On 1 July 2021, the “Act on the Further Development of the Code of Criminal Procedure and on the Amendment of Other Provisions” of 25 June 2021 came into force. Old regulations have been amended with this law, and new regulations have been introduced into the German Criminal Procedure Code (StPO). The changes are intended to serve the adaptation to the continuously changing social and technical conditions.

In particular, the law on pre-trial proceedings has been updated. For example, regulatory gaps in the area of investigative powers under criminal procedure were closed. This includes, in particular, the explicit power to use automated number plate recognition systems (ANPR) in public traffic areas. In this article, we would like to provide you with an overview of some of the essential changes. If you have any further questions about German criminal procedure, please do not hesitate to contact Schlun & Elseven Rechtsanwälte PartG mbB.

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The Authorisation to Automatically Record Licence Plates, § 163g StPO

A significant new regulation is the power to automatically record number plates in public traffic areas according to § 163g StPO. The power covers the collection of vehicle registration numbers and place, date, time and direction of travel. It is intended to expand and improve the search for suspects of criminal offences of considerable importance.

To be authorised to record licence plates, there must be an initial suspicion of a criminal offence of considerable importance (§ 163g, para 1, German Criminal Procedure Code). Therefore, so-called petty offences, which may include, for example, theft or embezzlement of low-value objects, are not sufficient. An offence of considerable importance, however, is usually assumed in the case of crimes. In addition, the action requires a certain likelihood of success. The assumption must be justified that comparing the collected data can lead to discovering the identity or the whereabouts of the accused (§ 163g, para 1, German Criminal Procedure Code). The collection is also limited in terms of time and space in that it may only be carried out temporarily and may not cover the entire area.

According to § 163g German Criminal Procedure Code, the target persons of a measure may also be “contact persons” in addition to the accused, provided there is a prospect of determining the accused’s whereabouts, which would be considerably less promising or considerably more difficult by other means.

In principle, the public prosecutor’s office is authorised to order such measures. In case of imminent danger, however, the order may also be issued by investigators of the public prosecutor’s office (especially police officers).

Possibility of Deferring Notification of the Accused in Case of Seizure, § 95a StPO

According to the new provision of § 95a German Criminal Procedure Code, the notification of a seizure can be deferred in certain cases, considering the principle of proportionality. The accused is therefore not informed of the seizure affecting them for the time being. This applies until the notification can be made up for without jeopardising the purpose of the investigation. This procedure is also referred to as a secret seizure.

A prerequisite for the deferral is the suspicion of a criminal offence of considerable importance. However, the offence does not need to have been committed yet. An attempt or the preparation of a corresponding criminal offence by another person can also be sufficient. In addition, the investigation of the facts or the determination of the accused’s whereabouts must be substantially impeded or futile by other means (subsidiarity clause). A judge issues the deferral order.

Before this newly introduced regulation, there were already permissible secret investigative measures, including, in particular, online searches (§ 100b German  Criminal Procedure Code) and acoustic surveillance of living quarters (§ 100c German Criminal Procedure Code). However, these are subject to stricter legal requirements (cf. § 100e StPO). Seizure, on the other hand, is basically an open investigative measure. The persons concerned must be informed (§§ 33 (3), 35 (2) StPO). Deferring notification makes it more difficult for the accused to defend himself against the accusation (right to be heard). On the other hand, it is intended to prevent the discovery of the seizure from jeopardising the investigation’s success.

To preserve the deferral’s purpose and prevent the accused from becoming aware of the seizure, the custodian can be prohibited from informing the accused and third parties about it for the duration of the deferral of notification (§ 95a (6) German Criminal Procedure Code). A contravention may be sanctioned with a fine or even imprisonment (§ 95a (7) in conjunction with § 70 German Criminal Procedure Code). However, this prohibition of disclosure does not cover the disclosure of information to a lawyer to be able to exercise the existing possibilities of legal protection against the order (BT-Drucks. 19/27654, p. 66).

Request for Information on Posted Items and Night Time Search

A new provision was introduced that explicitly authorises the investigating authorities to request information on postal items (§ 99 (2) German Criminal Procedure Code). The request for information is directed at persons or companies that provide postal services on a business basis or are involved in such services. Previously, this measure was already recognised as a minus measure to the seizure of mail regulated in § 99 (1) StPO. However, the seizure of mail only refers to the period during which the mail is in the custody of the postal service provider. The request for information can now also cover mail that is not or no longer in the postal service provider’s custody when the request for information is received. In terms of content, it refers to data concerning the external circumstances of the item (e.g. name and address of sender and recipient, category of item (letter, small parcel, package, etc.), dimensions and weight). In exceptional cases, information on the contents may also be requested (§ 99 (2) sentence 3 StPO).

