Criminal justice and public prosecution offices are also impacted by the protective measures taken nationwide to prevent the spread of the COVID-19 pandemic. The fact that Germany is “powering down the systems” to deal with the pandemic has implications not only for criminal proceedings that are already underway but also for future ones. One thing is certain: COVID-19 will change criminal law and criminal procedural law:
Mitigating the consequences of the COVID-19 pandemic in criminal procedure law:
Federal Ministry of Justice presents draft law
At the suggestion of the Federal Ministry of Justice and Consumer Protection, the German government has published a draft law to mitigate the consequences of the Covid-19 pandemic, which also provides for amendments to the Code of Criminal Procedure to ensure that criminal proceedings will not “collapse” due to the corona pandemic:
Currently, the Code of Criminal Procedure allows for interruptions of main hearings of up to three weeks, in exceptional cases up to one month. Under current law, these periods of interruption may only be suspended if the main hearings have already lasted ten main trial days and illness, parental leave, or maternity leave of one of the parties to the case prevents the main trial to be continued. In the past, the Federal Court of Justice has considered the exceeding of said interruption period to be permissible only in exceptional cases “if the further relief of the case envisaged for the continuation date cannot take place due to an unforeseen event” (Federal Court of Justice, June 30, 2015 – 3 StR 202/15). There would be “situations conceivable in which a main hearing […] may possibly only be subject to further relief by a decision on the interruption of the case […].” As an example, the Federal Court of Justice recognizes the non-appearance of a defendant or a defendant’s sudden illness, due to which the defendant can no longer follow the main hearing (Federal Court of Justice, November 05, 2008 – 1 StR 583/08). These requirements do not apply, however, in the case of interruptions of proceedings due to corona-related infection protection measures: COVID-19 does not lead to interruptions for the purpose of further relief of the proceedings, but for the purpose of health care.
The Federal Ministry of Justice and Consumer Protection and the federal government responded to this regulatory gap by drafting amendments to the Code of Criminal Procedure. The reason provided for the draft law is that it is foreseeable, particularly for criminal court trials, that the currently applicable statutory options for suspending the interruption periods of the main hearings are insufficient. So as main hearings do not have to be suspended and restarted due to the current restrictions on public life, the usual interruption periods are to be additionally suspended and main hearings may thus be interrupted for longer periods than previously. In this way, later burdens (on the judiciary) through complete re-hearing of these trials is also supposed to be avoided.
Based on the current measures to prevent the spread of the COVID-19 pandemic, the draft provides for a one-year suspension of the main hearing for these reasons. This suspension is supposed to allow the courts to interrupt trials for a maximum of three months and ten days and is supposed to apply irrespective of the length of the trial. The only condition is that the main hearing may not be held due to measures to prevent the spread of the COVID-19 pandemic (measures of infection control). The explanatory memorandum of the draft states that the facts are intentionally kept broad and are supposed to cover all reasons preventing the proper conduct of the main hearing due to the relevant infection protection measures. Thus, neither disease or quarantine of the defendant nor of any of the persons called upon to pronounce judgement will be necessary. Rather, even cases of suspected infections or diseases that are not tested are considered sufficient within the meaning of the provision as long as the person concerned is required to go into domestic quarantine. This also applies to protective measures taken only indirectly by the courts or health authorities. Even restricted court operation or the participation in the trial of persons who are members of the risk group, such as elderly persons, persons with underlying diseases, or with a suppressed immune system, are supposed to be sufficient for the adoption of appropriate protective measures which may justify the suspension.
The court is supposed to informally examine the above-mentioned requirements and thus the question of whether infection protection measures preventing the conduct of the main hearing are necessary in the respective proceedings, on a case-by-case basis and thus for each main hearing and trial.
The following current case also shows that an appropriate provision and extended possibility of suspension makes sense under the current circumstances – also in the favor of defendants:
Unexpected end of the taking of evidence and convictions in the first “Cum-Ex” criminal trial
After Bonn Local Court had scheduled numerous additional hearings for the purpose of the taking of evidence in the highly publicized “Cum Ex” criminal trial in February, COVID-19 made sure that – surprisingly for all parties – “short work” turned out to be made in the trial: The Regional Court ended the taking of evidence at the beginning of last week already and sentenced the defendant to suspended sentences. In addition, a bank involved in the collection of funds was ordered to pay a triple-digit million fine.
This seemingly hurried end of the trial is not without problems, as a main hearing serves to establish the truth through careful taking of evidence, the assessment of evidence, and legal assessment. An artificial acceleration (as caused by the pandemic) leads to restriction of the search for the truth and above all to curtailment of the rights of the defendant and of the companies involved.
Conversely, all parties to the proceedings – court, public prosecutor’s office, defendants, secondary participants, and lawyers – could hardly be expected to be “caged” into a courtroom for further days of proceedings in times of self-isolation as demanded by the authorities and thus exposed to an increased risk of infection.
Constitutional complaint against continuation of a main hearing unsuccessful
On these grounds, a defendant in another case filed a constitutional complaint against the continuation of the main trial that had been decided by the court previously. The Federal Constitutional Court rejected the application on formal grounds, the main hearing will be continued – despite COVID-19 and the risks to which the parties to the proceedings are exposed by a main hearing (Federal Constitutional Court, March 19, 2020 – 2 BvR 472/20).
Bavarian Ministry of Justice recommends waiving main hearings
On the other hand, the Bavarian State Ministry of Justice recommends to refrain from conducting main hearings in criminal trials at present. They should only be conducted in exceptional cases, if defendants are in custody, if prosecution of the case is jeopardized by the statute of limitations or other deadline expirations, or if the cases are of long duration, which are already at an advanced stage and would have to be restarted due to an interruption that would be too long. In addition, it is recommended that the public prosecutor’s offices “revert” to the written penalty order procedure instead of bringing charges with the more likely consequence of a main hearing.
Impact of COVID-19 on investigation procedures
In addition to the impact on main criminal proceedings, COVID-19 also has a significant impact on the other stages of criminal proceedings, in particular on preliminary investigation procedures – the first part of any criminal proceeding. It is already noticeable at this point that this procedure has been significantly decelerated: The assessment of evidence, the securing of forensic data, and the assessment of the collected evidence has slowed down, in some cases even come to a standstill. It is frequently not possible to comply with the procedural requirement for acceleration, particularly in cases of imprisonment, i.e., matters in which defendants are in pre-trial detention, so that pre-trial detainees have already been released.
Advice for use in practice
COVID-19 has already had and will continue to have an impact on criminal procedure and criminal trials to an extent that is currently difficult to assess. With the presented draft law the federal government now provides provisions to counteract the effects of COVID-19 on these proceedings for cases of already initiated main proceedings and ongoing main hearings. As far as the further phases of criminal trials are concerned, especially the investigation procedures, on which COVID-19 imposes restrictions, in particular due to procedural delays, no uniform and binding provisions for dealing with the described corona-related problems have yet been made or are apparent; the way in which the judiciary deals with these problems is currently very different and will remain so for the time being. It only remains to be seen what the further development will be and – despite possible COVID-19-related hurdles – to ensure that the rights of the defendants are safeguarded throughout the entire criminal procedure.
By André-M. Szesny and Anna-Lena Glander