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Victims' Rights in the German Court System
The German criminal justice system is characterized by
specific features that must be understood before we can
properly appreciate the situation of the victim. The first of
these principles is the principle of separation of powers
between the accuser and the court, a principle that is
absolute. Second, the accuser is not the victim or his repre-
sentatives, but the state, personified by an official
prosecutor who belongs, formally, to the branch of the judi-
ciary. According to the Code of Court Organization, each
court must have a prosecutorial department.' Each prose-
cutor is an independent organ of justice who, although he
or she acts under the supervision of his or her superiors as
well as under the (questionable) political supervision of the
ministry of justice, is directly bound by the principles of
objectivity, legality, fairness, and justice. In particular, the
prosecutor is bound to investigate a case neutrally; he or
she must gather not only inculpatory but also exculpatory
evidence and secure perishable evidence in the interest of
objective truth finding.2 Only in certain cases can victims
themselves file an accusation in court. The Code of Crimi-
nal Procedure lists certain minor crimes, such as insult,
physical injury, or violation of privacy, that can be prose-
cuted "privately," that is, without support by the official
prosecutor. In practice, this so-called private accusation is
not very popular. Clearly, the burdens of carrying on a pro-
ceeding in criminal court are high, and victims, in general,
prefer an official prosecutor to vindicate their interests.
Another important feature of the German criminal jus-
tice system is the fact that a considerable portion of
criminal complaints are dealt with in a fashion that
deserves to be called administrative rather than judicial.
Only in a minority of cases where "public interests" are
strong enough to require a trial will misdemeanors be
filed in court. Otherwise the prosecutor can elect other
paths of disposition, such as diversion (Einstellung,with or
without conditions) or penalty by court order (Strafloefehl).
These options are, however, not available if the crime in
question is classified as a felony.
It is also important to consider that the phases of trial
(is the defendant guilty or not?) and sentencing (what pun-
ishment is adequate?) are not strictly separated during the
process of evidence taking. Only where the defendant
makes an early admission of guilt will the remaining
Federal Sentencing Reporter,Vol. i, No. 2, pp. 113-118, ISSN 1053-9867 electronic ISSN 1533-8363
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FEDERAL SENTENCING REPORTER
process be more focused on the issue of sentencing.
Finally, the principle of "fair trial" today is understood in a
SUSANNE
multifaceted way: the trial must be fair not only with
WALTHER
regard to the position of the defendant but also with
regard to the positions of witnesses and victims.) The legal Professor,
guarantee of human dignity4 requires that victims of University of
crime be respected as parties to a criminal proceeding and Cologne, Germany
not simply as object-like "evidence" that is "useful" to have
on behalf of the official prosecutor who wishes to have a
defendant successfully convicted in court.
The German criminal justice process has, over the past
decades, become relatively amenable to an integration of
the victim. This is largely due to two factors, one relating
to the substantive law and the other relating to procedure.
First, the prevailing theories of punishment, focused on
retribution, deterrence, and prevention, have, if slowly,
opened up to the insight that criminal justice cannot be
abstract from the spheres of reality but that the actual vic-
tim's interests must be integrated.5 This is the result of
roughly two decades of intense scholarly debate leaning in
favor of stronger representation of victims' interests in the
administration of justice. Second, the German criminal
justice process is focused on comprehensive truth finding.
Once the defendant is accused before the court, it is the
duty of the court to actively lead and direct the truth-find-
ing process. Due to this concept, the German criminal
process, although adversarial, has never been a strictly
bipartisan affair between prosecutor and defense.
