Michael Bohlander

Settlement of Property Claims in Former East Germany

The reunification of Germany on 3 October 1990 was a political milestone for Europe (Harris 1991; Murphy 1991). It marked not only the end of an era dominated by two German states with radically different political and economic philosophies but also the end of the wider divisions of the cold war. In many ways the dismantling of the Berlin Wall and the subsequent official reunification initiated a rewriting of the geography of central Europe. Contacts severed for more than forty years were suddenly reestablished, creating wholly new patterns of circulation and of political and economic influence (Blacksell 1994; Grimm and others 1994). For Germany itself, reunification meant the formal end of East Germany - the German Democratic Republic - and of virtually all of its existing social, economic, administrative, and legal systems. East Germany was replaced by a much-enlarged federal republic - what had been popularly known as West Germany - that transplanted its own administrative infrastructure almost unaltered to the new, unified German state [ILLUSTRATION FOR FIGURE 1 OMITTED]. The change, accomplished less than a year after the first obvious signs of collapse in the East German regime, would have been traumatic for the peoples of both countries under any circumstance. For the 17 million East Germans it marked the end of much of their way of life and the beginning of adjustment to a new world of democratic politics. It also brought susceptibility to the dictates of capitalism and the vicissitudes of the free market. The ensuing difficulties were not only numerous and complex but also extremely varied, extending to every aspect of daily life in the five new Lander (federal states) and the unified city of Berlin, with intriguing implications for the human geography of the whole of Germany. More than five years after reunification, severe economic and social inequalities between the two parts of the country remain (Table I). The gross domestic product, both per capita and per employee, in the new Lander is about half that in the old, and the unemployment rate is more than a third higher. Even though the new Lander account only for a minority (19.4 percent) of the total German population, the discrepancies introduce a serious element of regional economic imbalance for the new German state (Statistisches Bundesamt 1996). Many aspects of the change have already stimulated detailed research (Irmen and Sinz 1991; Kohli 1993; Mai 1993; Munz and Ulrich 1994; Putz 1994; Wendt 1994; Wild and Jones 1994; von der Heide 1995). In this article we explore an aspect of the reunification process that has largely been ignored in the geographical literature: the settlement of disputes involving the ownership of land and property. The years between 1933 and 1990 have been described as a gigantic and prolonged state-sanctioned and -inspired land grab in the former East Germany, first under the national socialist government of the Third Reich and then, after 1949, by the communist government of East Germany (Jung and Vec 1991). During this extended period, huge amounts of land and property were confiscated by the state and either nationalized or allocated to new owners. The federal republic views both the national socialist and the communist governments having been illegal, and, since reunification, it has been German policy to try to right the wrongs committed by the erstwhile regimes. Property restitution began in what was to become West Germany as early as 1945 and to all intents and purposes was complete by the time reunification occurred. Nevertheless, after the fall of the Berlin Wall in 1989 it was taken for granted [TABULAR DATA FOR TABLE I OMITTED] that the process would be extended to East Germany and that, in addition, the expropriations by the government of the German Democratic Republic (GDR) would also be reversed (Mielke 1994). State-inspired expropriation of assets is hardly confined to Germany, of course. …

Last exit Bosnia - transferring war crimes prosecution from the International Tribunal to domestic courts.

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A modern history of German criminal law

Introduction.- Delimiting the time period and Methodology.- Criminal law at the beginning of the legal-historical period.- 19th century developments.- The shift from the 19th to the 20th century.- The 20th century.- Current events in criminal law.- Review and outlook.

Radbruch Redux : the need for revisiting the conversation between common and civil law at root level at the example of international criminal justice.

International criminal justice is based to a large extent on extrapolations from criminal-law research on domestic systems. The difficult exercise of arriving at a common denominator is exacerbated by the systemic dichotomy of the so-called common-law and civil-law models, which, in turn, have now been joined by a third contender: public international law. Each of these has its own methods of approaching the task of solving legal problems. This paper queries the inter-model conversation that is happening so far and asks the question as to whether it is necessary to hold this discussion at a much more fundamental level than it would seem has been the case so far. It does so at the example of the relationship between German and English and Welsh law, but its concerns and conclusions merit consideration for the entire debate between the systems.

