SECTION VI - Definitive Proceedings (hauptverfahren)

Author:K. Neumann
Profession:Sir
Pages:148
 
FREE EXCERPT
  1. The formal framing of a charge, as has been stated above, which terminates the preliminary proceedings (both the Vorverfahren and the richterliche Voruntersuchung) leaves the initiation of further proceedings in the hands of the public prosecutor. If he decides to continue with the prosecution, he submits the charge to the court of competent jurisdiction and requests that the trial may be held. Such written charge must specify the precise offence of which the defendant will be accused, must indicate the evidence to be adduced, state which court has jurisdiction and briefly indicate the results of the preliminary proceedings (section 200). The written charge both forms the basis of the decisions of the court, and serves to inform the accused of the nature of the offences sought to be proved against him in order that he may prepare his defence. A copy of the written charge must be served on the defendant, and he must then Ibe asked to state any objections he may have to the date fixed for the trial and to indicate what evidence he intends to produce.

  2. Before 1942 there was between the preliminary proceedings and the trial an intermediate stage of proceedings in which the court had to decide by formal decision (Eriffnungsbeschluss) whether a trial should be held or not. This procedure was abolished in 1942 on practical and economical grounds and it was left to the presiding judge to fix a date and place for trial. The new StPO, however, has in the interest of the accused reintroduced the previous provisions and Chapter IV of the StPO again reads: Decision on holding a trial (Entscheidung iiber die Eroffnung des Hauptverfahrens-section 193ff., seq.).

    The court decides to hold a trial if the preliminary proceedings have shown sufficient prima facie cause to put the accused on trial. If the court declines further proceedings, it must state whether its refusal is based on law or facts.

    Against the decision to hold a trial, no objection can be raised by the accused; where the court refuses to hold a trial, it is open to the public prosecutor to file a formal protest (so-called sofortige Beschwerde) with the higher court.

  3. When the holding of a trial has been decided and when date and place of trial have been fixed, it is the duty of the prosecutor to summon the accused and the witnesses and to collect the evidential exhibits. If the accused wishes to produce written evidence other than that mentioned in the charge, he must inform the presiding judge who will decide whether or not to allow his application; in case of refusal, the defendant may himself call witnesses on his behalf.

    The trial (Hauptverfahren) takes place in the uninterrupted presence of the court, the public...

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