A considerable transformation has taken place over the
past two decades that brings the victim more and more
into play as a "third party" in his or her own right. This is
particularly true for certain vulnerable victims who can
join the proceedings in the capacity of "collateral prosecu-
tor," a practice that applies nowadays in about 20 percent
of serious cases. 6 In addition, victims can file a so-called
motion for adhesion, that is, a civil tort claim that is
"attached" to the criminal proceedings.7
I. Important Victims' Rights throughout the Criminal
Justice Process
A. In General
The victim's first and fundamental right is that of filing a
criminal complaint with the police, the prosecutor, or the
• VOL. 19, NO. 2 • DECEMBER 2006 113
court. This right not only is guaranteed by the Code of
Criminal Procedure but also has been recognized by the
German Constitutional Court as grounded in the individ-
ual basic rights and the rule of law.9 Around 90 percent of
all criminal prosecutions are initiated by way of private
complaints, mostly brought by victims. The "power of
process" lies then, of course, with the office of the prose-
cutor. The prosecutor is bound by the principle of legality:
all complaints must be investigated objectively and com-
prehensively. If the complaint does not result in a formal
accusation in court, but instead is dismissed, the com-
plainant has the right to be informed of the final
disposition and the reasons for it. Io If the complainant is
the victim, she must be informed of her options of appeal
to the high court of the state." This option of appeal is,
however, very limited: basically, it is only viable where the
reason for nonprosecution was lack of so-called substan-
tial suspicion (no likelihood that the defendant will be
convicted in court, either for lack of evidence or legal
obstacles).12
Where substantial suspicion is assumed and the police
and prosecutor enter into formal investigations, the rights
of the victim are limited. In the section governing the
stage of "investigation," the German Code of Criminal
Procedure is silent on the topic of victims' rights. Only in
a later, amended chapter do we find victims' rights that
partially apply as early as at investigation.' 3 As a witness,
one of the most important interests of the victim is to tes-
tify first in narrative form and thereafter to be adequately
protected by legal counsel during the stage of confronta-
tional questioning. Another very important interest is not
to be called repeatedly to give testimony, or put in other
words, the interest to have testimony recorded early.
Finally, the victim often has an interest to be informed
about the course of investigations or even to actively par-
ticipate. All three of these interests are, today, significantly
protected in Germany.
1. The Right to Counsel First, and perhaps most cen-
tral, in this respect, is the right to be assisted or
represented by an attorney throughout the proceedings.4
It is still controversial, however, whether this applies as
early as at police interrogation. 5 This right is particularly
relevant with regard to the victim's role as accusatory wit-
ness. Whenever the victim is interrogated by the
prosecutor (or the court), his or her attorney may be pres-
ent. The victim's attorney ensures that the victim, as
witness, first gets to tell "her story" in narrative form and
may then assist with regard to the right of posing ques-
tions. Later, at trial, counsel may also ask for an exclusion
of the public. The general tight of witnesses to be assisted
by an attorney when interrogated (by the prosecutor or the
court) has been improved through reforms in 1998.6
Most importantly, the state will carry the costs of such rep-
resentation if certain serious crimes are charged that
make the victim-witness eligible to join the proceedings as
a collateral prosecutor, or if counsel's assistance is deemed
FEDERAL SENTENCING REPORTER • VOL. 19,
necessary in light of the complexities of the case and the
victim cannot afford counsel.7 Whenever the official pros-
ecutor brings an accusation for certain crimes listed in the
Code of Criminal Procedure,' 8 the victim, or, in the case of
homicide, his or her family members, may join the pro-
ceedings as collateral prosecutor. The catalog of crimes
includes, most importantly, crimes against sexual and
physical integrity.
2. The Right to Have Testimony Preserved Early and the
Right Not to Be Confronted by the Defendant The Code
of Criminal Procedure provides that interrogations of vic-
tim-witnesses shall be preserved by way of audio-video
technology if the witness is under sixteen years of age or if
the witness will be unavailable at trial and the recording is
necessary for truth finding.'9 In addition, the Code provides
that in cases of grave endangerment that cannot otherwise
be averted, the judge, during the investigative phase, must
hear and preserve the witness testimony outside the pres-
ence of other parties; in this case, the process of
interrogation will be simultaneously displayed into the
courtroom via audio-video technology.2° These are objective
rules of procedure, meant as a "signal" for the practitioners
to respect witnesses' interests as early as possible.' In light
of this objective nature, it is a novel and perhaps unusual
idea to speak about a victim's subjective rights to have testi-
mony preserved early and not to be confronted with the
defendant. Clearly, to fudly acknowledge such rights would
create a direct conflict with the defendant's right to confront
adversary witnesses, one of the most central constitutional
rights recognized in German, and more broadly, European,
law.22 As a matter of fact, however, these rights can today be
seen as emerging subjective rights, based on the constitu-
tional rights to personal integrity and protection of human
dignity.23 This is particularly true for young victims and vic-
tims of particularly traumatizing crimes, such as sex crimes.
