Criminal Procedure Law in Germany

Preliminary proceedings are initiated as soon as the public prosecutor’s office becomes aware of the suspicion of a criminal offence through a report or other means (Section 160 StGB). This “initial suspicion“, which opens the investigation of the facts by the public prosecutor’s office in preliminary proceedings, presupposes sufficient factual indications of a prosecutable criminal offence. These can arise from a criminal complaint or ex officio. A criminal complaint can be filed by the victim of the offence and by any citizen. This is to be distinguished from the criminal complaint, which is required to prosecute some crimes – e.g. trespass under Section 123 StGB and insult under Section 185 StGB. This can only be filed by the injured person himself.

If there is an initial suspicion, Section 152 and Section 160 StPO standardise the right and duty of the public prosecutor’s office to investigate the facts of the case. A suspected person becomes an accused in criminal proceedings through this initial suspicion. This person is questioned in the course of the investigation. The accused then has a right to know what criminal offence they are accused of and to comment on this accusation subsequently.

During the investigation of the facts in the preliminary proceedings, the police, under the direction of the public prosecutor’s office, gather the necessary information and evidence on the alleged criminal offence. According to Section 160 (2) StPO, the public prosecutor’s office is, in principle, obliged to investigate not only the circumstances serving to incriminate but also to exonerate an accused person. In doing so, the police make use of the following investigative measures, which are specified in more detail in the German Code of Criminal Procedure and are often subject to strict requirements:

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 skilled 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.

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:

1. The proceedings against the accused may be discontinued.
2. A penalty order may be issued or
3. 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.

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 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.

After the public prosecutor’s office has filed the indictment, the “interim proceedings” are opened. The court responsible for the main hearing then decides, under Section 199 (1) StPO, whether the main proceedings are to be opened or the proceedings are to be discontinued. The files are presented to the court and reviewed. In addition, the accused becomes a defendant when the indictment is filed (cf. Section 157 StPO). Further motions for evidence may be filed, and proof may be ordered until the decision on the opening of the main proceedings.

The court then initiates the main proceedings with the opening decision if, according to the results of the preliminary proceedings, the accused appears to be sufficiently suspicious of a criminal offence (cf. Section 203 StPO). After the start of the interlocutory proceedings, but before the opening of the main proceedings, the indictment is forwarded to the accused. How to deal with the indictment and under which circumstances it is still possible to avert the proceedings is explained in our article “Indictment received: What to do?”.

After the opening decisions, the presiding judge sets a date for the main hearing. Depending on the complexity of the facts in question and the list of evidence, the main hearing may end after only a few hours or be delayed for several days, weeks or months. The course of the leading hearing is regulated in detail in Sections 243 and 244 StPO.

• First, the presiding judge determines whether the accused and their defence counsel are presented and whether the evidence has been produced, notably whether the summoned witness and experts have appeared.
• The witnesses then leave the courtroom. The presiding judge questions the accused about their circumstances. As with the questioning of the accused in the preliminary proceedings, an interpreter shall be available to the accused in the main hearing if necessary.
• In the next step, the prosecutor present reads out the indictment. In addition, the accused is informed that they are free to comment on the indictment. In doing so, the court may not draw any negative conclusions from the defendant’s silence. The presumption of innocence applies to the accused until the prosecution has proven the contrary beyond doubt.
• With the beginning of the taking of evidence, the court advances to the core of the main proceedings. Witnesses and experts are heard, documents are read, and judicial inspections are carried out. Under Section 244 (2) StPO, the court must ascertain the truth and extend the gathering of evidence to all facts and evidence that are important for the decision.
• After the gathering of evidence has been completed, the closing statements are made by the public prosecutor and then by the accused or their defence counsel. Section 258 (2) StPO finally gives the accused the right to have the last word.
• The court then withdraws for deliberations and pronounces the verdict at the end of the leading hearing. The judge is free in reaching their verdict and is not bound by the motions of the public prosecutor or the defence counsel. Depending on the offence, everything is open, from an acquittal to a fine or imprisonment.

The pronouncement of the verdict is governed by Section 260 StPO and ends the main proceedings. Following the criminal proceedings in court, the judgment is written down, signed by the deciding judge and recorded in a public register. After the conclusion of the proceedings, the defence lawyer and the public prosecutor’s office can file further appeals to challenge the verdict. These include the request in Sections 312 et. seqq. StPO and the request in Sections 333 et. seqq. StPO.

An appeal may be lodged against the judgments of a criminal judge or the court of lay assessors. This means that, in principle, a request is admissible against the decisions of the first instance (local court).  The offence charged depends on whether a first-instance trial occurs at the district or regional court.

In the appeal, the entire criminal proceedings start all over again. A new hearing of evidence takes place so that the facts of the case are legally and factually reheard and decided. Particular attention must be paid to compliance with the first limit. This is because the appeal must be filed within one week of the pronouncement of the judgment under Section 314 (1) StPO.

According to Section 333 StPO, an appeal is admissible against the verdict of the criminal divisions and jury courts. This refers to the first-instance and second-instance judgments of the Regional Court. However, an appeal may also challenge the first-instance decisions of a higher regional court. In contrast to the appeal proceedings, the taking of evidence is not repeated in the appeal proceedings. Only the legal issues and decisions are heard and reviewed. Under Section 341 (1) StPO, the appeal is also subject to a time limit and must be filed within one week of the pronouncement of the judgment.

After that, legal recourse is generally exhausted, and the judgement of the appellate instance becomes final. If the appeals are not lodged or not lodged in time, the first- or second-instance judgment becomes final and can, in principle, no longer be overturned. Therefore, compliance with the time limit is of decisive importance for the legal protection of the accused. From this point of view, the appointment of expert legal counsel is also recommended.