- History of the principle of inquisition in German criminal law
The principle of inquisition is a form of criminal proceeding developed in Italy, which is labeled by the axiom of the ex officio inquiery of a criminal issue. There is no obligation of the inquiry and the final decision to be executed by the same institution.
The procedure of inquisition was already known in Roman law. In time of the ancient Roman kings inquisition was the standard method of criminal inquiry. There were no rules. The disposal of the
magistrate, who acted on pure denunciation, was the criteria which guided the proceedings. Because of these problems, the principle of inquisition was replaced by a principle of contradiction . Pope Innocent III(1161-1216) reintroduced the procedure of inquisition for canon law, where it became a well feared instrument against heretics. The concept of inquisition was not limited to canon law. In Italy the use of the inquisition was transferred to secular criminal law. The first adaption within the territory of the " Holy Roman Empireof the German Nation" were the "Wormser Reformation" of 1498 and the "Constitutio Criminalis Bambergensis" of 1507. The adoption of the Constitutio Criminalis Carolina("peinliche Gerichtsordnung" of Charles V) in 1532 makes the procedure of inquisition empirical law. It is the "code d´ instruction criminelle", the French code of criminal procedure, of emperor Napoleonof France on November 16, 1808 and the adaption of its principles to German countries that terminates the classical procedure of inquisition in Germany.
Theory of the principle of inquisition
Basic criteria of the procedure of inquisition is the existence of an institution, which carries out ex officio inquires of a cases, presumably committed by a certain person or organization. An accuser (or an informer is not necessary. Only the results of the all-embracing examination of facts and proofs shall be the base of a final, logical decision without any influence of the injured or the accused litigant . The defendant is a pure object of the proceedings. he has no right to be heard. His participation to the proceedings is limited to the necessities of the lawsuit.
Practical translation to the criminal law of the "Holy Roman Empire"
Completely new to the criminal procedures of the middle age was the attempt to base the decision of the opening and the sentence on facts, inquired by the court.
The law of the Germans only allowed the beginning of a lawsuit on the accusations of the violated. The offender was limited to the positioning of the charge. The only hearing of evidence was the confirmation of the good reputation of the defendant by oath. Notable members of the community, so called helpers by oath (Eidhelfer) described only the reputation of the defendant, not the facts or the circumstances of the crime. There was no witness of the crime involved. In case of good reportation, the offense failed. Only in case of bad reputation or of confession a conviction was possible. That's the reason why the typical legal conflict of the early middle age is solved by regulated force of arms, the feud, which public peace and peace of God only limited, while legal proceedings were almost an exception. The institute of inquisition was an enormous legal improvement, because it included the proof relating to the facts of the crime to the inquiery. The reputation of the defendant no more was the main topic of the proceedings. It was replaced by an inquiry, made on real facts.
The implementation of the facts practically meant an enormous restriction of the rights of a defendant with good reputation, who now faced a real risk of condemnation. There was a certain discomfort with this risk. Therefore there still was the need of a confession in addition to the results of the inquiry. This confession will be gained by torture. An innocent will withstand the torture with the help of god. The contemporaries understand the problem of torture not to be this last proof of findings, long proved by finished inquiries but an easy way to substitute those inquiries. The criminal law of the
Duchy of Lorrainelimits the use of torture with the need of approval by the "procurateur general", an administration situated at the ducal court in Nancy. The local court has to ask for the use of torture by presenting the results of their inquiries.
Problems of the inquisition
The greatest problems of the medieval proceeding of inquiry are to be found outside of the principle itself.
* The proceedings occur in privy. The maxim of publicity, that is standard today, does not exist. A proceeding without public control always includes the risk of a judge, who is not able or willing (because of the influence of others, especially his lord) to give a proper judgment.
* Torture gives proof to everything. A proceeding, that bases on any form of torture will never give results that can be trusted. Torture only is an instrument for manipulation.
* There is the danger of denunciation. The Carolina does not plan with denunciation. The legal possibility of a citizen to indicate legal proceedings is an accusation. This offender has to answer for the truth of his accusations. In case of innocence of the defendant he will be punished. [CONSTITUTIO CAROLINA CRIMINALIS, Art. 12, cited from Sellert Rüping, Studien und Quellenbuch zur Geschichte der deutschen Strafrechtspflege, Bd.1, Von den Anfängen bis zur Aufklärung, S 229: "Jtem so balldt der angeclagt zu gegenngknuss Angenommen ist, soll der Anclager oder sein gwallthaber mit seinem leip verwart werden, biss er mit burgenn, Caution vnd bestanndt vnd sicherung, die der Richter mitsampt Vier Schepfenn nach gelegenheit der sache vnd achtung beder personen fur genugsam erkennt, gethan hat,..."] . The other way of the beginning of the proceedings is the personal knowledge of the authorities. This degenerated to a system of denunciation. In some regions during witch trials used a box of denunciation, a box hanging or standing at a public place, to enable everyone to make accusations by inserting a piece of paper without telling his name and without any risk.
* The only demerit of the principle of inquisition itself is the lack of neutrality of the judge. He has to decide on the results of an inquiry, only himself has made. Why should he dispute his own work. This problem can be solved with publicity and the possibility of appeal.
The principle of inquiry in modern proceedings
The principle of inquisition still is in use in modern criminal law of Germany , although there is a restricted extent. Legal base is § 244 II Strafprozeßordnung (German code of criminal procedure) that orders the court to ex officio examine on every fact and proof that could be relevant on the judgment. [§ 244 II StPO: "In order to establish the truth, the court shall, proprio motu, extend the taking of evidence to all facts and means of proof relevant to the decision."] Most of these facts or proofs are inserted by the plaintiff or the defendant, but the court has the right to arise evidence by its own. The court even is enabled to judge, according to the result of the proceedings, over the violation of laws, the plaintiff did not mention and to sentence different from the proposals of the litigants. (theoretically an offense of involuntary manslaughter can lead to a sentence of murder first degree. If the proceedings show the violation of other laws by the same act, the court sentence on these too.
Inquisition as basic principle
Alternative principles are the principle of contradiction and the principle of consent.
* Heinz LIEBERICH, Deutsche Rechtsgeschichte, 1992
* Eberhard SCHMIDT, Einführung in die Geschichte der deutschen Strafrechtspflege, 1965
* Hermann CONRAD, Deutsche Rechtsgeschichte, Band 1 Frühzeit und Mittelalter, 1954
* August SCHOETENSACK, Der Strafprozeß der Carolina, 1904,
* [http://home.hetnet.nl/~otto.vervaart/prozessrecht_ma.htm#Inquisition Mittelalterliches Prozessrecht] – Rechtsgeschichtlicher Überblick mit weiterführenden Literaturnachweisen
* [http://www.mittelalter-zeit.de/portal2/index.php?option=com_content&task=view&id=46&Itemid=78 Mittelalter Zeit – Die Inquisition] – Artikel bei einem Mittelalter Portal
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