Criminal Proceedings in Times of Pandemic | Pages 248-271 | PDF

Manfred Dauster, Dr. iur.
Presiding Judge at the Supreme Court of Bavaria
Member of the Institute of Economic, European
and International Criminal Law of the Saarland

University in Saarbrücken, Germany

Keywords: distribution, legislation powers, Federal Republic of Germany, pandemic, impact of administrative containment measures, criminal proceedings, exhausting time lines, mandatory presence, hearings and protection of health, public hearings under containment conditions, detention, accelerated proceedings, aggravated conditions

COVID-19 caught humanity off guard at the turn of 2019/2020. Even when the Chinese government sealed off Wuhan, a city of millions, for weeks to contain the epidemic, no one in other parts of the world had any idea of what specifically was heading for the countries. The ignorant and belittling public statements and tweets of the former US president are still fresh in everyone's memory. Only when the Italian army carried the coffins with the COVID-19 victims in northern Italy, the gravesites spread in the Bergamo region, as well as the intensive care beds filled in the overcrowded hospitals, the countries of the European Union and other parts of the world realised how serious the situation threatened to become. Together with the World Health Organisation (WHO), the terms changed to pandemic. Much of the pandemic evoked reminiscences originating in the Black Death raging between 1346 and 1353 or in the Spanish flu after the First World War.

Meanwhile, life went on. The administration of justice in criminal cases could not and should not come to a standstill. Emergency measures, such as those that began to emerge in February 2020, are always the hour of the executive. In their efforts to stop the spread of the virus, in Germany, governments particularly reflected on criminal proceedings. Neither criminal procedural law nor the courts and court administrations applying this procedural law were adequately prepared for the challenges. Deadlines threatened to expire, access to court buildings and halls had to be restricted to reduce the risk of infection, public hearings represented a potential source of infection for both the parties to the proceedings and the public, virtual criminal hearings via conference calls had not yet been tested in civil proceedings, but were legally possible, but not so in criminal cases. The taking of evidence in criminal cases in Germany is governed by the rules of strict evidence and is largely not at the disposal of the parties to the proceedings. Especially in criminal cases, fundamental and human rights guarantees serve to protect the accused, but also the victims and witnesses. Executive measures of pandemic containment might impact these guarantees.

Here, an attempt will be made to discuss at some neuralgic points how Germany has attempted to balance the resulting contradictory interests in the conflict between pandemic control and constitutional requirements for criminal court proceedings.