REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 Ejtn European Judicial Training Network [logo of the EU] With the support of the European Union REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: Dutch Country of exchange: Germany Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report on its website. In this case the report will remain anonymous and your name and surname will not appear. To this purpose, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/European Judicial Training Network (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: REPORT Identification of the participant Nationality: Dutch Function(s): Public Prosecutor Length of service: 11 years Identification of the exchange Hosting jurisdiction/institution: Ministry of Justice of Bundesland Thüringen (Thuringia) City: Erfurt Country: Thuringia, Germany Dates of the exchange: until Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : general with some emphasis on Legal Cooperation in criminal matters)

3 SUMMARY I Programme of the exchange See copy of the Programme attached. In this week I have spoken intensively with the persons dealing with these matters at the Ministry of Justice, the prosecution services and the courts in Thuringia. In addition, a very enjoyable and interesting programme on social and cultural developments in Thuringia was offered, such as the STASI-archives and the old Citadel above the city (from 1500 AC). II The hosting institution Hosting organisation was the Ministry of Justice. The organization and execution of justice in Germany is a matter for the federal states (Bundesländer) themselves. Each state or Bundesland is responsible for a good and effective legal system, although the basic rules for this system are the same throughout the country. The Ministry is also responsible for the initial and on-going training of judges and prosecutors, as well as lawyers. The current Minister of Justice has been Dr. Holger Poppenhagger since The Ministry is headed by the Minister of Justice and has about 600 judges, 180 prosecutors, 500 legal staff and over 1,300 civil servants. Another 1000 civil servants work in the execution department. See the enclosed organogram. The Ministry also comprises the prosecution services as well as the courts. There is one Oberlandesgericht 4 Landgerichten (Mühlhausen, Erfurt, Gera and Meiningen) and there are 23 Ambtsgerichten. Every small town has its own Ambtsgericht. There is one Generalstaatsanwaltschaft and 4 Staatsanwaltschaften (Erfurt, Gera, Meiningen and Mühlhausen). There are 4 Verwaltungsgerichten, one Finanzgericht, one Landesarbeitsgericht and 6 Arbeitsgerichte. There is one Landessozialgericht and 4 Sozialgerichten. III The law of the host country and the comparative law aspect of the exchange I was particularly interested in the daily practice of the administration of criminal justice and the execution of custodial sentences and I also considered the initial professional training of judges or public prosecutors. What was immediately noticeable in the day-to-day work of the public prosecutors was that they had no legally qualified support staff. This meant that they had to assess all cases put before them themselves, which implied a considerable burden of administrative work. There is a computerized support system but it is very time-consuming for minor cases (80% of the files sent to the prosecution are 'minor' cases). For major cases, this system can save time, by the use of cutting and pasting techniques. It is also notable that all incoming cases are allocated according to the alphabetical order of the last name one of the public prosecutors will handle all cases where the suspect's name begins with from BE to EL. The workload is about 100 new cases a month. The public prosecutors work in Dezernaten or divisions, which have specialists in various subjects. One of the special divisions focuses on narcotics investigations. The public prosecutors there supervise large, lengthy drug investigations. Investigations are usually started on the basis of specific information gathered by the police and not by project proposals. Very often one (closed) investigation leads to another.

4 Besides the division specialising in narcotics cases, there are also juvenile and vice divisions, and divisions dealing with economic crimes, corruption cases, execution matters and serious violent offences. Public prosecutors may decide, as part of their career planning, to move to another division after a number of years; the heads of the prosecution service are always consulted on this matter. The division responsible for the execution of cases is exceptionally well organised. This is where all the activities necessary for a proper execution of judgments are carried out and calculations are made of the length of sentence still to be served by a convicted person. This division is also responsible for the placement and transfer of offenders and for applications for leave, and this is where requests for early release are determined and assessed. The German criminal justice system is based on the principle of legality whereas the Dutch system is based on, what is called, the discretionary principle. Where, in the Netherlands, the discretionary criteria make it fairly easy to decide not to continue the investigation and prosecution, the arrangements in Germany are significantly stricter but, in practice, comparable cases may still result in the same outcome. The police in Germany are not authorised to set aside a case. An official report must be drawn up of all criminal acts reported to the police and a criminal investigation must be undertaken. All documents relating to criminal offences must be submitted to the Prosecution Service. A public prosecutor assesses all these documents. The public prosecutor can decide on an Einstellung (writ of nolle prosequi) on the case. This means that no further action will be taken. Any victim in that case can lodge a complaint with the district court. The district court can instruct the public prosecutor to start a further investigation or have one undertaken, and to present the case to the district court. The possible reasons for an Einstellung correspond with the Dutch grounds for a decision not to prosecute a case: the absence of leads for further investigation, a very small degree of guilt on the part of the suspect or a recent punishment of the suspect, for instance. The public prosecutor can also decide to dismiss the case on the proviso that the suspect completes a number of hours of unpaid work or pays damages to the injured party. The German system also has a Strafbefehl (penalty order), which allows the public prosecutor the opportunity to offer the suspect a punishment order, which if the suspect accepts is confirmed and executed by judicial decision (without further review by the court). The remand procedure (Untersuchungshaft) is very different from that of Netherlands. After a suspect has been arrested, he must be brought before an investigating judge within a period of two days; this judge decides whether the remand is to be continued. If the remand is extended, the public prosecutor must bring the case to court within six months and the main hearing (Hauptverhandlung) must start. The court then decides on continued imprisonment. This means that, unlike the Netherlands, no decision needs to be taken on the remand every three months. The remand continues unabatedly during the hearing of the main case, unless the court decides otherwise in the meantime. The criminal police investigation has usually been rounded off when the main hearing starts. It is possible to add means of evidence to the file after the case has started but only if this has already been announced in the documents relating to the case. In the Federal Republic (of Germany) the states are responsible for the organisation and maintenance of the administration of justice. Judges are, of course, independent and not subservient to the Minister of Justice. The Court of Appeal sees to the unity of law. Even so, there are considerable differences between the states in the

