Strasbourg, 5 May 2004

CCJE (2004) 24
English only

Consultative Council of European Judges (CCJE)

Questionnaire on management of cases, judges’ role in the proceedings, and use of alternative dispute settlement methods: reply submitted by the delegation of Germany

A. ACCESS TO JUSTICE

1. Have measures been taken, by legislatures and/or the court system, in order to inform the public on the functioning of the judicial system? If so, please comment on the impact of such actions on the amount of cases brought before courts.

The Federal Statistical Office (Statistisches Bundesamt) publishes detailed yearly reports on the functioning of the judicial system with statistics concerning number of cases, length of proceedings etc. In addition ministers of justice (on federal and Laender level) as well as the courts inform the public on specific topic (for example legal aid, ADR, consumer protection, tax law). Mainly websites and brochures are used. There is probably not a substantial impact on the amount of cases brought before courts.

2. Have measures been taken, by legislatures and/or the court system, in order to reduce the costs of bringing actions before the courts (e.g., by simplifying and/or standardizing legal documents to commence or continue litigation; by waiving, at least in some circumstances, the need to employ a lawyer; etc.). If so, please comment on the impact of such actions on the amount of cases brought before courts.

The “Mahnverfahren” is in extremely common use as a means of debt-collecting. It offers a simplified and fast procedure without oral hearing in litigation concerning a fixed amount of money. The Mahnverfahren is conducted by the Amtsgericht (first instance court), frequently without the intervention of lawyers. The claimant may apply to the court for a special form of summons called the “Mahnbescheid” (summary notice to pay) to be issued against the respondent demanding the payment of the debt in a definite sum. The summons (for which a standardized form is used) must contain specific information concerning the parties and the claim. It is not necessary for a letter of claim to have been sent beforehand. The summons is frequently handled by electronic data processing. Thereby a “Mahnbescheid” (order to pay) is issued. The decision is assigned to a “Rechtspfleger” (specially trained court staff), not to a judge. The merits of the claim are examined only to a very limited extent: The claim must be sufficiently stated so that it may be distinguished from other claims, there must be a practical possibility that it exists and it must not apparently appear unjustified. The respondent may challenge the “Mahnbescheid” by means of a written objection which must be filed with the court within two weeks from the date of service. If he does so a ordinary procedure follows. If the respondent does not challenge the “Mahnbescheid”, the claimant may ask for an enforcement order to be issued. This has the same effect as a default judgement.

3. Have measures been taken to ensure an effective "legal aid" system?

Yes.

If so, please describe the system, with specific reference to:

(a) eligibility requirements;

Any natural person who can show that he has reasonable prospects of success in a court proceeding and who satisfies certain financial criteria can obtain legal aid.

(b) identification of authorities entitled to grant the aid;

Legal aid is granted by the court.

(c) budgetary arrangements.

The legally aided party is absolved from paying court costs or, if he loses, the other side’s costs, and the fees of his lawyer are paid by the Land (state) in so far as they may not be recoverable from the other party.

The giving of legal aid outside judicial proceedings is not part of the national legal aid scheme. Such legal advice is available for persons with limited means, either freely or on payment of a small charge, from public offices established in some Laender and from bureaux set up for the purpose by local bars.

4. Have other measures been taken? For example,

a) conditional fee agreements (“CFAs”), whereby a party does not have to pay his or her lawyers if he or she loses, but his or her lawyers are entitled to charge the losing party up to a multiple of the normal fee if he or she wins;

No.

b) legal costs insurance for
- a party’s own legal costs and/or
- any costs which if he or she loses he or she has to pay to the winning party;

Such insurances are wide-spread. They contribute to the increasing numbers of court proceedings.

c) fixed costs, so that the winning party can only recover a limited amount from the losing party, whatever he or she may have chosen to pay to his or her own lawyers.

The losing party only has to pay the costs fixed by a statute (depending mainly on amount in dispute), even if the winning party and his or her lawyer have agreed on a higher amount.

B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS

1. Have measures been taken to relieve judges from non-judicial tasks such as those listed, as examples, in the Appendix of Rec. No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts? Please give comments as to any other tasks performed by judges that, according to the particular circumstances of the country, could be assigned to other persons or bodies; please identify tasks that could be entrusted to administrative court staff, whose jobs would thus be enriched.

