COMMENT
CONTEMPT OF COURT IN WESTERN GERMANY
Edmund C. Jann*
I.
INTRODUCTION
There is no equivalent term in the German language for contempt of court,
nor does German law have any distinct concept of contempt of court. However,
the German court wields many powers which an American lawyer would consider part of a court's judicial function to punish for contempt. An authoritative British treatise on German law has described these as limited, in that
"the German Judge does not . . .possess the wide powers of punishment for
contempt of Court which in English law are given to a Judge of a superior
Court of Record."' In all instances, these powers of the German court are
strictly circumscribed by statute. But since 1951 there has become manifest
a certain tendency on the part of the German legislator to extend judicial
authority in this field. In an instance of minor importance the effect of oaths
of discloseure, which had been curbed in 1933, was fully re-established as a
form of coercion for civil contempt 2 (see infra V). In 1951 and 1953, the
authority of the Federal Constitutional Court was greatly bolstered against
certain types of criminal contempt by laws which, so far as the present research
could establish, are entirely new for Germany (see infra IV).
II. MAINTENANCE OF ORDER IN THE COURT Room
The authority of civil and criminal courts alike to maintain order in the
court room is specified in the Judiciary Act of January 27, 1877.3 The basic
provision reads: "Sec. 176. The presiding judge is charged with maintaining
order in the session."
Basically, this function of the judge amounts to no more than the exercise
of a police power during the proceedings, as its German name implies (Sitzungspolizei). It encompasses any measure needed to maintain order as well as
any steps that become necessary because of some action that is out of order
(Ordnungswidrigkeit). Under this federal law the police power is confined to
the session itself (i.e., to direct contempt). It may extend outside the court
room only for functions which are an integral part of the court session, as in4
a case where it might be necessary for the court to inspect the site of a crime.
This is due to the fact that the ordinary administration of justice in civil and
criminal matters is performed, except in the court of last resort which is a
federal court, by courts established by the states or laender.5 The provisions
* LL.B., National University Law School. Member of the Bar of the District of
Columbia. Assistant Chief European Law Division, Law Library, Library of Congress.
1 Cohn and Meyer, Civil Procedure, 2 Foreign Office Manual of German Law (London)
54 (1952).
2 Baumbach, Zivilprozessordnung 1415 (24th ed. 1956).
a Reichsgesetzblatt 41 (1877). Amended id.at 299 (1924) pursuant to Art. I of the
Enactment to Unify Law of Sept. 12, 1950, Bundesgesetzblatt 455, 513 (1950).
4 Lowe-Rosenberg, Die Strafprozessordnung und das Gerichtsverfassungsgesetz 277 (20th
ed. 1956).
5 The hierarchy of the courts in the laender starts at the bottom usually with county
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CONTEMPT OF COURT IN WEST GERMANY
of law governing events which might affect the administration of justice outside
the court room (indirect or constructive contempt) are enacted by the laender.
Thus a law of the land Baden-Wiirttemberg provides that "whoever, in matters
pertaining to contentious jurisdiction or matters pertaining to the administration assigned to the courts, renders himself guilty of misconduct (Ungebikhr)
shall be punished by the court by a fine or custody for not more than three
days." The procedure followed, and the procedural rights of the party affected
by the punishment, are substantially the same as for contempt committed in
the court room, as discussed in the following.
According to the Judiciary Act the presiding judge fulfills a two-fold function in the court room. He directs the proceedings and exercises the police
power.7 It is within his discretion to decide whether or not any occurrence
calls for the application of such power. If he decides in the negative, the
matter rests there. If he decides that measures are needed to maintain order
and peace in the court, he is confined to such action which does not involve
any punitive steps. Thus he may order the defendant, witness or spectators
searched for weapons; order that broadcasting equipment be taken away from
radio reporters; exhort persons addressing the court to calmness or moderation.
He may, for instance, interrupt the counsel for defense in his final plea and
admonish him to use moderation and, if necessary, deprive him of the right
to speak, subject to final determination by the full court. He may not forbid
the defendant to take notes concerning events in the proceedings, regardless
of whether this is done for procedural purposes or to disseminate news concerning the proceedings later; however, the presiding judge may do so if the
defendant's attention is distracted from the course of the main proceedings
and the taking of notes in no way renders the defense easier. No participant
in the proceedings, whether he be a member of the prosecution or defense, has
unlimited freedom of speech, and the presiding judge may cut anyone off who
reflects upon the honor of the court, of the public prosecutor or other participant, of a witness or expert witness. As a last resort, the presiding judge may
recess the proceedings.
