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.