or accessory acted, or in case of n omission, should have acted. The time when the result occurs is not determinative.

Section 9 Place of the Act

(1) An act is committed at every place the perpetrator acted or, in case of an omission,

should have acted, or at which the result, which is an element of the offense, occurs or should occur according to the understanding of the perpetrator.

(2) Incitement or accessoryship is committed not only at the place where the act was committed, but also at every place where the inciter or accessory acted or, in case of an omission, should have acted or where, according to his understanding, the act should have been committed. If the inciter or accessory in an act abroad acted domestically, then German criminal law shall apply to the incitement or accessoryship, even if the act is not punishable according to the law of the place of its commission.

Section 10 Special Provisions for Juveniles and Young Adults

This law shall apply to the acts of juveniles and young adults only to the extent that the Jvenile Court Law does not provide otherwise.

Title Two Terminology

Section 11 Terms Relating to Persons and Subject Matter

(1) Within the meaning of this law:

1. a relative is whoever belongs among the following persons:

(a) relations by blood or marriage in direct line, the spouse, the fiancé, siblings, the spouses of siblings, siblings of spouses, even if the marriage upon which the relationship was based no longer exists, or when the relationship by blood or marriage has ceased to exist;

(b) foster parents and foster children;

2. a public official is whoever, under German law:

(a) is a civil servant or judge;

(b) otherwise has an official relationship with public law functions or;

(c) has been appointed to a public authority or other agency or has been commissioned to perform duties of public administration without prejudice to the organizational form chosen to fulfill such duties;

3. a judge is, whoever under German law is a professional or honorary judge;

4. a person with special public service obligations is whoever, without being a public official, s employed by, or is active for:

(a) a public authority or other agency, which performs duties of public administration; or

(b) an association or other union, business or enterprise, which carries out duties of public administration for a public authority or other agency, and is formally obligated by law to fulfill duties in a conscientious manner;

5. an unlawful act is only one which fulfills all the elements of a penal norm;

6. the undertaking of an act is its attempt and completion;

7. a public authority is also a court;

8. a measure is every measure of reform and prevention, forfeiture, confiscation and rendering unusable;

9. compensation is every consideration consisting of a material benefit;

(2) An act is also intentional within the meaning of this law, if it fulfills the statutory elements of an offense, which requires intent in relation to the conduct, even if only negligence is required as to the specific result caused thereby.

(3) Audio and visual recording media, data storage media, illustrations and other images shall be the equivalent of writings in those provisions which refer to this subsection.

Section 12 Serious Criminal Offenses and Less Serious Criminal Offenses

(1) Serious criminal offenses are unlawful acts that are punishable by a minimum of imprisonment for one year or more.

(2) Less serious criminal offenses are unlawful acts that are punishable by a minimum of a lesser term of imprisonment or a fine.

(3) Aggravation or mitigation, which are provided under the provisions of the General Part or for especially serious or less serious cases, shall be irrelevant to this classification.

Chapter Two The Act

Title One Bases of Punishability

Section 13 Commission by Omission

(1) Whoever fails to avert a result, which is an element of a penal norm, shall only be punishable under this law, if he is legally responsible for the fact that the result does not occur, and if the omission is equivalent to the realization of the statutory elements of the crime through action.

(2) The punishment may be mitigated pursuant to Section 49 subsection (1).

Section 14 Acting for Another

(1) If someone acts:

1. as an entity authorized to represent a legal person or as a member of such an entity;

2. as a partner authorized to represent a commercial partnership; or

3. as a statutory representative of another,

then a law, according to which special personal attributes, relationships or circumstances (special personal characteristics) forms the basis of punishability, shall also be applicable to the representative, if these characteristics do not, in deed, pertain to him, but exist as to the person represented.

(2) If the owner of a business or someone otherwise so authorized:

1. commissions a person to manage a business, in whole or in part; or

2. expressly commissions a person to perform on his own responsibility duties which are incumbent on the owner of the business,

and if this person acts on the basis of this commission, then a law, according to which special personal characteristics are the basis of punishability shall also be applicable to the person commissioned, if these characteristics do not, indeed, pertain to him, but exist as to the owner of the business. Within the meaning of Sentence 1, an enterprise is the equivalent of a business. If someone acts on the basis of a corresponding commission for an agency which performs duties of public administration, then Sentence 1 (3) Subsections (1) and (2) shall also be applicable if the legal act which was intended to form the basis of the power of representation or the agency is void.

Section 15 Intentional and Negligent Conduct

Only intentional conduct is punishable, unless the law expressly provides punishment for negligent conduct.

Section 16 Mistake about Circumstances of the Act

(1) Whoever upon commission of the act is unaware of a circumstance which is a statutory element of the offense does not act intentionally. Punishability for negligent commission remains unaffected.

(2) Whoever upon commission of the act mistakenly assumes the existence of circumstances which would satisfy the elements of a more lenient norm, may only be punished for intentional commission under the more lenient norm.

Section 17 Mistake of Law

If upon commission of the act the perpetrator lacks the appreciation that he is doing something wrong, he acts without guilt if he was unable to avoid this mistake. If the perpetrator could have avoided the mistake, the punishment may be mitigated pursuant to Section 49 subsection (1).

Section 18 More Serious Punishment Due to Particular Results of the Act

If the law links a more serious punishment to a particular result of the act, it affects the perpetrator or the inciter or accessory only if he can at least be charged with negligence in relation to the result.

Section 19 A Child’s Lack of Capacity to be Adjudged Guilty

Whoever upon commission of the act is under fourteen years of age lacks capacity to be adjudged guilty.

Section 20 Lack of Capacity to be Adjudged Guilty due to Emotional Disorders

Whoever upon commission of the act is incapable of appreciating the wrongfulness of the act or acting in accordance with such appreciation due to a pathological emotional disorder, profound consciousness disorder, mental defect or any other serious emotional abnormality, acts without guilt.

Section 21 Diminished Capacity to be Adjudged Guilty

If the capacity of the perpetrator to appreciate the wrongfulness of the act or to act in accordance with such appreciation is substantially diminished upon commission of the act due to one of the reasons indicated in Section 20, then the punishment may be mitigated pursuant to Section 49 subsection (1).

Title Two Attempt

Section 22 Definition of Terms

Whoever, in accordance with his understanding of the act, takes an immediate step towards the realization of the elements of the offense, attempts to commit a crime.

Section 23 Punishability for an Attempt

(1) An attempt to commit a serious criminal offense is always punishable, while an attempt to commit a less serious criminal offense is only punishable if expressly provided by law.

(2) An attempt may be punished more leniently that the completed act (Section 49a subsection (1)).

(3) If the perpetrator, due to a gross lack of understanding, fails to recognize that the attempt could not possibly lead to completion due to the nature of the object on which, or the means with which it was to be committed, the court may withhold punishment or in its own discretion mitigate the punishment (Section 49 subsection(2)).

Section 24 Abandonment

(1) Whoever voluntarily renounces further execution of the act or prevents its completion shall not be punished for an attempt. If the act is not completed due in no part to the contribution of the abandoning party he shall not be punished if he makes voluntary and earnest efforts to prevent its completion.

(2) If more than one person participate in the act, whoever voluntarily prevents its completion will not be punished for an attempt. However his voluntary and earnest efforts to prevent the completion of the act shall suffice for exemption from punishment, if the act is not completed due in no part to his contribution or is committed independently of his earlier contribution to the act.

Title Three Perpetration And Incitement Or Accessoryship

Section 25 Perpetration

(1) Whoever commits the crime himself or through another shall be punished as a perpetrator.

(2) If more than one person commit the crime jointly, each shall be punished as a perpetrator (co-perpetrator).

Section 26 Incitement

Whoever intentionally induces another to intentionally commit an unlawful act, shall, as an inciter, be punished the same as a perpetrator.

Section 27 Accessoryship

(1) Whoever intentionally renders aid to another in that person’s intentional commission of an unlawful act shall be punished as an accessory. (2) The punishment for the accessory corresponds to the punishment threatened for the perpetrator. It shall be mitigated pursuant to Section 49 subsection (1).

Section 28 Special Personal Characteristics

(1) If special personal characteristics (Section 14 subsection(1)) establishing the perpetrator’s punishability are not present in relation to the inciter or accessory, then his punishment shall be mitigated pursuant to Section 49 subsection(1). (2) If the law provides that special personal characteristics aggravate, mitigate or exclude punishment, then this shall apply only to the participants (the perpetrator or the inciter or accessory) as to whom they exist.

Section 29 Independent Punishability of the Participant

Every participant shall be punished according to his own guilt irrespective of the guilt of the other.

Section 30 Attempted Participation

(1) Whoever attempts to induce or incite another to commit a serious criminal offense shall be punished according to the provisions governing serious criminal offense attempt. However the punishment shall be mitigated pursuant to Section 49 subsection (1). Section 23 subsection (3) shall apply accordingly.

(2) Whoever declares his willingness, whoever accepts the offer of another, or whoever agrees with another to commit or incite the commission of a serious criminal offense, shall be similarly punished.

Section 31 Abandonment of Attempted Participation

(1) Whoever voluntarily:

1. renounces the attempt to induce another to commit a serious criminal offense, and averts any existing danger that the other may commit the act;

2. after he has declared his willingness to commit a serious criminal offense, renounces his plan; or

3. after he agrees to commit a serious criminal offense, or accepts the offer of another to commit a serious criminal offense, prevents the commission of the act,

shall not be punished under Section 30.

(2) If the act does not take place due in no part to the contribution of the abandoning party, or if it is committed independently of his previous conduct, then his voluntary and earnest efforts to prevent the act suffice for exemption from punishment.

Title Four Necessary Defense And Necessity

Section 32 Necessary Defense

(1) Whoever commits an act, required as necessary defense, does not act unlawfully.

(2) Necessary defense is the defense which is required to avert an imminent unlawful assault from oneself or another.

Section 33 Excessive Necessary Defense

If the perpetrator exceeds the limits of necessary defense due to confusion, fear or fright, then he shall not be punished.

Section 34 Necessity as Justification

Whoever, faced with an imminent danger to life, limb, freedom, honor, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of danger threatening them, the protected interest substantially outweighs the one interfered with. This shall apply, however, only to the extent that the act is a proportionate means to avert the danger.

Section 35 Necessity as Excuse

(1) Whoever, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful act to avert the danger from himself, a relative or person close to him, acts without guilt. This shall not apply to the extent that the perpetrator could be expected under the circumstances to assume the risk, in particular, because he himself caused the danger or stood in a special legal relationship; however the punishment may be mitigated pursuant to Section 49 subsection

(1), if the perpetrator was not required to assume the risk with respect to a special legal relationship.

(2) If upon commission of the act the perpetrator mistakenly assumes that circumstances exist, which would excuse him under subsection (1), he will only be punished, if he could have avoided the mistake. The punishment shall be mitigated pursuant to Section 49 subsection (1).

