Criminal Procedure Law in Germany

Criminal Procedure Law in Germany

Our idea of criminal law is primarily shaped by daily news coverage and the popular crime stories in various book, film and television formats. Even if separate criminal offences and the workings of the public prosecutor’s office are primarily known as a result, central aspects of the practice of criminal procedure remain a closed book for most non-lawyers.

For the accused, however, it is crucial to know how the criminal proceedings work in detail at the various stages, what to look out for and what protective measures can be taken during the proceedings. “For clients, each stage holds its opportunities and risks and therefore requires particularly competent and committed advice”, says lawyer and former public prosecutor Phillip Busse.

Schlun & Elseven offers first-class legal advice and criminal law representation for private and business clients. Our legal team consists of experienced criminal defence lawyers. Our excellent expertise and many years of experience ensure the best possible result for our clients.

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Code of Criminal Procedure

The investigation, arrest, indictment and conviction of suspected offenders constitute individual stages of the criminal investigation, intermediate and main proceedings and are regulated as such in the German Code of Criminal Procedure (StPO).

Ensuring fair criminal proceedings in which the rights of the accused are respected is the highest priority for every criminal defence lawyer. This applies not only to the main trial but already in the run-up during the investigations of the public prosecutor’s office and the police. Especially during the first arrest and interrogation of the accused, their rights must be ensured.

If you need more information, advice, or representation in criminal proceedings, please do not hesitate to contact us.

Preliminary proceedings

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 so-called 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.

The investigative measures

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:

  • Taking photographs and fingerprints of the accused (Section 81b StPO),
  • provisional arrest (Section 127 StPO) and questioning of the accused by the public prosecutor’s office and the police (Section 163a StPO),
  • questioning of witnesses and experts by the prosecutor’s office and the police (Section 161a StPO),
  • identification of the accused and witnesses (Section 163b StPO) and the short-term deprivation of liberty serving this purpose.

In cases of imminent danger, the following investigative measures may also be ordered by the public prosecutor’s office or the police themselves:

  • Placement of the accused in a psychiatric hospital for a maximum of 6 weeks for the preparation of an expert opinion on his mental condition (Section 81 StPO),
  • serial or mass genetic testing (Section 81h StPO),
  • surveillance of living quarters (Section 100c and 100e para. 2 StPO; the order is made by the State Protection Chamber at the Regional Court and not by the investigating judge at the Regional Court),
  • provisional revocation of the driving licence (Section 111a StPO),
  • issuance of an arrest warrant (Section 125 StPO),
  • order of a temporary ban from the profession (Section 132a StPO).

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).

The interrogation

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.

Pre-trail detention

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:

  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.

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.

The indictment

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.

The intermediate proceedings

After the public prosecutor’s office has filed the indictment, the so-called 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?”.

The main proceedings

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.</