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grated into a single hierarchy, with state courts on the lower levels and federal courts at the top. These federal courts are appellate courts of last resort to which an appeal lies from the state courts. Therefore the problem of multiple prosecutions and trials as a rule does not arise since the bulk of both the substantive and the adjective criminal law rules are incorporated in federal criminal, viz., criminal procedure codes. While the Penal Code includes uniform provisions on the multiplicity of offenses (Secs. 52–55 of the 1973 Code, or Secs. 73-77 of the present Code), the German Criminal Procedure Code in its Sections 2-6 provides rules for prosecution and trial of "interconnected criminal matters.” They read as follows: 13
"Sec. 2. [Joinder and Severance).
“(1) Interconnected criminal cases which individually would be under the jurisdiction of courts of different rank, may be brought jointly to the court of superior jurisdiction.
“(2) For reasons of expediency, this court may, by order provide for the severance of criminal cases so joined.
"Sec. 3. [Interconnection).
“Interconnection exists when one person is accused of several punishable acts, or if several persons are accused as principals, participants, [or] accessories after the fact or receivers [of stolen property], with respect to one punishable act.
"Sec. 4. [Subsequent Joinder or Severance).
“(1) A joinder of interconnected, or a severance of joined criminal cases may also be directed, by judicial order, after the opening of the preliminary judicial investigation or after the opening of the main proceedings, upon motion of the prosecution, or of the person against whom charges are brought or on the court's own motion.
“(2) The court to whose district the other courts belong shall be competent to make such order; if such court does not exist, the superior court common to all involved shall decide.
“Sec. 5. [Jurisdiction of the Court of Higher Rank].
"For the duration of the joinder, the criminal case, which belongs to the jurisdiction of the court of higher rank shall be determinative for the procedure.
“Sec. 6. (Examination on the Court's Own Motion).
“The court shall on its own motion examine its jurisdiction as to subject matter at every stage of the proceedings.”
Furthermore, the German Criminal Procedure Code provides also for the possibility of a different kind of joinder: consisting in the simultaneous trial of several criminal cases pending before the same court. The pertinent provision is contained in its Section 237 which reads as follows : 64
“Sec. 237. [Joinder of Interconnected Criminal Cases].
"If there is an interconnection between several criminal cases pending before it, the court may order their joinder for the purpose of simultaneous trial, even though this interconnection is not the one specified in Section 3."
In the 1973 version of the General Part of the German Criminal Code, the question of prosecution for multiple related offenses is dealt with in Title Three (Fixing Punishment in Case of Several Violations of Law) of the Third Division (Legal Consequences of the [Criminal] Act) consisting of Secticns 52–55. They read as follows:
“Sec. 52. Compound Offense.
“(1) If the same criminal act violates several penal statutes or the same penal statute several times, only one punishment shall be imposed.
“(2) If several penal statutes are violated, punishment shall be determined in accordance with the statute which provides for the severest punishment. It may not be less severe than the other applicable statutory provisions permit.
"(3) The court may separately impose a fine in addition to the deprivation of liberty punishment if the conditions specified in Section 41 are met.
53 The translation was made from Strafprozessordnung (StPO) mit Nebengesetzen.. bearbeitet von Elmar Brandstetter und Oswald Bussenius, 2nd ed. Köln, Carl Heymanns Verlag KG., 1971. p. 2-3.
54 Id. at 81.
**(4) Additional penalties (Nebenfolgen) and measures (Sec. 11, par. 1, No. 4) must or may be imposed where one of the applicable statutes prescribes or permits them. "Sec. 53. Several Criminal Acts. "(1) If anyone has perpetrated several criminal acts which are adjudicated simultaneously, and thereby incurred several terms of deprivation of liberty or several fines, one compound punishment shall be imposed.
“(2) If a term of deprivation of liberty coincides with a fine, a compound punishment shall be imposed. However, the court may also impose a fine separately; if in such cases a fine is to be imposed for several criminal acts, a compound fine shall be imposed to that extent. "(3) Section 52, paragraphs 3 and 4 shall apply mutatis mutandis. "Sec
. 54. Fixing the Compound Punishment. **!1) The compound punishment shall be fixed by increasing the highest punishment incurred, or where there are different kinds of punishment, by increasing the punishment severest in kind. In so doing the personal characteristics of the perpetrator and the individual criminal acts shall be comprehensively “(2) The compound punishment may not reach the sum of the individual punishments. It shall not exceed fifteen years in the case of a deprivation of liberty punishment and may not exceed seven hundred twenty per diem charges “(3) If the compound punishment is to be computed from deprivation of liberty—and fine-punishments, in ascertaining the sum of the individual punishments one per diem charge shall correspond to one day of deprivation "Sec. 55. Subsequent Fixing of the Compound Punishment.
