Section 28 Hearing of person pursued

(1) Following receipt of a request for extradition, the public prosecution office at the higher regional court applies for the person pursued to be heard by that local court in whose district said person is located.

Section 31 Court hearing

(1) The public prosecution office at the higher regional court, the person pursued and his or her legal counsel (section 40) are to be notified of the date and place of the court hearing. A representative of the public prosecution office at the higher regional court must attend the court hearing.

(2) If the person pursued is under arrest, he or she is to be brought before the court, unless he or she has waived the right to be present at the hearing or long distance, illness or other insurmountable obstacles prevent him or her being brought before the court. If the person pursued is not brought before the court for the court hearing, then legal counsel (section 40) must exercise that person’s rights at the hearing. In such cases, a lawyer (Rechtsanwalt) is to be appointed as legal counsel for the court hearing if the person pursued does not yet have legal counsel.

(3) If the person pursued is at large, the higher regional court may order that he or she appear in person. If a person pursued who has been properly summoned does not appear and no sufficient excuse is presented for such non-appearance, the higher regional court may order that the person pursued be brought before the court.

(4) The parties present are to be heard in the course of the court hearing. A record is to be kept of the hearing.

Section 45 Transit procedure

(5) If it is likely that the transit cannot be completed by the end of the day following the day of his or her transfer, the person pursued is to be brought before the judge at the nearest local court without delay, but no later than the day after he or she arrives in the area of application of this Act. The judge at the local court hears persons pursued about their personal circumstances, in particular nationality. The judge must draw their attention to the right to avail themselves of the services of legal counsel (section 40) at any stage of the proceedings and to the fact that they are free to either make a statement or not make a statement regarding the offence of which they are accused. The judge then asks whether and, if so, for what reasons they wish to object to the warrant of arrest pending transit or to the permissibility of the transit. If a person pursued raises objections which are not manifestly unfounded or if the judge at the local court has doubts about continuing that person’s detention or about the permissibility of the transit, then the judge without delay and by expeditious means notifies the public prosecution office at the higher regional court thereof. The public prosecution office is then responsible for ensuring that the higher regional court gives a decision without delay.

Section 84e
Interim authorisation decision

(1) The decision on whether to authorise enforcement is given by the public prosecution office with jurisdiction under section 50 sentence 2 and section 51. It gives the sentenced person the opportunity to make a statement. This may be dispensed with if the sentenced person was already heard in the other Member State.


Section 84f Court procedure

(2) The court sends the sentenced person a copy of the documentation referred to in section 84c (1) insofar as this is necessary in order for the sentenced person to be able to exercise his or her rights.

Section 87g Court procedure

(3) The court sends the person concerned a copy of a German translation of the other Member State’s decision if this is necessary for the exercise of that person’s rights. Where an application as referred to in section 87i (1) is made, the person concerned is also to be served copies of the documentation referred to in section 87a and of the decision, pursuant to section 87i (2), not to assert any obstacles to authorisation. In the case under sentence 2, the person concerned is requested to respond within a period to be determined by the court.

IX. The Judiciary

Article 101
[Ban on extraordinary courts]
(1) Extraordinary courts shall not be allowed. No one may be removed from the jurisdiction of his lawful judge. (2) Courts for particular fields of law may be established only by a law.

IX. The Judiciary

Article 103
[Fair trial]
(1) In the courts every person shall be entitled to a hearing in accordance with law.
(2) An act may be punished only if it was defined by a law as a criminal offence before the act was committed.
(3) No person may be punished for the same act more than once under the general criminal laws.

Article 104
[Deprivation of liberty]
(1) Liberty of the person may be restricted only pursuant to a formal law and only in compliance with the procedures prescribed therein. Persons in custody may not be subjected to mental or physical mistreatment.
(2) Only a judge may rule upon the permissibility or continuation of any deprivation of liberty. If such a deprivation is not based on a judicial order, a judicial decision shall be obtained without delay. The police may hold no one in custody on their own authority beyond the end of the day following that of the arrest. Details shall be regulated by a law .
(3) Any person provisionally detained on suspicion of having committed a criminal offence shall be brought before a judge no later than the day following that of his arrest; the judge shall inform him of the reasons for the arrest, examine him and give him an opportunity to raise objections. The judge shall, without delay, either issue a written arrest warrant setting forth the reasons therefor or order his release. (4) A relative or a person enjoying the confidence of the person in custody shall be notified without delay of any judicial decision imposing or continuing a deprivation of liberty.