Many tasks have been conferred to court staff (“Rechtspfleger”, cf. Rechtspflegergesetz Sections 20 – 32), for instance: “Mahnverfahren” (see above 2); decisions on judicial fees; certain functions in legal aid proceedings, service of writs and enforcement procedures. In general this system is well functioning. There are discussions on the question whether more judicial tasks should be assigned to court staff or institutions outside of the judiciairy (e.g. divorce proceedings to register office <Standesamt>).

2. Are there bodies, outside the judicial system, at the disposal of parties to solve specific "small claims" disputes? If so, please comment on the impact of the availability of such procedures on the amount of cases brought before courts.

Most of the Laender provide that claims up to an amount of 750 EUR, neighbour disputes and actions for slander/libel must be dealt with by a conciliator (“Guetestelle”). These cases may only come to court if there is no settlement. There are different opinions among judges about the usefulness of these boards.

3. Is there a regular review of court workloads, and are consequent measures (i.e. changes in courts' geographical distributions; variations in the territorial, monetary and subject matter competence of courts; variations in the court personnel) taken to ensure a balanced distribution of the workload? Please identify bodies responsible for such review and for consequent policy choices; please also describe the role of the judiciary in this process.

There is a permanent review of court workload by the ministers of justice. The statistics raised by courts are often not a sufficient instrument for comparison. Presently a private consulting company has been engaged by the ministers of justice to raise more reliable data in several Laender. During this project judges and court staff will note the exact time they spend working on every single case. Data will be made anonymous. At the end there will be data available on the average time judges and court staff work on one case, subdivided in certain types of proceedings and cases (e.g. divorce or rent cases). At the same time the average cost of proceedings per case can be calculated.

Adequate measures include the appointment of more judges. For budgetary reasons this happens presently only in exceptional situations. Another measure may be a transfer of judges from a court with lower workload to a court with high workload. In principle this is only possible with the consent of the judges (principle of irremovability of judges). It is not rare that such a consent is given. At the moment there is a debate whether there should be less specialised courts in Germany. The promoters of this idea argue that the problem of uneven workload could be handled easier if for instance the – presently separate – Administrative, Social and Tax Courts would be combined.

4. What role do judges (especially chief judges) play in the management of judicial infrastructures, human resources, information and technology equipment? Do they receive regular training in management techniques? What role, on the contrary, is played by administrative top officials?

The management of the court is the task of the chief justice (president). He or she is assisted by court staff. In courts with a vice president he or she frequently is assigned part of the management functions. Certain management functions may also be assigned to other judges. The president remains responsible, however. Regular training in management techniques is offered (e.g. at judges academies).

C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES

1. Is there any system in operation in your country having the aim of assessing quality of judicial activity? Please comment on indicators chosen for such assessments, as well as on results obtained.

The debate on means of assessing quality of justice has not yet lead to definite results. As far as the quality of the work of individual judges is concerned the issue is considered as delicate because it may involve the question of independence of judges. Measures have been taken to improve judicial work in a wider sense as the requirement of decision within a reasonable time (for instance notice to the president of the court if proceedings are not finished within a fixed period). In some courts “Qualitaetszirkel” (regular meetings of judges of one court) have been established in order to improve quality of judicial work (for instance improving communication within the court, also with court staff; measures to improve transparency from the viewpoint of parties at court as early information when there will be a public hearing).

2. Please describe the operation of quantitative statistical data collection concerning judicial activity. Please identify, in particular:

(i) institutional subjects (centralised and/or decentralised) in charge of data collection, data analysis, as well as receiving follow-up;

Courts are collecting quantitative statistical data. Relevant data are given to ministers of justice (see also above A1.).

(ii) judicial activities that form the object of data collection and analysis;

Number of cases (subdivided according to certain criteria characterizing the cases);
kind and length of proceedings; kind of termination of proceedings (e.g. judgment or settlement)

(iii) relevance of statistical data in professional evaluation of individual judges;

Such statistical data may be used, however the principle of independence and the relevant case law with respect to this issue must be taken into account. In practice there is a tendency that evaluations are formulated in a rather cautious manner.

