This list of possible measures is not exhaustive. Ultimately, the public prosecutor’s office and its investigators have a wide range of investigative measures when clarifying a case’s facts. To counter these measures without impairing or thwarting the rights of the accused or other persons concerned, the assistance of an experienced and competent lawyer is essential.
In addition, there is the possibility of having specific coercive measures reviewed by the courts. The person concerned can take legal action against how the coercive measure is carried out or against the order itself. Depending on the measure, this legal protection is based on Sections 304 et. seqq. StPO (complaint) or Section 98 para. 2 sentence 2 StPO (appeal to the judge).
One of the most critical measures in the preliminary proceedings is questioning the alleged crime participants and witnesses to what happened. No statement should be made without legal counsel at this stage (especially when the police open up to the suspect to interrogate them as an “accused”). Investigators are trained to ask questions that could put the suspect in a bind and are increasingly success-oriented. This often results in hasty, ill-considered and incriminating statements, which can be used against the accused in the main proceedings.
Under Section 163a (3) StPO, the accused must appear for questioning if the public prosecutor’s office has issued a corresponding summons. The accused then has special rights during the interrogation, which must be explained to them in advance by the interrogator:
- Knowledge of the offence – the accused must be informed of the offence with which they are charged (Section 163a (4) StPO).
- Freedom to testify – the accused must be informed that they always have the right to remain silent. They do not have to incriminate themselves.
- Legal assistance – the accused must be given the right to legal assistance and, if necessary, an interpreter.
- Right to request evidence – the accused may name exculpatory evidence.
Another decisive coercive measure is pre-trail detention under Section 112 StPO. The public prosecutor’s office can apply for an arrest warrant from the investigating judge responsible for these proceedings to detain a person who is urgently suspected of the offence and for whom there are grounds for detention.
Please visit our page for more information on pre-trail detention, the valuable procedure and helpful tips on how to behave.
Results of the Preliminary Investigation
If all possible investigative measures by the public prosecutor’s office and the police to clarify the facts have been exhausted and the necessary information and evidence on the alleged offence have been collected, three variants are conceivable for the outcome of the preliminary proceedings:
- The proceedings against the accused may be discontinued.
- A penalty order may be issued or
- charges may be brought before the criminal court.
After the investigation has been completed, the accused’s defence counsel may also be given access to the investigation file (Section 147 (1) StPO). According to Section 147 (4) StPO, the accused is only entitled to this right under certain conditions and upon request. From this point of view, consulting a qualified legal advisor is also recommended.
Discontinuation of proceedings
The public prosecutor’s office may discontinue the proceedings against the accused under Section 170 (2) StPO if the investigation results do not provide sufficient grounds for bringing a public prosecution or if there is a lack of adequate evidence of the offence.
If, on the other hand, there is evidence with which the public prosecutors can, in principle, bring charges against the accused under Section 170 (1) StPO, further possibilities for discontinuance arise under certain conditions from Sections 153 or 153a StPO. For example, Section 153 (1) StPO provides the option of discontinuing criminal proceedings in the case of insignificance. Such insignificance can be assumed if the proceedings only concern a misdemeanour – a criminal offence with a maximum sentence of up to one-year imprisonment (cf. Section 12 (2) StGB), the culpability of the offender would be considered minor, and there is no public interest in prosecuting the offender.
Should there be a public interest in prosecution, it is nevertheless possible to apply for the proceedings to be discontinued. In this case, however, the filing of charges is only waived with the consent of the court responsible for opening the main proceedings of the accused and is subject to conditions and instructions (cf. Section 153a (1) StPO). The conditions may relate to the payment of a fine or the performance of community service. The advantage of this type of discontinuation of proceedings is that there is no indictment before the criminal court and, thus, no main public hearing.
Please contact Schlun & Elseven anytime if you need legal assistance. Our lawyers will do their utmost to bring the criminal proceedings to an end out of court.
The penalty order
The public prosecutor’s office can also apply to the criminal court to issue a penalty order instead of an indictment (Section 407 (1) StPO). In the penalty order proceedings, the accused’s final conviction can occur without an oral (public) main hearing. The accused may object to a penalty order issued before the competent criminal court within two weeks of service (Section 410 StPO). However, the objection proceedings may end again in a main oral hearing.
For the public prosecutor’s office to bring an indictment under Section 170 (1) StPO, there must be sufficient suspicion of an offence against the accused. This is given if there is an overwhelming probability that the accused will be convicted after a preliminary assessment of the evidence situation.