Innocent until proven guilty in Germany? My understanding was that German criminal proceedings are "private" (meaning secret, no one is allowed in except participants) and that the accused is assumed to be guilty until proven innocent, which is a standard plank of Napoleanic Code. However, I recently read in a German legal guide the following: The Latin phrase “in dubio pro reo” means that the court has to give the defendant the benefit of the doubt. The accused is assumed to be innocent until his guilt has been established beyond reasonable doubt. So, which is it? Germany doesn't follow Napoleanic code anymore? Seems unbelievable to me. Is the guide just a theory on paper like the so-called inviolability of the home against searches which everybody in Germany knows is a joke.
Trials in German criminal cases are generally open to the public (subject to exceptions similar to those in the U.S.) and there is a presumption of innocence until proof beyond a reasonable doubt establishes otherwise in its criminal justice system. The authority for this and the history of this are explored below. In a criminal case in Germany, according to the German Code of Criminal Procedure, Section 261, a judge is supposed to make a decision upon guilt or innocence based upon the following standard: Section 261. [Free Evaluation of Evidence] The court shall decide on the result of the evidence taken according to its free conviction gained from the hearing as a whole. Section 263 provides that decisions regarding guilt against a defendant must be made by a two-thirds majority of the judges (typically a panel of three in felony cases). Neither the German Penal Code, nor the German Code of Criminal Procedure contain a clear articulation of a presumption of innocence or of a presumption of guilt. An arrest and certain other pre-trial remedies are allowed when someone is "seriously suspected" of a crime, and a judge may dismiss charged if they are without sufficient legal basis on their face. As explained here: If there are indications of a crime, the district attorney or the police department must initiate an official investigation. If the matter comes to a trial, it is the court's duty to pursue further official investigations. The court is obliged to look for evidence, whether or not defence counsel or the district attorney ask that evidence is heard. . . . In criminal proceedings, all evidence must be presented during the trial. Only the results of the main (oral) hearing may serve as a basis for the sentence (sections 261 and 264, Code of Criminal Procedure). Written evidence, such as documents, must be read out and witnesses must be interrogated in the presence of the court and the public. . . . Hearings and other court dates in criminal matters are . . . open to the public (section 169, Court Constitution Act). In some cases, confidentiality is deemed to outweigh the basic rule of public access to court proceedings, for example in matters of national security, or, more commonly, in proceedings concerning young people. . . . Juries are not used in criminal proceedings. Minor cases are tried by one career judge, and other matters are tried by a court consisting of one career judge and two lay judges (section 29, Court Constitution Act). In certain very serious matters (for example, cases involving the death of the victim), the court consists of three career judges and two lay judges (section 74, Court Constitution Act), Lay judges in criminal proceedings are meant to ensure the approval of a criminal verdict by the public. . . . In civil law cases, the burden of proof generally lies with the party asserting the claim. They must prove their case beyond reasonable doubt. The burden of proof can be shifted, for example in claims for damages due to breach of contractual obligations. The defendant's responsibility for the contractual breach is presumed by the law, and the defendant bears the burden of proving otherwise (section 280 subsection 1 second sentence, German Code of Civil Law (Bürgerliches Gesetzbuch)). As there are no disclosure-like proceedings, the party with the burden of proof may need to demonstrate a fact that they have had no chance to obtain knowledge of, while the other party can present this information easily (for example, information regarding the opposing party's assets or tax burden). In this case, the burden of proof does not shift, but the other party has a duty to provide sufficient information for the first party to substantiate their submission. This is known as the "secondary burden of proof". . . . As criminal proceedings in Germany are not adversarial, but apply the principle of official investigation (see Question 18), it is the court and the prosecutor that have to provide evidence both against and in favour of the accused. In a criminal trial the standard of proof is similar to the one in civil matters: the court must be convinced beyond reasonable doubt. The benefit of any doubt goes to the accused. The legal source this standard of proof is an international treaty, as articulated below, and this provides a legal gloss on the interpretation given to Section 261 quoted above. This is basically the same standard of proof in civil and criminal cases. The probabilistic "preponderance of the evidence" standard used in civil cases in common law systems is not used. The presumption of innocence in the German criminal justice system and its practical effects are discussed in this 2014 law review article. It explains the history of that provision in German law as well: Comparatists of criminal law and procedure like the presumption of innocence. It seems to provide a focus on which all can agree. The presumption of innocence has a rich historical heritage (see Hruschka 2000) and enjoys international acceptance, as exemplified by its recognition as a basic right in Article 14 (2) of the International Covenant on Civil and Political Rights.1 But the presumption’s aura and its effectiveness as a rhetorical device contrast with the difficulty of determining its precise meaning, especially in international discourse. The presumption of innocence, it seems, resembles a wonderfully carved and polished gem which reflects the light in various sparkling tones—but at closer inspection is nothing but a piece of glass. In what follows, I will not even begin to discuss the various meanings that the presumption of innocence has acquired in different legal systems. I will rather concentrate on the German system and will try to demonstrate the (useful but) limited reach of the