5 sentences that are imposed in comparable cases. In the federal state of Bavaria, significantly severer sentences are imposed than in certain cities such as Hamburg and Berlin. This is difficult to explain to those involved in litigation, and public prosecutors also have their qualms about this. It was found particularly interesting that the National Consultative Committee of Presidents of the Criminal Sectors in the Netherlands has drawn up an overview of reference points, comprising guiding principles for imposing sentences for various categories of criminal cases. For instance, the guiding principle for punishments in narcotics cases depends on the kind of drug (hard or soft), the quantity of drugs seized or trafficked and the length of the period over which the crime was committed. Any reoffending and the personal circumstances of the perpetrator are then taken into account in further refining the starting point for determining the punishment obtained in this way. Similar reference points have also been drawn up for minor violent offences, vice and property crimes. These reference points are not intended to be used as instructions or guidelines for a judge to follow but solely and no more than as reference point and they can be - and often are - deviated from. The Generalstaatsanwalt of Thuringia was particularly interested in this system and asked me to send him more information on this subject after the exchange. The training programme of judges or public prosecutors is very different from that of the Netherlands. - Secondary school, followed by university. In the first 4.5 years (9 terms) general legal subjects are taught, in which all aspects of law are dealt with. During this period, students choose a special subject (for example, international law or criminology), which they study in greater depth. This period is concluded with a first state examination in civil, criminal or public law (students have to examine and discuss 6 cases in writing) and there is an oral and written examination on the special subject. - There then follows the Referendarzeit, a two-year traineeship, during which the trainee works in the place assigned to him at a Gerecht, Staatsanwaltschaft and Rechtskanzlei. During this period, the trainee has to take part in an Arbeitsgemeinschaft (group training provided by the organisation including discussion of subjects and cases, lectures and discussions of legal precedents, for which points can be accrued which count towards the following state examination). After this period, students enter for the second state examination, during which students must solve 8 clausuren (case examinations) in writing, followed by an oral examination (including an Aktenvortrag: case presentation with 1.5 hours of preparation time). - On completion, trainees can apply for a position at a court or public prosecutor's office. There are no vacancies in Thuringia at present because of the cutbacks. IV The European aspect of your exchange Every public prosecutor's office in the federal state of Thuringia has its own Rechtshilfedezernat (legal assistance division), which deals with incoming requests for legal assistance and monitors their execution. The Staatsanwalt is in charge of the police department which is responsible for the execution of these requests. Close contact is held with the requesting authority outside Germany. Most requests for legal assistance come from Italy, Poland and other former Eastern European states. The Rechtshilfedezernent (head of the legal assistance division) is also charged with advising on outgoing requests for legal assistance. For a number of specific requests for legal assistance, the Ministry of Justice acts as a Central Authority and has a number of specialists who deal with requests for legal assistance. The Landesgericht for Thuringia in Erfurt has appointed specialists in the field of international cooperation. The Landesgericht processes its own requests for legal assistance, which are very often concerned with the examination of witnesses outside Germany.

6 European Arrest Warrants are often applied for but Freezing Orders much less frequently. Confiscation law in criminal cases is subject to several serious restrictions in actual practice. The relationship between the criminal offence and the yield to be confiscated is, to some extent, complicated, and this has an effect on the total results of confiscation activities. V Benefits of the exchange Meeting colleagues from outside the Netherlands is an enriching and inspiring experience every time. It makes comparative law so simple and immediate in practice. It is really enlightening to see how peers in other countries tackle similar and recognisable dilemmas, for example in the field of the legal protection of suspects (in relation to their counsel, for instance) and the principle of discretion versus legality. For international cooperation in criminal matters to be done well and effectively, there must be an understanding and awareness of each party's position in the criminal law chain on both sides. In addition to the formal legal aspects (for example, arrests and pre-trial detention), the differences in the 'investigative culture' are also important. How does a Public Prosecutor act, how does he direct an investigative team, what authority does he assert (generally or primarily), for instance telephone intercepts, historic print data, why is an investigation structured in a certain way, how is the demarcation of an investigation guaranteed? Just sharing and exchanging experience and expertise in these fields will allow a closer and more effective collaboration to develop; if parties are informed and understand the legal and practical interests of other investigative investigations, they can try to take these into consideration. I am convinced that an intensification of this expertise and experience can lead to more parallel investigations, which will have a greater impact on criminal networks. The more serious means of a JIT could be avoided without loss of quality and results. Too little attention is still paid to the international factor in the tackling of organised crime in the Netherlands. The international aspects of an investigation are still not "the most natural thing in the world". Removing any trepidation and encouraging acquaintance with the criminal justice systems of neighbouring countries like Germany, Belgium and the United Kingdom and their criminal law cultures would lead to faster and more effective collaboration. VI Suggestions No more than that this exchange programme deserves wholehearted support in the Netherlands and is a 'must' for Dutch public prosecutors who are in charge of tackling organised crime. Public Prosecutor, Zwolle in the Netherlands