Part 2
Surrender of Persons

§ 13
Provisional Arrest

(1) When the prerequisites for an arrest warrant for surrender have been fulfilled,
the public prosecution office and the officers of the police force are authorized to
effect the provisional arrest. In accordance with the conditions set forth in § 127
para. 1 sentence 1 of the Criminal Procedure Code, any person is entitled to conduct
a provisional arrest.
(2) If the suspect is taken into custody, he shall be informed of the reason
therefore.
(3) When an arrest warrant for surrender exists, the suspect must be promptly
informed thereof. The suspect is to be given a copy.

Part 2
Surrender of Persons

§ 14
Procedure After Capture Based Upon an Warrant of Arrest for Surrender
(relating to Article 59 para. 2 of the Rome Statute)

(1) If the suspect is captured based upon an arrest warrant for surrender, the
suspect must be brought without delay, at the latest on the day after capture, before
a judge of the next District Court (Amtsgericht).
(2) The judge of the District Court will examine the suspect promptly after the presentation, at the latest on the next day, regarding his personal circumstances, in
particular, regarding his citizenship. He shall inform him, that in each phase of the
proceedings he may use legal assistance (§ 31) and that it is up to him whether or
not to make statements regarding the criminal act he is accused of committing. He
shall then inform the suspect that he may apply for suspension of execution of the
arrest warrant for surrender, as well as that he may at any time approach the Court
regarding its arrest warrant, and he shall question him as to whether and, if necessary, upon which grounds, he seeks to raise objections to the surrender; § 41
para. 5 sentence 1 applies mutatis mutandis. In cases under § 11 para. 2 the
examination also extends to the topic of the charge; in most cases, information
provided by the suspect shall be included in the record of proceedings. Provided that
the Court requests, it shall be provided with a copy of the record of proceedings.

Part 2
Surrender of Persons

§ 15
Procedure After Provisional Arrest

(2) § 14 para. 2 applies mutatis mutandis to the examination of the suspect.

SPECIAL PART

CHAPTER THIRTY
OFFENCES COMMITTED IN PUBLIC OFFICE

Section 340
Causing bodily harm while exercising a public office

(1) A public official who in the exercise of his duties causes bodily harm or allows it to be caused shall be liable to imprisonment from three months to five years. In less serious cases the penalty shall be imprisonment of not more than five years or a fine.
(2) The attempt shall be punishable.
(3) Sections 224 to 229 shall apply mutatis mutandis to offences under subsection (1) 1st sentence above.

SPECIAL PART

CHAPTER THIRTY
OFFENCES COMMITTED IN PUBLIC OFFICE

Section 343
Forcing someone to make a statement

(1) Whosoever as a public official involved in
1. a criminal proceeding, a proceeding for the purpose of detention by a public authority;
2. a proceeding to impose a summary fine; or
3. a disciplinary proceeding, disciplinary court or professional disciplinary court proceeding
physically abuses another, otherwise uses force against him, threatens him with force or abuses him mentally in order to force him to testify to or declare something in the proceeding or to fail to do so shall be liable to imprisonment from one to ten years.
(2) In less serious cases the penalty shall be imprisonment from six months to five years.

Section 33
Right to be heard before decision is rendered

(1) A decision of the court rendered in the course of the main hearing is taken after hearing the parties to the proceedings.

(2) A decision of the court rendered outside a main hearing is taken after a written or oral declaration by the public prosecution office.

(3) If a decision has been taken pursuant to subsection (2), another party is to be heard before facts or evidentiary conclusions in respect of which that party has not yet been heard are used to his or her detriment.

(4) If remand detention, seizure or other measures have been ordered, subsection (3) does not apply if the prior hearing would jeopardise the purpose of such an order. Special provisions governing the hearing of the parties are not affected by subsection (3).

