On Wednesday, I sat in on one of the proceedings in the criminal trial against Dr. Thomas Middelhoff, the former head of Arcandor, which owns Karstadt, a major German department store. The Office of the Prosecutor is charging Middelhoff with using Arcandor money to finance his private flights. Although in any situation the charge would be severe, Arcandor is bankrupt and the Office of the Prosecutor is claiming that Middelhoff racked up 1.1 Million Euros in private flights, including a 80,000 Euro charter flight to New York.
The trial began at 9:15 a.m.; however, I arrived early, as the courtroom had been packed in previous proceedings. When I arrived, Middelhoff was already there flanked by three of his four defense attorneys. Despite the trial being a criminal proceeding, Middelhoff was joking with the press and photographers, whom he obviously came to know because of his trial. It struck me as odd, how relaxed he was despite the charges against him. Finally, the proceeding began.
Unlike a United States trial conducted in a regular court, a special criminal tribunal is hearing the case against Middelhoff, namely the Wirtschaftsstrafkammer, or the commercial criminal court. The court itself deals with all matters involving economic crimes. Unlike the U.S., the commercial criminal court is composed of three judges (Berufsrichter) and two lay judges (Schöffen). The Schöffen are randomly chosen from a pool of ordinary citizens, who volunteered for the position and serve for four years. Although they are lay judges, the Schöffen have an equal vote as the regular judges and have equal access to the record.
As the trial progressed, the differences between the common law and civil law systems became all the more clearer. The civil law trial is more of an almost informal discussion, where the defendant speaks freely and sometimes over his attorney. Further, the main judge plays an active role in gathering information with the defense attorneys and the Office of the Prosecutor, asking few (if any) questions of the defendant and witnesses. Additionally, the Office of the Prosecutor is legally required not only to prosecute the defendant but to actively look for exculpatory evidence. Finally, unlike American courts, German courts adherer to Mündlichkeitsgrundsatz or the Speech Principle, which states that in order for evidence to be officially entered on the record it must be read out loud. Thus, even if there is evidence in writing, it is not formally recognized until it is read in open court.
The trial lasted until about 4:30 p.m. and included many breaks, during which the three judges and the two Schöffen would retire to the judges’ chambers and discuss various aspects of the proceeding, such as whether to allow a witness to testify or not. In the German system, witnesses must tell the truth; however, they are not sworn to truth on a bible but are simply informed of their duty to tell the truth. However, the defendant, in his capacity as defendant, may lie, including while on the stand.
The trial itself was more of a discussion between the head judge and Middelhoff or between the head judge and a witness. The Office of the Prosecutor remained relatively quiet; whereas, the defense attorneys asked many questions but seemingly had not spoken amongst themselves about who would ask which question. The trial is expected to last until October having witnessed at least one of the proceedings, I was able to gain some interesting insights into the German legal system.