Title Five Immunity For Parliamentary Utterances And Reports

Section 36 Parliamentary Utterances

Members of the Bundestag (Federal Parliament), the Federal Assembly or a legislative body of a Land (constituent state), may at no time be subject to liability outside of the body because of their vote or an utterance which they made within the body or one of its committees. This shall not apply to slanderous insults.

Section 37 Parliamentary Reports

Truthful reports about the public sessions of the bodies indicated in Section 36 or their committees remain exempt from any liability.

Chapter Three Legal Consequences of The Act

Title One Punishments

Imprisonment 

Section 38 Length of Imprisonment

(1) Imprisonment is for a fixed term if the law does not provide for imprisonment for life.

(2) The maximum fixed term of imprisonment is fifteen years, the minimum, one month.

Section 39 Determination of Terms of Imprisonment

Imprisonment for less than a year shall be determined in full weeks and months, imprisonment for a longer period, in full months and years.

Fine 

Section 40 Imposition in Daily Rates

(1) A fine shall be imposed in daily rates. It shall amount to at least five and, if the law does not provide otherwise, at most three hundred and sixty full daily rates.

(2) The court determines the amount of the daily rate, taking into consideration the personal and financial circumstances of the perpetrator. In doing so, it takes as a rule the average net income which the perpetrator has, or could have, in one day as its starting point. A daily rate shall be fixed at a minimum of two and a maximum of ten thousand German marks.

(3) In determining the daily rate the income of the perpetrator, his assets and other bases may be estimated.

(4) The number and amount of the daily rates shall be indicated in the decision.

Section 41 Fine Collateral to Imprisonment

If by the act the perpetrator enriched, or tried to enrich himself, then a fine, which otherwise would have been inapplicable or only optional, may be imposed collateral to imprisonment, if it is appropriate, taking into consideration the personal and financial circumstances of the perpetrator. This shall not apply if the court imposes a property fine pursuant to Section 43a.

Section 42 Facilitation of Payment

If the convicted person, due to his personal or financial circumstances, cannot be expected to pay the fine immediately, the court shall grant him a payment deadline or allow him to pay in specified instalments. The court may also order that the privilege of paying the fine in fixed instalments be withdrawn if the convicted person fails to pay an instalment in time.

Section 43 Default Imprisonment

Imprisonment is substituted for an uncollectible fine. One daily rate corresponds to one day of imprisonment. The minimum term of default imprisonment shall be one day.

Property Fine 

Section 43a Imposition of Property Fine

(1) If the law refers to this provision, then the court may, collateral to imprisonment for life or for a fixed term of more than two years, impose payment of a sum of money, the amount of which is limited by the value of the perpetrator’s assets (property fine). Material benefits which have been ordered forfeited shall be excluded in assessing the value of the assets. The value of the assets may be estimated.

(2) Section 42 shall apply accordingly.

(3) The court shall indicate a term of imprisonment, which shall be substituted for the property fine if it is uncollectible (default imprisonment). The maximum term of default imprisonment shall be two years, the minimum, one month.

Collateral Punishment 

Section 44 Driving Ban

(1) If someone has been sentenced to imprisonment or a fine for a crime which he committed in connection with the driving of a motor vehicle or in violation of the duties of a driver of a motor vehicle, then the court may prohibit him from driving all motor vehicles, or any specific type, in road traffic for a period of from one month to three months. A driving ban shall be ordered, as a rule, in cases of a conviction under Sections 315c subsection (1), no. 1, letter (a) subsection (3), or Section 316 if there has been no withdrawal of permission to drive pursuant to Section 69.

(2) A driving ban shall take effect when the judgment becomes final. National and international driver’s licenses issued by a German public authority shall be kept in official custody for its duration. This shall also apply if the driver’s license was issued by a public authority of a member state of the European Union or another signatory state of the Convention on the European Economic Area, as long as the holder has his ordinary residence in Germany. The driving ban shall be endorsed on other foreign driver’s licenses.

(3) If a driver’s license is to be kept in official custody or the driving ban endorsed on a foreign driver’s license, then the term of prohibition shall be calculated from the day that this takes place. The time in which the perpetrator is held in custody in an institution pursuant to an order of a public authority shall not be calculated into the term of the prohibition.

Collateral Consequences 

Section 45 Loss of the Capacity to Hold, or be Elected to Public Office and the Right to Vote

(1) Whoever is sentenced for a serious criminal offense to imprisonment for at least one year shall lose for a period of five years the capacity to hold public office and attain public electoral rights.

(2) The court may deprive the convicted person of the capacities indicated in subsection (1) for a period of from two to five years, to the extent the law specifically so provides.

(3) With the loss of the capacity to hold public office the convicted person shall simultaneously lose the corresponding legal statuses and rights he possesses.

(4) With the loss of the capacity to attain public electoral rights, the convicted person shall simultaneously lose the corresponding legal statuses and rights he possesses to the extent the law does not otherwise provide.

(5) The court may deprive the convicted person of the right to elect or vote in public matters for a period of from two to five years, to the extent the law specifically so provides.

Section 45a Entry into Force and Calculation of the Period of Loss

(1) The loss of the capacities, legal statuses and rights shall take effect when the judgment becomes final.

(2) The period of the loss of a capacity or a right shall be calculated from the day the term of imprisonment has been served, barred by the statute of limitations or remitted. If a measure of reform and prevention involving deprivation of liberty was ordered collateral to imprisonment, the term shall be calculated beginning on the day the measure was completed.

(3) If the execution of the punishment, the remainder thereof, or the measure has been suspended through a grant of probation or an act of clemency, then the term shall include the probationary period, if, after its expiration, the punishment, the remainder thereof, or the measure has been completed.

Section 45b Restoration of Capacities and Rights

(1) The court may restore capacities lost pursuant to Section 45 subsections (1) and (2), and rights lost pursuant to Section 45 subsection (5), if:

1. the loss was in effect for half of the time it should have lasted; and

2. it is to be expected that the convicted person will not commit any intentional crimes in the

future.

(2) The time in which the convicted person is held in custody in an institution pursuant to an order of a public authority shall not be calculated into the terms.

Title Two Determination of Punishment

Section 46 Principles for Determining Punishment

(1) The guilt of the perpetrator is the foundation for determining punishment. The effects which the punishment will be expected to have on the perpetrator’s future life in society shall be considered.

(2) In its determination the court shall counterbalance the circumstances which speak for and against the perpetrator. In doing so consideration shall be given in particular to:

the motives and aims of the perpetrator;

the state of mind reflected in the act and the willfulness involved in its commission;

the extent of breach of any duties;

the manner of execution and the culpable consequences of the act;

the perpetrator’s prior history, his personal and financial circumstances; as well as

his conduct after the act, particularly his efforts to make restitution for the harm caused as well as the perpetrator’s efforts to achieve mediation with the aggrieved party.

(3) Circumstances which are already statutory elements of the offense may not be considered.

Section 46a Mediation Between the Perpetrator and the Victim, Restitution for Harm Caused

If the perpetrator has:

1. in an effort to achieve mediation with the aggrieved party (mediation between perpetrator and victim), completely or substantially made restitution for his act or earnestly strived to make restitution; or

2. in a case in which the restitution for the harm caused required substantial personal accomplishments or personal sacrifice on his part, completely or substantially compensated the victim,

then the court may mitigate the punishment pursuant to Section 49 subsection (1), or, if the maximum punishment which may be incurred is imprisonment for not more than one year or a fine of not more than three hundred sixty daily rates, dispense with punishment.

Section 47 Short Terms of Imprisonment only in Exceptional Cases

(1) A court may impose imprisonment for less than six months only when special circumstances exist, either in the act or the personality of the perpetrator, which make the imposition of imprisonment indispensable to exert influence on the perpetrator or to defend the legal order.

(2) If the law does not provide for a fine and a term of imprisonment of six months or more has been ruled out, the court shall impose a fine if the imposition of imprisonment is not indispensable pursuant to subsection (1). If the law provides for an increased minimum term of imprisonment, the minimum fine in cases covered by sentence 1 is determined by the minimum prescribed term of imprisonment; thirty daily rates shall thus correspond to one month imprisonment.

Section 48 (Repealed)

Section 49 Special Statutory Mitigating Circumstances

(1) If mitigation is prescribed or permitted under this provision, then the following shall apply to such mitigation:

1. Imprisonment for not less than three years shall take the place of imprisonment for life;

2. In cases of imprisonment for a fixed term, at most three-fourths of the maximum term

provided may be imposed. In case of a fine the same shall apply to the maximum number of daily rates;

3. An increased minimum term of imprisonment shall be reduced:

in the case of a minimum term of ten or five years, to two years;

in case of a minimum term of three or two years, to six months;

in case of a minimum term of one year, to three months;

in other cases to the statutory minimum.

(2) If the court may in its discretion mitigate the punishment pursuant to a norm which refers to this provision, then it may reduce the punishment to the statutory minimum or impose a fine instead of imprisonment.

Section 50 Concurrence of Mitigating Circumstances

A circumstance which alone or together with other circumstances justifies the assumption that the case is less serious and is simultaneously a special statutory mitigating circumstance under Section 49, may only be considered once.

Section 51 Crediting

(1) If a convicted person has undergone remand detention or other deprivation of liberty because of an act which is or was the object of the proceedings, the time served shall be credited towards any fixed term of imprisonment or fine. However the court may order that the credit be withheld in whole or in part if it is not justified in light of the conduct of the convicted person after the act.

(2) If in a later proceeding another punishment is substituted for a previously imposed punishment which became final, then the earlier punishment shall be credited against it to the extent it was executed or satisfied through crediting.

(3) If the convicted person has been punished abroad for the same act, then the foreign punishment, to the extent it has been executed, shall be credited towards the new one. Subsection (1) shall correspondingly apply to any other deprivation of liberty undergone abroad.

(4) When a fine is credited against deprivation of liberty, or vice versa, one day of the latter shall correspond to one daily rate. If a foreign punishment or deprivation of liberty is to be credited, the court shall determine the rate in its discretion.

(5) In crediting the period of provisional withdrawal of permission to drive (Section 111a of the Code of Criminal Procedure) against the driving ban under Section 44 subsection (1) shall apply accordingly. In this respect the taking or holding of a driver’s license in custody or its seizure (Section 94 Code of Criminal Procedure) shall be equivalent to provisional withdrawal of permission to drive.

Title Three Determining Punishment For More Than One Violation of The Law

Section 52 Act Constituting More than One Violation

(1) If the same act violates more than one penal norm or the same penal norm repeatedly, then only one punishment shall be imposed.

(2) If more than one penal norm has been violated, then the punishment shall be determined according to the norm that provides for the most severe punishment. It may not be more lenient that the other applicable norms permit.