It is, of course, still very controversial in Germany to what
extent the duty to preserve testimony via audio-video record-
ing is in the best hands at the police station. Scholarly
opinion is split on the matter, particularly in light of the fact
that police interrogation-unlike interrogation by prosecu-
tors and judges-traditionally is not trusted as sufficiently
objective, and thus the defendant's rights to confront and
counter accusatory witness testimony may be set back in
unfair ways. This said, it is by many critics seen as prefer-
able that vulnerable witnesses be interrogated as early as
possible by a judge. The judge, in this case, exercises an aux-
iliary function for the prosecution.2 4
3. The Right to Early Active Participation and the Right
to Be Informed Aside from their interests in being pro-
tected as witnesses, victims may also have an interest in
actively participating during investigations and the right to
be informed. Does the victim have a right to be informed
about the route of investigations and about other impor-
tant procedural steps and developments in the case? In
recent years, the victim's situation has been significantly
NO. 2 • DECEMBER 2006
improved. The victim's role is no longer limited to being
called as a witness. First of all, the victim does have a right
of discovery and, thus, a very important right of informa-
tion. An attorney for the victim may ask even during the
stage of investigation to see the prosecutor's file and to
inspect the evidence. This may be of particular interest
with regard to civil damage claims. Whereas generally a
specific statement of good cause is necessary,25 the rights
position of victims who act as so-called collateral prosecu-
tors is even stronger. In addition to obtaining information,
the victim-prosecutor is also in a relatively good position to
influence the proceedings. Formally, the victim's declara-
tion to join the proceedings as a collateral party becomes
valid only at the time when the prosecutor files the official
accusation. 6 In practice, however, early declarations of
joinder produce certain procedural advantages for the vic-
tim.2 7 The prosecutor, although not legally obliged, will
usually discuss certain questions with the victim or his or
her counsel, for instance, whether certain parts of the
accusation may be dropped or whether the accusation may
be brought, without trial, by way of penalty order.
To file a motion for joinder at an early stage is also
advantageous with regard to the course of an eventual
trial. Evidentiary motions can be brought early, and
although they become legally effective only after the court
has opened the proceedings, as a matter of practice such
motions may be influential both with regard to the prose-
cutor's route of investigations and for the court's planning
of the course of trial.28 If the court decides to handle the
case without trial (either by way of dismissal with or with-
out conditions or by way of penalty order), the victim-party
has a formal right of allocution.
Finally, the victim has important rights of information
regarding the outcome of court proceedings; he or she
must be informed, upon his or her motion, of a court's
disposition of the case. 29 Moreover, as recently amended,
the Code of Criminal Procedure provides a right to be
informed of dispositions relating to questions of deten-
tion. The victim must, upon his or her motion, be
informed whether the offender is being detained or has
been set free. This applies throughout the entire process
of criminal justice, including dispositions at the stage of
execution of sentence (for instance, furlough and parole
decisions). Victims who enjoy the status of collateral pros-
ecutor do not need to show good cause in order to obtain
such information.3 The victim's interest in such informa-
tion can be overruled only where important countervailing
interests of the offender can be shown.31
B. Dispositions Relating to Reparations and
Prevention of Violence
The topic of reparations deserves special mention.
Whether or not the victim is interested in seeing the per-
petrator punished, oftentimes he or she will be interested
in reparations, for both financial and nonfinancial losses.
In the German criminal justice system, the promotion of
reparation as well as victim-offender mediation has been
FEDERAL SENTENCING
high on the agenda during the past two decades. A special
section of the Penal Code addresses the option of absten-
tion from punishment where the offender has made or
honestly attempted to make amends, in both financial
and nonfinancial ways. 32 This option is, however, limited
to less serious cases. In more serious cases, voluntary
reparations usually will be credited by the court by grant-
ing mitigation of punishment or by granting probation.
