3 - My rights during the trial
Where will the trial be held?
The trial will be held at the court where the prosecuting authorities filed the final charges. As a rule this will be the court with local jurisdiction where the criminal offence was committed. Trials are public with a few exceptions.
Depending on the nature of the penalty, the decision will be taken by a single judge, a lay judges’ court or a jury court. Lay persons also sit in lay judges’ courts or jury courts.
Can the charges be changed during the trial?
If you are accused of a further offence during the trial the prosecuting authorities may extend the charges against you and the trial may be extended to include the new charges unless they carry a harsher sentence than the original charges.
In its decision the court is only bound by the facts described in the bill of indictment and not by any legal assessment given by the prosecuting authorities. The court may qualify the offence with which you have been charged differently from the classification given by the prosecuting authorities in the bill of indictment.
What are my rights during the trial?
As throughout the entire criminal proceedings you also have the right to remain silent during the trial. You do not have to comment on the charges brought against you.
If you admit the charges during the trial, this will also have a mitigating effect when the sentence is determined. However, an admission of guilt will not change the course of the trial. You will not be punished if you do not tell the truth.
Lay judges’ courts and jury courts may not conduct proceedings in your absence. Furthermore, you must also always be represented by defence counsel in such proceedings. There are no provisions for trial by video-conference.
If you do not sufficiently understand German, an interpreter must be engaged for the trial. The interpreter will interpret the main events during the trial into a language that you understand.
During the trial you also have the right to submit requests, especially requests for evidence.
In a trial before a lay judges’ court or before a jury court you must be represented by defence counsel, whereas for the other types of proceedings the appointment of defence counsel is optional.
You may change your defence counsel of choice at any time. However, this must not unreasonably prolong the proceedings.
What are my rights in relation to the evidence against me?
Only evidence taken directly during the trial provides the basis for the court’s decision. You have the right to comment on any individual item of evidence taken.
Witnesses must be heard in person. Their evidence cannot be read out unless the prosecution and the defence agree. You have the right to question co-defendants and witnesses or have your defence counsel ask them questions.
Exploratory evidence is not allowed. That is evidence the results of which you do not know in advance. If you request the taking of evidence you must be in a position to explain the results the evidence will bring or what conclusive fact it will prove.
You can also present evidence directly during the trial, for example evidence obtained by private detectives. It is up to the court to assess the evidence.
Can information about my criminal record be provided during the trial?
The Code of Criminal Procedure states that information concerning a criminal record can be obtained even from abroad. The information concerning your criminal record will be read out during the trial.
If you are convicted, and have previous convictions of the same type this may mean that you receive a more severe sentence.
What happens at the end of the trial?
After all evidence has been taken, and the prosecution and the defence have made their closing statements, the court will take its decision. This concludes the proceedings before the court of first instance.
If the necessary requirements are met, the court may decide to order a type of diversion. In all other cases, the court decides whether it considers you to be guilty of the charges against you, or if you are acquitted.
In the event of a conviction, the court must also decide on the sentence. The sentence may be a fine or a term of imprisonment. The enforcement of the sentence may be suspended for a conditional probation period.
What is the role of the victim during the trial?
The victim of a criminal offence is entitled to be present during the trial and may also be represented by a lawyer. The victim has the right to put questions to the defendant, the witnesses and expert witnesses during the trial, as well as to be heard in connection with his/her claims.
As with the defendant, the victim may also be assisted by an interpreter during the trial, if he/she is not sufficiently familiar with the German language.
If the victim was subjected to particular stress by the offence on trial he/she may receive socio-psychological and legal court assistance if necessary to protect his/her procedural rights.
Victims who claim compensation for damage suffered by the offence or compensation for infringement of their rights are known as a private party to the case. If victims participate in the proceedings as private parties they also have the right to request evidence.
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Last update: 22/06/2018