How to Respond to an Indictment in Germany

Lawyers for German Criminal Law

How to Respond to an Indictment in Germany

Lawyers for German Criminal Law

After receiving an indictment in Germany by post, those affected are often unsure how to deal with the situation and react to possibly avert the proceedings. It is therefore strongly to contact German criminal defence lawyers, and ensure that they are fully aware of the circumstances of the case.

At Schlun & Elseven Rechtsanwälte, our expert criminal defence lawyers are ready to advise you. They will inform you about the exact course of criminal proceedings and legal protection measures open to the accused. We will advise and represent you comprehensively and will be happy to answer all your questions. Please, do not hesitate to contact our team directly to receive professional and committed legal assistance.

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For an indictment to be filed by the public prosecutor`s office, the suspicion of a criminal offence must first have been sufficiently substantiated in the corresponding preliminary investigation.

Initiation and conduct of preliminary proceedings

Preliminary proceedings are initiated when a criminal prosecution authority suspects based on existing facts that a criminal offence has already been committed or is still ongoing. Accordingly, it is assumed that the police or the public prosecutor`s office, for example, has obtained knowledge of facts that, in turn, give rise to suspicion, e.g., by filing a criminal complaint. After receiving such knowledge, the public prosecutor´s office is obliged to investigate the facts (cf. Section 152 (2) and Section 160 of the German Code of Criminal Procedure (StPO)).

If the investigations of the prosecution authorities are directed against a particular person, this person becomes the accused. During the investigation, the accused is questioned. The accused then has the right to know what they are accused of and, as a result, to comment on the existing suspicion.

To clarify the facts of the case, the investigating authority collects information on what happened. In collecting the evidence, the prosecuting authority interviews witnesses and collects any evidence, such as traces at the crime scene. The authority must also investigate circumstances to exonerate the accused (Section 160 (2) StPO).

During the proceedings, investigative measures are also taken to clarify the facts of the case, such as the investigation and interrogation of persons, seizures, and surveillance. Feel free to look at our article “Criminal Procedure Law in Germany” for more information.

Pre-trial detention is also one of the coercive measures that may be taken during the pre-trial proceedings. You can find more details on this procedure and tips on how to act here.

Conclusion of the Preliminary Investigation – Indictment

The preliminary proceedings are concluded as soon as the prosecution authorities have exhausted all available measures to clarify the facts of the case and have collected the necessary evidence. There are various options open to the proceedings, such as discontinuing the proceedings or filing a public complaint.

Issue of penalty order

On the one hand, it is possible to end the preliminary proceedings by issuing a penalty order. This is applied if it is not deemed necessary to conduct amin proceedings, for example, because the accused confesses. The public prosecutor`s office applies to the court to issue a penalty order, which already includes a legal consequence. If the judge issues the penalty order, the accused can lodge an objection within two weeks (cf. Section 410 StPO).

Fast-track proceedings

It is also possible to conclude the pre-trial proceedings by sentencing in a fast-track procedure. The public prosecutor`s office usually requests this under the following conditions:

  • The facts of the case are simple.
  • The charge is not a serious one, but a lighter one.
  • The application for issuing a penalty order could not be made.

In such proceedings, a decision is made by the competent court within a brief period of time.

Filing of the indictment

If the investigation provides sufficient grounds for filing a public prosecution, the public prosecutor files an indictment with the competent court (Section 170 (1) StPO). Sufficient suspicion against the accused is required. This is the case if, according to the preliminary assessment of the evidence situation, a conviction of the accused seems more likely than an acquittal.

For this purpose, the public prosecutor`s office sends the investigation file and the drafted indictment, including information on the offence, the law violated and the evidence. With the receipt of these documents, the indictment is filed so that the so-called interim proceedings begin, deciding whether the main proceedings are to be opened or otherwise provisionally discontinued (cf. Section 199, paragraph 1 StPO). In addition, the accused now becomes the defendant (cf. Article 157 StPO). If the accused appears sufficiently suspicious according to the results of the preliminary proceedings, the court decides to open the main proceedings (cf. Section 203 StPO).