Section 33a
Restoration of status quo ante following breach of right to be heard

If the court has, in an order, violated the right of a party to be heard in a manner which may affect the outcome of the case and if such party has no right to lodge a complaint nor any other legal remedy against this order, then as far as the detriment still exists the court makes an order, either ex officio or upon application, reverting the proceedings to the situation before the decision in question was given. Section 47 applies accordingly.

Section 44
Restoration of status quo ante following failure to observe time limits

If someone was prevented from observing a time limit through no fault of their own, they are to be granted restoration of the status quo ante upon application. Failure to observe the time limit for filing an appellate remedy is not considered a fault if instruction pursuant to section 35a sentences 1 and 2, section 319 (2) sentence 3 or section 346 (2) sentence 3 has not been given.

Section 114a
Issuance of warrant of arrest; translations

A copy of the warrant of arrest is to be handed over to the accused at the time of his or her arrest; if the accused does not have a sufficient command of the German language, then, in addition, a translation in a language he or she understands is to be provided. If it is not possible for a copy and, where necessary, a translation to be handed over to the accused, he or she must be informed without delay, in a language he or she understands, of the grounds for arrest and of the accusations levied against him or her. In that case, the copy of the warrant of arrest and, where necessary, a translation are subsequently to be handed over to the accused without delay.

Section 114b
Instruction of arrested accused
(1) Arrested accused are to be instructed as to their rights without delay and in writing in a language they understand. If written instruction is clearly insufficient, oral instruction is also to be given. The same procedure applies accordingly if it is not possible to give instruction in writing; however, written instruction is, as a rule, to be given subsequently insofar as this can reasonably be done. The accused must, as a rule, confirm in writing that instruction was given; if the accused refuses, this is to be documented.

(2) In the instruction pursuant to subsection (1) accused persons are to be advised that they

1. are, without delay, at the latest on the day after their apprehension, to be brought before the court which is to examine them and decide on their further detention,
2. have the right to reply to the accusation or to remain silent,
3. may request that evidence be taken in their defence,
4. may at any time, including before their examination, consult with defence counsel of their own choice; they are to be provided with information which assists them in contacting defence counsel; reference is thereby to be made to emergency legal services,
4a. may, in the cases under section 140, request the appointment of court-appointed defence counsel in accordance with the provisions of section 141 (1) and section 142 (1); reference is thereby to be made to the fact that they may be obliged to pay costs as required by section 465,
5. have the right to demand an examination by a female or male physician of their own choice,
6. may notify a relative or a person trusted by them, provided the purpose of the investigation is not significantly endangered thereby,
7. may, in accordance with the provisions of section 147 (4), apply to inspect the files and, under supervision, to view items of evidence in official custody if they have no defence counsel and
8. may, if remand detention is continued after they are brought before the competent judge,

a) lodge a complaint against the warrant of arrest or apply for a review of detention (section 117 (1) and (2)) and an oral hearing (section 118 (1) and (2)),
b) in the event of inadmissibility of the complaint, make an application for a court decision pursuant to section 119 (5) and
c) make an application for a court decision pursuant to section 119a (1) against official decisions and measures in the enforcement of remand detention.

The accused is to be advised of defence counsel’s right to inspect the files under section 147. An accused who does not have a sufficient command of the German language is to be advised in a language he or she understands that he or she may, in accordance with the provisions of section 187 (1) to (3) of the Courts Constitution Act, demand that an interpreter or a translator be called in free of charge for the entire criminal proceedings; a hearing or speech impaired accused is to be instructed as to the right to choose under section 186 (1) and (2) of the Courts Constitution Act. Foreign nationals are to be advised that they may demand notification of the consular representation of their home state and have messages communicated to the same demand notification of the consular representation of their home state and have messages communicated to the same.

Section 115
Appearance before competent judge

(1) If the accused is apprehended on the basis of a warrant of arrest, he or she is to be brought before the competent court without delay.

(2) The court is required to examine the accused concerning the subject of the accusation without delay following his or her arrest and no later than on the following day.

(3) During the examination, the incriminating circumstances are to be pointed out to the accused and the accused is to be informed of the right to reply to the accusation or to remain silent. The accused is to be given the opportunity to remove grounds for suspicion and arrest and to present those facts which speak in his or her favour.

