Comparative law and justice/Germany

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Basic Information[edit]

Flag of Germany

Germany holds the largest economy in Europe and the second most populous country in Europe after Russia. The German economy - the fifth largest economy in the world in PPP terms and Europe's largest - is a leading exporter of machinery, vehicles, chemicals, and household equipment and benefits from a highly skilled labor force [1]. Germany has a population of 82,329,758 as of July 2010, making it slightly smaller than the state of Montana. [2]. Germany is located in Central Europe holding place between the countries of Poland and The Netherlands. The Baltic Sea and The North Sea borders the perimeter of Germany. German is the official language of the country with different dialects in different regions. A small percentage of the population speak Serbian, Danish, and Frisian. Majority of the population is of Protestant and Roman Catholic religion, a small percentage of the population is Muslim. The German ethnic group makes up 91.5% of Germany's population. The remaining percentage consists of 2.4% of Turkish ethnic groups, the other 6.1% is made up of made up largely of Greek, Italian, Polish, Russian, Serbo-Croatian, Spanish [3]. Christian Wulff is the President of Germany just recently elected into office in Germany's 2010 election. Germany faces significant challenges to sustained long-term growth.In low fertility rates and declining net immigration are increasing pressure on the country's social welfare system and necessitate structural reforms. The modernization and integration of the eastern German economy, provides a struggle on the German economy and Germany's citizen, where unemployment can exceed 20% in some municipalities [4].

Brief History[edit]

In 1939 the United States and England declared war on Germany which became the start of World War II. As the war progressed Germany and its allies quickly began to gain much control over Europe. Under the leadership of Germany's Chancellor Adolf Hitler. Hilter formed the Nazi party during World War II. The Nazi's were responsible for the murders of nearly six million European Jews in which later became known as The Holocaust. The Holocaust should also include the Nazis' systematic murder of millions of people in other groups, including Romani, people with disabilities, Soviet prisoners of war, Polish and Soviet civilians, homosexuals, Jehovah's Witnesses and other political and religious opponents.[6] By this definition, the total number of Holocaust victims would be between 11 million and 17 million people. German Nazis established ghettos in which Jews were confined, until they were eventually shipped to death camps to be murdered. By 1942, six large extermination camps had been established in Nazi-occupied Poland. The camps became places where Jews and others were either killed or forced to live as slave laborers, undernourished and tortured [5]. Germany's government is making a swift turnabout in order to repair the damage from World War II, and under the communist leadership of Adolf Hitler and the Nazi Party. In which, left the country divided into two parts of East Germany and West Germany. East Germany was under the communist control of the Soviet Union and divided into five states. West Germany was the Federal Republic of Germany divided into eleven states. Within, three allied occupied zones were held within these elven states which were of he United States, the United Kingdom, and France. The Berlin Wall was the physical division between East Germany and West Germany. The Berlin wall was the symbolic boundary between democracy and communism in the Cold War [6]. The second purpose of the Berlin Wall was to keep East Germans from fleeing into West Germany to escape the communist society. The living environments became distinctly different between the east and the west. West Germany was able to repair their economy and their part of the country with help of their allied occupying powers. West Germany became known as the "economic miracle" to recovery from such a huge downfall [7]. However, East Germany was not as fortunate. The Soviets took factory equipment and other valuable equipment and shipped it back to the Soviet Union leaving the economy of the East severely low. The individuals had very restricted freedom under the Soviets control. By the 1950's many of the East German's had enough of living under communist control and fled to West Germany. Many were able to make it to the west and others were caught[8]. Between 1956 and 1969 the Hallestein Doctrine was in effect. This doctrine stated that West Germany would not establish or maintain any diplomatic relations with any state that recognized East Germany [9]. The doctrine came to a end in the early 1970's after a long battle between the east and west with the adoption of Ostoplitik by Chancellor Willy Brandt . This produced a mutual agreement between the east and the west [10]. The Berlin Wall fell on November 9, 1989 as well as the communist control of the east. In 1990, the two governments of the east and the west drafted a 1,000 page treaty establishing unification between the two [11].

