The German Criminal Procedure Code
The essential aspects of criminal proceedings are regulated in the German Criminal Procedure Code (StPO). It deals with all issues surrounding the investigation, arrest, indictment and conviction of suspected offenders. These steps are parts of the preliminary, intermediate and main proceedings, which we will describe in more detail below.
Respecting the rights of the accused and enabling a fair criminal trial is a particularly high priority for every criminal defence lawyer. This applies not only during the main trial but also to the preliminary steps, such as during the public prosecutor’s office and the police investigations. Especially during the first arrest and interrogation, the accused must secure their rights.
We aim to familiarise you with the various steps of criminal proceedings and show you which central aspects are of particular interest to the accused and his defence. We will also present the most important principles of German criminal procedure law and some procedural requirements and possible means of defence.
A successful defence without the expert help of a criminal defence lawyer carries extremely high risks. By hiring a qualified criminal defence lawyer, you can protect your rights as an accused throughout the criminal proceedings. If you require further information or would like advice or representation in the criminal proceedings for yourself or a relative, please do not hesitate to contact us.
The Preliminary Proceedings
Preliminary proceedings are initiated as soon as there is an initial suspicion of a criminal offence (§ 160 German Criminal Procedure Code). An initial suspicion, which opens the investigation of the facts by the public prosecutor’s office in preliminary proceedings, presupposes that there are sufficient factual indications of a prosecutable criminal offence.
These can arise from a criminal complaint or ex officio. A criminal complaint can be filed not only by the victim of the offence, but by any citizen. The criminal complaint must be distinguished from the criminal complaint, which is required for prosecution in the case of some offences – e.g. trespass under § 123 German Criminal Procedure Code and insult under § 185 German Criminal Procedure Code. This can only be filed by the injured person himself.
If there is an initial suspicion, § 152 (2) StPO and § 160 StPO not only standardise the right, but also the 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.
The Investigative Measures
During the investigation of the facts in the preliminary proceedings, the police gather the necessary information and evidence on the alleged criminal offence under instructions from the public prosecutor’s office. It should also be noted that according to § 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 use some investigative measures that are more precisely defined in the German Criminal Procedure Code and often have strict prerequisites. A distinction must be made between the following investigative measures:
Investigative measures without the order of the investigating judge – without the reservation of a judge.
- Taking photographs and fingerprints of the accused (§ 81b StPO),
- Preliminary arrest (§ 127 StPO) and questioning of the accused by the public prosecutor’s office and the police (§ 163a StPO),
- Questioning of witnesses and experts by the public prosecutor’s office and the police (§ 161a StPO),
- Identification of the accused and witnesses (§ 163b StPO) and the temporary deprivation of liberty for this purpose.
Relative judge’s prerogative – order in principle by the judge, in case of imminent danger by the public prosecutor’s office or the police.
- Physical examination, taking a blood sample from the accused (§ 81b StPO) and molecular genetic examinations (§§ 81e, 81f StPO).
- Examination of other persons (§ 81c StPO)
- Seizure measures (§ 98 StPO); seizure of mail (mail in the business area of the post office) and requests for information on mail (§§ 99, 100 StPO)
- dragnet searches (§§ 98a, 98b StPO)
- Telecommunications surveillance (§§ 100a, 100e StPO)
- Wiretapping and recording of non-public speech outside the home (§ 100f StPO)
- Collection of telecommunications traffic data from § 96 of the Telecommunications Act according to § 100g (1) StPO (§§ 101a (1), 100e (1) StPO). However, those involved should note that collecting traffic data from § 100g para. 2 StPO is subject to strict judicial reservation, i.e. the public prosecutor’s office has no emergency competence (§ 101a para. 1 sentence 2 StPO).
- Use of a so-called “IMSI catcher” to determine the telephone number, the device number and the location of the mobile phone (§ 100i StPO).
- Searching suspects and other persons (§ 105, paragraph 1 StPO).
- Setting up checkpoints on streets and squares (§ 111 StPO)
- Alerts and public searches for the arrest of a suspect or public searches for the location of a suspect (§ 131 StPO, §§ 131a (3), 131c (1) sentence 1 StPO). The public search for the whereabouts of an accused person always only requires an order by the public prosecutor’s office in case of imminent danger by the police (§§ 131a (1), 131c (1) sentence 2 StGB).
- Longer-term (maximum 12 hours) deprivation of liberty to establish identity (§ 163c StPO, Art. 104 para. 2 GG)
- Longer-term observation of the accused (§ 163f StPO)
Absolute reservation by the judge (only possible with an order by the judge)
- Placement of the accused in a psychiatric hospital for a maximum of 6 weeks to prepare an expert opinion on his mental state (§ 81 StPO).
- Serial or mass genetic testing (§ 81h StPO)
- Surveillance of living quarters (§§ 100c, 100e (2) StPO; ordered by the State Protection Chamber at the Regional Court and not by the investigating judge at the Regional Court)
- Provisional revocation of driving licence (§ 111a StPO)
- Issue of an arrest warrant (§ 125 StPO)
- Ordering a provisional ban from the profession (§ 132a StPO)
- This list of possible measures is not exhaustive. Ultimately, the public prosecutor’s office and its investigators have many investigative measures at their disposal when clarifying the facts of a case. To counter these measures without impairing or thwarting the rights of the accused or other persons concerned, legal counsel familiar with the requirements and correct procedure is indispensable.
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 § 304 et seq. StPO (complaint) or on § 98, para 2, sentence 2 StPO (appeal to the judge).
One of the most important measures in the preliminary proceedings is the questioning of those allegedly involved in the crime and witnesses to what happened. At this point, especially when the police open the suspect’s questioning as “accused”, no statement should be made without legal assistance. Investigators are trained to ask questions that could put the suspect on the spot and are increasingly success-oriented. This often results in hasty, ill-considered and incriminating statements that can be used against him in the main proceedings.
However, the accused is not obliged to appear for questioning until he has been summoned to do so by the public prosecutor’s office per § 163a (3) StPO. The accused then has special rights during the interrogation, which must be explained to them in advance by the interrogator:
- Knowledge of the charge – the accused must be informed of the offence with which they are charged (§ 163a (4) StPO).
- Freedom to testify – the accused must be informed that he always has the right to remain silent. He does not have to incriminate himself.
- Legal assistance – the accused must be given the right to legal assistance and, if necessary, an interpreter.
- Right to request evidence – the accused is allowed to name exculpatory evidence.
Another decisive coercive measure is pre-trial detention under § 112 StPO. The public prosecutor’s office can apply for an arrest warrant from the investigating judge responsible for these proceedings in order to detain a person urgently suspected of the offence for whom there are grounds for arrest.
For more information on pre-trial detention (U-Haft), its procedure and tips on how to carry it out, please visit our page.
Results of the Preliminary Investigation
If all possible investigative measures have been exhausted by the public prosecutor’s office and the police to clarify the facts of the case and the necessary information and evidence on the alleged offence has been collected, the preliminary investigation can be concluded with different consequences. Three outcomes are possible. The proceedings against the accused can be discontinued, a penalty order can be issued, or charges can be brought before the criminal court.
These possibilities are explained in more detail below. After the investigation has been concluded, the accused’s defence counsel may also be given access to the investigation file (§ 147 (1) StPO). According to § 147 (4) StPO, the accused is only entitled to this right under certain conditions and upon request. From this point of view, it is also recommended to consult qualified legal counsel.
Discontinuation of the Proceedings
The public prosecutor’s office can discontinue the proceedings against the accused under § 170 (2) StPO if the investigation results do not provide sufficient grounds for bringing a public prosecution or a lack of sufficient evidence of the offence.
If, on the other hand, the evidence is such that the public prosecutor’s office can in principle bring charges against the accused under § 170 (1) StPO, further possibilities for discontinuance arise under certain conditions from §§ 153 or 153a StPO. For example, § 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- the offender’s culpability would be considered minor, and there is no public interest in prosecuting the offender.
However, if there is a public interest in prosecution, it is possible to apply for the proceedings to be discontinued the consent of the competent court, subject to certain conditions and instructions for the accused under § 153a (1) StPO. The conditions may relate to the payment of a fine or the performance of community service. The advantage of any kind of discontinuation of proceedings is that there is no indictment before the criminal court and thus no public trial. Therefore, we set such an out-of-court termination of the criminal proceedings as a defence goal whenever possible.
The Penalty Order
If an offence is the subject of the proceedings and it is not possible to discontinue the proceedings, the public prosecutor can also apply to the criminal court to issue a penalty order instead of bringing charges (§ 407 (1) StPO). In the penalty order proceedings, a final conviction of the accused can then take place without an oral (public) main hearing. The accused may lodge an objection against a penalty order subsequently issued before the competent criminal court within two weeks of service (§ 410 StPO). However, the objection proceedings may then again end in an oral main hearing.
