The Investigation Procedure
The investigation procedure is regulated by the StPO (German Code of Criminal Procedure). It states that an investigation may occur if there is an initial suspicion that a criminal offence has occurred (§160 StPO). This initial suspicion usually arises when a party affected has made a criminal complaint. Third parties not directly impacted can also provide the necessary criminal complaint. However, a criminal complaint is not necessary in the event of the suspicion arising in an alternative manner, such as from media reports or where the police officer or public prosecutor has obtained the information in a private capacity. Under sections §152.2 and §160 StPO, the public prosecutor must take the case when the suspicion arises. In fact § 258 of the German Criminal Code regulates issues concerning public prosecutors/police officers preventing the course of justice. The omission of information is held as one means by which a public prosecutor/police officer can be prosecuted if they fail in their obligation to provide necessary information when it is required.
During the investigation procedure, the police gather information and evidence concerning the alleged crime from investigating the incident, gathering witness statements, and questioning those involved. At this point, one should not make statements until one has received legal assistance and advice. Statements made at this point can be used during the case as evidence. During this time, one has the right to receive assistance from an interpreter if they do not understand German or do not have a high enough standard to deal with legal issues. If one is facing arrest, an interpreter can also translate the information on the warrant. During the investigation period, the public prosecution office is regulated by §160.2 StPO to ascertain evidence both incriminating and exonerating the suspect.
The investigation itself may involve more forceful means of gathering information such as searching for homes/properties, physical examinations, monitoring of communication, and using technology to gather information, among other means. These forms of investigation are regulated by the StPO and can only apply in certain situations. One should make sure to avail of legal counsel and assistance in the event of using such methods to ensure that the correct criminal procedure has been followed.
The Interrogation Procedure
When it comes to the interrogation procedure, it is important to remember that the defendant does not have to attend the interrogation at the police station and that a written statement of the criminal defence lawyer is more than sufficient. Therefore, we highly advise our clients in most of the cases to refuse the invitation to an interrogation. In case an interrogation is required, our team makes sure that you are fully briefed with the required files and documents before any interrogation. Only by being fully briefed by the information within the case files can our lawyers provide the comprehensive assistance our clients deserve.
During the course of the interrogation by the police the suspect has the right to remain silent. In accordance with criminal procedure the police will have informed the accused of this right prior to the interrogation. During the interrogation, one has the right to legal assistance and interpretation services if necessary. It is worth noting that before the interrogation one has the right to avail of legal services. Doing so before any interrogation is key for success. The charges against the suspect will be presented to them in the arrest warrant. Information from the case file will also be accessible to the suspect’s legal representation during the course of the proceedings. §136 StPO outlines that the suspect must be informed of the exact charges against them during the course of their interrogation.
The Post-Investigation & Pre-Trial Procedure
The pre-trial procedure involves aspects such as whether a case should come to court, whether a party can be detained and the timing of a court case. Following the prosecutor’s investigation , the prosecuting side may become clear that there is no need to bring the case to trial. This may for a variety of reasons such as; lack of sufficient evidence (§170.2 StPO), the case in question may concern issues that do not necessitate a court appearance (§153 StPO) and the accused being willing to conduct a court-ordered action (such as payment of a fine to the treasury, perform a specified not-for-profit action etc.) in accordance with §153a StPO. The action of §153a can be brought forward by the officer concerned with public prosecution and would involve the accused accepting the proposed action without going to trial. Our team’s preferred course of action, when possible, is to avoid court cases. If a case can be resolved outside of court, in a manner that prevents our clients from engaging in time-consuming, expensive and potentially damaging court action, our team will strive to achieve this result.
A case comes to court when the investi