(1) Sections 53 and 54 shall also apply if a person under final (judgment of} conviction before the punishment imposed upon him has been executed, barred by the statute of limitations or remitted, is convicted for another criminal act which he perpetrated prior to the earlier
conviction. An earlier conviction shall be considered to be the judgment in such earlier proceedings in which the underlying established facts would be examined for the last time. ***(2) Collateral penalties, collateral consequences and measures (Sec. 11, Par. 1., No. 4) imposed in the earlier sentence, shall be upheld to the extent they have not become irrelevant as a result of the new sentence.”
in case of fines.
THE GERMAN CODE OF CRIMINAL PROCEDURE
With an Introduction by
Translated by DR. HORST NIEBLER
Introduction translated by Dr. MANFRED A. PFEIFFER
in co-operation with The University of Michigan Law School
Sweet & Maxwell Limited, London
IN THE NAME OF THE PEOPLE In the criminal matter against Becker et al. charge: aggravated larceny, etc., the Magistrate's Court of Munich--Lay-Judge Court-delivers the following
in the public session on April 27, 1961 in which the following persons participated :
(a) magistrate Dr. Reichert as presiding judge,
($ 260, subs. IV) 1 I. Becker, Fritz, auto-mechanic in Munich; married ; born on July 4, 1930 in Augsburg is guilty of aggravated larceny
(pronouncement) and is therefore sentenced to be confined in a prison for a period of ten months. Preliminary detention is credited against the sentence.
Il. Hilger, Hans, clerk in Munich; unmarried; born on January 2, 1935 in Feldkrirchen is guilty of receiving property unlawfully acquired, and is therefore sentenced to pay a fine of 300 Deutsche Marks in lieu of a prison term of one month.
III. The defendants bear the costs of the proceeding.
STATEMENT OF GROUNDS (§ 267. subs.I 1) The injured party in this case. Joseph Schneider, occupies an apartment located on the fourth floor of 175 Schwabingerstrasse, Munich. Between 3.30 and 11.0 p.m. on March 31, 1961, the defendant Becker by force broke open the locked door leading into Schneider's apartment, intending at that time to commit larceny in the apartment. Having entered the apartment, he found a wrist-watch, make Omega, which belonged to Schneider. The watch had an approximate value of 150 Deutsche Marks. He took the watch with him, intending at that time to sell it.
It about 11.0 p.m. Becker proceeded to the Siegergarten, a night club located on Siegesstrasse, in Munich, where he started a conversation with the defendant Hilger. The defendants had never met before. During the course of the conversation Becker offered to sell Hilger the watch for ten Deutsche Marks. When Hilger inquired as to whether Becker was the owner of the watch, Becker replied: "People who want to buy Swiss watches for ten Marks shouldn't worry about that." Thereupon, Hilger, without inquiring further, bought the watch for ten Deutsche Marks.
1 All citations in the margin of this Appendix refer to the Code of Criminal Procedure.
The defendant Becker denied the commission of the act charged against him. He alleged that it was Hilger who had offered the watch to him and that he had rejected the offer. The findings with respect to Becker are, however, sufficiently supported by these facts : according to Schneider's testimony, the watch in question was stolen from his apartment in the afternoon or evening of March 31, 1961. Pinter, the detective, testified that the larceny was committed by breaking into Schneider's apartment by force. A fingerprint found on the inside of Schneider's apartment door was identical with Becker's fingerprint in five points. According to the opinion of the expert, Weise, identity in five points, while not conclusive, indicates a high degree of probability that the print was made by Becker. Hilger states that Becker sold him the watch at about 11.30 p.m. on March 31, 1961. Hilger's statement appeared credible on its face and there was no indication that Hilger had any reason to bear false witness against Becker. Furthermore, Becker's wife, when called by him as a witness to establish an alibi for the time here in question, refused to testify. Under the "free evaluation of evidence” rule (S 261 of the Code of Criminal Procedure) the court is entitled to draw adverse inferences from her failure to testify in support of Becker's statement that he was in his home all evening on the day question until 11.0 p.m. Becker's intent to appropriate the watch to himself is apparent from his subsequent behavior.
The findings concerning the defendant Hilger are based on the defendant's statement in open court and on the credible testimony of Schneider.
($ 267, subs. III 1) The act committed by the defendant Becker constitutes aggravated larceny pursuant to SS 242, 243, subs. I, II, of the Criminal Code. The defendant took a movable thing, namely a wristwatch, by terminating the exclusive custody then exercised by Schneider, and by obtaining custody himself. The wrist-watch was the exclusive property of a person other than the defendant, namely Schneider. When taking the watch, the defendant intended to convert the watch for his own benefit by selling it. He took the watch from a building after breaking into it.