Economic Development, Health, and Education[edit]

Germany is the fifth largest economy in the world. The leading exporter of machinery, vehicles, chemicals, and household equipment. Germany has a GDP of US$3.339 trillion in 2009 and per capita GDP US$44,525 in 2009 [12]. In 2009, Germany's GDP contracted by 5% which is the steepest decline since World War II. However, Germany is expecting a turnaround and it's GDP is expected to grow by 3.5% in 2010 and by another 2% in 2010 [13].

The Basic Law of 1949 grants every German citizen the right to education and to choose where they wish to pursue their studies and what occupation they wish to pursue. The Länder (Federal States) are to provide equal educational opportunities and quality education for all through a variety of educational institutions [14]. In Germany a child is required to start school at the age of six and must attend a minimum requirement of nine years by law, or ten years in some Länder. Students pursing a apprenticeship must attend a part-time vocational school until the age of eighteen. Education for all elementary and secondary education school are free and coeducational. Student's who attend universities in Germany pay a nominal fee per a semester allowing them access to extensive health benefits and other social benefits [15].

Ninety percent of Germany's population is covered by a comprehensive compulsory insurance for sickness, accidents, disability, long-term care, and retirement [16]. The remainder are enrolled in voluntary insurance programs and the very poor are covered by state financed aid [17].

Governance[edit]

Germany has a federal republic government. During the midst of World War II, Germany was under communist rule of Adolf Hitler and the Nazi party. After the Holocaust in 1949 Germany was divided into two separate states: East Germany and West Germany. East Germany was under communist control of the Soviet Union. The communists were overthrown in 1989. West Germany was a federal republic. The parliaments of both German states ratified a treaty, and the territory of East Germany joined the Federal Republic of West Germany on October 3, 1990 [18]. Germany's constitution emphasizes individual liberty and freedom, and the protection of the division on powers within the government. Germany is a civil law system. Gemrnay's government consist of The chancellor (prime minister, whom heads the executive branch of the federal government. The duties of the president (chief of state) are largely ceremonial; the chancellor exercises executive power. The Bundestag (principal chamber of the parliament) elects the chancellor [19]. Germany is a independent federal judiciary. Germany's legislature has powers of exclusive jurisdiction and concurrent jurisdiction with the Laender (states) in areas specified in the Basic Law. Primary legislative power is held by The Bundestag (Upper Federal Council). The Bundesrat (Lower chamber council) must concur with The Bundestag concerning shared revenue by federal and state governments and those imposing responsibilities on the states [20]. There are currently six major political parties of Germany. They are Social Democratic Party (SPD, Christian Democratic Union (CDU, Christian Social Union (CSU), Alliance 90/Greens, Free Democratic Party (FDP),and Party of Democratic Socialism (PDS). Presently, the President on Germany is Horst Koehler, The Chancellor is Angela Merkel, and the President on the Bundestag is Norbert Lammert [21].

Elections[edit]

The president is elected every 4 years on May 23 by the federal assembly. The Federal Assembly is a body convoked only for this purpose, comprising the entire Bundestag and an equal number of state delegates [22]. The Bundestag serves a 4-year term. The Bundestag consists of at least twice the number of the 299 electoral districts in the country. The Bundesrat, which is the upper chamber or Federal Council, consists of 69 members who are delegates of the 16 Laender (states) [23]. Citizens of Germany are allowed to vote at age 18. To be eligible to vote the individual must have resided in a constituency district for at least three months prior to an election. The elections are held on Sundays and done by secret ballots [24].

Judicial Review[edit]

Germany's judicial review is understood under the Austrian Model of Judicial Review.In which the involvement of the supremacy of the constitution and the involvement of the parliament work together. In which, all constitutional matters are dealt with under the specialized Constitutional Courts with specially qualified judges, ordinary Supreme Courts, high courts, or their special chambers [25]. Germany's Constitution established a separate federal court(The Bundesverfassungsgericht) in charge of with reviewing acts of the legislature. Each of the 16 states in Germany has their own court. Also, These are separate Supreme Courts that do not deal with appellate cases in civil and criminal law - but rather, just in constitutional cases [26]. The Federal Constitutional Court of Germany can review and reject constitutional amendments, only if is he are contradictory to the Federal Republic.