In general, the person affected by any exercise of this police power has
no right to bring the matter up for decision by the full court, nor is there a
chance to file a challenge (Besckwerds) or an appeal. The matter is somewhat
different with the police powers of the court which partake of a punitive nature.
These are given in the following sections of the judiciary Act:
"Sec. 177. The parties, the accused, witnesses, expert witnesses or persons
not participating in the proceedings who do not comply with orders issued
courts (Amtsgerichte) which have jurisdiction over petty litigation in civil matters and
minor criminal cases. Next are the district courts (Landgerichte) which are the normal
courts of original jurisdiction for civil matters not assigned to the county courts and more
serious criminal cases. The courts of appeal (Oberlandesgerichte) have exclusive jurisdiction of appeals from the district court. See Cohn, General Instruction, 1 Foreign Office
Manual of German Law (London) 23, 24 (1950).
0 Art. 280 of the Wiirttemberg Law to Enforce the Civil Code and other Reich Judiciary
Laws of December 29, 1931 Gesetze des Landes Baden-Wiirttemberg, Stand September pt.
34, at 68 (1956).
7 Liwe-Rosenberg, op. cit. supra note 4, at 278. The statements in this part of the
memorandum, unless otherwise indicated, follow this commentary which is reputed to be
the most authoritative on German criminal procedure.
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[Vol. 8
to maintain order may, upon decision of the court, be removed from the
court room and be put under custody (Halt) for a period to be designated in the decision, which period may not exceed twenty-four hours.
"Sec. 178. The court may, without prejudice to prosecution in a criminal
court, impose and immediately execute a penalty for conduct out of order
(Ordnungsstraje) consisting of a fine or custody for not more than three
days against the parties, the accused, witnesses, expert witnesses or persons not participating in the proceedings who render themselves guilty of
misconduct (Ungebiihr).
"Sec. 179. The presiding judge shall have the above designated punishments for conduct out of order executed immediately."
According to the quoted provisions these punishments may not be meted
out by the presiding judge, but only by the court, i.e., the full bench. This
includes, where applicable, not only the professional judges, but also the lay
judges and jurors. However, if a court sits as a single judge, such as the
Amtsrichter, the single judge exercises all the punitive powers enumerated in
Secs. 177-179.
If any of the persons enumerated in Sec. 177 fail to obey orders issued to
maintain or restore order in the court, the court must take the measures
specified in the section ex officio. If the proceedings therefore are a criminal
trial, the public prosecutor need not be involved in the repressive action,
although he may make a motion for such action which then must be passed
upon in a decision by the entire court. The person against whom such a
measure is to be imposed must be given a chance to be heard in order to purge
himself. The same procedure applies to persons not participating in the trials
(spectators), although it has been decided that such hearing is not mandatory
in their case. A defendant in a criminal trial may be removed from the proceedings and put in custody until he demonstrates that he will conduct himself
in an orderly fashion. If he will not do so, the proceedings may be brought to
their normal conclusion in his absence.
The decision to impose punishment under Sec. 177, once rendered, becomes
enforceable immediately. The person affected has no right to challenge
(Beschwerds) the action, nor does any appeal lie to a higher court.
Section 178 provides for punishment for misconduct. It does not apply,
however, to the public prosecutor who is not under the disciplinary power of
the court, but under the administrative supervision of the department of justice
with which the court may lodge a complaint. Nor does it apply to the attorney
or counsel for the defense who is subject to the honorary jurisdiction for attorneys (Ehrengerichtsbarkeit-loosely comparable to a board of grievances)
which will investigate the matter upon complaint of the court and take appropriate action.
The misconduct proscribed under Sec. 178 is defined as conduct liable to
detract materially from the dignity of the court or to disturb the tranquillity
and order of a judicial proceeding in a rude manner.
