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Criminal law was long considered to fall under the domain of national law, so it seemed to play little role in the harmonization of law across Europe. These days, however, there are many interconnections. Understanding how crimes are punished in other countries helps legal experts prosecute cross-border crimes and push for national reform. “Aggravated murder, for instance” says Alix Giraud, a French PhD student at the University of Potsdam. “The assessment criteria for aggravated murder (“Mord”) differ considerably between Germany and France.” The current debate on reforming how aggravated murder is dealt with in German criminal law may widen this gap, according to Giraud. She believes this example shows how differently the law is administered throughout Europe.
Giraud feels at home in at least two systems. She studied German and French law and is now one of the first students in a PhD program initiated by the University of Potsdam in collaboration with the University of Paris Ouest Nanterre La Défense. The program came as the logical consequence of a 20-year cooperation between the two universities and included an exchange program for law students to gain expertise in German and French law as well as in the European harmonization process, which urgently needs to be accelerated.
Giraud, who graduated from the bi-national law program with a double degree, got a first glimpse into the kinds of obstacles she can expect in the international arena during an internship with the European Commission in Brussels. Later, during her training at the Paris Bar School, she was sent to the International Criminal Court in The Hague for six months. There, she experienced on a daily basis what it means to mediate between different cultures and legal systems. In addition to her English-speaking defense team lawyers from Belgium, Canada, France, and the Democratic Republic of the Congo were in the courtroom.
It was clear to Giraud that she would have to continue her studies if she wanted to advance in the field. Her interest in research was sparked, and she decided to do comparative law research – preferably, of course, between the German and the French systems. After gaining some practical experience in the field of criminal law, she was ready to dig deeper. Since 2015, she has been researching “mandatory penalties” and the relationship between the law and the judge in both Germany and France.
So do major differences actually exist? “Of course,” Giraud asserts. “The legal consequence of aggravated murder is an extreme example.” While a conviction for aggravated murder in a German criminal court almost necessarily carries a life sentence, the French Cour d’assises has a margin of discretion to impose a sentence ranging from two years to life. Giraud points to history to understand the source of this difference: “During the French Revolution, fixed penalties were introduced in the French Penal Code of 1791. While jury members were solely responsible for criminal convictions, professional judges’ roles were reduced to merely applying the law. Even though the Penal Code of 1810 did away with this systematic rigidity, it did view the death penalty as the only possible punishment and deterrent for many crimes, especially for aggravated murder. So, if a jury wanted to spare a defendant from execution, due to, for example, mitigating circumstances or non-completion of the act, finding the defendant not guilty was the only recourse.” And this happened many times, according to Giraud. In 1832, the fixed penalty provisions of this law were relaxed. The legal mechanism of mitigating circumstances was generalized and applied to all criminal acts, even the most serious ones. And this remained so until the Penal Code of 1994 abolished it and the legislature almost did away with minimum sentences altogether.
Interestingly enough, as Giraud points out, Prussia imported similar rules. However, mitigating circumstances, today known as ”less serious cases” (“minder schwere Fälle”), were not stipulated for all types of offenses – aggravated murder, for instance! This still holds true today, even though judges may find other legal (albeit contra legem) ways to avoid handing out life sentences.“ When this happens, it is an indication that reforms are needed,” Giraud says.
Another difference between German and French criminal law has to do with the obligation to give reasons for the determination of a penalty. “In Germany, convicts have the right to learn the grounds upon which the court determined their penalty, even if the mandatory penalty for aggravated murder excludes giving reasons on principle. Also in mitigating cases, if provided for and established, reasons need to be given,” Giraud explains. In criminal matters in France, however, this is by no means the case. “Today, jury members confer with professional judges according to given rules before passing their sentence by secret vote.” For a long time, they did not have to give any reasons, even for a conviction. Since 2011, they have been obliged to state, for instance, the main reasons for a guilty verdict. The degree of penalty in criminal cases, however, currently need not be explained, even though the European Court of Human Rights demands that the accused or convicted must be able to understand the sentence.
“This is very much being discussed, particularly since the French Cour de cassation has modified its case-law earlier this year with regard to misdemeanors but reversed criminal sentences for which reasons had been given. Perhaps the French legislature will soon be inspired by German regulation,” Giraud says, tapping her fingers on the criminal procedure code.
The debate over the obligation to give reasons for a penalty was sparked by then-President Nicolas Sarkozy introducing minimum sentences for reoffenders in 2007: At least for misdemeanors, courts were obliged to state why the minimum sentence was not handed out under certain circumstances. Courts had previously not been required to give reasons when deciding on a milder punishment due to mitigating circumstances, even in murder cases. It was a discretionary decision. Only a “statement” on the existence of mitigating circumstances was required. The 2007 reform was perceived by judges as a bad faith gesture. Sarkozy’s successor François Hollande abolished minimum sentences immediately because of their inefficiency and a differing philosophy on punishment. The 2014 reform explicitly embedded the principle of individualization in the penal code. “The thought behind it is that each penalty should be adapted to the particular circumstances, and the personal situation of the offender should be considered,” Giraud explains.
This proves that legal systems are constantly in motion since they are subject to a variety of sociocultural influences. Only recently did Germany adapt its legislation to make all burglaries into permanently lived-in private homes felonies. Now, the penalty cannot be less than one year imprisonment, and no fines can be imposed. This, too, was a reaction to political pressure. Given the resistance in the current debate on aggravated murder in German criminal law to introducing mitigating cases, the issue of mitigating punishment deserves serious consideration.
Giraud has made contextualizing legal developments within societal change the guiding principle of her research: How have judges or jury members reacted when rules were too rigid? Which circumvention strategies did they develop, and how did their actions affect the overall system? Did their reactions eventually lead to changes in the law? She seeks answers to these questions in literary reviews, case analyses, and interviews with judges in France and Germany.
She does not think that the various criminal law systems in Europe can be harmonized quickly. “After all, each one is the result of a protracted cultural process. Much could be achieved if we could just learn more about each other and understood why matters are regulated differently in other countries,” Giraud says. In her home country of France, she has already made a name for herself as an expert in German law: She publishes academic articles and is invited to conferences where she consistently finds how little people know about their neighboring countries’ systems. “My overall impression is that there is a lot of interest in the German system in France, but the language is often a barrier.”
Her roots lie in both countries. She is writing her dissertation in German, and an essay on it in French may follow. Afterwards, she would like to combine theory and practice once again – and work for a European institution or wherever she can mediate between France and Germany.
The cooperation between the University of Potsdam and the University of Paris Ouest Nanterre La Défense has a long tradition. The degree program German and French law has been ongoing for 20 years with some 1,700 German and French students. It includes a two-semester stay at the respective partner university. In addition to the law of their own country, students gain insight into that of the partner country. The two universities also run a joint PhD program for law graduates who want to do a doctorate on a Franco-German topic. The program is facilitated by the Franco-German University (FGU) which offers scholarships und research stays in the partner country as well as the defense of one’s dissertation before a German-French jury within the framework of a double doctorate.
Alix Giraud is a graduate of the degree program German and French law at the University of Potsdam and the University of Paris Ouest Nanterre La Défense. In France, she trained to become a lawyer. She is currently doing her doctorate in Potsdam under Prof. Dr. Wolfgang Mitsch on: “Mandatory Penalties. A comparative work on rigid (minimum) sentences and the need to ease them in Germany and in France”.
Text: Antje Horn-Conrad
Translation: Monika Wilke
Published online by: Alina Grünky
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