Legal advice in criminal proceedings in the Federal Republic of Germany

ConclusionCertain components of the British system of legal aid, especially the duty solicitor scheme, could beneficially be introduced in modified form into German criminal procedure. Conversely, some points of German law could benefit the British system, such as less rigid adherence to the autonomy principle. With the increasing integration of the European states, and particularly the abolition of internal border controls, it is time to think closely not only about harmonizing the economic structures of the European Community member states but also about creating human rights protections at the Community level, which is inextricably connected to access to competent legal advice in criminal proceedings.

Paradise Postponed? For a Judge-Led Generic Model of International Criminal Procedure and an End to ‘Draft-as-You-Go’

Since 1945, international criminal justice has been one continuous construction site, an expression of the attitude of international stakeholders and policymakers that favours temporary solutions to contemporary problems. Even with the creation of the ICC that has not really changed. This chapter will set out a few fundamental and rather radical ideas that aim at initiating a thorough rethinking of the way criminal proceedings at the international level are regulated and run today. It sees itself very much as a call for a principled re-evaluation and for a move away from the attempts of the last two decades of arriving at a genuine amalgam of diverse systems by the method of judicial trial and error. The existing model(s) is/are an exemplary expression of the temporariness of international law, because it/they proceed(s) from a refusal by international law-makers to engage in drafting a permanent model that retains fairness standards while striving for maximum efficiency and that is meant to be applied across the board to any (new) tribunal—an approach that would lead to much greater certainty of law than is currently the case because of an increase in cross-institutional comparability. The chapter contends that while both adversarial and judge-led systems in their own national settings can achieve comparable levels of fairness, they differ in efficiency and that a judge-led model is better suited for the international arena and should be made the foundation for any future permanent procedural framework. However, the temporary nature of the present system which mainly uses adversarial models is based to a large extent on an unprincipled reliance on supposedly ‘ready-made’ and ‘tried and tested’ solutions from as well as the experience of staff employed at previous tribunals. The use of the adversarial model is thus not based on a principled evaluation of its usefulness and effectiveness in the international context but on a default attitude of the lawyers creating and populating international tribunals, and possibly the diplomatic community in the wider sense.

Problems of transferred malice in multiple-actor scenarios.

Transferred malice is a well-known concept that allows the extension of an offenders intent to a victim or object hit accidentally because the offender missed his intended target. Coupled to this doctrine is the annex doctrine of transferred defences which purports to transfer any defence the offender may have had vis-à-vis his intended victim to the actual victim. These doctrines cause systemic problems in single-actor scenarios, but those are increased exponentially if one applies them to multiple-actor situations, where the principles from Saunders and Archer apply which transpose the transferred malice doctrine to the secondary participant as long as the principal missed his target accidentally. The transferred defences doctrine has not been explored in these cases at all, as far as can be seen. This article examines the traditional doctrine and argues that based on a number of problematic constellations and a comparison to German law, it is in need of systematisation and clarification, and that the approach under Saunders and Archer is no longer fit for purpose.

Justice Without Borders

Justice Without Borders is a collection of essays on international criminal law, European criminal law and international cooperation of distinguished authors that honours Judge Wolfgang Schomburg on the occassion of his 70th birthday on 9 April 2018.

Of Higher Intentions and Lower Expectations: A Report about a Failed Survey Project on Using Maqāṣid Al-Shari’ah as a Means of Comparative Governance Research

The author had planned to work on a monograph related to the potential of using the maqāṣid in Islamic jurisprudence, uncoupled from their religious foundations, as a tool for the conversation with secular law and legal thinking, which by and large has shed its own religious roots and proceeded to an ethics-driven approach based on public policy or interest, and/or systemic logical coherence. The premise of the research project was that lawyers largely think the same thoughts and that they use different building blocks to construct rather similar-looking houses. The main instrument of the research was a survey questionnaire with a series of case-based scenarios sent to a number of Islamic scholars to provide the answers to the scenarios from the Shari’ah perspective. The survey failed in its entirety, so the research turned into an attempt to find the reasons for the failure. This paper will set out reflections on why it went wrong.

6 Current Events in Criminal Law

With the GDR’s accession to the Federal Republic, the FRG’s legal system was extended to include the new federal states, where it was only possible to build up the criminal law system by using personnel from the Federal Republic. Their secondment created staff shortages, which once again led to a reduction in the application of criminal law through reducing the size of judicial panels, limiting appeals, limiting the formal right to make evidential motions, expanding the summary written procedure (Strafbefehl) and extending the principle of discretionary prosecution.