Special Issue: "Criminal Justice becoming informal"

Content

Editorial (German)

Editorial

Boris Burghardt and Tobias Singelnstein

Full Papers

Informalisierung der Strafjustiz - Begriff, Begründung und Kritik (German)

Criminal justice becoming informal – Concept, rationale, and critique

Boris Burghardt

Criminal proceedings are traditionally understood as a primary example for rigorously formalized justice. Under the German Code of Criminal Procedure of 1877, police and public office of prosecution were generally obliged to investigate and prosecute all criminal offences they became aware of, and criminal sanctions could only be imposed by a court after a main hearing. From this perspective, the growing trend to more informal ways of dealing with criminal cases in German criminal law has been criticized for more than 30 years. The article analyzes what is meant exactly by the ominous term „informalization“, why informal proceedings are deemed problematic and which are the underlying assumptions the critique is based upon.

Die Informalisierung der strafprozessualen Verfahrenserledigung als Ausdruck einer ambivalenten Rekonfiguration strafrechtlicher Sozialkontrolle (German)

The informalisation of criminal proceedings as ambivalent reconfiguration of social control through criminal law

Jana Berberich and Tobias Singelnstein

In a society the way how criminal social control is shaped does not only depend on the provisions of substantive criminal law. Just as important is the way these provisions are applied and implemented in practice, which is defined by procedural law. With this said this contribution examines the changes in the criminal completion practice over the last few decades. The focus of attention is on informal types of criminal procedure, that have considerably gained in importance. This article reviews these developments empirically and analyzes them as part of a fundamental paradigm change, which does not only apply to criminal social control.

Verständigung als gelungene Strategie im Umgang mit Informalisierungstendenzen im Strafverfahren? (German)

Negotiated agreements as a successful strategy for handling informalisation tendencies in criminal proceedings?

Charlotte Schmitt-Leonardy

Negotiated agreements in criminal proceedings are often reflected within a wider negative trend towards informalisation. Criminal proceedings aim to establish “the truth” ex officio, which is achieved by means of a comprehensive inquiry into the facts conducted by the court during the trial, followed by a sentence that appropriately reflects the individual guilt of the defendant, which can then, in turn, achieve the procedural objective of “justice”. A streamlining of the extensive inquiry into the facts that the court would normally have to conduct via the consensual process of negotiation does not a priori fit the mould of a criminal procedure in the afore-mentioned sense. At the same time, the consensual termination of criminal proceedings is in fact more prevalent in practice than judgments rendered in adversarial trials. This paper examines some reasons for the stark contrast between legal doctrine and reality and which aspects of the implementation of the concept of consensus into the German law of criminal procedure still seem problematic.

Restorative & Transformative Justice – Abschaffung, Informalisierung oder Reformalisierung des Strafrechts? (German)

Restorative & Transformative Justice – Abolition or informalization of criminal law?

Gaby Temme

The critique of criminal law, from both a criminal law and a criminological perspective, leads to the question whether it might make sense to abolish criminal law. Some alternatives discussed in this context are restorative and transformative justice. Models based in restorative justice have begun to emerge in German criminal law, both normatively and in practice. The present article discusses the extent to which this leads to the informalization of criminal law and potentially to its elimination.

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