Changes have also been made to the regulations on searches. For example, the concept of nighttime in the law on searching a flat (§ 104 (3) StPO) has been standardised. Thus, nighttime within the meaning of § 104 (1) German Criminal Procedure Code is the period from 9 pm to 6 am. Thus, there is no longer a differentiation between the summer and winter months. In addition, the possibilities of a search at night time have been expanded. A new exception to the night-time search prohibition exists if there is a suspicion that an electronic storage medium will be accessed during the search that could be considered evidence (§ 104 (1) no. 3 StPO). The prerequisite is that evaluating the electronic storage medium would be futile or considerably more difficult without the search at night.

New Provisions in the Pre-Trial Proceedings and Other Adjustments

The possibility of telecommunications surveillance has been extended. Thus, tax evasion on a large scale is now covered if the offender commits the offence as a member of a gang (§ 100a (2) no. 2 lit. a) StPO). Large-scale tax evasion exists if the amount of evasion exceeds 50,000 euros (BGH, judgment of 2 December 2008 – 1 StR 416/08).

The catalogue of offences for online searches and surveillance of living quarters has also been expanded (§ 100b, para 2 German Criminal Procedure Code). For example, all offences that are punishable by a maximum term of imprisonment of at least ten years have been newly included. This includes, for example, computer fraud committed on a commercial basis as a member of a gang which has joined together to commit certain offences continuously (§ 100b (2) no. 2 lit. m StPO).

The provisions on informing an arrested suspect in § 114b German Criminal Procedure Code have also been amended. For example, information must be provided that makes it easier for the accused to contact a defence lawyer. The interrogation provisions in §§ 136 and 163a StPO have also been amended. Thus, the duties to inform and instruct no longer exist only for the first (judicial) interrogation (in preliminary proceedings) but also for all further judicial and police and prosecutorial interrogations.

In addition, the protection of witnesses’ addresses is to be strengthened by amendments regarding the information on place of residence and whereabouts (§§ 68, 200, 222 StPO). Thus, it is inadmissible to state the full address of witnesses in the indictment. Only the place of residence or whereabouts may be mentioned (§ 200 (1) sentence 3 StPO). Previously, the provision was worded in such a way that the full address was not required. In practice, these were nevertheless frequently stated.

Extension for Filing the Grounds of Appeal in Cases of Long Sentences (§ 345 StPO)

Originally, petitions for appeals and their grounds had to be filed with the court within one month of the expiry of the time limit for filing the appeal. This deadline applied regardless of the duration of the main hearing. However, this rigid one-month deadline was not in line with the staggered time limit for setting down the judgment under § 275 (1) sentence 2 German Criminal Procedure Code, within which the judgment must be on file. The time limit for setting aside the judgment is linked to the number of trial days. The background is that, as a rule, the longer the hearing, the more procedural material the court has to deal with. Irrespective of this, however, and in particular irrespective of the resulting increased requirements for the statement of grounds for appeal, the statement of grounds for appeal had to be submitted within one month.

Therefore, the time limit for filing the grounds of appeal was extended to up to three months in the case of a particularly long duration of the reduction of the sentence (§ 345 (1) sentence 2 StPO). The duration of the main hearing is not the only decisive factor here, but the actual duration of the sentence reduction. According to the new regulation, the extension of the time limit for filing the grounds of appeal is staggered in two stages. It is extended by one month if the judgment was filed later than 21 weeks after it was pronounced. The time limit is extended by a further month if the judgment has been completed after more than 35 weeks.

Extension of the Use of Video Conferencing in Criminal Proceedings, § 463e Criminal Procedure Code (StPO)

There are also changes in the use of videoconferencing technology in criminal execution proceedings, which has now increased. Before the latest amendments to the Code of Criminal Procedure, the possibility of an oral hearing utilizing video and audio transmission existed only for the hearing of the sentenced person according to § 462 (2) sentence 1 German Criminal Procedure Code, which must take place before the court decisions referred to in § 462 (1) StPO (BT-Drucks. 19/27654, p. 113). This means that the convicted person does not have to be in court for the hearing.

According to the new provision of § 463e German Criminal Procedure Code, oral hearings by way of video and audio transmission are now possible for all court decisions to be made in the execution of sentences. The scope of application has thus been extended. In addition, the hearing by videoconference is now to be possible in principle without the consent of the convicted person (Bundestag printed paper 19/27654, p. 114). This is intended, for example, to reduce the risk of escape by avoiding prisoner transport if necessary. In times such as the COVID-19 pandemic, the increased use of video conferencing technology can also reduce the risk of infection.