Reform in West Germany

CRIMINAL PROCEDURE

"No one wants to hinder the course of justice, but must it run amok?" The language of Hamburg's Welt am Sonntag was inordinately strong, but then the German press and public had taken an inordinately long time to get upset. The cause of the outcry was an old German legal custom called Untersuchungshaft (investigative arrest), which has its roots in Roman law and allows a prosecutor to jail a mere suspect for years--so long as he can convince a judge that the man might flee the country or tamper with evidence and witnesses.

Sensational Arrests. Germans are distressingly familiar with Untersuchungshaft; it inevitably became a favorite Gestapo tactic. But only recently, as the result of a number of sensational investigative arrests, has a reform movement been started. Half a dozen ranking executives of West Germany's big Henschel Werke (locomotives, trucks, land movers) have been jailed on suspicion of defrauding the West German Defense Ministry, including President Fritz-Aurel Goergen, who was hauled away from a banquet honoring Chancellor Ludwig Erhard (TIME, May 8). Germany's biggest clothing manufacturer, Alfons Muller-Wipperfurth, was grabbed from a hospital bed and jailed on suspicion of tax evasion. In 1962, after Germany's saucy newsmagazine Der Spiegel questioned West Germany's military preparedness, police jailed Publisher Rudolf Augstein and five other Spiegel staffers on suspicion of treason. Released within three months, they still have not been formally charged.

Executives are not the only ones arrested. Roughly 50,000 Germans are arrested each year for investigation, and each spends an average 71 days in jail. Less than 4% of those convicted are sentenced to terms longer than the time they have already served, yet there is no compensation for prisoners who have outserved their sentences. A suspect is usually jailed with convicts and may not see his lawyer alone.

Only the Beginning. In a unanimous gesture almost without parallel in postwar Germany, the Bundestag last week passed a bill that does not abolish investigative arrest but will certainly curb its abuses. The bill now goes to the Bundesrat (upper house), where it is certain to be quickly approved. Once the new law is in effect, before a judge may permit a suspect to be jailed the prosecutor must submit concrete factual evidence that the suspect intends to flee or tamper with testimony. A suspect will be guaranteed the right to refuse to testify against himself, the opportunity to refute the charges at the initial hearing, and the privilege of private consultation with his lawyer. More important, leading German legislators regard the bill as only the beginning in overhauling the country's archaic legal system.

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