(3) The court may impose a fine under the provisions of Section 41 separately, collateral to imprisonment.

(4) If one of the applicable norms allows imposition of a property fine, then the court may impose it separately collateral to imprisonment for life or a fixed term of more than two years. In addition, collateral punishments or consequences and measures (Section 11 subsection (1), no. 8) must or may be imposed if one of the applicable norms prescribes or so permits.

Section 53 Commission of More than One Violation

(1) If someone has committed more than one crime, as to which judgment will be simultaneously rendered, and incurred more than one term of imprisonment or more than one fine, an aggregate punishment shall be imposed.

(2) If a term of imprisonment concurs with a fine, then an aggregate punishment shall be imposed. However, the court may also separately impose a fine; if in such cases a fine is to be imposed for more than one crime, then an aggregate fine should to that extent be imposed.

(3) If the perpetrator, pursuant to the law according to which Section 43a is applicable or under the terms of Section 52 subsection (4), has incurred as an individual punishment imprisonment for life or a fixed term of more than two years, then the court may separately impose a property fine collateral to the aggregate punishment formed pursuant to subsections (1) or (2); if in such cases a property fine is to be imposed for more than one crime, then an aggregate property fine shall to that extent be imposed.

Section 43 subsection (3), shall apply accordingly.

(4) Section 52 subsection (3) and Section 52 subsections (4) and (2) apply by analogy.

Section 54 Formation of the Aggregate Punishment

(1) If one of the individual punishments is imprisonment for life, then an aggregate punishment of imprisonment for life shall be imposed. In all other cases the aggregate punishment shall be formed by increasing the highest punishment incurred and, in the case of different kinds of punishment, by increasing the punishment most severe in nature. In doing so, the personal characteristics of the perpetrator and the individual crimes shall be comprehensively evaluated.

(2) The aggregate punishment must be less than the sum of the individual punishments. It should not exceed, in the case of imprisonment for a fixed term, fifteen years, in the case of a property fine, the value of the perpetrator’s assets, and in the case of a fine, seven hundred twenty daily rates;

Section 43 subsection (1), sent. 3, shall apply accordingly.

(3) If an aggregate punishment is to be formed from imprisonment and a fine, then one daily rate corresponds to one day imprisonment in determining the sum of the individual punishments.

Section 55 Subsequent Formation of the Aggregate Punishment

(1) Sections 53 and 54 shall also be applicable if a convicted person, as to whom a punishment imposed pursuant to a final judgment has neither been executed, barred by the statute of limitations or remitted, is convicted of another crime which he committed before the previous conviction. A previous conviction shall be deemed to be the judgment in the previous proceeding in which the underlying factual findings could last be reviewed.

(2) Property fines, collateral punishments, collateral consequences and measures (Section 11 subsection (1), no. 8 which were imposed in the previous sentence should be maintained to the extent they have not been rendered superfluous by the new sentence. This also applies when the amount of the property fine which was imposed in the previous sentence exceeds the value of the perpetrator’s assets at the time of the new sentence.

Title Four Suspended Execution of Punishment And Probation

Section 56 Suspended Execution of Punishment

(1) Upon a sentence of imprisonment of no more than one year the court shall suspend the execution of the punishment and grant probation if it can be expected that the sentence will serve the convicted person as a warning and he will commit no further crimes in the future even without the influence exerted by serving the sentence. Particularly to be considered are the personality of the convicted person, his previous history, the circumstances of his act, his conduct after the act, his living conditions and the effects which can be expected as a result of the suspension.

(2) The court may also suspend the execution of a longer term of imprisonment which does not exceed two years under the provisions of subsection (1) and grant probation if a comprehensive evaluation of the act and personality of the convicted person reveals the existence of special circumstances. In making the decision the efforts of the convicted person to make restitution for the harm caused by the act should particularly be considered.

(3) The execution of a sentence of imprisonment of no less than six months shall not be suspended when defense of the legal order so requires. (4) A suspended execution of punishment may not be limited to a part of the punishment. It shall not be excluded by the crediting of time served in remand detention or any other deprivation of liberty.

Section 56a Term of Probation

(1) The court shall determine the length of the term of probation. It may not exceed five years nor be less than two years.

(2) The term of probation shall begin when the decision to suspend execution of punishment becomes final. It may subsequently be reduced to the minimum or prolonged to the maximum before its expiration.

Section 56b Conditions

(1) The court may impose conditions on the convicted person to the end of making amends for the wrong committed. No unreasonable demands should thereby be made on the convicted person.

(2) The court may order the convicted person:

1. to make restitution to the best of his ability for the harm caused by the act;

2. to pay a sum of money to a non-profit-making institution if this is appropriate in light of

the act and the personality of the perpetrator;

3. to render some other community service; or

4. to pay a sum of money to the public treasury.

The court should impose a condition pursuant to sentence 1, nos. 2 to 4, only to the extent that the fulfilment of the condition does not impede making restitution for the harm caused.

(3) If the convicted person offers to perform appropriate tasks to the end of making amends for the wrong committed, then the court shall, as a rule, temporarily refrain from imposing conditions if it can be expected that the offer will be fulfilled.

Section 56c Instructions

(1) The court shall issue instructions to the convicted person for the duration of his term of probation, if he requires such assistance to cease committing crimes. No unreasonable demands should thereby be made on the way the convicted person conducts his life.

(2) In particular, the court may instruct the convicted person:

1. to follow orders which relate to residence, education, work or leisure, or to the ordering of his financial affairs;

2. to report at specified times to the court or some other agency;

3. not to associate with, employ, train or shelter particular persons or persons of a particular group, who can offer him the opportunity or stimulus to commit further crimes;

4. not to possess, carry or entrust to another for safekeeping, particular objects which could provide him with the opportunity or stimulus to commit further crimes; or

5. to meet maintenance obligations.

(3) An instruction:

1. to undergo curative treatment which involves a bodily intrusion or treatment for addiction; or

2. to reside in a suitable home or institution,

may only be issued with the consent of the convicted person.

(4) If the convicted person makes corresponding promises relating to the future conduct of his life, then the court shall, as a rule, temporarily refrain from issuing instructions if it can be expected that the promise will be kept.

Section 56d Probation Assistance

(1) The court shall place the convicted person under the supervision and guidance of a probation officer for all or part of the term of probation when advisable to prevent him from committing crimes.

(2) The court shall issue an instruction pursuant to subsection (1), as a rule, if it suspends a term of imprisonment of more than nine months and the convicted person is less than twenty-seven years of age.

(3) The probation officer shall assist and care for the convicted person. With the approval of the court he shall supervise the fulfillment of the conditions and instructions as well as the offers and promises. He shall report on the way the convicted person is conducting his life at intervals determined by the court. He shall inform the court as to gross or persistent violations of the conditions, instructions, offers or promises.

(4) The probation officer shall be appointed by the court. It may give him instructions concerning his functions under subsection (3).

(5) The functions of the probation officer shall be exercised on a full-time official or honorary basis.

Section 56e Subsequent Decisions

The court may also make, modify or vacate decisions pursuant to Sections 56b to 56d.

Section 56f Revocation of Suspended Execution of Punishment

(1) The court shall revoke the suspended execution of punishment if the convicted person:

1. commits a crime during the term of probation and thereby shows that the expectation on which the suspended execution of punishment was based, was not fulfilled;

2. grossly and persistently violates instructions or persistently evades the supervision and guidance of the probation officer and thereby gives reason for fear that he will again commit crimes; or

3. grossly and persistently violates conditions.

Sentence 1, no. 1, shall correspondingly apply if the act was committed in the interim period between the decision suspending the execution of punishment and its becoming final.

(2) The court shall, however, refrain from revocation when it suffices:

1. to impose further conditions or instructions, in particular to place the convicted person under the supervision of a probation officer; or

2. to prolong the term of probation or placement.

In cases pursuant to no. 2 the term of probation may not be prolonged for more than one-half of the originally imposed term of probation.

(3) The convicted person shall not be compensated for accomplishments rendered in fulfillment of conditions, offers, instructions or promises. If a suspended execution of punishment is revoked, however, the court can credit accomplishments, which the convicted person has rendered in fulfillment of conditions under Section 56b subsection (2), sent. 1, nos. 2 to 4, or corresponding offers under Section 56b subsection (3), towards the punishment.

Section 56g Remission of Punishment

(1) If the court does not revoke a suspended execution of punishment, it shall remit the punishment after expiration of the term of probation. Section 56f subsection (3), sent. 1, shall be applicable.

(2) The court may revoke a remission of punishment if the convicted person was sentenced to imprisonment for at least six months within the territorial area of application of this law for an intentional crime committed during the term of probation. The revocation shall only be permissible within one year after the expiration of the term of probation and six months after the judgment becomes final.

Section 56f subsection (1), sent. 2, and subsection (3) shall apply correspondingly.

Section 57 Suspension of the Remainder of a Fixed Term of Imprisonment

(1) The court shall suspend the execution of the remainder of a fixed term of imprisonment and grant probation, if:

1. two-thirds of the imposed punishment, but not less than two months, have been served;

2. this can be justified upon consideration of the security interests of the general public; and

3. the convicted person consents.

To be considered in making the decision shall be, in particular, the personality of the convicted person, his previous history, the circumstances of his act, the importance of the legal interest threatened in case of recidivism, the conduct of the convicted person while serving his sentence, his living conditions and the effects which can be expected as a result of the suspension.

(2) After half of a fixed term of imprisonment has been served, but not less than six months, the court may suspend execution of the remainder and grant probation, if:

1. the convicted person is serving his first term of imprisonment and it does not exceed two years;

or

2. a comprehensive evaluation of the act, the personality of the convicted person and his development while serving the sentence reveals that special circumstances exist, and the remaining requirements of subsection (1) have been fulfilled.

(3) Sections 56a to 56g shall apply accordingly; the term of probation, even if subsequently reduced, may not be less than the remainder of the punishment. If the convicted person has served at least one year of his punishment before the remainder is suspended and probation granted, then the court shall, as a rule, place him under the supervision and guidance of a probation officer for all or a part of the term of probation.

(4) To the extent a term of imprisonment has been completed through crediting it shall qualify as having been served within the meaning of subsections (1) to (3).

(5) The court may refrain from suspending the execution of the remainder of a fixed term of imprisonment and granting probation, if the convicted person makes insufficient or false statements concerning the whereabouts of objects which are subject to forfeiture, or are only not subject thereto because the act has given rise to a claim by the aggrieved party of the type indicated in Section 73 subsection (1), sent. 2.

(6) The court may fix a term not exceeding six months, before the expiration of which an application by the convicted person to suspend the remainder of punishment and grant probation shall be inadmissible.