The prevailing policy today is to investigate, as early as
possible, whether the case in question is amenable at all
to efforts of reparation. The Code of Criminal Procedure
obliges prosecutors and courts at all stages of the pro-
ceeding to explore options of victim-offender-mediation,
and it provides for a special form of dismissal where the
case is less serious and the offender has engaged in early,
voluntary, and comprehensive reparations.3 3 In other
cases, such reparations may provide grounds for mitiga-
tion of punishment; for instance, the offender may earn
probation.
In cases of crimes against property, such as theft, rob-
bery, or extortion, the victim's interest is aimed at
restitution of specific property values. Aside from this spe-
cific interest, the victim will be generally interested in
reparation of other financial losses and oftentimes in dam-
ages for pain and suffering. It is therefore in the interest
of both the victim and the public that the state issue forfei-
ture warrants in favor of the victim of crime. So far,
however, forfeiture is not possible where victim claims
exist. 34 Ironically, this limitation was considered to protect
victims' rights. The idea was that forfeiture by the state
would hurt the property interests of the victim. In practice,
however, nonconfiscation by the state often works against
victims' interests, for instance, where the victims were
unknown or, for whatever reason, did not file claims. In
such cases, the proceeds of crime remain in the hands of
the offender. The Code of Criminal Procedure does allow,
however, the issuance of confiscation orders in order to
secure property in favor of victims' claims.35 Movable
items, for instance, a car or jewelry that was taken from
the victim by way of theft or robbery, must be returned to
the owner, provided there are no other claims and the
items are no longer necessary for the criminal
proceeding.36 Yet, the victim may have a further interest in
property items obtained by the offender as proceeds of
crime, for purpose of reparations that go beyond restitu-
tion of specific items of property. In this respect, the law
does accept that the victim's reparation claims deserve pri-
ority over the state's claims to forfeited proceeds of crime.
This principle, and the principle that the state must assist
the victim in gaining full reparation, has recently been
reaffirmed by the legislature.37 In the future, the court will
single out, in its verdict, which proceeds of crime were not
declared forfeited but are being held as confiscated in light
of existing victim claims of reparation.38 Still, the relevant
norms do not serve to fully alleviate the victim's burden of
formally pursuing a civil tort claim. Further simplifica-
tions are possible and desirable; upon proof taken by the
REPORTER • VOL. 19, NO. 2 - DECEMBER 2006 115
criminal court itself, the court should be able to declare
forfeiture in favor of the victim or a victims' fund.
Closely related to the topic of reparations is that of pre-
vention of future attacks. Especially in cases of family or
dating violence, the victim is concerned with issues of
prevention. As of January 2002, the German legislature
has enforced a specific Violence Protection Act
(Gewaltschutzgesetz). It allows the court to issue preventive
orders that forbid further contact with the victim. The per-
petrator may be ordered to temporarily stay away from
shared dwellings, even where he is the owner of the apart-
ment or house. The violation of a court order based on the
Violence Protection Act is a crime punishable by up to one
year imprisonment or a fine.
II. Victims' Rights at Trial and Sentencing
A. Victim as Witness
As a witness at trial, several procedural features serve to
protect the victim. As already mentioned, witness testi-
mony is first taken in narrative form. It is mandatory for
the court to first ask the victim to render the so-called
report; only afterward is it proper to subject the witness to
detailed questioning.3 9 Stated in terms of an objective rule
of evidence, the witness enjoys the right first to tell "her
story." The public may be excluded for reasons of protec-
tion of privacy or if the witness or other persons-for
instance, his or her next of kin-are endangered.g0 Under
certain conditions-basically, if the purposes either of
truth finding or of protection of witnesses are imperiled-
the defendant may be temporarily excluded.4' For reasons
of grave endangerment of the well-being of the witness, he
or she may be heard outside the courtroom via audio-video
link.4t Under certain conditions (for instance, unavailabil-
ity of the witness at trial), the Code of Criminal Procedure
43
also allows the introduction of videotaped testimony.