(4) If remand detention is continued, the accused is to be informed of the right of complaint and of other legal remedies (section 117 (1) and (2), section 118 (1) and (2), section 119 (5), section 119a (1)). Section 304 (4) and (5) remains unaffected.

Section 121
Continuation of remand detention beyond six months

(1) As long as a judgment has not been given imposing a sentence of imprisonment or a measure of reform and prevention involving deprivation of liberty, then remand detention for one and the same offence exceeding a period of six months may be enforced only if the particular difficulty or the unusual extent of the investigations or some other important reason do not yet admit pronouncement of judgment and justify continuation of remand detention.

Section 122
Special review of detention by higher regional court
(1) In the cases under section 121, the competent court submits the files via the public prosecution office to the higher regional court for decision if it deems the continuation of remand detention necessary or if the public prosecution office so requests.

(2) The accused and his or her defence counsel are to be heard prior to the decision. The higher regional court may decide on the continuation of remand detention after an oral hearing; in that case, section 118a applies accordingly.

(3) If the higher regional court orders continuation of remand detention, section 114 (2) no. 4 applies accordingly. In respect of the further review of remand detention (section 117 (1)), the higher regional court has jurisdiction until a judgment is given imposing a sentence of imprisonment or a measure of reform and prevention involving deprivation of liberty. It may refer the review of remand detention to the court having jurisdiction pursuant to the general provisions for a period not exceeding three months. In the cases under section 118 (1), the higher regional court decides on an application for an oral hearing at its discretion.

(4) Reviews of whether the conditions of section 121 (1) are met are also reserved for the higher regional court in the further course of the proceedings. This review must be repeated no later than every three months.

(5) The higher regional court may suspend enforcement of the warrant of arrest in accordance with section 116.

(6) If more than one accused person is in remand detention in the same case, the higher regional court may decide on the continuation of remand detention even of those accused persons for whom it would not yet be competent pursuant to section 121 and the aforementioned provisions.

(7) If the Federal Court of Justice has jurisdiction, it decides instead of the higher regional court.

Section 135
Immediate examination

The accused is to be brought before the judge without delay and examined by the judge. The accused may not be kept in custody by virtue of the order for longer than the end of that day which follows the day on which he or she was first brought before the court.

Section 136
Examination

(1) At the commencement of the examination, the accused is to be informed of the offence with which he or she is charged and of the applicable criminal law provisions. The accused is to be advised that the law grants him or her the right to respond to the charges or not to make any statement on the charges and the right, at any stage, even prior to the examination, to consult defence counsel of his or her choice. If the accused wishes to consult defence counsel prior to the examination, he or she is to be provided with information which makes it easier for him or her to be able to contact such defence counsel. Reference is thereby to be made to any emergency legal services which are available. The accused is, further, to be advised that he or she may request evidence to be taken in his or her defence and, under the conditions of section 140, to request the appointment of court-appointed defence counsel in accordance with section 141 (1) and section 142 (1); in the latter case, reference is to be made to the obligation to pay costs as referred to in section 465. In appropriate cases, the accused is also, as a rule, to be informed that he or she may make a written statement and of the possibility of victim–offender mediation.

(2) The examination is to give the accused the opportunity to dispel the grounds for suspecting him or her and to assert the facts which speak in his or her favour.

(3) At the examination of the accused, consideration is also to be given to ascertaining his or her personal situation.

(4) A video and audio recording may be made of the examination of the accused. Such a recording is to be made

1. if the proceedings relate to intentional killing and neither external circumstances nor the special urgency of the examination poses an obstacle to the recording or
2. if the interests meriting protection of accused persons who discernibly have reduced mental capacity or a serious mental disability can be better protected by making the recording.

Section 58a (2) applies accordingly.

(5) Section 58b applies accordingly.

Section 136a
Prohibited examination methods; prohibited evidence

(1) The accused’s freedom to form and express a will may not be impaired by ill-treatment, induced fatigue, physical intervention on the body, the administration of drugs, torture, by means of deception or hypnosis. Compulsion may be used only insofar as this is permitted by criminal procedure law. Threatening the accused with measures not permitted under the provisions of criminal procedure law and holding out the prospect of an advantage not envisaged by statute are prohibited.

