Questions on translating criminal law

Here are some questions that came up at the seminar in Frankfurt on Saturday:

Schwere der Schuld
Have you a suggestion for translating Schwere der Schuld?

After tracing this term in § 153a of the Code of Criminal Procedure, I am happy with the translation used by the English translation of the StPO at the German Law Archive, degree of culpability, which supports one of the suggestions I made. It was objected that Schwere implies gravity or severity, but I think degree implies that.

However, it’s not the degree I have problems with, it’s the culpability. Degree of guilt sounds wrong, as you are either guilty or not. Culpability is close in meaning to guilt. The section quoted was actually § 57a of the Criminal Code, and that is translated on the German Law Archive site as the particular gravity of the convicted person’s guilt, which seems odd to me. Schuld is difficult to translate anyway.
You can talk about the gravity or seriousness of an offence, of course.
It was put to me that I might jog my mind if I thought of English texts on the same topic. It seems to me, though, that this degree of culpability is not relevant in considering whether to release an English person on parole. A Google search on parole factors release gets texts. Perhaps this is a factor in original sentencing, though. Then one thinks of aggravating and mitigating factors.

I looked at Tröndle/Fischer (commentary on the Criminal Code – forgot to mention the value of commentaries), which says something about the elements of murder being relevant in § 57a – and the elements of German murder are rather extreme.

I have not found anything I like better than degree of culpability.

Legalitätsprinzip / Opportunitätsprinzip
It was suggested that merely rendering these as legality principle and opportunity principle would not be widely understood. I actually read those terms in English in a book on comparative criminal justice last week, but I think legality principle is particularly suspect, because it has more than one meaning.

Suggestions were mandatory prosecution and explicit prosecutorial discretion, and also prosecution ex officio. I suppose in context mandatory prosecution is OK, but it does still sound to me as if the public prosecutor were obliged to prosecute all the world.

I see Romain has principle of mandatory / discretionary prosecution. The term prosecutorial discretion I found on the website of the International Criminal Justice Review, which also mentioned compulsory prosecution (see article on Prosecutorial Discretion and Plea Bargaining in the United States, France, Germany, and Italy: A Comparative Perspective by Yue Ma).

The Euro Justice website has this:

bq. This rule of mandatory prosecution (Legalitätsprinzip) has however been limited or even eroded by a growing number of exceptions. Today, prosecution is in effect mandatory only with respect to most felonies (Verbrechen), i.e., offences with a statutory minimum of one year imprisonment (cf. Sect. 12 subs. 1 CC). Even for specified felonies directed against the interests of the state, e.g., high treason or participation in a terrorist organisation (Sects. 153d, 153e CCP), the Federal prosecutor can dismiss the case, if there exists a countervailing public interest, or if the offender has subsequently helped to combat the danger for the state created by the offence.

(By the way, this site translates 5 Tagessätze as 5 day fines).

And the German Law Journal uses compulsory prosecution in Police Cautions and the Vanishing Differences between Legality and Discretion in European Criminal Justice Systems, by Michael Jasch.

7 thoughts on “Questions on translating criminal law

  1. It all went very well, as far as I can tell and hear. The seminar was restricted to 33, and it was booked out fairly soon. Really, since it consisted of three talks with the possibility for questions, it could have had a bigger audience (if that’s the right word – I don’t really like ‘attendees’). This audience were very nice, at all events.

  2. I wonder whether an EU audience – and even newly qualified UK police officers and lawyers – would understand the term felonies that went of the UK legal vocab 40 years ago. Most Eng. law dictionaries say that the distinction between felonies (now arrestable offences in Eng. & Wales)and misdemeano(u)rs (non-arrestable offences) still exists in the US.

  3. I suppose you’re right – depends how much TV they’ve been watching.Felonies and misdemeanors are indeed still in existence in the USA. Indeed, I believe they are thriving there!

  4. Right! The UK Serious Organised Crime and Police Act 2005 now, insidiously, makes all offences arrestable. The police have a discretion to arrest or otherwise. Where that leaves the classification I don’t know. Maybe the seriousness will be reflected in the sentence.

  5. Legaltätsprinzip does not mean:

    “public prosecutor are obliged to prosecute all the world”

    It means:

    The public prosecution office shall/must/has to investigate the facts and then has to decide what to do, see:

    Section 160. [Investigation Proceedings]

    (1) As soon as the public prosecution office obtains knowledge of a suspected criminal offense either through a criminal information or by other means it shall investigate the facts to decide whether public charges are to be preferred.

    (2) The public prosecution office shall ascertain not only incriminating but also exonerating circumstances, and shall ensure that such evidence is taken the loss of which is to be feared.

    (3) The investigations of the public prosecution office should extend also to the circumstances which are important for the determination of the legal consequences. For this purpose it may avail itself of the service of the court assistance agency.

    and the police as well:

    Section 163. [Duties of the Police]

    (1) The authorities and officials in the police force shall investigate criminal offenses and shall take all measures where there should be no delay, in order to prevent concealment of facts.

