Just weeks after the first reported cases, the COVID-19 pandemic has affected all areas of public life in Europe.

German law enforcement and the criminal justice system are no exception. Judges and prosecutors are using all the leeway they have to cope with the situation in order to protect their staff, the parties to the proceedings and themselves from the virus.

Overcrowded courtrooms and limited access to modern technology pose major challenges to the judiciary. The legislator is now stepping in and promises greater flexibility during criminal proceedings – at least for the duration of the pandemic.

Putting the criminal justice system on hold

White-collar trials often see dozens of people crammed into a courtroom.

The panel is usually three professional judges plus lay jurors and substitute jurors. Further participants are a clerk, several prosecutors, defendants and their lawyers, plus the press and the public, whose access has already been restricted to exclude anyone with a cough or temperature. (Some courts check!)

Considering that most of these individuals have to go through an airport-style security check to enter the courthouse, you have an epidemiologist’s nightmare.

In order to empty the courtrooms as quickly as possible, on-going trials are being massively accelerated. Several large white-collar proceedings, which were set to go on for weeks, have ended with rulings over the past few days – some after rushed court sessions that extended well into the night.

Cases not yet on trial have been postponed, unless the defendants are in pre-trial detention. And many indictments pending today will never see the light of a courtroom.

The Bavarian State Ministry of Justice has instructed its public prosecutors to carefully examine whether indictments can be withdrawn and whether a penalty order, which is issued for less serious offences, can be issued instead. If so, the defendant would receive a sentence by post that cannot include a non-suspended prison sentence. Only if they file an objection does a trial take place.

Clearing out prisons – as much as possible – is another priority. In many German states, the enforcement of alternative custodial sentences (imprisonment for offenders who fail to pay a fine or penalty) is officially suspended. In Berlin, no convicted offender who is not in custody already will have to start their prison term before 15 June. 

Preliminary proceedings to slow down considerably

The work of police and prosecutors is being considerably affected by measures being imposed to slow down the spread of the virus.

Many public prosecutor's offices are closed to the public and to lawyers. Most interrogations have been postponed or replaced by sending questions in writing. Interrogations of witnesses and defendants will only be scheduled in the most important cases (usually those involving pre-trial detention).

With most investigation files still being paper based, some prosecutors complain that the state has not provided the technical equipment to efficiently work from home like their counterparts in law firms.

Police officers from white-collar crime units report that they may be assigned to general duties for the duration of the pandemic.

The technical and legal requirements for video interviews are not met in most cases. Some judges use tablets and video conferencing for non-suspendable appointments, such as pre-trial detention hearings. But many appointments are just cancelled and proceedings, in effect, put on hold.

At the same time, the workload of police and prosecutors is increasing due to a completely new phenomenon: corona-related crimes. 

Anyone who, for example, visits a playground although it is closed commits a criminal offence under § 75 of the Infection Protection Act and can be punished with a fine or imprisonment. And anyone who illegally goes out to celebrate and thereby actually spreads the virus is liable to imprisonment of between three months and five years. 

It remains to be seen how the courts will apply these penal provisions. But the police have been filing numerous criminal complaints for such offences in the past few days. 

Greater flexibility for criminal proceedings during the pandemic

The lawmaker is now stepping in to counter one threat to many ongoing cases.

German criminal procedure dictates that a criminal trial, once set in motion, cannot be interrupted for a prolonged period, as the judges need to have the hearings fresh in their mind when deciding on the case.

The permissible maximum time between two hearings is between three weeks and one month (with possible extensions in special circumstances), depending on the length of the trial and the reason for the interruption. If the deadline is missed, the trial must start all over again, with all the heard evidence becoming null and void.

In normal summers, this rule often leads to the scheduling of a five-minute court hearing, in which well-tanned judges, prosecutors and lawyers do little more than a role call before ending proceedings. In the pandemic, that won’t do.

The German Federal Ministry of Justice is now preparing a law to extend the maximum time between consecutive court hearings in criminal cases to three months and 10 days.

The prerequisite for this is that the next main hearing cannot be held sooner due to the pandemic. This is the case, for example, if the trial involves individuals at heightened risk or if the court’s normal business is restricted due to the measures to protect from the virus.

The latter should already apply to practically every German criminal court as of today.

Effects for defendants

Businesses and individuals currently under criminal investigation in Germany must expect the COVID-19 pandemic to prolong their proceedings.

In suitable investigations that are closer to ending, defence lawyers these days often find judges and prosecutors more open than usual to reaching amicable out-of-court settlements.

However, the hasty conclusion of proceedings in some cases also presents a significant risk that essential rights of the defence will be disregarded.

Defence lawyers must therefore be particularly vigilant these days, not only when moving about (as little as possible!) but also when dealing with a criminal justice system on the brink.