If a penalty for misconduct has been imposed under Sec. 178, the person
affected may challenge it within one week after the decision has become known
to him, unless the decision has been rendered by the Federal Supreme Court
or by a court of appeal (Oberlandesgericht). The court may not revoke or
alter the punishment after the challenge has been filed. The challenge more-
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CONTEMPT OF COURT IN WEST GERMANY
over does not stay execution. The challenge is decided upon by the court of
appeal.
Cases have held that it was not misconduct for an accused to appear in a
sports costume (bicycle uniform), nor for a party to stare at the judge in an
allegedly threatening or deprecating manner without other simultaneous outward gestures. Whispering among witnesses in a manner to disturb the proceedings becomes misconduct only after an admonition for silence is without
success. Criticism of the court's decision in itself does not constitute misconduct, but becomes such if the accused brands his conviction as a miscarriage
of justice, in an improper tone. Refusal of a witness to answer a question is
not procedural disobedience and therefore not misconduct (for compulsory
measures against a witness who refuses to testify without good reason see infra,
III) but becomes such if he explains his refusal with the statement that the
court is trying to "trap" him. Permissible statements may under certain
circumstances amount to misconduct. Thus, where a person has been admonished to be moderate, arguments with the presiding judge which are uttered in
a vehement tone may become misconduct.
The fact that the act constituting misconduct also contains the factual elements of a crime in no way affects the procedural punishment of the offender.
On the other hand, the procedural punishment does not bring the maxim of
ne bis in idem into play, which is the equivalent of double jeopardy under
German law. If the misconduct also constitutes a crime, or if a crime is committed which is not related to the proceedings, the court must, under Sec. 183
of the Judiciary Act, establish the facts, incorporate them in the trial record
and send it to the government attorney's office for further action. Where
appropriate, the court may order the arrest of the offender and order him held
for such further action. The court proceeds ex officio, and no prior motion by
the public prosecutor is necessary. This procedure may in particular be
employed against witnesses who commit perjury, or if there is sufficient evidence to show that they committed perjury. If the offense is witnessed or
perceived by the members of the court, it is so stated in the record and no
further evidence is necessary. If other persons have knowledge of the crime,
the declarations of the witnesses and of the offender are taken down in the
trial record.
The above procedure differs from that in use earlier in some of the German
laender. Especially in the Rhine provinces where the influence of the French
Code of Criminal Procedure was strong, a crime committed in a criminal court
could, under certain circumstances, be tried then and there and sentence be
pronounced in the same proceedings.
It is not firmly established whether the person to be punished must be
given a hearing before such decision is rendered. Recent decisions both confirm
and deny the right to a hearing. Eminent authority" states that, in view of
art. 103, para. I of the Constitution, providing that "In the courts everyone is
entitled to a hearing in accordance with the law," it is the better policy to
grant such hearing unless it is manifest that the person to be punished would
only use such opportunity for further misconduct.
The public prosecutor apparently need not be heard before some punishment
is imposed.
8
Id. at 286.
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[Vol. 8
If any penalty for conduct out of order has been imposed, or if a person has
been removed into custody, or if any person has been removed from the court
room, such fact must be made part of the trial record.
The fine for conduct out of order (Geldordnungsstrafe) may not be less than
I nor more than 1,000 German marks. If the party affected cannot pay the fine,
custody not exceeding three days must be imposed. This conversion of a fine
into custody is possible, according to the weight of authority of recent decisions, on the theory that the court had the choice to impose custody in the
first place.
The coverage of trials by the press, radio and the like, is termed indirect
publicity (mittelbare Oeffentlickkeit). Under German law the following phases
in the administration of criminal justice must be public: the trial proceedings
before the court, the rendering of the decisions and of the judgment. All other
phases, i.e., the investigation by the public prosecutor, the judicial pretrial
investigation, the preparation of the main trial and the entire execution proceedings are not public.9 Apparently there is much less restraint in German
courts with regard to press and other coverage of trials than in English or
American courts. Thus the Bavarian Court of Appeals ruled, in a decision
reported in 1956, that it was permissible for the presiding judge to admit sound
tape recording over the objections of the accused, of the counsel for the defense,
or of a witness, if the judge felt that the recording did not disturb the proceedings.
