The first episode of Narrating Protests dealt with the decentralized protests in Hong Kong from 2019-2020 and their digital mobilization and organization strategies. The protesters used various digital tools to organize and protect each other. The second episode is about collaborative knowledge production, critical documentation, and investigating systemic injustices in the context of trial observation at the Tiergarten District Court in Berlin.
Civil society observations of court proceedings have existed in Germany since 1970 to ensure transparency and fairness in national criminal proceedings. For around ten years, the focus has increasingly shifted to analyzing structural racism - an important step in the critical examination of discrimination in the German legal system. In the justice system context, it is often assumed that procedural standards and human rights violations are only relevant in authoritarian regimes and that the German justice system acts neutrally. This overlooks the fact that structural disadvantages and bias in legal decisions exist in democratic systems too.
# Trial observations as a strategy
In 2022, the Justice Collective (Berlin) began systematically observing criminal proceedings at the District Court in Tiergarten in Berlin to analyze the processes of the German criminal justice system and investigate potential injustices and discrimination. The collective was founded in 2021 by lawyer and researcher Mitali Nagrecha as part of the alliance to abolish alternative prison sentences. In addition to Mitali Nagrecha, the group consists, among others, of the lawyer Franziska Duda, who focuses on criminal, migration, and labor law, and Lara Möller, who studies Social Justice and Community Action at the University of Edinburgh and who researches racism in the penal system. The collective aimed to identify and check possible discriminatory and racist structures within criminal proceedings through civil society trial observations. Since then, the collective has observed and documented more than 230 trials.
Up to 300 minor cases are heard every day at the local court in Tiergarten, including traffic offenses, theft, commuting without a ticket, and fraud. The cases mainly concern people who live in precarious social circumstances and who are confronted with poverty, discrimination, and inadequate defense. “Observing trials gives us an insight into the criminal justice system and allows us to see where the state is taking action and what political strategies can be derived from this,” says Lara Möller of the Justice Collective. The collective often visits courtrooms unannounced and documents the progress of the proceedings, which usually last between 15 minutes and one hour - far too little time to grasp the complexity of the cases.
Trial observers are not direct participants in the trial and are not legally recognized, as is the case with the press, for example. However, they are considered part of the public and are, therefore, legally protected also, because court hearings and the pronouncement of judgments are generally public. According to the Justice Collective, the documentation of court proceedings is often perceived as disruptive and irrelevant by the court and the public prosecutor's office - especially related to factors critical of racism. This often results in trial observers being admonished, for example, not to take notes about the trial, even though this is permitted for the press and the audience.
The aim of observing court proceedings is not only to record the course of the proceedings but also to scrutinize the structures behind the judgments and to empower those affected by the proceedings - especially if they do not have a lawyer. Many of the cases observed concern people from marginalized social classes, including people with precarious residency status. The defendants are often unemployed have no regular income or are banned from working. In many cases, they lack legal support or the necessary language skills to defend themselves in court. “There are always two or three of us. If we notice things during the trial that have been overlooked, we talk to the defense during the break," says Möller. In some cases, however, the accused lacks a defense and a support network of any kind.
# Racism in criminal proceedings
In December 2024, the Justice Collective published some of the documented cases in an archive as part of the “Racism on Trial” campaign and used anonymized examples to show the systematic inequalities and structural racism in the German criminal justice system. Overall, the documented trials contradict populist narratives that often attempt to link migration with criminality. Instead, they show that migrants and racialized people are disproportionately criminalized and highlight the social and economic backgrounds that bring people into contact with the criminal justice system.
According to the collective, racial profiling continues in numerous process observations. In many cases, police witness statements are the only evidence and these are rarely questioned. “In the court, racial profiling is strongly legitimized and continued by authorities, police, and private security companies,” explains Möller. In addition, many defendants are exposed to racist stereotypes from judges and prosecutors during the negotiations.
In Germany, there are legal requirements that are intended to ensure compliance with human rights and non-discriminatory prosecution. On the one hand, criminal prosecution must not be discriminatory, and on the other hand, at an international level, in reference to Article 6 of the European Convention on Human Rights, there is an obligation to uphold non-discriminatory criminal prosecution and the right to an independent, impartial court. Against this background, process observations are repeatedly questioned by the court. However, what is overlooked is that there are legal provisions that create circumstances for systematic racism in the first place. In many cases documented by the Justice Collective, not only was anti-Roma and/or anti-Muslim racism evident, for example, through repeated derogatory comments against the defendant, but the Collective also recorded racism towards asylum seekers.
