Given the debate at the seventy-second Conference of the Association of German Jurists (Deutscher Juristentag) in September 2018 on whether German sentencing needs reform, this Article will explore this very question in greater detail. In this regard, this Article will present various empirical studies in order to demonstrate that notable inconsistencies in German sentencing practice exist. This Article will then point out that broad statutory sentencing ranges, along with fairly vague sentencing guidance, are among the main causes of these disparities. Subsequently, this Article will examine several mechanisms that selected foreign jurisdictions—namely the U.S., the U.K., and Australia—have put in place in order to enhance consistency in their sentencing practices. Three mechanisms of sentencing guidance will be distinguished here: First, formal sentencing guidelines; second, guideline judgments; and third, sentencing advisory bodies as they operate in some Australian states. This Article will compare these mechanisms and assess their merits and drawbacks. Based on this comparative study, this Article will look at how to improve consistency in German sentencing practice. In this respect, this Article will present three steps that German criminal law reform should follow, including a better sentencing framework, the strategic gathering of sentencing data, and the implementation of a flexible sentencing guidelines regime.
The European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights (ECtHR) influence the German legal system to a remarkable extent. In order to illustrate the impact of the Court's jurisprudence on German police law in particular, the present article will shed a light on the cases of Schwabe and M.G. v. Germany (no. 8080/08 and 8577/08) as well as Ostendorf v. Germany (no. 15598/08). These cases related to the question whether police custody-carried out for the mere purpose of preventing someone from committing a criminal offence-can be considered as compatible with the guarantees of the Convention, especially with the right to liberty and security as laid down in Article 5 § 1 ECHR. Since the Convention only allows deprivation of liberty in a strictly limited number of cases listed in Article 5 § 1 (2) ECHR, the Court had to undertake a detailed assessment of the eligible provisions and, thereby, give an answer to an ongoing controversy. Moreover, by refining its previous jurisprudence, the ECtHR did establish general human rights standards for purely preventive detention as governed by German police law. Therefore, the author will outline the Court's finding and, subsequently, examine the implementation of the requirements set out by the ECtHR into German law.
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