Under Article 36(1) b of the Vienna Convention on Consular Relations, the Federal Republic of Germany must, at the person’s request, notify the consular representative of his/her country of nationality immediately after the arrest takes place. The court, the state prosecutor, or the penal institution will make the notification. In addition, the diplomatic representative of the person’s country can, if he/she agrees, also be notified of the reasons for the arrest.
Anyone who breaks the law in Germany is subject to prosecution under the German legal system. If a person is convicted and sentenced to imprisonment by a German court, this sentence will be served in a German prison.
Germany’s authority to try foreigners as well as its own citizens is based upon the principle of sovereignty, which is the right of a nation to make and enforce its laws within its own boundaries. For members of the U.S. military, there is a general waiver by the state of Germany waiving jurisdiction under the Status of Forces Agreement. The German public prosecutor can revoke this waiver within a certain period after notification. This is done very rarely and only in cases of felonies. Thus U.S. servicemen and women are almost always tried in a U.S. military court. All American civilians in Germany, however, including military dependents, civilian Army employees, and former servicemen and women are under the absolute jurisdiction of German courts. The German legal system provides many safeguards to ensure that the investigations and possible trials are conducted fairly.
The Consul’s Role
U.S. passport does not entitle the bearer to any special privileges or preferential treatment in Germany. In spite of what you may have heard to the contrary, neither the United States Government nor its representative, the American Consul, can get anybody out of prison. Nevertheless, neither arrest nor conviction deprives a United States citizen of the Consul’s best efforts in protecting the citizen’s legal and human rights.
If, at the time of arrest, the prisoner requests that the American Consulate be notified, he/she will be visited in jail as soon as possible after notification. A Consular Officer will then visit him/her periodically, and in an emergency will come right away. Prison visits enable the American Consul to monitor the health and well-being of the prisoner, as well as the status of the legal case.
Consular Officers are not attorneys. However, The Consular Officer will, as soon as possible, provide the prisoner with a representative list of English-speaking attorneys. An attorney cannot be selected for the prisoner, nor can legal advice be given. The Consular Officer will ensure that the prisoner has adequate legal representation, where guaranteed by German law. The Consulate will, if the prisoner so desires, obtain copies of the bill of indictment and trial proceedings.
The Consular Officer can intercede on the prisoner’s behalf when necessary to ensure that he/she receives adequate medical attention. The Consul will also look into any complaints, and discuss them with the appropriate authorities.
The Consul will notify the prisoner’s family and friends, and relay requests for financial or other aid, provided he/she gives authorization to do so by signing the Privacy Act Waiver. The Consul can also serve as a liaison between the prisoner and his/her lawyer.
An arrested person should hire an attorney as early as possible. If the case involves anything more serious than a minor traffic violation, we recommend retaining a German defense attorney. German lawyers are naturally very familiar with German law and proceedings in German courts. A German lawyer is not as active in court as an American lawyer, due to the prominent role of the presiding judge, but the defense counsel will argue the case and try to convince the court to interpret the facts and apply the law in a manner favorable to the prisoner.
The German attorney is the primary source of advice. The prisoner should regard him as though he were an American attorney defending him/her in an American court. As in the U.S., the attorney is obliged to honor the attorney-client privilege. He may not reveal any confidential information, and the court in turn may not question the attorney. The prisoner should ask the attorney any questions that he may have about the case and listen carefully to his advice, for he is trained in German law and has the duty to defend a person to the best of his ability.
Legal services will be at the prisoner’s own expense.
If the prisoner has no funds, see the section on Pflichtverteidiger (court-appointed attorney) in the Handbook entitled “Information for Citizens of the United States of America Imprisoned in the Federal Republic of Germany” (pdf). The purpose of this booklet is to furnish American civilians who are arrested and facing trial in Germany with a general summary of German criminal law and procedure. The U.S. Department of State is responsible for the welfare and protection of Americans overseas. Part of its job is to ensure that they have a basic understanding of their legal rights upon arrest in Germany. This handbook highlights several basic differences between the U.S. and German legal systems. It is also intended to help a prisoner adjust to prison life. (See Section III: “Practical Facts You Should Know”.) This material is not meant to take the place of legal counsel; rather it is to inform a prisoner so that he/she can better understand what is happening.