presumption of innocence in the German context. In a legal system such as the German system that is solidly built on codes and statutes, one would expect that a principle as important as the presumption of innocence is enshrined in the Constitution, or at least in one of the first paragraphs of the Code of Criminal Procedure. But the presumption of innocence has not been given a prominent place in the cathedral of German law; in fact, the presumption does not appear anywhere in indigenous German legislation. It has become part of German statutory law only by the wholesale transformation, in 1952, of the European Convention on Human Rights into domestic German law.2 In spite of that less than spectacular genealogy, the presumption of innocence enjoys as high a status in German legal discourse as in any other legal system. In a 1987 decision, the Federal Constitutional Court, Germany’s highest judicial authority, declared that ‘‘the presumption of innocence is a special feature of the principle of Rechtsstaat (a state built on the rule of law) and thus has the rank of a constitutional norm.’’3 The Constitutional Court linked the presumption of innocence to other high-ranking Constitutional concepts, such as the principle of culpability as a requirement for punishment, and human dignity, which is the supreme value protected by Article 1 of the German Constitution.4 1 Article 14 (2) of the International Covenant on Civil and Political Rights of 19 December 1966 reads: ‘‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.’’ 2 See Gesetz u¨ber die Konvention zum Schutz der Menschenrechte und Grundfreiheiten, II Bundesgesetzblatt p. 685 (1952). 3 Bundesverfassungsgericht, Judgment of 26 March 1987, 74 Entscheidungen des Bundesverfassungsgerichts (hereinafter: BVerfGE) 358 at 370. 4 id. at 371. The presumption of innocence was in a section numbers 6(2) in the original 1952 treaty (which contained equally authoritative English, French and German provisions) that Germany adopted, but has been renumbered in the meantime. Footnote on some assumptions in the question. Germany never followed the Napoleonic Code. It drafted its own civil and criminal codes from scratch based upon the Napoleonic Code model. Most civil codes in the world follow either the German model or the French model (e.g. South Korea's civil code is based upon Germany's while Vietnam's was based upon the French civil code). Superficially, the German model is easily distinguished by having more major subparts than the French one does. All civil and criminal codes in civil law countries have been amended many times. All countries in Continental Europe, in the pre-Napoleonic Code era, did something that is now called the "reception" of Roman law, which basically meant treating Roman legal treatises as binding legal authorities, in the "early modern" period before which personal feudal rule by aristocrats rather than the "rule of law" was the norm. But the available Roman legal treatises offered more insight to officials making judicial decisions based upon received Roman law, and were taken as more authoritative in the area of non-criminal private law, than they were in the areas of public and criminal law. In most of continental Europe (and for that matter in the U.K. as well), human rights flow mostly from international treaties (associated with the formation of the "Council of Europe" not to be confused with the E.U. organ known as the European Council), rather than from domestic constitutional rights, although some of these countries have also incorporated their treaty obligations into separate constitutional provisions or domestic statutes as a means of implementing those treaties.
Let me give you a simple, even if rather silly example: You take me to a civil court. You tell the judge "gnasher regularly parks his blue car in front of my home, and the color blue violates my sense of beauty. Judge, make him stop it. " A question of fact would be: Is my car actually blue? Not green, or red? And do I actually park my car in front of your home, and do so regularly? A question of law would be: Am I allowed by law to park my car in front of your home, even when my car has a color that you don't like? If this goes to a civil court, the judge would look at it and probably say: "Even if all the facts that 'Gimme the 401' claimed are true, as a matter of law there would be no case for gnasher to answer, since these actions would be permitted by law". If the judge decided that it is illegal to park cars in offensive colours in front of someone else's home as a matter of law, the court would then have to decide the facts: Whether what you claimed is actually the truth. (And while this example is silly, there have been people claiming that the neighbour's use of WiFi interfered with their health. And by law it is illegal to interfere with someone's health, so the facts would have to be examined).
I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking.
We don't have enough facts to know. What Bob said about having violated the injunction, which could expose him to criminal contempt of court liability, was not true. But, the precise details of what he said, to whom he said it, and his relationship to the case, are not clear. Saying something that isn't true isn't always against the law, and even when it is against the law, the consequences depend upon the context. An intentionally false statement of fact to a police officer or to the court under oath would probably be a crime (but, unlike U.S. practice, criminal defendants who testify are not generally required to testify under oath). An unintentionally false statement of fact to the same persons (e.g. because Bob misheard the question or was drunk at the time and assumed that the statement of fact he was making was true or had dementia) would probably not have legal consequences for him. A mere confession - I am guilty of violating the civil injunction - would probably not be perjury or fraud because guilt of a civil injunction includes opinions and legal conclusions which are not actionable, as well as implied statements of fact, which might be actionable. But, if he confessed in the form of a plea, there probably wouldn't have been a trial at all. Once he made his plea, his factual guilty or innocence might be irrelevant in the face of a judicial admission. Courts can sometimes sanction parties to lawsuits for wasting everyone's time under quite specific circumstances, but we don't know precisely what relationship Bob has to the case in which the injunction was entered.