Courts and Criminal Law[edit]

Courts[edit]

Germany follows a inquisitorial system in their court system. In which, the courts are trying to find your innocent because you are first presumed guilty. Germany has a constitutional court which is called Bundesverfassungsgericht (Federal Constitutional Court), ensuring constitutional provisions and protection of the fundamental rights of the citizens, a high court of justice, and courts with jurisdiction in administrative, financial, labor, and social matters [27]. Secondly, each state has their own court as well which is below the Federal Constitutional Court. The state courts are directed to handle proceedings deal with problems disrupting the peace, genocides, state security, war crimes, and crimes against humanity [28]. Judges are chosen by a committee consisting of the Federal Minister, state ministers, and a equal number of members elected by the Bundestag. Judges are appointed to full-time positions, may be involuntarily dismissed, temporarily or permanently suspended. Judge's terms are for life, however, a committee may decide to set a age limit on a judge's term [29].

Punishment[edit]

In Germany, once a individual is arrested they are turned to the Prosecutor's Office. In which, it is determined if they will be released with a possible fine or sent to trial. Suspects can only be detained by the police of the Prosecutor's Office until the end of the day of their arrest and must be brought before a judge. Sentencing is determined by either a single judge or judicial panel. There has to be a two-thirds majority vote to determine a sentence. Which can be held in four week increments until charged or released. A suspect who is being held during the course of an investigative inquiry may at any time request a judicial review of the initial decision on the continuance of the detention [30]. Penalties for crimes are mostly represented through incarceration or day fines. Day fines are calculated by person's income and the day rate of between 2 and 10,000 German marks. Sentences generally range from 6 months to 15 years, but murder, manslaughter, and treason impose life sentences. Property crimes generally carry a sentence and a small fine. Non-violent crimes are usually issued fines and probabiton. Other sentences such as forfeiture to the state of proceeds of crime, suspended driver's license, probabtion, and community service. Lastly, rehabilitation services are offered to individual to reform themselves then being punished. Consisting of a psychiatric hospital and drugs and alcohol rehab clinic. Prison sentences only are used in the adult court system [31]. The death penalty was outlawed in Germany on May 23, 1949.

Law Enforcement[edit]

There are police forces in each of Germany's 16 federal states. Each police force is organized differently due to the jurisdiction of each state, as outlined in the Basic Law of the Federal Republic of Germany. The duties of police executions are divided into several areas which are mostly the same in all the states [32]. The general police forces of the states are mostly concerned with the prevention and prosecution of petty crime, traffic enforcements, and disputes[33] . The criminal investigation department (The C.I.D.) deals with with serious offences including organized and industrial crime, sexual offences, robbery, blackmail, serious theft, homicide, drug trafficking and the manufacture and passing of counterfeit money [34]. Terroism and hostage negotiation is dealt with by teams consisting of both the general police force and the C.I.D. Germany's Federal Boarder Guard has jurusdiction over the entire country of Germany. The Federal Border Guard is given the tasks of protecting the countrys border. In which, this unit is responsible for dealing with illegal entry of foreigners, organized crime, smuggling and drug trafficking. Also, this unit is in charge of protecting the offices of the Federal President, the Chancellor, and the Federal Constituitonal Court [35].

German police recruits spend about three years in total of training, however, the length of time for training may vary depending on previous education. All recruits are exempt from military services and women are allowed to serve on the police force in Germany. First, recruits attend a six month course at a training school where they are educated on law, legal procedures, and police conduct. After serving as a patrol officer for about six years officers whom have a outstanding record are eligible to take a examination for a higher rank [36]. However, after passing the exam they must attend another two to three years of training school and study public administration. Lastly, the very few officers that qualify for the highest of ranks study for one more additional yea Federal Police Leadership Academy in Muenster-Hiltrupr [37].

Germany has a army consisting twenty-four combat brigades include sixteen mechanized brigades, three airborne brigades, one mountain brigade, and the German component of the Franco-German Brigade [38]. As of 2000 Germany's army consisted on 233,000 personnel. The army has more than 7,000 army tanks and 3,250 armored infantry fighting vehicles. Germany also has a navy protecting is border consisting of about 30,000 personnel. The naval ship consists of twenty submarines, thirteen destroyers and frigates, and thirty-eight missile craft [39]. The German military does not recruit women into services.