Section 57a Suspension of the Remainder of a Punishment of Imprisonment for Life

(1) The court shall suspend execution of the remainder of a punishment of imprisonment for life and grant probation, if:

1. fifteen years of the punishment have been served;

2. the particular gravity of the convicted person’s guilt does not require its continued execution; and

3. the requirements of Section 57 subsection (1), sent. 1, nos. 1 and 3 are present.

Section 57 subsection (1), sent. 2 and subsection (5) shall apply accordingly.

(2) Any deprivation of liberty undergone by the convicted person as a result of the act shall qualify as punishment served within the meaning of subsection (1), sentence 1, no. 1.

(3) The term of probation shall be five years. Sections 56a subsection (2), sent. 1, 56b to 56g and 57 subsection (3), sent. 2, shall apply accordingly.

(4) The court may fix terms not exceeding two years, before the expiration of which an application by the convicted person to suspend the remainder of the punishment and grant probation shall be inadmissible.

Section 57b Suspension of the Remainder of a Punishment of Imprisonment for Life as an Aggregate Punishment

If imprisonment for life has been imposed as an aggregate punishment, then the individual crimes shall be comprehensively evaluated in determining the particular gravity of the guilt (Section 57a subsection (1), sent. 1, no. 2).

Section 58 Aggregate Punishment and Suspended Execution of Punishment

(1) If someone has committed more than one crime, then the amount of the aggregate punishment shall be controlling for the suspended execution of punishment under Section 56.

(2) If in cases under Section 55 subsection (1), the execution of all, or the remainder of the imprisonment imposed in the previous sentence has been suspended and probation granted and if the aggregate punishment has also been suspended and probation granted, then the minimum length of the new probation term shall be reduced by the already expired term of probation, but not to less than one year. If the aggregate punishment is not suspended and probation granted, then Section 56f subsection (3), shall apply accordingly.

Title Five Warning With Punishment Reserved; Dispensing With Punishment

Section 59 Prerequisites for Warning with Punishment Reserved

(1) If someone has incurred a fine of not more than one hundred eighty daily rates, the court may warn him at the time of conviction, indicate the punishment and reserve imposition of this punishment, if:

1. it can be expected that the perpetrator will commit no further crimes in the future even without imposition of punishment;

2. a comprehensive evaluation of the act and the personality of the perpetrator reveals special circumstances, which make it advisable to exempt him from the imposition of punishment; and

3. the defense of the legal order does not require the imposition of punishment.

Section 56 subsection (1), second sentence, shall apply accordingly.

(2) A warning with punishment reserved shall be excluded, as a rule, if the perpetrator has been warned with punishment reserved or sentenced to punishment during the three years preceding the act.

(3) Forfeiture, confiscation or rendering unusable may be imposed collaterally to a warning. A warning with punishment reserved shall not be permissible collaterally to measures of reform and prevention.

Section 59a Term of Probation, Conditions and Instructions

(1) The court shall determine the length of the term of probation. It may not exceed three years nor be less than one year.

(2) The court may instruct the warned person:

1. to make efforts to achieve mediation with the aggrieved party or otherwise make restitution for the harm caused by the act;

2. to meet his maintenance obligations;

3. to pay a sum of money to a non-profit-making institution or the public treasury;

4. to undergo ambulatory curative treatment or an ambulatory treatment for addiction; or

5. to participate in traffic school.

No unreasonable demands may thereby be made on the way the warned person conducts his life; the conditions and instructions under sentence 1, nos. 3 to 5 should not be disproportionate to the significance of the act committed by the perpetrator. Sections 56c subsections (3) and (4), and Section 56e shall apply accordingly.

Section 59b Imposition of Reserved Punishment

(1) For the imposition of reserved punishment Section 56f shall apply accordingly.

(2) If reserved punishment is not imposed against the reprimanded person, then the court shall, upon the expiration of the term of probation, declare that, with the reprimand, the case is closed.

Section 59c Aggregate Punishment and Warning with Punishment Reserved

(1) If someone has committed more than one crime, then in indicating the punishment in cases of a warning with punishment reserved, Sections 53 to 55 shall be applicable accordingly.

(2) If the warned person is subsequently sentenced to punishment for a crime committed before the warning was given, then the provisions for the formation of an aggregate punishment (Sections 53 to 55, 58) shall be applicable, providing that the reserved punishment in cases of Section 55 is equivalent to an imposed punishment.

Section 60 Dispensing with Punishment

The court shall dispense with punishment when the consequences of the act which have befallen the perpetrator are so serious that the imposition of punishment would be obviously inappropriate. This shall not apply when the perpetrator has incurred imprisonment of more than one year for the act.

Title Six Measures of Reform And Prevention

Section 61 Summary

Measures of reform and prevention are:

1. placement in a psychiatric hospital;

2. placement in an institution for withdrawal treatment;

3. placement in preventive detention;

4. supervision of conduct;

5. withdrawal of permission to drive;

6. prohibition of engagement in a profession.

Section 62 Principle of Proportionality

A measure of reform and prevention may not be ordered when it is disproportionate to the significance of the acts committed by, or expected to be committed by the perpetrator, as well as to the degree of danger he poses.

Measures Involving Deprivation of Liberty

Section 63 Placement in a Psychiatric Hospital

If someone committed an unlawful act and at the time lacked capacity to be adjudged guilty (Section 20) or was in a state of diminished capacity (Section 21), the court shall order placement in a psychiatric hospital if a comprehensive evaluation of the perpetrator and his act reveals that, as a result of his condition serious unlawful acts can be expected of him and he therefore presents a danger to the general public.

Section 641 Placement in an Institution for Withdrawal Treatment

(1) If someone has a proclivity to consume alcoholic beverages or other intoxicants to excess and is convicted of an unlawful act which he committed while intoxicated or as a result of his proclivity, or is not convicted only because his lack of capacity to be adjudged guilty has been proved or may not be excluded, then the court shall order placement in an institution for withdrawal treatment if there is a danger that he will commit serious unlawful acts as a consequence of his proclivity.

(2) No order shall be issued if withdrawal treatment appears to be without prospects from the outset.

Section 65 (repealed)

Section 66 Placement in Preventive Detention

(1) If someone is sentenced for an intentional crime to a fixed term of imprisonment of at least two years, then the court shall order preventive detention collateral to the punishment, if:

1. the perpetrator has already been sentenced twice, respectively, to imprisonment for at least one year for intentional crimes which he committed prior to the new act;

2. as a result of one or more of these acts prior to the new act he has served a term of imprisonment or deprivation of liberty pursuant to a measure of reform and prevention for a period of at least two years; and

3. comprehensive evaluation of the perpetrator and his acts reveals that, due to his proclivity to commit serious crimes, particularly those as a result of which the victim suffers serious emotional or physical injury, or serious financial loss is caused, he presents a danger to the general public.

(2) If someone has committed three intentional crimes for which he incurred, respectively, imprisonment for at least one year, and if he is sentenced to a fixed term of imprisonment of at least three years for one or more of these acts, then the court may under the provision indicated in subsection (1), no. 3, order preventive detention collateral to the punishment even without a prior sentence or deprivation of liberty (subsection (1), nos. 1 and 2).

(3) If someone is sentenced to a fixed term of imprisonment of at least two years for a serious criminal offense or a crime under Sections 174 to 174c, 176, 179 subsections (1) to (3), 180, 182, 224, 225 subsections (1) or (2), or 323a, as long as the act committed while intoxicated is a serious criminal offense or one of the aforementioned unlawful acts, then the court may order preventive detention collateral to the punishment if the perpetrator has already been once sentenced to imprisonment of at least three years for one or more such crimes which he committed prior to the new act and the requirements indicated in subsection (1), nos. 2 and 3, have been fulfilled. If someone has committed two crimes of the type indicated in sentence 1, as a result of which he has incurred, respectively, imprisonment for at least two years, and if he is sentenced for one or more of these acts to a fixed term of imprisonment of at least three years, then the court may, under the provision indicated in subsection (1), no. 3, order preventive detention collateral to the punishment even without a prior sentence or deprivation of liberty (subsection (1), nos. 1 and 2). Subsections (1) and (2) shall remain unaffected.

(4) Within the meaning of subsection (1), no. 1, a sentence to an aggregate punishment shall qualify as a single sentence. If remand detention or another deprivation of liberty is credited against a term of imprisonment, it shall qualify as a served punishment within the meaning of subsection (1), no. 2. A prior act shall not be considered if more than five years have passed between it and the subsequent act. Time in which the perpetrator has been held in custody in an institution by order of a public authority shall not be included in the term. An act upon which judgment was passed outside of the territorial area of application of this law shall be equivalent to an act upon which judgment is passed within this area if it would be an intentional act under the German criminal law, or, in cases under subsection (3), it would be one of the crimes of the type indicated in subsection (3), sentence 1.

Section 67 Sequence of Execution

(1) If placement in an institution pursuant to Sections 63 and 64 is ordered collaterally to

imprisonment, then the measure shall be executed before the punishment.

(2) The court shall indicate, however, that all or part of the punishment be executed before the measure, if the objective of the measure will thereby be more easily attained.

(3) The court may subsequently make, modify or vacate an order pursuant to subsection (2), if the personal circumstances of the convicted person make it seem advisable.

(4) 2 If the measure is executed in whole or in part before the punishment, then the time of execution of the measure shall be credited to the punishment until two-thirds of the punishment has been completed. This shall not apply if the court has made an order pursuant to Section 67d subsection (5), sent. 1.

(5) If the measure is executed before the punishment, then the court may suspend the execution of the remainder of punishment and grant probation under the provisions of Section 57 subsection (1), sent. 1, no. 2, if half of the punishment has been completed. If the remainder of punishment is not suspended, the execution of the measure shall continue; the court may nevertheless order the execution of the punishment if circumstances relating to the convicted person make it seem advisable.

Section 67a Transfer for the Purpose of Executing Another Measure

(1) If placement in a psychiatric hospital or an institution for withdrawal treatment has been ordered, then the court may subsequently transfer the perpetrator for the purpose of executing another measure if the resocialization of the perpetrator can be better promoted thereby.

(2) Under the provisions of subsection (1) the court may subsequently transfer a perpetrator, as to whom preventive detention has been ordered, for the purpose of executing one of the measures named in subsection (1).

(3) The court may modify or vacate a decision under subsections (1) and (2), if it subsequently appears that the resocialization of the perpetrator can be better promoted thereby. The court may further vacate a decision under subsection (2), if it subsequently appears that no success will be achieved with the execution of the measures named in subsection (1).

(4) The length of the terms of placement and review shall be determined by the provisions which apply for the placement ordered in the judgment.

Section 67b Suspension Simultaneous with the Order

(1) If the court orders placement in a psychiatric hospital or an institution for withdrawal treatment, it shall simultaneously suspend its execution and grant probation, if special circumstances justify the expectation that the objective of the measure may also be attained thereby. There shall be no suspension if the perpetrator still must serve a term of imprisonment which was imposed at the same time as the measure and not suspended with a grant of probation.