    (2) The authorities and officials in the police force shall transmit, without delay, their records to the public prosecution office. Direct transmission to the Local Court shall be possible if it appears that a judicial investigation needs to be performed promptly.

    thus, mandatory investigation might fit (?).

    Then, see

    Section 170. [Conclusion of the Investigation Proceedings]

    (1) If the investigations offer sufficient reason for preferring public charges, the public prosecution office shall (if shall is understood as must, it´s right) prefer them by submitting a bill of indictment to the competent court.

    (2) In all other cases the public prosecution office shall terminate the proceedings. The accused shall be notified thereof if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he requested such notice or if there is a particular interest in the notification.

    But this:

    “This rule of mandatory prosecution (Legalitätsprinzip) has however been limited or even eroded by a growing number of exceptions. Today, prosecution is in effect mandatory only with respect to most felonies (Verbrechen), i.e., offences with a statutory minimum of one year imprisonment (cf. Sect. 12 subs. 1 CC). Even for specified felonies directed against the interests of the state, e.g., high treason or participation in a terrorist organisation (Sects. 153d, 153e CCP), the Federal prosecutor can dismiss the case, if there exists a countervailing public interest, or if the offender has subsequently helped to combat the danger for the state created by the offence.”

    is right as well.

    Given the circumstances of
    Section 153. [Non-Prosecution of Petty Offenses]

    (1) If a less serious criminal offense is the subject of the proceedings, the public prosecution office may dispense with prosecution with the approval of the court competent for the opening of the main proceedings if the perpetrator’s culpability is considered to be of a minor nature and there is no public interest in the prosecution. The approval of the court shall be not required in the case of a less serious criminal offense which is not subject to an increased minimum penalty and where the consequences ensuing from the offense are minimal.

    (2) If charges have already been preferred, the court, with the consent of the public prosecution office and the indicted accused, may terminate the proceedings at any stage thereof under the conditions in subsection (1). The consent of the indicted accused shall not be required if the main hearing cannot be conducted for the reasons stated in Section 205, or is conducted in the cases of Section 231 subsection (2) and Sections 232 and 233 in his absence. The decision shall be given in a ruling. The ruling shall not be contestable.

    Section 153a. [Provisional Dispensing with Court Action; Provisional Termination of Proceedings]

    (1) In a case involving a less serious criminal offense, the public prosecution office may, with the consent of the court competent to order the opening of the main proceedings and with the consent of the accused, dispense with preferment of public charges and concurrently impose a condition upon the accused:

    1. to make a certain contribution towards reparation for damage caused by the offense,

    2. to pay a sum of money to a non-profit-making institution or to the Treasury,

    3. to perform some other service of a non-profit-making nature,

    4. to comply with duties to pay maintenance at a certain level, or

    5. to participate in a seminar pursuant to section 2b subsection (2), second sentence, or section 4 subsection (8), fourth sentence, of the Road Traffic Act,

    if such conditions and instructions are of such nature as to eliminate the public interest in criminal prosecution and if the degree of culpability does not present an obstacle. The public prosecution office shall set a time limit within which the accused is to comply with such conditions and instructions, and which, in respect of the cases referred to in numbers 1 to 3 and 5 of the first sentence, shall be a maximum of six months and, in respect of the cases referred to in number 4 of the first sentence, a maximum of one year. The public prosecution office may subsequently revoke the conditions and instructions and may extend the time limit once for a period of three months; with the consent of the accused it may subsequently impose or change conditions and instructions. If the accused complies with the conditions and instructions, the offense can no longer be prosecuted as a less serious criminal offense. If the accused fails to comply with the conditions and instructions, there shall be no compensation for such contribution as he has made towards compliance. Section 153 subsection (1), second sentence, shall apply mutatis mutandis in the cases referred to in the first sentence, numbers 1 to 4.

    (2) If the public charges have already been preferred, the court may, with the consent of the public prosecution office and of the indicted accused, provisionally terminate the proceedings up until the end of the main hearing in which the findings of fact can last be examined, and concurrently impose the conditions and instructions referred to in subsection (1), first sentence, on the indicted accused. Subsection (1), second to fifth sentences, shall apply mutatis mutandis. The decision pursuant to the first sentence shall be given in a ruling. The ruling shall not be contestable. The fourth sentence shall also apply to a finding that conditions and instructions imposed pursuant to the first sentence have been met.

    (3) The running of the period of limitation shall be suspended for the duration of the time limit set for compliance with the conditions and instructions.

    and other sections of the StPO, the Federal prosecutor can dismiss the case, sometimes with or without the approval of the court.

    Sections 153,153a are the best example for Opportunitätsprinzip.

    Do you have any ideas of how to translate:

    Anklageprinzip
    Offizialprinzip
    Ermittlungsgrundsatz
    Grundsatz der Mündlichkeit
    Grundsatz der Unmittelbarkeit?

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