Particularly in proceedings where the defendant is
accused of sex crimes, homicide, or abuse of dependants,
young witnesses-including the victim-can be protected
by way of videotaped testimony.44 Witnesses are generally
protected against certain questions that may be detrimen-
tal to their reputation (or that of a family member) or that
touch upon intimacy.4 5 The witness may also be protected
with regard to giving personal information; to some extent
he or she may remain anonymous.46 Witnesses-espe-
cially so-called vulnerable and endangered witnesses-can
also ask for counsel's assistance for the duration of the
interrogation, in particular when the crime is a felony or
other serious crime (the law lists certain sex crimes as well
as organized crimes); the state has to carry the costs. This
type of assistance includes a preparatory rehearsal.47
The victim's interest not to be confronted personally
with the defendant and with the entire courtroom setting
can sometimes be served by closed-circuit technology: dur-
ing trial, the defendant may, in certain cases (particularly
endangerment of a young witness), be temporarily
excluded.48 In many respects, particularly with regard to
potential grounds of appeal,49 it is today considered
FEDERAL SENTENCING REPORTER • VOL. 19,
preferable by prevailing practice to make use of closed-cir-
cuit television and order the witness to be interviewed at a
different location.5o The testimony must be recorded if the
witness might be unavailable at a future hearing. Still, all
these precautions do not allow for complete anonymity of
the victim as witness. In particular, the victim's face, phys-
ical appearance, and voice may not be completely
obscured5'
B. Victim as Party
Under traditional principles the victim was not considered
a party in his or her own right. It is no surprise therefore
that the Code of Criminal Procedure does not provide for
an active role of the victim at trial and sentencing.
Recently, however, this has changed. As already men-
tioned, the changes are largely due to the rise of the (long
dormant) so-called Nebenklage, a procedural setting where
the victim appears as a collateral prosecutor. 52 In this
capacity, the victim, first, has a right to be present
throughout the trial, that is, even when the public is
excluded.53 This right extends to his or her attorney as
well, and the victim can choose not to appear herself but
instead be represented by counsel alone.54 As a collateral
prosecutor, the victim-party has specific active rights: the
right to challenge members of the court or expert wit-
nesses for cause of prejudice; the right to confront
witnesses; the right to challenge orders of the court; the
right to question the admissibility of evidence; the right to
ask for the taking of specific evidence; the right to com-
ment on the taking of evidence, especially the hearing of
55
witnesses; and the right to make a concluding statement.
The victim-party may reply to the concluding statement of
the defense.
The declaration to join the proceedings as collateral
prosecutor becomes effective at the time when the court
receives the public prosecutor's formal accusation. The
victim-party may then make declarations and file motions
to take evidence. Also, the victim may appeal if the court
decides not to open a formal trial or dismiss the case for
legal reasons.56 The victim-party may be present during all
evidentiary hearings, either in the preparatory phase or
during trial. Throughout the trial, and especially during
the concluding statement, the victim has ample opportu-
nity to demonstrate the extent of harm caused by the
crime in question and to ask for appropriate sanctions,
including reparations. The institution of the "collateral
prosecution" allows the victim to appear in a dual role: as a
witness for the prosecution and as a prosecutor. With
regard to the reparations, the victim may also file a motion
to "attach" a civil tort claim57 or ask the court to issue an
order for reparations as a collateral criminal sanction. The
latter option is, however, limited to probation cases. The
law, as is, does not provide for reparation orders as crimi-
nal sanctions in their own right.
The victim-party has a right to appeal, but this right is
limited. First, the victim may appeal if the court denies
the opening of a trial or dismisses the case for procedural
NO. 2 ° DECEMBER 2006
obstacles.58 Next, the victim may attack the verdict but not
the sentence, but only with regard to a crime for which a
"collateral prosecution" can be brought. 59 This limitation
reflects the primary purpose for which the victim may
join the prosecution: the victim may vindicate his or her
interests in satisfaction, reparation, and protection
6
against potential unfair reproaches of co-responsibility o
only in a limited way. In Germany, questions of sentenc-
ing are considered to lie in the realm of professional
prosecutors and judges. Although the victim-party may
ask for a particular sentence, he or she may not appeal a
sentence that is considered too light or that does not ade-
quately address the victim's interests either in
punishment or in reparation. The victim's right of appeal
is thus basically limited to the situation where the defen-
dant is acquitted or where the verdict is based on a lighter
instead of a more severe crime (for instance, negligent
homicide instead of murder, or theft instead of robbery).