(2) Supervision of conduct shall commence with the suspension.

Section 67c Delayed Commencement of the Placement

(1) If a term of imprisonment is executed prior to a simultaneously ordered placement, the court shall review, before execution of the punishment has been completed, whether the objective of the measure still requires the placement. If that is not the case, it suspends the execution of the placement and grants probation; supervision of conduct shall commence with the suspension.

(2) If the execution of the placement has not commenced within three years of the order becoming final, and if no case exists under subsection (1) or Section 67b, then the placement may only be executed if the court orders it. Time in which the perpetrator has been held in custody in an institution by order of a public authority shall not be credited to the term. The court shall order its execution if the objective of the measure still requires the placement. If the objective of the measure has not been attained but special circumstances justify the expectation that it may also be attained by suspension, then the court shall suspend execution of the placement and grant probation; supervision of conduct shall commence with the suspension. If the objective of the measure has been attained, the court shall declare it as having been satisfied.

Section 67d Length of Placement

(1) Placement in an institution for withdrawal treatment may not exceed two years. The term runs from the commencement of the placement. If a measure involving deprivation of liberty is executed before a collaterally ordered term of imprisonment, then the maximum term shall be extended by the length of the term of imprisonment to the extent the time of execution of the measure is credited towards the punishment.

(2) If no maximum term has been provided or the term has not yet expired, then the court shall suspend the further execution of the placement and grant probation if it can be expected that the person under placement will not commit any more unlawful acts if released from execution of the measure. Supervision of conduct shall commence with the suspension.

(3) If ten years of placement in preventive detention have been executed, the court shall declare the measure satisfied if there is no danger that the person under placement will, due to his proclivity, commit serious crimes, as a result of which the victim is seriously harmed emotionally or physically. Supervision of conduct shall commence upon satisfaction of the measure.

(4) If the maximum term has expired, then the person under placement shall be released. The measure has thereby been satisfied.

(5) 3 If placement in an institution for withdrawal treatment has been executed for at least one year, then the court may subsequently determine that it not be further executed, if its objective cannot be attained due to reasons relating to the person under placement. Supervision of conduct shall commence upon release from the execution of the placement.

Section 67e Review

(1) The court may review at any time whether the further execution of the placement should be suspended and probation granted. It shall make this review before the expiration of specified terms.

(2) With respect to the various placements, these terms shall be:

six months, if in an institution for withdrawal treatment;

one year, if in a psychiatric hospital;

two years, if in preventive detention.

(3) The court may shorten the terms. It may also set terms within the statutory limits for review, before the expiration of which an application for review shall be inadmissible.

(4) The terms run from the commencement of the placement. If the court refuses the suspension, the terms shall commence anew with this decision.

Section 67f Multiple Orders of a Measure

If the court orders placement in an institution for withdrawal treatment, then any previous order of the measure shall be considered satisfied.

Section 67g Revocation of Suspension

(1) The court shall revoke the suspension of a placement if the convicted person:

1. commits an unlawful act during the period of supervision of conduct;

2. grossly and persistently violates instructions; or

3. persistently evades the supervision and guidance of the probation officer or the supervisory

agency,

and it is thereby revealed that the objective of the measure requires his placement.

(2) The court shall also revoke the suspension of a placement pursuant to Sections 63 and 64 when it is revealed during the period of supervision of conduct that unlawful acts are to be expected from the convicted person as a result of his condition and the objective of the measure therefore requires his placement.

(3) The court shall further revoke the suspension if circumstances made known to it during the period of supervision of conduct, which would have led to refusal of the suspension, show that the objective of the measure requires placement of the convicted person.

(4) The period of placement before and after the revocation may not in its totality exceed the maximum statutory term for the measure.

(5) If the court does not revoke the suspension of the placement, then the measure shall

be satisfied at the conclusion of the supervision of conduct.

(6) Payments which the convicted person has rendered in fulfillment of instructions shall not be reimbursed.

Supervision of Conduct

Section 68 Prerequisites for Supervision of Conduct

(1) If someone has incurred a fixed term of imprisonment of at least six months for a crime, in relation to which the law specifically provides for supervision of conduct, then the court may order supervision of conduct collateral to the punishment if there is a danger that he will commit further crimes.

(2) Statutory provisions concerning supervision of conduct (Sections 67b, 67c, 67d subsections (2), (3) and (5), and 68f) shall remain unaffected.

Section 68a Supervisory Agency, Probation Officer

(1) The convicted person shall be assigned to a supervisory agency; the court shall appoint a probation officer for him for the period of supervision of conduct.

(2) Probation officer and supervisory agency shall act in concert with each other to assist

and care for the convicted person.

(3) The supervisory agency shall supervise the conduct of the convicted person and the fulfillment of the instructions in concert with the court and with the support of the probation officer.

(4) If there is no agreement between the supervisory agency and the probation officer as to questions which affect the assistance for the convicted person and his care, then the court shall decide.

(5) The court may give instructions to the supervisory agency and the probation officer concerning their functions.

(6) Before filing an application under Section 145a, sent. 2, the supervisory agency shall hear the opinion of the probation officer; subsection (4) shall not be applicable.

Section 68b Instructions

(1) The court may, for the duration of the supervision of conduct or for a shorter time, instruct the convicted person:

1. not to leave his place of residence or wherever he happens to be or a specified area without the permission of the supervisory agency;

2. not to frequent specified places which can offer him the opportunity or stimulus to commit further crimes;

3. not to employ, train or shelter particular persons or persons of a particular group, who can offer him the opportunity or stimulus to commit further crimes;

4. not to engage in particular activities which under circumstances can be exploited for criminal purposes;

5. not to possess, carry or entrust to another for safekeeping, particular objects which can provide him with the opportunity or stimulus to commit further crimes;

6. not to keep or drive motor vehicles or particular types of motor vehicles or other vehicles, which he can under circumstances misuse for criminal purposes;

7. to report at particular times to the supervisory agency or to a particular government agency;

8. to report promptly every change in the place of residence or work to the supervisory agency; or

9. to report in the case of unemployment to the competent employment office or to another

authorized employment agency.

The court shall precisely indicate the prohibited or required conduct in its instruction.

(2) The court may, for the duration of the supervision of conduct or for a shorter time,

give the convicted person further instructions, particularly those which relate to education, work, leisure, the ordering of his financial affairs, or the fulfillment of maintenance obligations. Section 56c subsection (3), shall be applicable.

(3) No unreasonable demands may be made in the instructions on the way the convicted

person conducts his life.

Section 68c Length of Supervision of Conduct

(1) Supervision of conduct shall last at least two and at most five years. The court may shorten the maximum length.

(2) The court may order supervision of conduct which exceeds the maximum length set in subsection (1), sentence 1, without fixing a term, if the convicted person:

1. does not consent to an instruction under Section 56c subsection (3), no.1; or

2. does not comply with an instruction to undergo curative treatment or treatment for addiction, and endangerment of the general public through the commission of further serious crimes is to be expected. If the convicted person subsequently declares his consent, then the court shall fix the further duration of the supervision of conduct. Section 68e subsection (4), shall otherwise apply.

(3) Supervision of conduct shall begin when the order becomes final. Time, during which the convicted person is a fugitive, is hiding, or is held in custody in an institution by order of a public authority, shall not be credited against its length.

Section 68d Subsequent Decisions

The court may subsequently make, modify or vacate decisions pursuant to Sections 68a subsections (1) and (5), 68b, 68c subsection (1), sent. 2, and subsection (2).

Section 68e Termination of Supervision of Conduct

(1) The court shall terminate supervision of conduct if it can be expected that, even without it, the convicted person will commit no more crimes. Termination shall be permissible at the earliest after expiration of the minimum statutory period.

(2) The court may fix terms of at most six months, before the expiration of which an application to terminate supervision of conduct shall be inadmissible.

(3) Supervision of conduct shall terminate if placement in preventive detention is ordered and its execution commences.

(4) If the court has ordered supervision of conduct pursuant to Section 68c subsection (2), without fixing a term, then it shall examine, at the latest upon expiration of the maximum term pursuant to Section 68c subsection (1), sent. 1, whether a decision pursuant to subsection (1), sentence 1 is required. If the court refuses to terminate supervision of conduct, then the term shall commence a new with the decision.

Section 68f Supervision of Conduct without Suspension of the Remainder of Punishment

(1) If imprisonment for at least two years for an intentional crime or imprisonment for at least one year for a crime named in Section 181b has been fully executed, then supervision of conduct enters into force upon the release of the convicted person from serving his sentence. This shall not apply when a measure of reform and prevention involving deprivation of liberty is executed immediately following the service of the sentence.

(2) If it can be expected that the convicted person will commit no more crimes even without supervision of conduct, then the court shall order that the measure be waived.

Section 68g Supervision of Conduct, Suspension of Sentence and Probation

(1) If suspension of the execution of all or the remainder of punishment has been ordered or prohibition of engagement in a profession has been suspended and probation granted and the convicted person is subject at the same time to supervision of conduct because of the same or another act, then only Sections 68a and 68b shall apply in relation to supervision and the issuance of instructions. Supervision of conduct shall not terminate before the expiration of the term of probation.

(2) If the suspension of sentence and grant of probation and the supervision of conduct are ordered on the basis of the same act, the court may nevertheless determine that the supervision of conduct shall be suspended until the expiration of the term of probation. The term of probation shall not then be credited to the period of supervision of conduct.

(3) If after the expiration of the term of probation the punishment or the remainder thereof has been remitted or the prohibition of engagement in a profession has been declared to have been terminated, then supervision of conduct ordered because of the same act shall also terminate therewith.

Withdrawal of Permission to Drive

Section 69 Withdrawal of Permission to Drive

(1) If someone is convicted of an unlawful act which he committed in connection with the driving of a motor vehicle or in violation of the duties of a driver of a motor vehicle, or is not convicted only because his lack of capacity to be adjudged guilty has been proved or may not be excluded, then the court shall withdraw his permission to drive if the act reveals that he is unfit to drive a motor vehicle. Further review pursuant to Section 62 shall not be required.

(2) If the unlawful act in cases under subsection (1) is a less serious criminal offense of:

1. endangerment of road traffic (Section 315c);

2. drunkenness in traffic (Section 316);

3. unauthorized leaving of the scene of an accident (Section 142), although the perpetrator knows or is capable of knowing that a person was killed, seriously injured or significant damage has been caused to the property of others; or

4. total intoxication (Section 323a) which relates to one of the acts in numbers 1 through 3, then the perpetrator shall, as a rule, be deemed unfit to drive motor vehicles.

(3) Permission to drive shall be forfeited when the judgment becomes final. A driver’s license issued by a German public authority shall be confiscated in the judgment.