(iv) relevance of statistical data in evaluation of performance of judicial offices and/or chief judges.

Depends on the concrete situation.

3. Please describe monitoring procedures in operation in your country that, employing assessment data as above, may result into actions aimed at a better control of reasonable duration of proceedings or better allocation of resources (such as variations of judicial and/or administrative staff, revision of territorial or subject matter distribution of cases, "performance contracts" and the like);

There are no general monitoring procedures. There is a tendency to certain “target times” (normally fixed by the court president) within which cases should be handled. If proceedings are not terminated within the “target time” the court president will be informed (frequently combined with the requirement to state the reasons for the delay). Another frequently used procedure: Presidents of second instance courts visit first instance courts, check length of proceedings, inspect certain files and discuss reasons of delay with judges.

If there is a substantial delay in the work of one or several judges (or a “Kammer” <unit within the court>) frequently the regulation concerning distribution of cases within the court (“Geschaeftsverteilungsplan”) will be modified or judges will be transferred within the court (e.g. to another “Kammer”). These decisions can only be taken by the “Praesidium” (body elected by the judges).

Sometimes special measures are taken if an extaordinary backlog exists. For instance, an agreement (between minister of justice and court presidents) may be elaborated providing that the delay will be finished within a fixed period of time and judges of another court will be transferred by the minister of justice (normally with their consent) to the court with the backlog for this period.

4. In case that some or all of the above actions are the task of agencies other than the judiciary, what is the role played by the judiciary in the same actions?

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D. ALTERNATIVE DISPUTE RESOLUTION

a) in general

1. Please produce a list of ADR schemes in operation in your country, identifying private and public schemes, generalist and specialised schemes (both according to qualities of litigants and subject matter, with especial reference to family mediation, criminal mediation, administrative and civil mediation), voluntary and mandatory schemes (please clarify whether your system bars access to a court or allows a judge to stay court proceeding, in respect of some disputes, either in favour of ADR or pending ADR). Please specify if the parties or the State bear the costs of ADR.

Many proceedings in German courts are compromised between the parties, often with the active involvement of the judge who is formally under duty to encourage an amicable settlement (see Section 278 Code of Civil Procedure – ZPO -). This frequently occurs during or after the first hearing in court (on principle a special “Gueteverhandlung” shall serve this purpose) and before witnesses have been heard and experts appointed.

Generally the legal system does not bar access to a court in favour of ADR (exception above B2. “Guetestelle”).

Mediation is offered in many courts with judges trained as mediators after the beginning of ordinary court proceedings (for example in family law or other civil cases, in criminal law and administrative law proceedings, usually on the basis of special projects). Mandatory schemes do not exist. However a judge may suggest mediation on a voluntary basis. If he or she does so, the court proceedings will be stopped and mediation begins (frequently with another specially trained judge as mediator). If no agreement is reached, the court proceedings normally are reopened. There are no special judicial fees for mediation.

2. Are there legal provisions ensuring State supervision over ADR agencies, as well as training of mediators?

No. “Mediator” is not a protected professional title. However a lawyer may use the title “lawyer and mediator” only after a special training.

3. Is legal aid applicable to all or some ADR procedures?

Legal aid requires a court proceeding. In case of an amicable settlement costs are in principle covered by legal aid under conditions stated above A 3.

4. Is confidentiality protected? Is any document of the ADR procedure apt to be produced in court, in case mediation failed?

On principle confidentiality is protected.

5. May the judge consider refusal to access ADR or to accept an amicable settlement when making orders relating to trial expenses or costs?

No.

b) in-court ADR

1. What is the role of the judge in mediation during a court proceeding? May the judge recommend or order that the parties appear before a mediator, even without their consent?

See above a 1.

May the judge serve himself or herself as a mediator or a conciliator, or is a conflict of role envisaged? If so, please indicate solutions found. Please give details as to costs of the in-court mediation.

The judge who would have to decide the case may suggest an amicable settlement (in civil cases he should try to reach an amicable settlement at every stage of the procedure, see above a 1.), but should not serve himself or herself as a mediator. He may suggest another (normally specially trained) judge as a mediator (see above a 1.).

