Our idea of criminal law is primarily shaped by daily news coverage and 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, 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 skilled and committed advice”, says lawyer and former public prosecutor Phillip Busse.
Schlun & Elseven Rechtsanwälte offers comprehensive legal advice and criminal law representation for private and business clients. Our legal team consists of experienced criminal defence lawyers. Our expertise and extensive experience ensure the best possible result for our clients.
Code of Criminal Procedure
The investigation, arrest, indictment and conviction of suspected offenders constitute individual stages of the criminal investigation, intermediate and main proceedings in Germany 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 also 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 “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: