The DigiRights team in Göttingen has spent the last few weeks establishing contacts with other projects related to the digitalisation of defendants' rights in Germany. Despite the uniform federal legal framework of the Code of Criminal Procedure (StPO), the practical details of judicial and police work are largely a matter for the federal states in Germany, meaning the state of affairs can vary in orientation and progress depending on the federal state. We are now in dialogue with various initiatives in North Rhine-Westphalia (NRW). We have accordingly learnt the following.
The Ministry of Justice has set up a Central and Contact Point for Cybercrime (Zentral- und Ansprechstelle für Cybercrime – ZAC NRW), under which various projects on the digitalisation of criminal proceedings have been launched. Contained within these are issues of relevance to the DigiRights project, including:
Inspection of files: Section 32f StPO provides for electronic access to the contents of files as a rule. However, the fact that a cloud platform developed in the respective "ZACBOX" project, which enables secure data transfer as well as video conferencing, has so far as well been used for file inspection by professional parties to the proceedings, shows that there still is a need for further implementation. The system can also be used for other purposes that require the secure exchange of data, for example, by experts to required documents.
Documentation of the main hearing: As the StPO stands, the main hearing in criminal proceedings is not recorded audio-visually. Indeed, in proceedings before regional and higher regional courts, a (written) record of the contents is not even made. Now, a government proposal from May 2023 provides for mandatory audio recording and optional video recording.
The "eCourt" project is dedicated to the design of practical implementations as well as scientific support. A court “laboratory”, for example, was opened at the University of Cologne in September 2021, in which technology for audio-visual documentation of the main hearing is being tested. In addition to the University of Cologne, the project partners are the German IT Court Conference (Deutscher EDV-Gerichtstag), the Cologne Lawyers' Association (Kölner Anwaltverein e.V.), and the Cologne Regional Court, ZAC NRW and Fujitsu, who is providing the technical solution and infrastructure. The ARCONTE recording system is also being tested by various moot court teams. In addition to audio-visual recording, an AI application can also be used to create an automatic transcript of the trial. Interestingly, in Spain, the system has already been used for years.
In addition to the Ministry of Justice, the Interior Ministry of NRW is also engaged in the field of digitalisation in criminal proceedings. In an interview with the people responsible for the project at the Criminal Police Office (LKA) NRW, we were provided with information about online interrogations that are implemented as part of the "Initiative ProK". At least one fifth of the NRW police stations are now equipped with the corresponding hardware and software to hold virtual interrogations. This is of considerable importance, because although the StPO (§58b and §136) allows for judicial, prosecutorial and/or police interrogations of witnesses and accused persons (in the preliminary proceedings) to be conducted virtually, the (especially judicial) practice seems to lag behind the practical (actual) possibilities. From the point of view of the "Initiative ProK", virtual (online) questioning will become even more important, especially for detainees: meetings in which defence lawyers or interpreters are also connected likewise seem practically feasible. The possibility to bring in better qualified interpreters for rare languages/dialects by way of video conferencing in particular illustrates that there are overlaps between the realisation of the rights of the accused and the defence (under the conditions of digitalisation) on the one hand and state concerns on the other (procedural economy; determination of the truth). The project is under constant evaluation and further development. So far, virtual interrogation is mainly used in cases of less serious crimes and in follow-up interrogations. The interrogator decides at their own discretion whether online interrogation is appropriate and depending on the consent of the person to be interrogated.
Our previous contacts with practitioners have already provided us with invaluable insights that will inform our joint project. We will continue to seek, maintain and deepen contact with practitioners.
Lena Ertle and Peter Rackow (Göttingen)
August 2023