Section 137
Accused’s right to assistance of defence counsel

(1) Accused persons may avail themselves of the assistance of defence counsel at any stage of the proceedings. No more than three defence counsel may be chosen.

Section 138
Own choice of defence counsel

(1) Lawyers (Rechtsanwälte) and professors of law at German institutions of higher education as defined in the Framework Act for Higher Education (Hochschulrahmengesetz) who are qualified to hold judicial office may be engaged as defence counsel.

(2) Other persons may be engaged only with the approval of the court. In cases where the assistance of defence counsel is mandatory and the person chosen is not amongst the persons who may be appointed as defence counsel, such person may additionally be admitted as counsel of the accused’s choice only together with one who may be so appointed.

(3) If witnesses, private prosecutors, private accessory prosecutors, persons entitled to private accessory prosecution and aggrieved persons are permitted to avail themselves of the assistance of a lawyer or representation by a lawyer, they are also permitted, in accordance with subsection (1) and subsection (2) sentence 1, to select the other persons designated therein.

Section 138a
Exclusion of defence counsel

(1) Defence counsel is to be excluded from participating in proceedings if he or she is strongly suspected or suspected to a degree justifying the opening of the main proceedings

1. of being involved in the offence which constitutes the subject of investigation,
2. of abusing communications with an accused who is not at liberty for the purpose of committing offences or seriously endangering the security of a penal institution or
3. of having committed an act which, in the event of the accused’s conviction, would constitute handling stolen data, aiding after the fact, obstruction of prosecution or punishment, or handling stolen goods.

(2) Defence counsel is also to be excluded from participating in proceedings the subject of which is an offence under section 129a, also in conjunction with section 129b (1), of the Criminal Code if certain facts give rise to the suspicion that defence counsel has committed or is committing one of the acts designated in subsection (1) nos. 1 and 2.

(3) The exclusion must be revoked

1. as soon as its conditions are no longer met, not, however, for the sole reason that the accused has been released,
2. if defence counsel is acquitted in main proceedings which were opened on account of the facts leading to exclusion or if a culpable breach of professional duties in relation to these facts is not determined in a judgment handed down by a disciplinary court,
3. if, within one year after exclusion, main criminal proceedings or professional disciplinary proceedings have not been opened or a summary penalty order has not been made on the basis of the facts leading to exclusion.

An exclusion which is to be revoked in accordance with no. 3 may be maintained for a limited time, at the most, however, for one more year if the particular difficulty or the particular scope of the case or another important reason does not yet permit a decision to be taken on the opening of the main proceedings.

(4) As long as defence counsel is excluded, he or she may also not defend the accused in other proceedings governed by statute. Defence counsel may not visit an accused who is not at liberty in order to discuss other matters.

(5) As long as defence counsel is excluded, he or she may also not defend other accused persons in the same proceedings or in other proceedings if such proceedings are based on an offence under section 129a, also in conjunction with section 129b (1), of the Criminal Code and where exclusion was ordered during proceedings which were also based on such an offence. Subsection (4) applies accordingly.

Section 144
Additional court-appointed defence counsel

(1) In cases of mandatory defence, up to two additional court-appointed defence counsel may be appointed for the accused in addition to defence counsel whom the accused has chosen himself or herself or in addition to defence counsel appointed in accordance with section 141 if this is necessary to ensure the swift conduct of proceedings, in particular on account of their scope or difficulty.

(2) The appointment of additional defence counsel is to be revoked as soon as his or her involvement is no longer necessary for the swift conduct of the proceedings. Section 142 (5) to (7) sentence 1 applies accordingly.

Section 145
Court-appointed defence counsel’s failure or refusal to appear

(1) If, in a case where defence is mandatory, defence counsel fails to appear at the main hearing, leaves at an inappropriate time or refuses to carry on the defence, the presiding judge must immediately appoint another defence counsel for the defendant. However, the court may also decide to suspend the hearing.

(2) If mandatory defence counsel is appointed only during the course of the main hearing, the court may decide to suspend the main hearing.

(3) The hearing must be interrupted or suspended if the newly appointed defence counsel declares that he or she does not have the time needed to prepare the defence.