Special court fees for mediation are not provided. Lawyers fees have to be paid according to general statutory rules. Legal aid may be granted under conditions above A 3).

2. If the judge is entitled, by law or court practice, to appoint a mediator or a conciliator, what qualifications do these subjects have? What training have they received? What responsibilities do they incur? How is their independence guaranteed? Is equality among the parties guaranteed, so that no unfair agreement is concluded?

Special statutory rules do not exist. In practice a judge will only suggest a mediator with sufficient qualification. Special programs on Land level provide adequate training. A judge’s independence is guaranteed by general provisions.

3. What legal relevance does an in-court conciliation or mediation agreement have (in particular, as to its enforcement)? Are there specific provisions for agreements reached before certain accredited mediators and/or endorsed by a judicial homologation?

An amicable settlement in court is enforceable as a judgment. A mediation agreement does not have the same effects. It is possible, however, to reach an enforceable amicable settlement that reflects the results of mediation. It seems that this does not happen very often.

c) out-of-court ADR

1. What kind of judicial control is possible on out-of-court ADR agreements?

On principle according to the general statutory rules applying to other contracts. There seems to be little practical experience so far.

d) ADR in administrative law disputes

1. Is it possible under your system that a public entity participates in an ADR procedure?

Yes.

Does the person representing the entity have the power to settle the dispute, or is an administrative proceeding needed to conclude the amicable settlement?

On principle the person representing the entity has the power to settle the dispute. An amicable settlement may be reached outside of court proceedings.

Most of the information stated above also applies to administrative law disputes. Also in such disputes the judge should try to reach an amicable settlement at every stage of the procedure.

Mediation is offered at many Administrative Courts.

e) criminal law and ADR

1. Please describe the role and extent of ADR proceedings vis-à-vis criminal investigations and/or criminal proceedings in your country. What are the respective roles of police, public prosecution and the judge?

ADR is for example used in projects serving compensation in the perpetrator/victim relation with the possibility of reduction or remission of sentence. The continuous debate on mediation has not yet led to concrete legislation.

E. CASE MANAGEMENT

a) in general

1. Please give details as to the average duration of a civil and a criminal proceeding (where charges are brought against an identified individual) in your country, with separate figures as to first degree and appellate proceedings, as well as Supreme Court proceedings. Please provide relevant information as to data used to calculate the average. Please also give details as to duration of simplified and accelerated procedures. Please state the source of data.

Figures = months (2002); average duration is based on all proceedings, not only those terminated by judgment.
Source: Statistisches Bundesamt

(1) Civil proceedings

Local court (“Amtsgericht”) 4,4
District court as first instance (“Landgericht”) 7,0
District court as second instance (since start of first instance proceedings) 14,5
Highest regional court, appellate proceedings (“Oberlandesgericht”, since start of first instance proceedings) 23,8

(2) Criminal proceedings

Local court 4,0
District court as first instance 6.1
District court as second instance 6.5 (since first instance judgment)
Highest regional court, appellate proceedings (since first instance judgment 5.9)

2. Does in general the judge have sufficient powers to control the parties' activities, to choose between written or oral procedures, to resort to a summary judgement, to determine the calendar and the time-limits for presentation of arguments and evidence, to sanction delaying tactics and/or abusive behaviours?

On principle yes. With the consent of the parties written procedures are possible, in “small claims” cases (up to 600 EUR) at the local court (“Amtsgericht”) also without such consent (in these cases also summary proceedings are possible; see also above A 2.). The judge is free to determine the calendar and time-limits for the presentation of arguments and evidence. A failure to observe a time-limit will normally preclude a party from presenting his or her allegations and evidence. There are plans to introduce legislation providing a special fee that has to paid in case of the use of delay tactics.

3. Have measures been taken to assure that most cases are adjudicated by a single judge, rather than by a panel?

Yes: Generally in local courts (“Amtsgerichte”) and usually also in district courts (“Landgerichte”).

b) in civil disputes

1. Please describe, in general, implementation in your country of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice. Some specific aspects will be dealt with by following questions.

Many of the recommendations of No. R (84) 5 are already implemented.

2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24-25 November 2003.