On August 1, 1953, the judicial administrations of the laender adopted the
Directives for Criminal Proceedings which went into effect uniformly for the
1°
laender of the Western Republic. The following instructions govern radio and
press coverage of trials:
"No. 110, para. 3. Only the press and radio reporters should be permitted
to draw or photograph in the court room, or make a recording of the proceedings for the radio. The decision shall be made by the presiding judge
(Sec. 176 of the Judiciary Act). He should weigh the following:
The press and radio render a service to the administration of criminal
justice since they make the public better acquainted with the activity of
the judge and public prosecutor. The press and radio may be limited in
their reporting only to the extent called for by the purpose of the main
trial. The task of the court of probing for the truth may not be frustrated
or rendered more difficult, and the right of the accused to defend himself
without hindrance shall not be prejudiced. The taking of pictures or
recordings may cause the accused and witnesses to be distracted from the
main trial or their impartiality to be impaired. Therefore it is not recommended that pictures or recordings be made during the questioning of
the accused or during the hearing of the evidence. In general, the presiding judge shall have due regard to the justified wishes of the participants."
A German legal writer of note makes the general comment that the German
"statutory provisions (governing indirect publicity) are far behind the energetic protection afforded the English and American courts against any type
of contempt of court."-'
9 Schmidt, Lehrkommentar zur Strafprozessordnung und zum Gerichtsverfassungsgesetz,
Teil 1, 177-178 (1952).
10 Lfwe-Rosenberg, op. cit. supra note 4, at 279.
11 Schmidt, op. cit. supra note 9, at 184.
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CONTEMPT OF COURT IN WEST GERMANY
III. PowER OF THE COURT TO COMPEL APPEARANCE OR TESTIMONY
BY A WITNESS
Both civil and criminal courts may take certain coercive measures against
witnesses. If a witness, properly summoned, fails to appear without proper
excuse, he may be summarily sentenced to the costs occasioned by his failure
to appear, to a fine for conduct out of order of from 1 to 1000 German marks
and, in case the fine cannot be collected, to custody for not more than six
weeks. 12 In case the witness fails to appear again, the same punishment may
be re-imposed, but not more than twice altogether.
If the witness refuses to give testimony in a criminal case without lawful
excuse'13 he may be sentenced summarily to bear the costs occasioned by the
refusal or to a fine of from 1 to 1000 German marks or, if the fine cannot be
collected, to custody for not more than six weeks. The recalcitrant witness
may also be sentenced to custody for not more than six months but, in any
event, such custody is not to extend beyond the termination of the trial in
that court. If the criminal trial involves a petty offense, the custody may not
exceed six weeks. The witness may file a challenge which, however, does not
stay its execution. The procedures4 and punishments used against a recalcitrant
witness in civil cases are similar.'
IV.
SPECIAL PROTECTION OF THE FEDERAL CONSTITUTIONAL COURT
AGAINST ACTS SIMILA TO CRIMINAL CONTEMPT
The Federal Constitutional Court was established by Law of March 12,
1951.15 Its jurisdiction is outlined in Secs. 13 to 16. It passes upon such
questions as the forfeiture of constitutional rights, the constitutionality of
political parties,' 6 interpretation of the Constitution, and the like. This court
was given special protection against acts which under Anglo-American concepts
could be considered as contempt of court but in Germany are deemed specific
crimes subject to trial in regular criminal proceedings. The law itself provides:
"Sec. 42. Any deliberate act in defiance of a decision of the Federal Constitutional Court or of measures taken in carrying out the decision shall
be punished by imprisonment for not less than six months."
Section 47 of the Law makes the penal sanction of Sec. 42 applicable especially in cases where the Court has found a political party unconstitutional.
In an amendment to the Criminal Code the German legislature has extended
the protection of the Court against contemptuous conduct beyond the immediate court room. The basic provision of the Criminal Code reads:
"Sec. 106a. Whoever participates in public gatherings in the open air,
or in demonstrations within the banned area (befriedeter Bannkreis) about
the building of a legislative organ of the Federation or of a land as well
as of the Federal Constitutional Court and thus intentionally violates
provisions which have been issued concerning the banned area, shall be
12 Code of Criminal Procedure § 51.
Code of Civil Procedure § 380.
