Criminal Proceedings in Germany: What You Need to Know

Criminal proceedings are divided into several consecutive stages, each of which is subject to different legal rules and procedural objectives. From the initial suspicion to a possible court decision, defendants have specific rights and defense options at each stage. A basic understanding of the procedural process is therefore crucial in order to be able to respond in a timely and appropriate manner.

Investigative proceedings are initiated as soon as the prosecution becomes aware of a suspicion of a criminal offense (Section 160 StPO). This initial suspicion may arise through a criminal complaint, police findings, or other indications. An initial suspicion must exist, and concrete evidence must be present that justifies the initial suspicion. From this point on, the prosecution is generally obligated to investigate the facts. During this stage, defendants have the right to remain silent, consult a criminal defense attorney, and request access to case files. During criminal investigative proceedings, various investigative measures can be taken against the defendant, which impose different requirements on the authorities depending on the intensity of interference and legal basis.

Which measures are taken for investigative purposes depends on the individual circumstances of the case. The most commonly applied measures in practice include searches of premises, seizure of evidence, police summons for questioning, interrogation of witnesses, identification procedures, and surveillance of telecommunications. In cases of serious offenses, pre-trial detention may be ordered during the investigation. Should pre-trial detention be ordered, our criminal defense attorneys at Schlun & Elseven will review your legal options and support you with a detention review or detention appeal.

After completion of the investigation, the prosecution decides on further action. Case dismissal is possible in various situations. The following grounds for dismissal may apply:

• Dismissal due to lack of evidence according to Section 170 (2) StPO occurs when there is insufficient suspicion or the investigation has not produced adequate evidence. This represents the best outcome for defendants.
• Dismissal due to minor offense based on Section 153 StPO applies to misdemeanors when the culpability would be minor and there is no public interest in prosecution.
• Dismissal subject to conditions based on Section 153a StPO enables case termination without trial if the defendant fulfills certain conditions, such as paying a monetary fine or performing community service.

An experienced criminal defense attorney can – when the circumstances of the case permit – work toward dismissal already during the investigation and convince the prosecution of the weakness of the evidence or the minor nature of the accusation.

Instead of filing an indictment, the prosecution may also apply for a penalty order (Section 407 StPO). This enables a conviction without an oral trial and is issued by the court in writing. The penalty order is only used for misdemeanors and less complex cases. An objection can be filed against the penalty order within two weeks (Section 410 (1) StPO). If you let the deadline pass, the penalty order becomes final. The decision about filing an objection should never be made without consultation with a criminal defense attorney, as they can assess the prospects of success at trial.

If the prosecution sees sufficient grounds for suspicion, it files an indictment before the competent criminal court. The intermediate proceedings serve as the judicial review of the indictment. The court examines whether the indictment is sufficient to open the main proceedings or whether the case should be dismissed (Section 199 (1) StPO). At this stage, a criminal defense attorney can still raise objections against opening the main proceedings. The main proceedings begin with the court’s opening decision according to Section 203 StPO. From this point on, a trial date is scheduled.

The main hearing forms the core of criminal proceedings. Here, all evidence is discussed in open court, witnesses are examined, and experts are heard. Unlike in previous phases, the trial is generally open to the public.

After the charges have been read out, the defendant may comment on the allegations or remain silent. This is followed by the hearing of evidence, during which a criminal defense attorney can submit motions for evidence and question witnesses

After the trial, the verdict is rendered. The proceedings can result in an acquittal, a conviction, or a dismissal. In case of conviction, the type and severity of the sentence are determined. Various legal remedies are available against the verdict. Following a criminal verdict, both the prosecution and the defendant can file legal remedies.

Appeals (Berufung) are generally admissible against judgments of the local court (Amtsgericht), where a higher court completely retries the case and reviews all facts anew. Regional court judgments, however, can only be challenged through revision, which exclusively reviews procedural errors and incorrect application of law. Revision is also possible against first-instance judgments of the higher regional court (Oberlandesgericht), appellate judgments of the regional court (Berufungsurteile des Landgerichts), or through leapfrog revision against local court judgments (Sprungrevision), and generally proceeds as a purely written procedure. An experienced criminal defense attorney can assess the prospects of success for both legal remedies and initiate the appropriate steps.