The victim's limitations with regard to sentencing
reflect the legislative basis of sentencing. According to the
substantive law, the basis of sentencing is the offender's
guilt. The law puts high emphasis on the reintegration of
the offender. 6' In finding the specific sentence, the court
weighs the factors that speak for and against the offender.
Empirical studies have shown that the courts, when deal-
ing with serious crime, give significant weight to the
factors of recidivism and extent of harm done to the vic-
tim. 62 In this respect, the effort to make voluntary
reparation to the victim may be considered as a mitigating
6 1 § 141 GVG (Gerichtsverfassungsgesetz, Code of Court Organi-
factor. 3
III. Conclusion
The victim's position in the German criminal justice sys-
tem has undergone substantial change during the past
decades. The criminal justice process is no longer seen as
a strictly adversarial matter between the state and the
defendant. In particular, the purposes of punishment are
no longer limited to retribution and prevention but
include reparation for the victim, as well as adequate pro-
tection against unfair reproaches of co-responsibility. The
state today is expected to assist the victim as early as possi-
ble with regard to claims of restitution and reparation. In
addition, reparation is not seen as limited to interests of
economic integrity but includes personal integrity. In fact,
a major part of "reparation to the victim" is seen in the
fairness and truth-seeking function of the proceedings.
Finding and telling the truth have gained importance as
purposes of the process itself Victims-just like the gen-
eral public-expect, next to reparation of material
damages, that the truth be spelled out with regard to right
64
and wrong.
As much as this interest deserves legal recognition, the
victim's position remains-and must remain-limited in
certain ways. Criminal justice remains the province of
state power. The modern criminal justice process is, after
all, bound to protect the defendant against "private" settle-
ment, especially uncontrolled emotions of retribution and
FEDERAL SENTENCING
revenge, which, if admitted, would lead to a spiral of vio-
lence. To a certain extent, however, such emotions are
seen as legitimate and may be admitted in a controlled
way. This may explain why the option to join the proceed-
ings as a collateral prosecutor is limited to a set of
enumerated crimes that are considered to involve the vic-
tim's interests in a particularly intense way.
The present challenges in German criminal procedure
are twofold. The first is how to integrate the victim's inter-
ests as fully as possible, while at the same time fully
serving the role of modern criminal procedure, under the
rule of law, to adequately protect the legitimate interests of
the accused-namely, to guarantee that the presumption
of innocence and the right to confront adversary witnesses
be respected. Modern criminal procedure, after all, is built
on the idea that criminal justice is administered best by
professionals. They are bound to act in the name of the
people, but criminal justice is not considered a matter
directly for the people. The second challenge is how to inte-
grate the victim's interests despite the countervailing
interests of administrative efficiency. Most crimes today
are dealt with in administrative types of disposition that
are dominated by the prosecutor, not the court. This said,
it is clear that to open up the criminal justice process to
fully integrate the victim as a "third party" would require
more, not fewer, resources on the sides of prosecutors and
courts.
Notes
zation).
2 § 160 II StPO (Strafprozessordnung, Code of Criminal Proce-
dure).
3 Ralf Hohmann, Nebenklage, in HANDBUCH DESFACHANWALTS
STRAFRECHT 1025 (Jan Bockemhl ed., 3rd ed. 2006) (vic-
tims); Bundesverfassungsgericht [BVerfG] [Federal
Constitutional Court], 38 Entscheidungen des Bundesverfas-
sungsgerichts [BVerfGE] 105 (114 et seq.) (ER.G.)
(witnesses).
4 Art. 1 GG (Grundgesetz, Basic Law).
5 See Tatjana Hoernle, Die Rolle des Opfers in der Straftheorie
und im materiellen Strafrecht, 61 JURISTENZEITUNG 950 (2006).
6 On the rising importance of this procedural institution, see
Stephan Barton, Nebenklagevertretung im Strafverfahren, in
FESTSCHRIFT FOR HANS-DIETER SCHWIND 211 (2006). The figure of
20 percent applies to cases that are accused at the level of
county courts (Landgerichte).
7 §§ 403 et seq. StPO.
8 § 158 StPO.
