The coronavirus pandemic has hit the justice system with full force. The justice ministries of the federal states have responded to the pandemic by deciding that court hearings will only take place for urgent matters, "in particular custody matters, activities of investigating judges, urgent matters and long-running criminal proceedings".[1] These extraordinary measures are considered necessary to contain the spread of the virus, while at the same time ensuring that the justice system remains functional. In principle, however, court buildings are to remain open despite the dramatically increasing number of people infected. The criminal justice system is already facing a dilemma.
Postponement of court dates
In practice, the crisis has initially resulted in many cases being canceled, e.g. in non-urgent criminal proceedings. In view of the current dynamic situation, the Lower Saxony Ministry of Justice recommends on its website that you check with the court to see whether the hearing will actually take place. Even at the Federal Court of Justice in Karlsruhe, the appointments are not canceled.
One day before the information letter from the Ministry of the State of Rhineland-Palatinate was sent, the author was still at a criminal trial in Wittlich in the Südeifel region. The court seemed almost deserted, and at the main entrance, hands had to be disinfected in front of the court guard. Outside the courtroom, a notice asked lawyers and visitors to keep a distance of two meters. The Munich Criminal Justice Center is already taking more drastic measures. Since March 19, 2020, all persons who do not belong to the judiciary, including lawyers, have to fill out a questionnaire in a tent in front of the courthouse. This includes questions about their state of health. Furthermore, visitors must confirm that they have no "respiratory problems or non-specific general symptoms" such as fever, headaches or aching limbs, that they have had no contact with a "confirmed Covid-19 patient" in the past two weeks and has not been to a risk area. [5] At the entrance to some courthouses, visitors' temperatures are already being taken before they enter the building. [6] If relevant symptoms of the disease are detected, they must leave the courthouse. In some places, judges only allow so many spectators into the courtroom that there is always a chair left between people, thus implementing the recommended "social distancing".[7]
Time constraints and changes in the law
It remains to be seen how the judiciary intends to cope with the enormous backlog of cases that is to be expected. The Code of Criminal Procedure was amended to prevent criminal proceedings from being abandoned due to the coronavirus pandemic and having to start all over again. The regulation has been in force since March 28, 2020. Courts are now allowed to interrupt an ongoing criminal trial for a maximum of three months and ten days due to the coronavirus pandemic, [8] instead of the previous three weeks according to § 229 I StPO or up to one month if the trial lasted longer than ten days before the interruption. A new suspension period of no longer than two months has been added to § 10 (1) StPOEG. The respective interruption period, which is three weeks or one month, is added to this. In addition, it is now regulated that the interruption period may end no earlier than ten days after the end of the suspension. This results in a maximum duration of three months and ten days. It may also be impossible to hold a main hearing during the coronavirus pandemic if any of the persons involved in the main hearing contracts COVID-19 themselves. [9] The regulation is limited to one year from the date of its entry into force.
The question is, however, whether the pandemic will actually be over in three months and whether the new maximum period is long enough; on the other hand, it is to be feared that there will continue to be procedurally questionable "sliding deadlines" in order to be able to end longer lawsuits. The quality of judicial decisions could also suffer as a result, since the maximum deadlines for an interruption are also intended to ensure that the decision to be issued is made with the full and coherent picture of the case before the court.[10]
Execution and enforcement of sentences
Prisons have not been spared from the novel coronavirus either. In order to prevent the virus from spreading as far as possible, in some cases the start of imprisonment is postponed to a later date.[11] In Lower Saxony, for example, new prisoners will continue to be admitted, but with the exception of convicts sentenced to a prison term of six months or less.[12] The Berlin judiciary announced that it is suspending substitute imprisonment. People who would otherwise be imprisoned for failing to pay fines will not be imprisoned for the time being due to the coronavirus crisis.[13] Prisoners in correctional facilities are not allowed to receive visits from relatives at this time. Lawyers, however, should continue to have access to their clients.[14] If the financial situation has worsened as a result of the government's COVID-19 measures (unemployment, lack of revenue due to the shutdown), and therefore a fine cannot be paid, thencan currently be achieved without difficulty, a deferral or reduction of installment payments.
Outlook
The effects of the coronavirus and the consequences for the justice system cannot yet be foreseen. The crisis represents a serious test. An increased workload due to a rise in overall crime as a result of the expected economic recession, domestic violence[15] and proceedings for violating contact bans to prevent the spread of the coronavirus could be added to the mix.
References:
[1] exemplary: information letter from the Ministry of Justice of Rhineland-Palatinate dated March 19, 2020; "Impact of the spread of the coronavirus on the judiciary in Rhineland-Palatinate - the operations of the Rhineland-Palatinate judiciary will be limited to what is necessary – functionality will continue to be guaranteed, www.nachrichten-kl.de dated 19.3.20); www.justiz.bayern.de v. 19.3.20 ("Corona and the Bavarian Justice System"); www.justiz-bw.de v. 16.3.20 "On the urgently needed slowing down of the further spread of the coronavirus (SARS-CoV-2): operations in the judiciary will be limited to essential services and unavoidable proceedings."
[2] www.welt.de v. 20.3.20 ("The dilemma for the German constitutional state").
[3] www.mj.niedersachsen.de ("Information on how to deal with the coronavirus in the justice system").
[4] www.tagesspiegel.de v. 19.3.20 ("The Basic Law is now being monitored in shifts").
[5] www.sueddeutsche.de v. 19.3.20, ("Justice tightens controls for visitors").
[6] www.br.de, March 23, 2020 ("Due to Corona: Nuremberg judiciary postpones many proceedings").
[7] www.mdr.de v. 18.3.20 ("The crisis in Thuringia - The coronavirus and the consequences for the judiciary").
[8] "Act to Mitigate the Consequences of the Covid 19 Pandemic in Civil, Insolvency and Criminal Procedure Law", Federal Law Gazette 2020 Part I No. 14, March 27, 2020, p. 569; BT Drs. 19/18110; www.bmjv.de v. 17.3 20, ("Corona - Größere Flexibilität für Strafprozesse während der Corona-Epidemie"); www.lto.de v. 18.3.20, ("Strafverfahren wegen Corona bis zu drei Monate unterbrechen").
Section 10 of the StPOEG reads:
(1) Regardless of the duration of the main proceedings, the course of the interruption periods specified in Section 229 (1) and (2) of the Code of Criminal Procedure is suspended as long as the main proceedingsmeasures to prevent the spread of infection with the SARS-CoV-2 virus (COVID-19 pandemic), but for no longer than two months; these periods shall end no earlier than ten days after the end of the suspension. The court shall determine the beginning and end of the suspension by means of a non-appealable order.
(2) Subsection (1) applies accordingly to the period for pronouncing judgment as referred to in section 268 subsection (3) second sentence of the Code of Criminal Procedure.
[10] BGH NStZ 2008, 115.
[11] www.focus.de v. 19.3.20, ("Ministerium: Zwei Corona-Fälle in Bayerns Gefängnissen").
[12] www.mj.niedersachsen.de ("Information on how to deal with the coronavirus in the justice system").
[13] www.rbb24.de v. 14.3.20, ("Corona crisis - Berlin judiciary suspends custodial sentences for failure to appear").
[14] www.donaukurier.de v. 19.3.20, ("Ban on visiting behind bars").
[15] www.bild.de v. 25.3.20, ("Düsseldorf's mayor warns of domestic violence").
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.