(4) If a suspension becomes necessary through the fault of defence counsel, he or she is to be charged with the costs incurred.


Section 146
Prohibition of joint defence counsel

Defence counsel may not appear for more than one person accused of the same offence. Nor may defence counsel appear in a single set of proceedings for more than one person accused of different offences.


Section 147
Right to inspect files, right of inspection; accused’s right to information
(1) Defence counsel is authorised to inspect those files which are available to the court or which would have to be submitted to the court if charges were preferred and to view items of evidence in official custody.

(2) If the fact that the investigations have been concluded has not yet been recorded in the file, defence counsel may be refused inspection of the files or of individual parts of the files and the viewing of items of evidence in official custody insofar as this may jeopardise the purpose of the investigation. If the conditions of sentence 1 are met and if the accused is in remand detention or if, in the case of provisional arrest, this has been requested, information of relevance for the assessment of the lawfulness of such deprivation of liberty is to be made available to defence counsel in suitable form; to this extent inspection of the files is, as a rule, to be granted.

(3) At no stage of the proceedings may defence counsel be refused inspection of records drawn up of the examination of the accused or of such judicial investigatory acts to which defence counsel was or ought to have been admitted, nor may he or she be refused inspection of expert opinions.

(4) An accused who has no defence counsel is authorised, applying subsections (1) to (3) accordingly, to inspect the files and to view, under supervision, items of evidence in official custody insofar as the purpose of the investigation even in other criminal proceedings cannot be endangered thereby and the overriding interests of third parties meriting protection do not constitute an obstacle thereto. If the files are not kept in electronic form, instead of granting inspection of the files, copies of the files may be made available to the accused.

(5) The public prosecution office decides whether to grant inspection of the files in preparatory proceedings and after final conclusion of the proceedings; in all other cases, the presiding judge of the court seized of the case is competent to decide. If the public prosecution office refuses inspection of the files after noting the termination of the investigations in the file, if it refuses inspection pursuant to subsection (3) or if the accused is not at liberty, a decision by the court competent pursuant to section 162 may be applied for. Sections 297 to 300, 302, 306 to 309, 311a and 473a apply accordingly. These decisions are given without reasons if their disclosure could jeopardise the purpose of the investigation.

(6) If the reason for refusing inspection of the files has not already ceased to exist, the public prosecution office revokes the order no later than upon conclusion of the investigations. Defence counsel or an accused who has no defence counsel is to be notified as soon as he or she once again has the unrestricted right to inspect the files.

Section 148
Accused’s communications with defence counsel

(1) The accused is entitled to communicate with defence counsel in writing and orally even when he or she is not at liberty.

(2) If an accused who is not at liberty is strongly suspected of having committed an offence under section 129a, also in conjunction with section 129b (1), of the Criminal Code, the court as a rule orders that in communications with defence counsel any papers or other items are to be rejected if the sender does not agree to their being first submitted to the court competent pursuant to section 148a. If no warrant of arrest has been issued for an offence under section 129a, also in conjunction with section 129b (1), of the Criminal Code, the decision is given by the court which would be competent to issue a warrant of arrest. If the written correspondence referred to in sentence 1 is subject to surveillance, then fixtures which rule out the possibility of papers and other items being handed over are to be put in place during conversations with defence counsel.

Section 158
Report of offence; request to prosecute

(1) An offence may be reported orally or in writing to and a request to prosecute may be filed orally or in writing with the public prosecution office, the police authorities and police officers, and with the local courts. An offence which is reported orally must be recorded in writing. Upon application, the aggrieved person is to be provided with written confirmation of receipt of the report. Such confirmation as a rule includes a short summary of the aggrieved person’s statements regarding the time and place of
commission of the offence, and of the type of offence reported. Issuance of such confirmation may be refused if the purpose of the investigation, including in relation to other criminal proceedings, appears to be jeopardised.

Section 163a
Examination of accused

(2) If the accused applies for evidence to be taken in his or her defence, such evidence is to be taken if it is of importance.

Section 163a
Examination of accused

(4) The accused is to be informed of the offence with which he or she is charged when being examined by police officers. In all other respects, section 136 (1) sentences 2 to 6, (2) to (5) and section 136a apply to the examination of the accused by police officers. Section 168c (1) and (5) applies accordingly to defence counsel.