For “Mahnverfahren” see above A 2. In “small claims” cases (see above a 2.) the judge is given discretionary power to determine on the procedure; he may choose summary proceedings. Special summary proceedings are provided for proceedings restricted to documentary evidence (“Urkundenprozess”) and proceedings based on a promissory note or bill of exchange (“Wechselprozess”). Interlocutary relief is granted in accelerated summary proceedings.

3. As to simplified procedures, please indicate (and provide details) if law or court practice, even if on the basis of "protocols", allow in your country:

(i) simplified methods of commencing litigation;

See above a 2.

(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;

See above a 2. and b 2.

(iii) exclusively written or oral proceedings, as the case may be;

See above a 2.

(iv) prohibition or restriction of certain exceptions and defences;

In interlocutary relief proceedings

(v) more flexible rules of evidence;

In “small claims” cases, see above a 2.

(vi) no adjournments or only brief adjournments;

For example in interlocutary relief prodeedings

(vii) the appointment of a court expert, either "ex officio" or on application of the parties, if possible at the commencement of the proceedings;

Generally yes. Although civil litigation is adversarial in theory, it is characterised in practise by the dominant role of the judge. The court has an obligation to prepare the trial. It has the power to demand disclosure of full details and give directions for pleadings (see section 139 ZPO). The court is also to help if a party fails to present all facts (e.g. through inadvertence). These rules leave a narrow ambit for the court’s action: it has a duty to give directions but it must avoid helping a party to win the case.

(viii) an active role for the court in conducting the case and in calling for and taking evidence;

See vii.

(ix) the rendering on the part of the judge of a mere "oral" judgement.

An “oral” judgment is possible with the consent of the parties (section 313 a ZPO). This rare in practice, however.

4. As to summary proceedings (in which the examination of the case on the part of the judge is done on the basis of what is only evident), please indicate if in your country:

4.1 the judge has the power to decide summarily on:

(i) disputes on which an early decision is required (urgent cases procedure);

See below 5.

(ii) disputes concerning recovery of certified uncontested debts;

See above A 2.

(iii) small claims (please specify monetary limit);

See above a 2.

(iv) employer-employee relations;

No

(v) landlord and tenant relations;

No

(vi) questions of family relations (divorce, custody of children, maintenance);

In urgent cases: yes

(vii) disputes involving consumers;

No

(viii) disputes relating to road accidents;

No

(ix) manifestly ill-founded claims

No

4.2 a summary judgement has or does not have the force of "res judicata";

A judgment based on summary proceedings in “small claims” cases: yes.

4.3 a summary judgement is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated.

On principle yes.

5. Please describe the extent to which injunction relief is available in your system (judicial orders of payment or to perform contractual obligations).

German civil procedural law provides two types of provisional remedies. First, an attachment of property by civil arrest (e.g. in an action in which the plaintiff’s claim is for a specific sum of money, or is capable of precise evaluation, he may apply to the court for the attachment of the defendant’s assets). Secondly, an interlocutory injunction which enables a provisional settlement of legal relations (e.g. in tenancy disputes) or a safeguarding of non-monetary claims (e.g. a claim for the recovery of possession of personal property) . Both types of provisional remedies are available before and after the main proceedings have commenced. Especially the interlocutory injunctions are of great practical importance. A characteristic feature of proceedings is that the petitioner does not have to prove the prerequisites (claim and urgency of relief) to the full satisfaction of the court. It is sufficient to substantiate by prima facie evidence. The scope of evidence is restricted to immediately available means of evidence (including affidavits) . In urgent cases a public hearing is not required.

6. Please describe the relevance of time-limits and interlocutory judgements to assure a reasonable duration of ordinary proceedings.

For time-limits see above a 2. An interlocutory judgment has the effect of a binding decision on certain parts of the disputed matter.

7. What protective measures are available in your system? You may refer to protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement; protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver; measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision in the substance of the case. Please specify the cases in which urgency is required, and cases in which remedies may be granted without both parties having been heard.

See above 5.

8. Does your system provide, besides protective measures in view of the taking of evidence (provisional hearing of witnesses, experts reports, site inspections, taking of samples), also measures that enhance the possibility for the plaintiff to gather information before the trial (see the Anton Piller order in the English experience)?