Section 69a Bar to Granting Permission to Drive

(1) If the court withdraws the permission to drive, then it shall simultaneously provide that no new permission to drive may be granted for a period of from six months to five years (bar). A permanent bar may be ordered if it can be expected that the statutory maximum term will not suffice to avert the danger posed by the perpetrator. If the perpetrator has no permission to drive, then only a bar shall be ordered.

(2) The court may exempt particular types of motor vehicles from the bar if special circumstances justify the assumption that the objective of the measure will not be thereby endangered. (3) The minimum bar shall be for one year if a bar has already been ordered against the

perpetrator in the last three years before the act.

(4) If the perpetrator’s permission to drive has been provisionally withdrawn because of

the act (section 111a of the Code of Criminal Procedure), then the minimum bar shall be reduced by the

time during which provisional withdrawal was in effect. However, it may not be less than three months.

(5) The bar shall commence when the judgment becomes final. The time of a provisional withdrawal ordered because of the act shall be credited to the term of the bar, to the extent it has run following the pronouncement of the judgment in which the factual determinations on which the measure is based could last be reviewed.

(6) Within the meaning of subsections (4) and (5) the taking or holding of a driver’s license in custody or its confiscation (Section 94 Code of Criminal Procedure) shall be equivalent to provisional withdrawal of permission to drive.

(7) If there are grounds for the assumption that the perpetrator is no longer unfit to drive motor vehicles, then the court may lift the bar early. This action shall be permissible at the earliest when the bar has been in effect three months, or a year in cases pursuant to subsection (3); subsection (5), sentence 2 and subsection (6) shall apply accordingly.

Section 69b Effect of Withdrawal on Foreign Permission to Drive

(1) If the perpetrator is permitted to drive motor vehicles in Germany on the basis of permission to drive granted abroad, without having been granted permission to drive by a German public authority, then the withdrawal of permission to drive has the effect of a deprivation of the right to make use of permission to drive in Germany. The right to drive motor vehicles in Germany is forfeited when the decision becomes final. During the bar neither domestic permission to drive, nor the right to make use of foreign permission to drive, may be granted.

(2) If the foreign driver’s license has been issued by a public authority of a member state of the European Union or another signatory state of the Convention on the European Economic Area and the holder has his ordinary residence in Germany, then the driver’s license shall be confiscated in the judgment and sent back to the issuing public authority. In other cases, the withdrawal of permission to drive and the bar shall be endorsed on the foreign driver’s licenses. Prohibition of Engagement in a Profession

Section 70 Order of Prohibition of Engagement in a Profession

(1) If someone is convicted of an unlawful act, which he committed in abuse of his profession or trade or in gross violation of the duties associated therewith, or is not convicted only because his lack of capacity to be adjudged guilty has been proved or may not be excluded, then the court may prohibit him from engaging in the profession, branch of profession, occupation, trade or branch of trade, for a period of from one year to five years, if a comprehensive evaluation of the perpetrator and the act reveals a danger, that by further engagement in the profession, branch of profession, occupation, trade or branch of trade he will commit serious unlawful acts of the type indicated. The order of prohibition of engagement in a profession may be permanent if it can be expected that the statutory maximum term will not suffice to avert the danger posed by the perpetrator.

(2) If the perpetrator has been provisionally prohibited from engaging in a profession, branch of profession, occupation, trade or branch of trade (section 132a of the Code of Criminal Procedure), then the minimum term of prohibition shall be reduced by the time during which the provisional prohibition of engagement in a profession was in effect. It may, however, not be less than three months.

(3) As long as the prohibition is in effect the perpetrator may not engage in the profession, branch of profession, occupation, trade or branch of trade on behalf of another or have a person dependent on his instructions engage in it on his behalf.

(4) The prohibition of engagement in a profession takes effect when the judgment becomes final. The time of a provisional prohibition of engagement in a profession ordered because of the act shall be credited to the term of prohibition, to the extent it has run following the pronouncement of the judgment in which the factual determinations on which the measure is based could last be examined. Time during which the perpetrator is held in custody in an institution by order of a public authority shall not be credited.

Section 70a Suspension of the Prohibition of Engagement in a Profession

(1) If, after an order of prohibition of engagement in a profession, there appear grounds for the assumption that the danger no longer exists that the perpetrator will commit serious unlawful acts of the type indicated in Section 70 subsection (1), then the court may suspend the prohibition and grant probation.

(2) The order shall be permissible at the earliest when the prohibition has been in effect for one year. The time of a provisional prohibition of engagement in a profession shall be credited to the term of prohibition within the framework of Section 70 subsection (4), sent. 2. Time during which the perpetrator is held in custody in an institution by order of a public authority shall not be credited.

(3) If the prohibition of engagement in a profession is suspended and probation granted, then Sections 56a and 56c to 56e shall apply accordingly. The term of probation shall be extended, however, by the time in which a term of imprisonment or a measure involving deprivation of liberty is executed, which was imposed or ordered against the convicted person because of the act.

Section 70b Revocation of the Suspension and Termination of the Prohibition of Engagement in a Profession

(1) The court shall revoke the suspension of the prohibition of engagement in a profession, if the convicted person:

1. commits an unlawful act in abuse of his profession, occupation or trade or of the duties associated therewith during the term of probation;

2. grossly and persistently violates an instruction; or

3. persistently evades the supervision and guidance of the probation officer,

and it is thereby revealed that the objective of the prohibition of engagement in a profession requires its continued application.

(2) The court shall also revoke suspension of the prohibition of engagement in a profession, if circumstances made known to it during the term of probation, which would have led to refusal of the suspension, show that the objective of the measure requires the continued application of the prohibition of engagement in a profession.

(3) The time of the suspension of the prohibition of engagement in a profession shall not be credited to the term of prohibition.

(4) Payments which the convicted person has rendered in fulfillment of instructions and promises shall not be reimbursed.

(5) After expiration of the term of probation the court shall declare the prohibition of engagement in a profession terminated.

Common Provisions

Section 71 Independent Orders

(1) The court may also independently order placement in a psychiatric hospital or in an institution for withdrawal treatment when criminal proceedings are impracticable due to the perpetrator’s lack of capacity to be adjudged guilty or to stand trial.

(2) The same shall apply to withdrawal of permission to drive and to the prohibition of engagement in a profession.

Section 72 Combination of Measures

(1) If the prerequisites for more than one measure are fulfilled, yet the desired objective may be attained through individual measures, then only those shall be ordered. In this respect priority shall be given among a number of suitable measures to those which least burden the perpetrator.

(2) Measures shall in other respects be ordered concurrently unless the law provides otherwise.

(3) If more than one measure involving deprivation of liberty are ordered, then the court shall determine the sequence of their execution. Before the conclusion of the execution of a measure the court shall order the execution of the next, respectively, if its objective still requires the placement. Section 67c subsection (2), sentences 4 and 5 shall be applicable.

Title Seven Forfeiture And Confiscation

Section 73 Prerequisites for Forfeiture

(1) If an unlawful act has been committed and the perpetrator or inciter or accessory has acquired something as a result thereof or for the purpose of committing it, then the court shall order its forfeiture. This shall not apply to the extent that a claim by the aggrieved party has arisen out of the act the satisfaction of which would deprive the perpetrator or inciter or accessory of the value of that which was acquired by virtue of the act.

(2) The order of forfeiture shall extend to derived benefits. It may also extend to objects which the perpetrator or inciter or accessory has acquired through alienation of an acquired object, as a replacement for its destruction, damage or seizure or on the basis of an acquired right.

(3) If the perpetrator or inciter or accessory acted for another and the latter acquired something thereby, then the order of forfeiture under subsections (1) and (2) shall be directed at him.

(4) Forfeiture of an object shall also be ordered if it is owned or claimed by a third party, who furnished it for the act or otherwise with knowledge of the attendant circumstances of the act.

Section 73a Forfeiture of the Replacement Value

To the extent that the forfeiture of a particular object is impossible due to the nature of what was acquired or for some other reason or because forfeiture of a replacement object pursuant to Section 73 subsection (2), sent. 2, has not been ordered, the court shall order the forfeiture of a sum of money which corresponds to the value of that which was acquired. The court shall also make such an order collateral to the forfeiture of an object to the extent its value falls short of the value of that which was originally acquired.

Section 73b Estimation

The extent of what has been acquired and its value, as well as the amount of the claim the satisfaction of which would deprive the perpetrator or inciter or accessory of that which was acquired, may be estimated.

Section 73c Hardship Provision

(1) Forfeiture shall not be ordered to the extent it would constitute an undue hardship for the person affected. The order need not be made to the extent the value of that which was acquired is no longer part of the affected person’s assets at the time of the order or if that which was acquired is only of slight value.

(2) In approving facilitation of payment Section 42 shall apply accordingly.

Section 73d Extended Forfeiture

(1) If an unlawful act has been committed pursuant to a law which refers to this provision, then the court shall also order the forfeiture of objects of the perpetrator or inciter or accessory if the circumstances justify the assumption that these objects were acquired as a result of unlawful acts, or for the purpose of committing them. Sentence 1 shall also be applicable if the perpetrator or inciter or accessory does not own or have a claim to the object only because he acquired the object as a result of an unlawful act or for the purpose of committing it. Section 73 subsection (2), shall apply accordingly.

(2) If forfeiture of a particular object after the act has become impossible in whole or in part, then Sections 73a and 73b shall to that extent be applied by analogy.

(3) If, after an order of forfeiture pursuant to subsection (1) due to another unlawful act which the perpetrator or inciter or accessory committed before the order, a decision must again be made as to the forfeiture of objects of the perpetrator or inciter or accessory, then the court, in so doing, shall consider the order already issued.

(4) Section 73c shall apply accordingly.

Section 73e Effect of Forfeiture

(1) If forfeiture of an object is ordered, then ownership of the property or the right forfeited shall pass to the state when the decision becomes final, if the person affected by the order has a claim thereto at the time. The rights of third parties in the object shall remain intact.

(2) Before it becomes final the order shall have the effect of prohibiting alienation within the meaning of section 136 of the Civil Code; the prohibition shall also encompass dispositions other than alienations.

Section 74 Prerequisites for Confiscation

(1) If an intentional crime has been committed, then objects which were generated thereby or used or intended for use in its commission or preparation may be confiscated.

(2) Confiscation shall only be permissible if:

1. the perpetrator or inciter or accessory owns or has a claim to the objects at the time of the decision; or

2. the objects, due to their nature and the circumstances, endanger the general public or there exists a danger that they will be used for the commission of unlawful acts.

(3) Under the provisions of subsection (2), no. 2, confiscation of objects shall also be permissible if the perpetrator acted without guilt.

(4) If confiscation is prescribed or permitted by a special provision over and above subsection (1), then subsections (2) and (3) shall apply accordingly.