Section 168c
Right to be present during judicial examination

(1) The public prosecutor and defence counsel are permitted to be present during the judicial examination of the accused. Following the examination, they are to be given the opportunity to comment or to ask the accused questions. Questions or statements which are inappropriate or of no relevance to the matter may be rejected.

(2) The public prosecutor, accused and defence counsel are permitted to be present during the judicial examination of a witness or an expert. Following the examination they are to be given the opportunity to comment or to ask the examined person questions. Questions or statements which are inappropriate or of no relevance to the matter may be rejected. Section 241a applies accordingly.

(3) The judge may exclude an accused from being present at the hearing if his or her presence would jeopardise the purpose of the investigation. This in particular applies if it is to be feared that a witness will not tell the truth in the presence of the accused.

(4) If an accused who is not at liberty has defence counsel, he or she is entitled to be present only at those hearings which are held at the court of the place where he or she is in custody.

(5) The persons entitled to be present are to be given prior notice of the dates set down for the hearings. In the cases under subsection (2), notification is dispensed with insofar as it would endanger the success of the investigation. Persons entitled to be present do not have the right to request a change of the date set down for a hearing if they are prevented from being present.

Section 217
Time limit for summons

(1) A period of at least one week must elapse between service of the summons (section 216) and the day of the main hearing.

(2) If this time limit has not been observed, the defendant may request suspension of the hearing at any time prior to commencement of his or her examination on the charges.

(3) The defendant may waive observance of this time limit.

Section 222
Naming of witnesses and expert witnesses

(1) The court is required to provide the public prosecution office and the defendant with the names of the summoned witnesses and expert witnesses in good time. If the public prosecution office makes use of its right under section 214 (3), it is to provide the court and the defendant with the names of the summoned witnesses and experts in good time. Section 200 (1) sentences 3 to 5 applies analogously.

(2) The defendant is required to provide the court and the public prosecution office, in good time, with the names of the witnesses and experts directly summoned by him or her or to be brought to the main hearing, indicating their full address.

Section 230
Defendant’s failure to appear

(1) No main hearing is held against a defendant who fails to appear.

(2) If insufficient excuse has been provided for the defendant’s failure to appear, an order is made to bring the defendant before the court or a warrant of arrest is to be issued insofar as this is necessary in order to conduct the main hearing.


Section 231
Defendant’s duty to be present

(1) A defendant who has appeared may not leave the hearing. The presiding judge may take appropriate measures to prevent the defendant from leaving; the judge may also have the defendant kept in custody during any interruption of the hearing.

(2) If the defendant nevertheless leaves or fails to appear when an interrupted main hearing is resumed, it may be concluded in his or her absence if the defendant has already been examined on the charges, the court does not consider the defendant’s further presence to be necessary and the defendant was informed in the summons that the main hearing may, in such cases, be concluded in his or her absence.

Section 235
Restoration of status quo ante in case of hearing in defendant’s absence

If the main hearing was held in the defendant’s absence pursuant to section 232, the defendant may apply for restoration of the status quo ante in respect of the judgment within one week after its service subject to the same conditions as apply in the case of failure to comply with a time limit; the defendant may at any time request restoration of the status quo ante if he or she did not obtain knowledge of the summons to the main hearing. The defendant is to be instructed of this right when the judgment is served on him or her.


Section 236
Order for defendant to appear in person

The court at all times has the power to order that the defendant appear in person and to enforce this by an order to bring the defendant before the court or by a warrant of arrest.

Section 250
Principle of examination in person

If the proof of a fact is based on an observation made by a person, such person is to be examined at the main hearing. The examination may not be substituted by reading out the record of a previous examination or reading out a statement.


Section 251
Furnishing of documentary evidence by reading out of records

(1) Examination of a witness, expert or co-accused may be substituted by reading out a record of another examination or of a document containing a statement originating from him or her

1. if the defendant has defence counsel and the public prosecutor, defence counsel and defendant consent thereto;
2. if the reading out merely serves to confirm the defendant’s confession and both a defendant who has no defence counsel and the public prosecutor consent thereto;
3. if the witness, expert or co-accused has died or cannot be examined by the court for another reason within a foreseeable period of time;
4. insofar as the record or the document concerns the presence or the amount of asset loss.