Receiving the indictment – possible reactions

After the start of the interim proceedings and before the opening of the main proceedings, the court forwards the indictment to the accused. This allows the defendant to act against the start of the main proceedings. You should hire a defence lawyer at this point.

Content of the indictment

Section 200 of the German Code of Criminal Procedure lists the information or particulars that an indictment must contain. This includes, among other things:

  • Information on the accused and the defence counsel,
  • description of the offence with which the accused is charged as well as the legal characteristics of the alleged violation,
  • designation of the time and place of commission,
  • details of the evidence,
  • designation of the court at which the main hearing is to occur.

How is an indictment to be dealt with?

Upon receipt of the indictment, the accused is granted the right to present objection or evidence (cf. Section 201 StPO). This opportunity to make a statement is bound to a time limit set by the court. You should not act hastily in this regard. Consulting a lawyer for advice is essential at this stage. However, we recommend contacting a lawyer for criminal law as soon as you become aware that you are an accused in criminal proceedings. This allows us to advise you at this stage and possibly prevent the initiation of the interlocutory proceedings and, thus, the filing of charges.

If according to the results of the preliminary proceedings, the accused appears to be sufficiently suspicious of a criminal offence, the court decides to open the main proceedings (Section 203 StPO).

Averting the proceedings

From the point of view of the accused, the filing of a complaint also means the exclusion of the possibility of issuing a penalty order or discontinuing the preliminary proceedings since these are ended when the complaint is filed with the court. Now the question arises for the accused whether the proceedings can be averted.

In principle, a defence lawyer can raise legal objections against the indictment, leading to its withdrawal by the public prosecutor’s office or preventing the opening of the main proceedings. The lawyers at Schlun & Elseven will be happy to explain your defensive options to you.

Withdrawal of the indictment

If the court has not yet decided on the opening of the main proceedings, the public prosecutor’s office can, in principle, withdraw the indictment.

The accused can obtain the withdrawal of the indictment insofar as, for example, new evidence is presented that subsequently leads to a new assessment of the facts of the case.

The accused can also make a deal with the prosecution at the described point in the proceedings (i.e., in the interlocutory proceedings). The aim of this deal is often the discontinuation of proceedings (cf. Section 153a StPO), which is possible if the accused is given conditions or instructions that are suitable to eliminate the public interest in the prosecution. Discontinuation is also possible without conditions or instructions if there is no public interest in the trial, and the guilt of the accused would be considered minor (Section 153 StPO). Furthermore, Section 154 of the German Code of Criminal Procedure allows for partial discontinuance in the case of several offences.

The following must be considered: once the main proceedings have been initiated, it is no longer possible for the public prosecutor’s office to withdraw the charges. Since the time the accused can make a statement on the alleged offence is usually concise, no time should be lost here. Our lawyers for criminal law will be happy to advise you on the chances of successfully warding off criminal proceedings and further legal steps. They will act in your interests as quickly as possible to have the charges withdrawn before the main proceedings are open.

Preventing the opening of the main proceedings

Ultimately, the opening of the main proceedings depends on the decision of the competent court. However, this can also be prevented. It requires excellent negotiation skills and extensive legal knowledge. If, for example, your legal counsel establishes that the offence in question has not been committed or that there are reasons justifying or excusing the crime, the court can refuse to open the main proceedings.

Criminal defence lawyer

Upon receipt of the indictment, you are granted the right to comment on its contents within a time determined by the court (cf. Section 201 StPO). If you instruct our defence lawyers, they can apply for an extension of the time limit as a first step. In this way, you will have more time to consult with your lawyer and subsequently introduce objections or, if necessary, exculpatory evidence concerning the allegation of the offence set out in the statement of claim.

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