Section 485 et seq. ZPO allow an independent procedure for the hearing of evidence in order to save evidence or to ascertain facts by way of precaution.

9. In what circumstances is a first degree judgement provisionally enforceable? If provisional enforcement is granted by the judge or by the law, upon which conditions the party filing an appeal may obtain suspension of enforcement?

On principle a first instance judgment is provisionally enforceable, in most cases, however, only by way of a security deposit (Section 708 et seq. ZPO). If the defendant’s appeal is successful, the plaintiff must compensate the defendant for the damage arising from the execution.

10. Please describe implementation in your country of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases. Under what circumstances, if any, is a court decision not subject to appeal? Is in your country in force a system that admits appeal, at least for some disputes, only upon court leave? If not, would such a system be desirable?

Many of the recommendations of No. (95) 5 are implemented.

Final judgments of first instance courts are subject to appeal (“Berufung”), if the sum involved is more than 600 EUR . If it is less the appeal may be admitted by the first instance court (mainly in cases of general importance).

Under certain circumstances an appeal on points of law (“Revision”) may be taken in the third instance (mainly in cases of fundamental legal importance).

11. Please express your view concerning measures to improve:

(i) enforcement of court judgements and effectiveness of the activity of enforcement agents;

(ii) transparency of information concerning assets of debtors;

(iii) recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.

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c) in criminal matters

1. Please describe, in general, implementation in your country of Recommendations No. R (87) 18 concerning the simplification of criminal justice and No. R (95) 12 on the management of criminal justice. Some specific aspects will be dealt with by following questions.

Many of the recommendations of no, R (87) are implemented.

2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24-25 November 2003 (although these materials mainly concern civil justice).

Section 417 et seq. of the Criminal Procedure Code (“Strafprozessordnung” – StPO -) allow an accelerated procedure under certain circumstances. The main feature is a very fast hearing. The facts must be clear. An indictment is not required. A prison sentence of more than one year is not possible. In practise this proceeding is not frequently used.

3. Please indicate (and provide details) if in your country:

(i) discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities);

The prosecutor may according to discretion with the consent of the court refrain from prosecution
(1) in cases of minor importance;
(2) if the minimum sentence is less than one year of prison (“Vergehen”), guilt is not considerable, and certain conditions are fulfilled (e.g. compensation of the victim, payment of a certain sum to a charitable organisation ).
Both kinds of discretionary decisions are very frequently taken in practise.

(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised;

Yes, especially road traffic and other minor cases.

(iii) out-of-court settlements are possible;

On principle no.

(iv) penal orders such as those described in Recommendation No. R (87) 18, or equivalent simplified proceedings are employed (please provide information as to percentage of crimes so tried);

Penal orders are important in practice.

(v) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed;

There is no special procedure provided for such cases. In practice evidence will normally not be raised in case of a guilty plea. In such cases on principle (not formally binding) “deals” concerning a specific sentence are possible outside of the formal court proceedings. In practice they are normally respected in formal proceedings even if lay judges were not involved in the preparation of the “deal”.

(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution;

Not generally. Raising of evidence (e.g. wiretapping) which was introduced by the prosecutor may be declared void, if it was illegal.

(vii) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail;

On principle yes.

(viii) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions).

No, but in case of res judicata a written weighing of evidence

is normally not required when parties agree.

4. Please describe the role of the bench in the several stages of investigations (concentrating on the three stages referred to Principle III, a.6 of Recommendation No. R (87) 18). Please also describe the role of the bench as to "guilty pleas" and sentencing, if such phases may take place out of court. Please describe the respective role of professional judges and juries in findings of guilt and determination of penalties, in those cases that are tried before a jury.

In the pre-trial stage (professional) judges intervene, if certain action shall be taken that requires judicial consent (e.g. search, warrant).

With respect to the trial the following rules apply:

In local courts according to the gravity of the offence either a single professional judge decides or a bench consisting of a professional judge and two lay judges (in certain cases a second professional judge is required).
In district courts a bench of either one professional judge and two lay judges (appeal proceedings) or a bench of three professional judges and two lay judges decides (first instance in cases involving most serious offences).

There is no separate jury. If there are lay judges, they decide in trial proceedings together with professional judges.



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