For the public prosecutor’s office to file a public charge under § 170(1) StPO, there must be sufficient suspicion of an offence against the accused. This is given if, after a preliminary assessment of the evidence, there is an overwhelming probability that the accused will be convicted.
After the public prosecutor’s office has brought charges, the so-called intermediate proceedings are opened. The court responsible for the main hearing then decides, according to § 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 upon indictment according to § 157 StPO. Further motions for evidence may be filed, and evidence may be ordered until the decision on the opening of the main proceedings (§§ 201, 202 StPO).
The court then initiates the main proceedings with the opening decision if the accused appears to be sufficiently suspicious of a criminal offence according to the preliminary investigation results according to § 203 StPO.
The Main Proceedings
After the opening decision, a date for the main hearing is set by the presiding judge. Depending on the complexity of the facts of the case and the length of the evidence list, the main hearing may end after only a few hours or be delayed for several days, weeks or months. The course of the main hearing is regulated in detail in §§ 243, 244 StPO.
- First, the presiding judge determines whether the accused and their defence counsel are present and whether the evidence has been produced, particularly whether the summoned witnesses and experts have appeared.
- The witnesses then leave the courtroom, and the presiding judge questions the accused about his personal circumstances. As with the questioning of the accused in the preliminary proceedings, an interpreter shall be made available to the accused if necessary in the main hearing.
- The next step is for the public prosecutor to read out the indictment, and the accused is informed that he is free to comment on the indictment or not to testify on the merits. Qualified legal counsel will find the most successful course of action and defence strategy in this case. In any case, the court must not draw any negative conclusions from the defendant’s silence. The presumption of innocence applies to the accused until proven otherwise beyond doubt by the prosecution. This corresponds to the so-called “in dubio pro reo” principle.
- With the subsequent start of the taking of evidence, the court advances to the core of the main proceedings. Witnesses and experts are heard, documents are read out, and judicial inspections are carried out. According to § 244 (2) StPO, the court is obliged to investigate the truth and extend the taking of evidence to all facts and evidence that are important for the decision. The so-called oral principle applies to the main hearing. Only facts and circumstances discussed orally as part of the main hearing may be the subject of the judgement. Furthermore, if the evidence of a fact is based on a person’s perception, § 250 StPO stipulates that this person must be questioned in the main hearing. The interrogation may not be replaced by reading out the minutes taken of an earlier interrogation or a statement.
- After the taking of evidence has been completed, the public prosecutor shall make the closing statements and then the accused or his defence counsel. § 258 (2) StPO finally gives the accused the right to have the last word.
- The court then retires for deliberation and pronounces the verdict at the end of the main hearing. The judge is free in his verdict and is not bound by the motions of the public prosecutor or the defence counsel. Depending on the offence, everything from an acquittal to a fine or imprisonment is possible.
The Verdict and Potential Legal Remedies
The pronouncement of the verdict is governed by § 260 StPO and ends the main proceedings. Following the criminal proceedings in court, the verdict is written down, signed by the deciding judge and recorded in a public register. After the conclusion of the proceedings, defence lawyers and the public prosecutor’s office can file further appeals to challenge the verdict. These include the appeal in §§ 312 ff. StPO and the appeal in §§ 333 ff. StPO.
Both sides may lodge an appeal against the judgments of a criminal judge or the court of lay assessors. This means that, in principle, it is admissible against first-instance judgments at the district court. In contrast, only an appeal is admissible against first instance judgements at the regional court. Whether first instance proceedings occur at the district court or the regional court depends on the offence charged. In an appeal, the entire criminal proceedings start from the beginning, so to speak. A new hearing of evidence takes place so that the facts of the case are heard and decided not only again legally but also factually. Particular attention must be paid to compliance with the time limit. This is because the appeal must be filed within one week of the pronouncement of the judgement according to § 314 (1) StPO.
According to § 333 StPO, an appeal is admissible against the verdicts of the criminal divisions and jury courts. This refers to the first-instance and second-instance judgments of the Regional Court. However, first-instance judgments of a higher regional court may also be challenged by appeal. 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. According to § 341 (1) StPO, the appeal is also subject to a time limit and must be filed within one week of the pronouncement of the judgement.
After that, legal recourse is generally exhausted, and the judgment of the appellate instance becomes final. If the appeals are not lodged or not lodged within the time limit, the first or second instance judgment becomes final and can, in principle, no longer be set aside. Compliance with the time limit is therefore of decisive importance for the legal protection of the accused. From this point of view, too, it is recommended that a professional legal adviser be engaged to assist and represent the accused.