13 I.e., privileged communications, or danger of self-incrimination. Code of Criminal
Procedure § 52 et seq. Code of Civil Procedure § 383 et seq.
14 Code of Civil Procedure § 390.
15 Bundesgesetzblatt pt. 1, at 504 (1955).
16 The outlawing of the Communist Party by judgment of August 17, 1956, is a case
in point.
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punished by imprisonment for not more than six months or by a fine.
"Whoever incites to gatherings or demonstrations which are to take place
within the banned area in violation of the provisions specified in para. 1,
shall be punished by imprisonment for not more than two years."
The above is a blanket provision to regulate the matter for the entire territory of the Federal Republic. On August 6, 1955, the Federal Diet enacted
a law 17 which fixed the banned area for the Federal Constitutional Court as
follows:
"Sec. 2. The banned area for the Federal Constitutional Court shall comprise the area of the City of Karlsruhe which is bounded by the Bismarckstrasse, the Reinhold-Frank-Strasse from the Bismarckstrasse to the
Miihlburger Tor, the Amalienstrasse from the Miihlburger Tor to the
Waldstrasse, the Waldstrasse from the Amalienstrasse to the Hans-ThomaStrasse, the Hans-Thoma-Strasse from the Waldstrasse to the Bismarckstrasse. The named streets shall be included in the banned area to the
extent that they bound it.
"Sec. 3. The Federal Minister of the Interior may permit exceptions to
the prohibition of public gatherings in the open air and of demonstrations,
after consultation with the President of the Federal Constitutional Court
for the banned area of the Federal Constitutional Court."
No special procedure is prescribed for the trial of the above-mentioned
offenses and therefore they are subject to adjudication in regular proceedings
in a criminal court as ordinary crimes. However, if any of the above offenses
are committed with intent to endanger the state, the offenses become major
crimes and must be tried before the penal chamber (Strafkammer) of the
Landgericht which consists of three professional judges and two lay judges.18
V.
POWER OF THE CIVIL COURT TO ENFORCE PRIVATE RIGHTS
German civil procedure recognizes two distinct phases in the administration
of justice in civil cases. 9 The trial proper (Entscteidungsverfahren), which
terminates in a judgment establishing the existence or non-existence of the
right claimed or denied in the complaint, has already been dealt with
under II with respect to criminal contempt. The remaining phase of proceedings, the execution proceedings (Vollstreckungsverfahren), includes the arrest
proceedings (Arrestprozess) and involves steps that resemble civil contempt
procedures.
The execution proceedings are designed to enforce the civil rights or remedies
established in the trial, by some form of constraint (Zwangvollstreckung).
The state has no need or interest here to vindicate its authority. The state,
rather, puts certain instrumentalities of its power at the disposal of the creditor
to force the debtor to fulfill his obligations. 20 There are two types of execution.
One, execution against property (Realexekution), does not concern the present
17 Bundesgesetzblatt pt. 1, at 243 (1951).
18 Schwarz, Strafgesetzbuch 267 (1956).
19 Rosenberg, Lehrbuch des Deutschen Zivilprozessrechets 3 (7th ed. 1956).
20 Simonson, Zwangsvollstreckung im Zivilprozess, 6 Handworterbuch der Rechtsswissenschaft 1121 (1928-1929).
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CONTEMPT OF COURT IN WEST GERMANY
research. The other, which may be termed execution against the body (Personalexekution), makes the debtor himself the object of the contsraint. Two
types of execution against the body which once were of great importance, have
been abolished. The older form, bondage for debt (Schuldknecktschaft), had
already been done away with several centuries before the classical period of
Roman law. The person and the labor potential of the debtor were the means
of satisfying the debt. Bondage was replaced by imprisonment for debt which
sought its satisfaction by use of the debtor's labor potential or by pressure
on his friends or relatives (to satisfy the debt). This was abolished in most
of the German laender in the nineteenth century and definitely abolished by
Federal Law of May 29, 1868.21 Only three types of execution against the
body remain in German law today:
(a) Coercive detention (Zwangskaft), for not more than six months may be
employed either to force a person to perform acts which only he can perform
(unvertretbare Handlungen)22 or to force a person to take the oath of disclosure (Offenbarungseid).23 In the first class comprising acts which only the
debtor can perform, the cases most frequently involve the filing of a declaration
of intention; the surrender of a copy of a written declaration already released;
the execution of a literary work or work of art requiring only average aptitude
or skill; 24 disclosure of the address of a child to the other spouse; the duty to
adopt one's former family name. The provision does not, however, apply to
the enforcement of the solemnization of a marriage or to a judgment directing
the re-establishment of marital relations.