Judges included factors such as the primary motivation for migration, residence, status, and integration performance of those affected during sentencing, which often led to higher penalties compared to similar offenses by non-racialized defendants. “For example, if people don’t yet speak German very well, this is seen as a lack of integration performance and a poor social prognosis,” says Möller. “In the case of migrant mothers, the judgment often includes the fact that they are ‘bad mothers’ and bad examples for their children.” The systemic precarity in which these mothers live is ignored, instead, they are blamed for their poverty and even lectured.
Fig. 1
# Merging of criminal and migration law
Although criminal and migration law are separate, the Justice Collective showed that the residence permits of refugees are often jeopardized in criminal proceedings. In one case, the collective documented how, in the opinion of the Justice Collective, a judge deliberately left the spelling of the defendant's name and other data incorrect to create a document that legitimized the deportation of the person concerned. “The immigration authorities had registered the person's name incorrectly. The defense lawyer corrected the spelling several times, but the judge insisted on the wrong version and an argument ensued. In our opinion, the court wanted to create a document that confirmed the spelling of the immigration authorities so that the person could be deported,” explains Möller.
In another criminal case, which the Collective published under the heading of Case 23 in their case archive, the court accused the defendant of falsifying identity documents. Despite evidence proving that the person had traveled to Germany for medical treatment on a visa, the court sentenced the person to a heavy fine. “Although even the public prosecutor's office stated that there was no evidence of intent to deceive, the judge explained that he simply did not believe that the person had come to Germany legally,” explains Möller. “He said that he considered it to be a common case of illegal migration and sentenced the person based on this belief.” This context shows how strongly criminal courts are involved in the tasks of a border regime and how they arbitrarily jeopardize the health and residency status of affected persons - as even minor penalties often have immediate consequences under residence law.
# Criminalization of poverty
The trials observed also illustrate comprehensively how poverty is criminalized in the legal system. Many defendants live in precarious social circumstances, which are reflected in the offenses committed - often minor ones, which, in many instances, are the result of social exclusion and a lack of economic resources. In 2024 the National Discrimination and Racism Monitor (NaDiRa) first published a report that showed that people who are racially marked have a higher risk of living in poverty than those who are not. According to the Collective, people who live in precarious social conditions, who do not have work opportunities, or who are not allowed to work due to their residency status, are more likely to develop survival strategies that are then criminalized. Many of the defendants in the observed proceedings also did not have a lawyer because they simply could not afford one. In some cases, there was also a lack of translators, which made the defense even more difficult and increased the possibility of a conviction.
In several cases, the defendants received high fines for their offenses, which they could not afford due to their financial situation. The result: they committed new offenses to pay off existing fines. Besides the flat daily rate is often set without taking the financial circumstances of those affected into account - even though a legal regulation in October 2023 stipulated that the daily rates must not endanger subsistence level.
The penal system reproduces poverty, as high fines hit people at risk of poverty disproportionately hard, eroding even more resources and further increasing their social and economic insecurity. “When questioned in court, those affected are often blamed for their poverty. This approach is a simple solution to a crisis in which more and more people are affected by poverty,” says Lara Möller. “The alternative would be concrete changes to the social system and stronger social security, but this is more expensive and politically more difficult to implement. Instead, systematic injustices are hidden through mass criminalization.”
# Demands for reform
The Justice Collective is campaigning for fundamental reform in the way minor offenses are dealt with and is calling for the decriminalization of poverty-related offenses. The Collective's demands include the abolition of the alternative custodial sentence (implemented if someone cannot pay their fine), the decriminalization of theft, and the elimination of so-called “crime-ridden places” that target people in suspicionless checks and discriminate against them based on of their appearance or residence status. These demands are accompanied by an end to austerity measures in the social sector, which penalize low-income and migrant communities in particular. “Decriminalizing minor offenses makes a huge difference,” says Lara Möller. “If these are no longer penalized but addressed through social solutions, it could make much of the criminal justice system redundant.”
Racism on trial campaign
https://www.racismontrial.org/de
Case archive
https://www.racismontrial.org/de/case-archive/case-3
National Discrimination and Racism Monitor (NaDiRa)
https://www.rassismusmonitor.de/
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- Image credits
Cover: Members of the Justice Collective in front of the local court Tiergarten Moabit in Berlin. © Justice Collective
Fig. 1: Screenshot of the court case archive of the "Racism on trial" campaign. © Justice Collective