The act committed by the defendant Hilger constitutes receiving property unlawfully acquired pursuant to $ 259 of the Criminal Code. He purchased a watch which had been obtained by means of an offense, that is, the larceny committed by Becker. He also acted for his own benefit, since he paid considerably less than the fair market value for the watch. Without deciding whether the defendant knew that the watch had been obtained by means of an offense, the court finds that he should have assumed under the circumstances that it had been so obtained. § 259 creates a rebuttable presumption according to which a person, who should have known of the unlawful origin of a certain thing in view of the attending circumstances, may be considered as having had actual knowledge thereof unless the contrary is shown.
The circumstances in light of which Hilger should have known that the watch was unlawfully obtained are these : he bought the watch from a perfect stranger who gave him an evasive answer when questioned about ownership of the watch. The watch cost only a fraction of the regular price. There was nothing in the evidence which would tend to rebut this presumption.
(§ 267, subs. III 1) As to the defendant Becker the court considered ten months confinement in a prison as an appropriate punishment. Although the code provides for a penitentiary sentence in case of aggravated larceny, unless there are mitigating circumstances, the court deemed a prison term sufficient. It ($ 267, subs. III 2) considered in mitigation that Becker has a wife and two children and that he is still rather young. On the other hand, the court had to bear in mind that the defendant had recently been given a suspended sentence which obviously had no effect on him.
The period between April 1, 1961 and today, which the defendant has spent in preliminary detention, will be credited against the sentence here imposed ($ 60 of the criminal Code).
GREECE It has been pointed out that the purpose of a modern criminal code is to loosen the restrictions imposed upon the judges by the codes of the past, and at the same time, provide an effective instrumentality for the combating of crime.
In compliance with that concept, the Greek Criminal Code* identifies crimes as certain acts being directed against the rights of the individual and the society which the law regards as necessary to be protected. These cases are specified, but a case by case description of the punishable act is avoided to preserve the fundamental principle of “nullum crimen, nulla poena sine lege" with the proper flexibility. In this way, the interest of the general public is protected just as the interest of the individual is safeguarded.
The Greek system follows the concept of the twofold purpose of punishment, that is, that of retribution and security. The penalties are understood as being expressions of disapproval on the part of society of what the perpetrator has done, and proceeding against him accordingly.
The security measures are a physical protection of society from the criminals. The penalties are imposed in pursuance of the general and specific preventative theories whereas the security measures are imposed in pursuance of the special preventive theory alone. Henceforth, the former must correspond to the gravity of the crime perpetrated, and the latter, to the personality of the perpetrator.
QUESTION 1 The Greek Criminal Code is divided into two parts. The first part contains general provisions and the second, specific offenses. The first part is further subdivided into eight chapters, and the second into twenty-seven. First Part: General Provisions
The first chapter contains provisions with respect to the place and the time of the application of the Criminal Code.
The second deals with the punishable acts and includes provisions with respect to the factual elements of the crime.
The third provides for attempts to commit a crime and for the accessories to the crime.
The fourth includes provisions for penalties and security measures.
The sixth provides for suspended sentences and the release of the convicted person once certain conditions are met.
The seventh provides for the waiving and extinguishing of the right to institute a criminal action.
The last one contains provisions about juveniles.
Second Part: Specific Offenses This part consists of 27 chapters. The first and second chapters provide for crimes with respect to acts which are directed against the state. The third provides for those crimes which are committed against a country with whom Greece is at peace. The fourth for crimes against the free exercise of political rights. The fifth for crimes against the King, the heir, and the illegal release of prisoners.
The sixth and seventh pertain to crimes with respect to the public order. The eighth for crimes against the armed forces. The ninth and tenth for crimes against transactions, the currency, etc. The 11th for crimes with resepet to the administration of justice, The 12th for crimes with respect to the public services.
The 13th and 14th, for crimes known as “commonly dangerous" and for crimes against transportation. The 15th to 24th, for crimes against the individual (crimes against personal freedom, family life, morality, etc.). The 25th for crimes of begging and vagrancy, The 26th--for petty offenses, and the 27th contains provisions on infractions of administrative laws and ordinances.
The Code contains 474 articles, which run consecutively from 1 to 474. Blank numbers are unknown.
*One of the drafters of the penal code is Nicolaos Chorafas, a former professor in criminal law at the Athens University Law School. He is regarded as an outstanding top authority in the field of criminal law and it is due to his contribution that the Greek Criminal Code is a modern, complete, and effective piece of scientific legislative work.