The oath of disclosure is, basically, a device auxiliary to execution against
property, and is admitted if the latter has proved fruitless, or to enforce the
surrender of personal property. The debtor submits an inventory and swears
before the court that it is, according to his best knowledge and belief, complete
and true. The procedure is initiated by the motion of the creditor requesting
that a date be fixed for the administration of the oath. The competent court
is the court of original jurisdiction, but not necessarily that which rendered
judgment in the original case. The debtor may file objections (e.g., on the
grounds that the execution is inadmissible), but if he is overruled (in which
case he may file a challenge for review by the next higher court which challenge, however, does not stay execution) and refuses to take the oath, or if
he fails to appear on the date set, the court orders detention and issues a warrant of arrest. The bailiff executes the warrant, but not until the creditor has
paid the costs of the detention in advance. The detention terminates if the
debtor takes the oath or satisfies the debt, or if the creditor's advance for costs
is used up. In any event, the detention is brought to an end ex officio after
six months. Detention consists in a deprivation of liberty which may not be
served together with prisoners, or detainees subject to pretrial investigations.
The procedure to enforce the performance of acts discussed above is similar
except that a fine in an unlimited amount may be imposed. Custody may not
replace the fine, however, in case of insolvency.
Rosenberg, op. cit. supra note 19, at 850.
Code of Civil Procedure § 888 et seq.
Id. § 889 et seq.
Rosenberg, op. cit. supra note 19, at 1029, 1030; Baumbach, op. cit. supra note 2,
at 1399; Sebode, Die Erzwingung Handlungen und Unterlassungen (§ 887-890 Zivilprozessordnung) 9 Deutsches Recht 973, 975 (1939).
21
22
23
24
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(b) Punitive custody (Stralkaft) for not more than two years for violations
of a court-imposed duty of toleration or forbearance (Duldungs-oder Unterlassungspflicht).5 Thus a property owner must endure odors, smoke, soot,
noise, vibrations and the like emanating from neighboring property provided
the use of the neighboring property is not unreasonable or unusual under the
circumstances. Or a merchant must forbear from making insulting statements
or such as amount to unfair competition. Here again the creditor must file a
motion with the court of original jurisdiction and he must prove the violations
of the duty. The court issues a warning in which the punishment is set out
(Strajendrohung) which the debtor may challenge for review by the next
higher court. A fine in an unlimited amount or custody for not more than
six months may be imposed for each violation, but for not more than two years
in all. The amount of the punishment is within the discretion of the judge,
and in case the debtor cannot pay the fine, custody may be imposed instead.
Although the punishment is also designed to coerce, it is primarily of a punitive nature, determined in accordance with the general principles of criminal
law and subject to amnesty, as are other punishments imposed under the
Criminal Code.
(c) Arrest of the body (Personalarrest)is defined as a means to secure the
future execution of a money claim.2 6 Although it may be imposed to prevent
the squandering or shifting of property abroad, it may not be used to satisfy
a debt. It is therefore a subsidiary measure and is considered to be of little
practical significance today. The arrest may consist of custody or of any other
limitation of personal freedom, such as house arrest, surveillance, duty to report
to the authorities at certain intervals, or taking away of the passport (especially
in the case of foreigners). The court competent to entertain the creditor's
motion for an arrest is the court trying the creditor's claim on its merits, which
may be the court of original jurisdiction or the next higher appellate court
(while the case is pending there on appeal). The debtor may file an objection
and, if the court orders the arrest, an appeal. The arrest order must be exe27
cuted within one month. If custody is imposed, it may not exceed six months.
After six months the person in custody is released ex officio. If the court
imposes a form of confinement other than custody, the type of restriction must
be specified, and this is governed by the same rules as is custody.
25
26
27
Sebode, op. cit. supra § 890 et seq.
Id. § 918.
Id. § 913.