Crime Rates and Public Opinion[edit]

Generally, in most foreign countries tourists and elderly individuals of 60 years of age and older are most highly victimized target of crime. However, in Germany that is not the case. The German crime statistics indicate that the most common incidents include theft of unattended personal property, pick-pocketing, vehicle vandalism, vehicle break-ins, and residential break-ins [40]. Within the last year credit card fraud/scams and property crime has increased with a decrease in violent crimes in Germany. In 2008 a 15% increase in right-wing violence, but this type of violence has gone down about 8% in 2009 [41]. Although, American tourists occasionally suffer from purse snatching and pick pocketing. the nationwide Epidemiological Survey on Addiction (ESA) was conducted in Germany in 2006. It shows that 25.4 % of the 18–59 year olds questioned have used illegal drugs at least once in their life [42]. Based on the Epidemiological Survey must be assumed to be 2.4 million cannabis users and 645,000 users of other illicit drugs [43].

Rights[edit]

Family Law[edit]

The legal age of consent for marriage in Germany is 18 years old for both parties. However, A individual 16 years old with parental consent may marry but their partner must be 18 years of age or older. The only ground for divorce recognized by German law is the breakdown of a marriage. The breakdown of marriage is noted as if both spouses have not lived together for at least one year.

In Germany, for couples who wish to adopt a child there is no minimum age for a child to be adopted. Although, for parents that wish to give their child up for adoption may not consent to the adoption until the child has reached eight weeks old [44]. Married couples must jointly adopt a child. As of 2001, same sex couples in Germany may enter into registered partnerships. Same sex couples now have basic adoption right, but do not have rights equal to married couples. Which means same-sex couples can not jointly adopt a child with their spouse as a married husband and wife can. The minimum age of 25 years old is required to adopt a child in Germany. If a spouse is younger than 25 years of age they can still jointly adopt a child as long as the other spouse is at least 25 years old, provided that the younger spouse is at least 21 years of age. There is no legal maximum age, but most children are not placed with a adoptive parent over 40 years old [45].

Inheritances are usually determined by decedent whom chooses a heir to take ownerships of their belongings. All rights and ownership of the property is granted to the heir chosen by the decedent upon the death of the decedent. In order of heir(s) to claim their inheritance they must hold a Certificate of Inheritance ("Erbschein")for any estate or bank assets [46]. It is issued by a German surrogate court generally in the last residence of the decedent, if the decedent has no residency in Germany it is determined by the location of the assets of the estate [47].. If a heir wishes to give up their ownership of the inherited goods they must declare renouncement of succession to the German surrogate court within six weeks, or within six months if the heir resides out of the country [48].

Human Rights[edit]

The Constitution of the Federal Republic of Germany was passed in 1949. The fundamental rights of all German citizens are stated in the constitution. First off, In article one the Germans acknowledge of unalienable human rights as the basis of every human community to provide peace and justice of the world [49]. It states "Human dignity is inviolable. To respect and protect is the duty of all the state authority" [50].

All German citizens are equal before the law. Article three states "Men and women are equal. The state supports the effective realization of equality of women and men and works towards abolishing present disadvantages" [51]. Also, no citizen of Germany should be discriminated his sex, parentage, race, language, homeland and origin, his faith, or his religious or political opinions. Lastly, no individual should be disadvantaged because of their handicap disability [52].

All citizens have the right to assembly without permission, freedom to move within the federal territory. Citizens have the right to choose their occupation, where they wish to be employed, and the institution which they choose to study and train at [53]. Slave labor is illegal in Germany. Nobody is to be forced to perform work of any particular kind. Forced labor is only allowed when a individual is ordered to forced labor by a court sentence [54]. Lastly, all Germans have the right to form or join clubs and associations.

In Germany, there is a law in place stating all public institutions and places that provide special services are required to report the identity of any irregular migrant to the German authorities [55]. Through this law migrants are restricted to health care, judicial remedies, and education for their children [56].


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