Section 74a Extended Prerequisites for Confiscation

If the law refers to this provision, then objects may also be confiscated, as an exception to Section 74 subsection (2), no. 1, if at the time of the decision the person who owns or has a claim to them:

1. has at least recklessly contributed to the fact that the property or the right thereto has been the object or instrumentality of the act or its preparation; or

2. has acquired the objects in a reprehensible manner with knowledge of the circumstances which would have permitted their confiscation.

Section 74b Principle of Proportionality

(1) If confiscation is not prescribed, then it may not be ordered in cases under Sections 74 subsection (2), no. 1 and 74a when it is disproportionate to the significance of the act committed or the reproach attaching to the perpetrator or inciter or accessory or the third party in cases of Section 74a affected by the confiscation.

(2) In cases under Sections 74 and 74a the court shall order that the confiscation be reserved and shall impose a less incisive measure if the objective of the confiscation can also be thereby attained. Particular consideration shall be given to instructions:

1. to render the objects unusable;

2. to remove particular fittings or distinguishing marks or otherwise modify the objects; or

3. to deal with the objects in a specified manner. If the instructions are followed, the reservation on confiscation shall be lifted; otherwise the court shall subsequently order the confiscation.

(3) If the confiscation is not prescribed, then it may be limited to a part of the objects.

Section 74c Confiscation of Replacement Value

(1) If the perpetrator or inciter or accessory has used, particularly through alienation or consumption, the object which he owned or had a claim to at the time of the act and which could have been subject to confiscation, or if he has otherwise obstructed the confiscation of the object, then the court may order the confiscation from the perpetrator or inciter or accessory of a sum of money no greater than an amount equivalent to the value of the object.

(2) The court may also make such an order collateral to the confiscation of an object or in place thereof, if the perpetrator or inciter or accessory has, prior to the decision on confiscation, encumbered it with the right of a third party, the extinguishment of which cannot be ordered without compensation or could not be ordered in the case of confiscation (Sections 74e subsection (2), and 74f); if the court makes the order collateral to the confiscation, then the amount of the replacement value shall be measured according to the value of the encumbrance on the object.

(3) The value of the object and the encumbrance may be estimated.

(4) In approving facilitation of payment Section 42 shall apply.

Section 74d Confiscation of Writings and Rendering Unusable

(1) Writings (Section 11 subsection (3)), which have a content such that every intentional dissemination with knowledge of their content would satisfy the elements of a penal norm, shall be confiscated if at least one copy was disseminated by means of an unlawful act or was intended for such dissemination. It shall simultaneously be ordered that the equipment used or intended for the production of the writings, such as plates, frames, type, blocks, negatives or stencils, be rendered unusable.

(2) The confiscation shall extend only to copies which are in the possession of the persons involved in their dissemination or preparation or which have been publicly displayed or, having been forwarded for dissemination, have not yet been distributed to the recipient.

(3) Subsection (1) shall correspondingly apply to writings (Section 11 subsection (3)) which have a content such that intentional dissemination with knowledge of their content would satisfy the elements of a penal norm only when additional attendant circumstances of the act are present. Confiscation and rendering unusable shall, however, only be ordered to the extent that:

1. the copies and the objects indicated in subsection (1), sentence 2 are in the possession of the perpetrator, inciter or accessory or another on whose behalf the perpetrator or inciter or accessory acted, or are intended by these people for dissemination; and

2. the measures are required to prevent unlawful dissemination by these persons.

(4) It shall be deemed equivalent to dissemination within the meaning of subsections (1) to (3), if a writing (Section 11 subsection (3)) or at least one copy of the writing has been made accessible to the public by display, posting, presentation or other means.

(5) Section 74b subsections (2) and (3), shall apply accordingly.

Section 74e Effect of Confiscation

(1) If an object is confiscated, then ownership of the property or the right confiscated shall pass to the state when the decision becomes final.

(2) The rights of third parties in the object shall remain intact. However, the court shall order the extinguishment of these rights if it bases confiscation on the fact that the conditions of Section 74 subsection (2), no. 2, exist. It may also order the extinguishment of the rights of a third party if he may not be granted compensation pursuant to Section 74f subsection (2), nos. 1 or 2.

(3) Section 73e subsection (2), shall apply accordingly for the order of confiscation and the order reserving confiscation, even when it has not yet become final.

Section 74f Compensation

(1) If a third party had a claim of ownership in the property or the confiscated right at the time the decision on confiscation or rendering unusable became final or if the object was encumbered by a right of a third party which was extinguished or interfered with by the decision, then the third party shall be appropriately compensated in money from the public treasury taking into consideration the fair market value.

(2) Compensation shall not be granted, if:

1. the third party has at least recklessly contributed to the fact that the property or the right thereto has been the object or instrumentality of the act or its preparation;

2. the third party has acquired the object or the right in the object in a reprehensible manner with knowledge of the circumstances which permit its confiscation or rendering unusable; or

3. it would be permissible, under the circumstances which justify the confiscation or rendering unusable, to confiscate the object from the third party permanently and without compensation on the basis of legal provisions outside of the criminal law.

(3) In cases under subsection (2) compensation may be granted to the extent it would constitute an undue hardship to refuse it.

Section 75 Special Provision for Entities and Representatives

If someone commits an act:

1. as an entity authorized to represent a legal person or as a member of such an entity;

2. as chairman of the executive committee of an association without legal capacity or as a member of such committee;

3. as a partner authorized to represent a commercial partnership; or

4. as authorized representative with full power of attorney or in a management position as general agent or authorized representative with a commercial power of attorney of a legal person or an association of persons named in numbers 2 or 3, which in relation to him and under the other prerequisites of Sections 74 to 74c and 74f would permit the confiscation of an object or its replacement value or justify the exclusion of compensation, then his act shall be attributed by application of these provisions to the person represented. Section 14 subsection (3), shall apply accordingly.

Common Provisions

Section 76 Subsequent Order of Forfeiture or Confiscation of Replacement Value

If an order of forfeiture or confiscation of an object is not practicable or insufficient because one of the preconditions indicated in Sections 73a, 73d subsection (2), or 74c has occurred or become known, then the court may subsequently order the forfeiture or confiscation of the replacement value.

Section 76a Independent Orders

(1) If for factual reasons no particular person may be prosecuted or convicted of the crime, then forfeiture or confiscation of the object or the replacement value or its rendering unusable may be independently ordered if the preconditions under which the measure is prescribed or permitted otherwise exist.

(2) Subsection (1) shall also be applicable under the provisions of Sections 74 subsection (2), no. 2 subsection (3) and 74d, if:

1. prosecution of the crime is barred by the statute of limitations; or

2. for legal reasons no particular person may be prosecuted and the law does not provide otherwise. Confiscation or rendering unusable may not, however, be ordered in the absence of a complaint, authorization, or request for prosecution.

(3) Subsection (1) shall also be applicable if the court dispenses with punishment or if the proceeding is terminated pursuant to a provision which permits this in the discretion of the public prosecution office or the court or with the agreement of both.

Chapter Four Criminal Complaint, Authorization, Request For Prosecution

Section 77 Persons Entitled to File a Complaint

(1) If the act may only be prosecuted upon complaint, then, to the extent the law does not provide otherwise, the aggrieved party may file a complaint.

(2) If the aggrieved party dies, then his right to file a complaint passes in cases where the law so provides to his spouse and children. If the aggrieved party has left neither a spouse nor children or if they have died before the expiration of the period for filing the complaint, then the right to file the complaint passes to the parents and, if they have also died before the expiration of the period for filing the complaint, to the siblings and grandchildren. If a relative has participated in the act or his relationship with the aggrieved party has ceased to exist, then he is excluded from those to whom the right to file the complaint may pass. The right to file the complaint does not pass if prosecution is at variance with the expressed desire of the aggrieved party.

(3) If the person entitled to file a complaint has no legal capacity or only has limited legal capacity, then the statutory representative for his personal affairs and the person responsible for the care of the person entitled to file a complaint may file a complaint.

(4) If more than one person is entitled to file a complaint, then each may file a complaint independently.

Section 77a Complaint by a Superior in the Public Service

(1) If the act has been committed by or against a public official, a person with special public service obligations, or a soldier in the Federal Armed Forces and may be prosecuted upon complaint by his superior in the public service under whom the concerned person served at the time of the act, then that superior in the public service is entitled to file the complaint.

(2) In the case of professional judges, whoever exercises official supervision over the judge shall be entitled to file the complaint in place of the superior in the public service. In the case of soldiers the superior in the public service shall be the superior in disciplinary matters.

(3) In the case of a public official or a person with special public service obligations, who does not or did not have a superior in the public service, the public agency for which he worked may file the complaint. If the public official or the person with obligations himself manages this public agency, then the state supervisory authority is entitled to file the complaint.

(4) In the case of members of the Federal Government or members of a Land government, the Federal Government and Land government, respectively, shall be entitled to file the complaint.

Section 77b Period for Filing a Complaint

(1) An act, which may only be prosecuted upon complaint, shall not be prosecuted if the person entitled to file the complaint fails to file the complaint before the expiration of a three-month period. If the end of the period falls on a Sunday, a general holiday or a Saturday, then the period shall end with the expiration of the next workday.

(2) The period shall begin upon the expiration of the day on which the entitled person acquired knowledge of the act and the identity of the perpetrator. If prosecution of the act is also dependent on a decision as to the nullity or dissolution of a marriage, then the period shall not begin before the expiration of the day on which the entitled person acquires knowledge of the finality of the decision. For a complaint by the statutory representative or the person responsible for the care of the person, their knowledge is decisive.

(3) If more than one person is entitled to file a complaint or more than one person participated in the act, then the period shall run separately for and against each person.

(4) If as a result of the death of the aggrieved party the right to file a complaint has passed to relatives, then the period shall end at the earliest three months and at the latest six months after the death of the aggrieved party.

(5) The running of the period shall be tolled if an application has been received at a settlement board to conduct a conciliation attempt pursuant to section 380 of the Code of Criminal Procedure until the issuance of the certificate pursuant to section 380 subsection (1), sent. 2, of the Code of Criminal Procedure.

Section 77c Acts Committed Reciprocally

In the case of acts committed reciprocally which are connected with one another and may only be prosecuted upon complaint, if one entitled person has filed for criminal prosecution of the other, then the other’s right to file a complaint is extinguished if he has not exercised it before the completion of his last word in the proceedings at first instance. He may still file the complaint even if, for him, the period for filing the complaint has expired.

Section 77d Withdrawal of the Complaint

(1) The complaint may be withdrawn. The withdrawal may be declared up until the conclusion of criminal proceedings has become final. A withdrawn complaint may not be refiled.

(2) If the aggrieved party, or, in the case of his death, the person entitled, dies after he has filed the complaint, then the spouse, children, parents, siblings or grandchildren of the aggrieved party may withdraw the complaint in the order indicated in Section 77 subsection (2). More than one relative of equal rank may only exercise the right jointly. Whoever participated in the act may not withdraw the complaint.