There was a case like that in 2010 in germany tl;dr synopsis of the German article: The police raided the private home of an alleged member of a criminal gang. This was performed as a no-knock raid. The police officers did not announce themselves as such when they started to break open the door. The suspect had reason to believe that a rival gang was planning an attempt on his life. So the suspect believed that the people trying to break into his home were actually members of said gang trying to murder him. The suspect used a firearm to shoot at the intruders through the door, lethally injuring a police officer. When the police officers then identified themselves as such, the suspect surrendered immediately. A court later ruled that killing the police officer was self-defense, because they were reasonably convinced that the defendant was unaware that he was dealing with police officers, believed to be in a situation where his life was in danger and where lethal violence was the only way to save his life. Here is the verdict. [In German, of course]
All of this is illegal. You do not give a jurisdiction so I will use NSW, Australia as an example but many countries' laws have similar effect. Australian Consumer Law prohibits misleading and deceptive conduct: It is illegal for a business to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. It doesn't matter that what you have said is strictly speaking factual - the way it has been said is likely to mislead or deceive. However, what you are proposing goes further and IMO crosses the line into fraud (s192E of the Crimes Act): 192E Fraud (1) A person who, by any deception, dishonestly: (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. In addition to the illegality, stealing other people's money is morally wrong by any reasonable standards of morality.
My understanding is that defendants in Britain have to prove statements true by the preponderance of evidence, whereas in the U.S. the standard of evidence is "compelling" (a lower standard). This is not the case. Preponderance of the evidence can still be the burden of proof in the United States (in a civil libel case, although it must be proof beyond a reasonable doubt in a criminal libel case). But, the difference is in what has to be proved. In Britain, it appears to be necessary to show that the statements are true in order to prevail. In the U.S., it is merely necessary to show in a case like this one (because it involves a matter of public concern) that the statements were made with knowledge that they were false, or with reckless disregard to the truth or falsity of the statements made. A factual basis for believing the statements made to be true is a defense if the basis is at all reasonable, and is a complete defense if the factual basis for making the statement is disclosed and that is true or believed to be true by the speaker. It is not necessary for the statements to actually be true under U.S. law in a case such as this one, although actual truth is also a defense, which is not the case in all circumstances in U.K. law, and was not the case under the historical common law. Historically, defamation claims could be brought for statements critical of the monarch, for statements pointing out the natural infirmities of someone for example by mocking a person with low IQ, or for speaking ill of the dead. Furthermore, the U.S. has a variety of doctrines that make it hard to find that a false statement was made in the first place. For example, statements of opinion are not actionable and many of the alleged falsehoods in the McLibel case would be considered to be statements of opinion in U.S. law rather than statements of fact. Similarly, U.S. law does not require that statements be literally true, and instead recognizes that a defendant may have been engaged in using hyperbole, or may have gotten the gist of the accusation right even though strictly speaking the exact statement made is not technically true (e.g. someone might say that a company paid a "penalty" when it actually paid a settlement amount in a lawsuit seeking a penalty or paid an amount representing compensatory damages only rather than a penalty amount). In the same vein, it must be clear from the context of the statement that the person making it intended it to be received as a truthful account and not a mere parody or satire which was intended to be understood as false. For example, I couldn't sue someone who made a knowingly false statement that I assassinated King George V, who died several decades before I was born, or that I was telepathically controlling my uncle because I had a space alien parasite in my spine. Those claims are so absurd that they would be inferred to intended to be fictional on their face. Certain kinds of falsehoods (e.g. lying about one's military record in a a political campaign) are simply not actionable as a matter of law, no matter what, as the harm is not concrete enough. There is not, however, necessarily a defense under U.S. law to defamation liability if the defendant said many things that were true, but something else that would be defamatory in isolation. For example, even if everything else were true, if the defendant had also stated that the CEO of the Plaintiff was convicted of leading a Nazi concentration camp and killed millions of people, which would have been possible given the CEO's age, knowing perfectly well that the person with a similar name to the CEO who did so was someone else who died an untimely death decades ago, that statement might be defamatory and actionable (at least by the CEO personally and probably by the company if it was alleged that he was hired despite the fact that the company was aware of this circumstance).
The term doesn’t come up Because, AFAIK, there are no circumstances where being ignorant of the law allow a person to escape culpability. There are, however, laws that allow ignorance of the facts to be an excuse. For example, a person who receives stolen goods where it is reasonable to believe that they aren’t is not guilty of the crime (although the still don’t own the goods).