9 Bundesverfassungsgericht [BVerfG] [Federal Constitutional
Court], 74 Entscheidungen des Bundesverfassungsgerichts
[BVerfGE] 257 (ER.G.).
10 § 171 StPO.
:1 § 172 StPO.
12 § 170 II StPO.
13 §§ 406 d et seq. StPO (amended in 1986, 1998, and 2004).
14 § 406 f StPO.
15 See Thomas Weigend, Gutachten C zum, 62 DEUTSCHEN JURIS-
TENTAG
122 (1998).
16 § 68 b StPO.
17 §§ 406g Ill, 397a StPO.
18 § 395 StPO.
19 § 58a I StPO.
REPORTER - VOL. 19, NO. 2 • DECEMBER 2006
20 § 168e StPO. 41 § 247 StPO.
21 LUTZ MEYER-GOBNER, STRAFPROZE13ORDNUNG § 58a n.1 (49th ed. 42 § 247a StPO.
2006). 43 § 255a StPO.
22 The right to confrontation is viewed as part of the right to a 44 §§ 58a, 255a II StPO.

fair trial under Article 6 of the European Convention on 45 § 68a I StPO.

Human Rights and Articles 20 and 1 of the German Basic 46 § 68 II, Ill StPO. According to older case law, however, optical
Law, and also as part of the right to a fair hearing under Arti. screens were not permissible. Bundesgerichtshof [BGH] [Fed-
cle 103 of the Basic Law. See Susanne Walther, Zur Frage eral Court of Justice], 32 Entscheidungen des
eines Rechts des Beschuldigten auf Konfrontation von Belas- Bundesgerichtshofes in Strafsachen [BGHSt] 115 (124)
tungszeugen, 150 GOLTDAMMER'S ARCHIV FORSTRAFRECHT 204 (ER.G.). Whether this has in the meantime been overruled is
(2003). presently controversial; for an argument in favor of a new
23 Arts. 2 1,11 GG. rule, see MEYER-GOBNER, supra note 21, § 68 n.18.
± See §§ 162, 168 et seq. StPO. 47 Id. § 68b n.5.
25 § 406 d StPO. - § 247 StPO.
26 § 396 I 2 StPO.
19 See Weigend, supra note 15, at C 53.
27 Hohmann, supra note 3, at 1027. 50 § 247a StPO.
28 Id. at 1020. 51 See Bundesgerichtshof [BGH] [Federal Court of Justice], 32
29 § 406 d I StPO.
Entscheidungen des Bundesgerichtshofes in Strafsachen
30 § 406 d II StPO.
[BGHSt] 115 (124) (ER.G.). For criticism of this decision, see
31 § 406 d II StPO.
Weigend, supra note 15, at C 42 f.
32 § 46 a StGB. 52 See Barton, supra note 6.
33 § 155 a, b 153 b StPO. 53 § 397 I 1 StPO.
34 § 73 12 StGB. 54 §§ 397 I 2, 378 StPO.
35 § 1!11b V StPO. 55 § 397 I 3 StPO.
36 § 1 11k StPO.
56 § 400 II StPO.
37 Gesetz zur Starkung der Ruckgewinnungshilfe und der Ver- 51 §§ 403 et seq. StPO.
mogensabschopfung bei Straftaten [Act to improve 58 § 400 III StPO.
restitution and confiscation of crime proceeds], Oct. 24, 59 § 400 I, alt.1 StPO.
2006, BGBI. I at 2350. 60 See Barton, supra note 6, at 215.
38 §§ 111i II, Ill StPO. 61 § 46 I StGB.
39 § 69 I, II StPO; Bundesgerichtshof [BGH] [Federal Court of 62 HANS-JORG ALBRECHT, STRAFZUMESSUNG BEISCHWERER KRIMINAUTAT
Justice], 3 Entscheidungen des Bundesgerichtshofes in Straf- (1994).
sachen [BGHSt] 281 (FR.G.). 63 § 46 II StGB.
40 §§ 171, 172 GVG. 64 See Hoernle, supra note 5.

FEDERAL SENTENCING REPORTER - VOL. 19, NO. 2 DECEMBER 2006