Section 77e Authorization and Request for Prosecution

If the act may be prosecuted only with authorization or upon a request for prosecution, then Sections 77 and 77d shall apply accordingly.

Chapter Five Statutes of Limitations

Title One Statute of Limitations For Prosecution

Section 78 Period of Limitation

(1) The imposition of punishment and the ordering of measures (Section 11 subsection (1), no. 8) shall be excluded on expiry of the period of the statute of limitations. Section 76a subsection (2), sent.1, no. 1, shall remain unaffected.

(2) Serious criminal offenses under Section 220a (genocide) and Section 211 (murder) are not subject to a statute of limitations.

(3) To the extent that prosecution is subject to a statute of limitations, the period of limitation shall be:

1. thirty years in the case of acts punishable by imprisonment for life;

2. twenty years in the case of acts punishable by a maximum term of imprisonment of more than ten years;

3. ten years in the case of acts punishable by a maximum term of imprisonment of more than five years but not more than 10 years;

4. five years in the case of acts punishable by a maximum term of imprisonment of more than one year but not more than five years;

5. three years in the case of other acts.

(4) The period shall conform to the punishment threatened by the norm defining the elements of the offense fulfilled by the act, irrespective of aggravating or mitigating circumstances provided for in the provisions of the General Part or for especially serious or less serious cases.

Section 78a Commencement

The statute of limitations shall commence to run as soon as the act is completed. If a result constituting an element of the offense only occurs later, then the statute of limitations shall commence to run at that time.

Section 78b Tolling

(1) The statute of limitations shall be tolled:

1. until the victim of crimes under Sections 176 to 179 is eighteen years of age;

2. as long as the prosecution may, according to the law, not be commenced or continued; this shall not apply if the act may not be prosecuted only because complaint, authorization or request for prosecution are lacking.

(2) If prosecution is not possible because the perpetrator is a member of the Bundestag or a legislative body of a Land, then the tolling of the statute of limitations shall commence upon expiration of the day on which:

1. the public prosecutor or a public authority or a police officer acquires knowledge of the act and the identity of the perpetrator; or

2. a criminal information or criminal complaint has been lodged against the perpetrator (section 158 Code of Criminal Procedure).

(3) If a judgment has been rendered in the proceedings at first instance before the expiration of the period of limitation, then the period of limitation shall not expire before the time the proceedings have been concluded with finality.

(4) If the law provides for imprisonment for more than five years in aggravation in especially serious cases and trial proceedings have been instituted in the Landgericht (Regional Court), then the statute of limitations shall be tolled in cases under Section 78 subsection (3), no. 4, from the opening of proceedings in the trial court, but at most for a period of five years; subsection (3) remains unaffected.

Section 78c Interruption

(1) The running of the statute of limitations shall be interrupted by:

1. the first interrogation of the accused, notice that investigative proceedings have been initiated against him, or the order for such interrogation or notice;

2. any judicial interrogation of the accused or the order thereof;

3. any commissioning of an expert by the judge or public prosecutor if the accused has previously been interrogated or he has been given notice of the initiation of investigative proceedings;

4. any judicial seizure or search order and judicial decisions which uphold them;

5. an arrest warrant, placement order, order to be brought before a judge for interrogation and judicial decisions which uphold them;

6. the preferment of a public indictment;

7. the institution of proceedings in the trial court;

8. any setting of a trial date;

9. a penal order or another decision equivalent to a judgment;

10. the provisional judicial dismissal of the proceedings due to the absence of the indicted accused as well as any order of the judge or public prosecutor which issues after such a dismissal of the proceedings or in proceedings in absentia to ascertain the whereabouts of the indicted accused or to secure evidence;

11. the provisional judicial dismissal of the proceedings due to the lack of capacity of the indicted accused to stand trial as well as any order of the judge or public prosecutor which issues after such a dismissal of the proceedings to review the fitness of the indicted accused to stand trial; or

12. any judicial request to undertake an investigative act abroad. In a preventive detention proceeding and in an independent proceeding, the running of the statute of limitations shall be interrupted by acts in the conduct of a preventive detention proceeding or an independent proceeding which correspond to those in sentence 1.

(2) The running of the statute of limitations shall be interrupted by a written order or decision at the time at which the order or decision is signed. If the document is not immediately processed after signing, then the time it is actually submitted for processing shall be decisive.

(3) After each interruption the statute of limitations shall commence to run anew. Prosecution shall be barred at the latest by the statute of limitations, however, when twice the statutory period of limitation has elapsed since the time indicated in Section 78a, or three years, if the period of limitation is shorter than three years. Section 78b shall remain unaffected.

(4) The interruption shall have effect only in relation to the person to whom the act relates.

(5) If a norm which applies at the time the act is completed is amended before the decision and the period of limitation is thereby shortened, then acts triggering an interruption, which have been undertaken before the entry into force of the new law, shall maintain their effect, even if at the time of the interruption the prosecution would already have been barred by the statute of limitations under the new law.

Title Two Statute of Limitations For Execution

Section 79 Period of Limitation

(1) An imposed punishment or measure (Section 11 subsection (1), no. 8) which has become final may no longer be executed after the expiration of the period of limitation.

(2) The execution of punishments for genocide (Section 220a) and of imprisonment for life are not subject to a statute of limitations.

(3) The period of limitation shall be:

1. twenty-five years for a term of imprisonment of more than ten years;

2. twenty years for a term of imprisonment of more than five years but not more than ten years;

3. ten years for a term of imprisonment of more than one year but not more than five years;

4. five years for a term of imprisonment of not more than one year and fines of more than thirty daily rates;

5. three years for fines of not more than thirty daily rates.

(4) The execution of preventive detention shall not be subject to a statute of limitations. In the case of other measures the period of limitations shall be ten years. If, however, supervision of conduct or a first placement in an institution for withdrawal treatment has been ordered, then the period shall be five years.

(5) If imprisonment and a fine are simultaneously imposed or if, collateral to a punishment, a measure involving deprivation of liberty, forfeiture, confiscation or rendering unusable is ordered, then the execution of the punishment or the measure shall not be barred by the statute of limitations before the execution of the other. However, a simultaneous order of preventive detention shall not prevent the running of the statute of limitations for the execution of punishments or other measures.

(6) The statute of limitations shall commence to run when the decision becomes final.

Section 79a Tolling

The statute of limitations shall be tolled:

1. as long as the execution may not, according to law, be commenced or continued;

2. as long as the convicted person is granted: (a) a deferment or interruption of the execution; (b) suspension of sentence and probation by judicial decision or by act of clemency; or (c) facilitation of payment in the case of a fine, forfeiture or confiscation.

3. as long as the convicted person is held in custody in an institution by order of a public authority in Germany or abroad.

Section 79b Extension

The court may, upon application of the executing authority, extend the period of limitation once before its expiration by one half of the statutory period of limitation, if the convicted person is staying in a territory from which his extradition or transfer can not be obtained.


Special Part

Chapter One Crimes Against Peace, High Treason And Endangering The Democratic Rule of Law

Title One Crimes Against Peace

Section 80 Preparation of a War of Aggression

Whoever prepares a war of aggression (Article 26 subsection (1), of the Basic Law) in which the Federal Republic of Germany is supposed to participate and thereby creates a danger of war for the Federal Republic of Germany, shall be punished with imprisonment for life or for not less than ten years.

Section 80a Incitement to a War of Aggression

Whoever publicly incites to a war of aggression (Section 80) in a meeting or through the dissemination of writings (Section 11 subsection (3)) in the territorial area of application of this law shall be punished with imprisonment from three months to five years.

Title Two High Treason

Section 81 High Treason Against the Federation

(1) Whoever undertakes with force or through threat of force:

1. to undermine the continued existence of the Federal Republic of Germany; or

2. to change the constitutional order based on the Basic Law of the Federal Republic of Germany,

shall be punished with imprisonment for life or for not less than ten years.

(2) In less serious cases the punishment shall be imprisonment from one year to ten years.

Section 82 High Treason Against a Land

(1) Whoever undertakes with force or through threat of force:

1. to incorporate the territory of one Land in whole or in part into another Land of the Federal Republic of Germany or to separate a part of a Land from it; or

2. to change the constitutional order based on the constitution of a Land,

shall be punished with imprisonment from one year to ten years.

(2) In less serious cases the punishment shall be imprisonment from six months to five years.

Section 83 Preparation of a High Treasonous Undertaking

(1) Whoever prepares a specific high treasonous undertaking against the federal government shall be punished with imprisonment from one year to ten years, in less serious cases with imprisonment from one year to five years.

(2) Whoever prepares a specific high treasonous undertaking against a Land shall be punished with imprisonment from three months to five years.

Section 83a Active Remorse

(1) In cases under Sections 81 and 82 the court in its discretion may mitigate the punishment (Section 49 subsection (2)) or refrain from the imposition of punishment pursuant to these provisions, if the perpetrator voluntarily renounces the further execution of the act and averts or substantially lessens a known danger that others will further execute the undertaking, or if he voluntarily prevents the completion of the act.

(2) In cases under Section 83 the court may proceed according to subsection (1) if the perpetrator voluntarily renounces his plan and averts or substantially lessens a known danger caused by him that others will further prepare or execute the undertaking or if he voluntarily prevents the completion of the act.

(3) If the indicated danger is averted or substantially lessened or the completion of the act is prevented due in no part to the contribution of the perpetrator, then his voluntary and earnest efforts to attain this goal shall suffice.

Title Three Endangering The Democratic Rule of Law

Section 84 Continuation of a Party Which Has Been Declared to be Unconstitutional

(1) Whoever, within the territorial area of application of this law, as ringleader or supporter, maintains the organizational cohesion of:

1. a party which has been declared to be unconstitutional by the Federal Constitutional Court; or

2. a party, which the Federal Constitutional Court has determined to be a substitute organization for a banned party,

shall be punished with imprisonment from three months to five years. An attempt shall be punishable.

(2) Whoever is active as a member in a party of the type indicated in subsection (1) or whoever supports its organizational cohesion, shall be punished with imprisonment for not more than five years or a fine.

(3) Whoever contravenes a decision on the merits of the Federal Constitutional Court handed down in a proceeding pursuant to Article 21 subsection (2), of the Basic Law or in a proceeding pursuant to Section 33 subsection (2), of the Law on Political Parties or an enforceable measure imposed in execution of a decision on the merits issued in such proceedings, shall be punished with imprisonment for not more than five years or a fine. A proceeding pursuant to Article 18 of the Basic Law shall be the equivalent of the proceedings indicated in sentence 1.

(4) In cases under subsection (1), sentence 2 and subsections (2) and (3), sentence 1, the court in its discretion ma