(2) Examination of a witness, expert or co-accused may also be substituted by reading out the record of his or her previous examination by a judge if

1. illness, infirmity or other insurmountable impediments prevent the witness, expert or co-accused from appearing at the main hearing for a longer or indefinite period;
2. the witness or expert cannot, having regard to the importance of his or her statement, reasonably be expected to appear at the main hearing owing to the great distance involved;
3. the public prosecutor, defence counsel and the accused consent to the reading out.

(3) If the reading out is to serve purposes other than directly reaching a judgment, in particular preparing a decision as to whether an individual is to be summoned and examined, then records and documents may otherwise be read out, too.

(4) In the cases under subsections (1) and (2), the court decides whether the reading out is to be ordered. The reason for the reading out is to be indicated. If the record of a judicial examination is read out, it must be stated whether the person concerned was examined under oath. If not, an oath must be subsequently administered if the court deems this necessary and an oath can still be administered.


Section 258
Closing speeches; right to have last word

(1) After the taking of evidence has been concluded, the public prosecutor and, thereafter, the defendant are to be given the opportunity to present their arguments and to file applications.

(2) The public prosecutor has the right to reply; the defendant has the last word.

(3) Even if defence counsel has spoken for him or her, the defendant is to be asked whether he or she has anything to add to his or her defence.

Section 259
Interpreters

(1) A defendant who does not speak the language of the court must at least be informed by an interpreter of the applications made in the closing speeches by the public prosecutor and defence counsel.

(2) The same applies, in accordance with the provisions of section 186 of the Courts Constitution Act, to a hearing or speech impaired defendant.

Section 263
Vote

(1) A two-thirds majority of the votes is required for any decision against a defendant which concerns the question of guilt and the legal consequences of the offence.

(2) The question of guilt also covers such circumstances as are specially provided by criminal law to rule out, diminish or increase criminal liability.

(3) The question of guilt does not cover those conditions which apply to the period of limitations.

Section 285
Purpose of securing of evidence
(1) No main hearing is held in respect of a person who is absent. Proceedings instituted against an absent person serve the purpose of securing evidence in anticipation of his or her future presence in court.

(2) The provisions of sections 286 to 294 apply to these proceedings.


Section 286
Representation of absent persons

The accused may be represented by defence counsel. Relatives of the accused are also permitted to act as representatives, even without a power of attorney.

Section 379
Provision of security; legal aid

(1) Private prosecutors are required to provide security for the costs which are expected to arise for the accused under the same conditions as apply to a claimant in civil litigation who, at the defendant’s request, is required to provide security for the costs of litigation.

(2) Security is to be provided by depositing cash or stocks and bonds. Any diverging provisions in a statutory instrument issued under the Act on Payments to and from Courts and Judicial Authorities remain unaffected.

(3) The amount of security, the time limit for provision of security and legal aid are governed by the same provisions as apply in civil litigation.

Section 415
Main hearing without accused
(1) If the accusedʼs appearance in court in preventive detention proceedings is impossible owing to his or her condition or is inappropriate for reasons of public order or security, the court may conduct the main hearing without the accused being present.

(2) In this case, the accused is to be examined prior to the main hearing by a commissioned judge and an expert who is called in. The public prosecution office, the accused, defence counsel and statutory representative are to be informed of the date set for the examination. It is not necessary for the public prosecutor, defence counsel and statutory representative to be present.

(3) If the accused’s condition so requires or if the proper conduct of the main hearing is otherwise not possible, then after examination of the accused on the charges the court may conduct the main hearing in preventive detention proceedings even if the accused is not or is only temporarily present.

(4) If a main hearing takes place without the accused, previous statements made by the accused which are contained in a judicial record may be read out. The record of any prior examination pursuant to subsection (2) sentence 1 is to be read out.

(5) An expert is to be examined at the main hearing concerning the accused’s condition. If the expert has not previously examined the accused, he or she is, as a rule, to be given the opportunity to conduct an examination prior to the main hearing.