Criminal Proceedings in Germany: What You Need to Know

Criminal proceedings in Germany are governed by the Code of Criminal Procedure (Strafprozessordnung, StPO). It lays down the binding rules for each stage of the process, defines the powers of the police, the public prosecutor’s office (Staatsanwaltschaft), and the courts, and details the rights of the accused under the German constitution. The StPO divides criminal proceedings into three main stages:

• Investigation proceedings (Ermittlungsverfahren), in which the police and the prosecutor investigate the suspected offense
• Interim proceedings (Zwischenverfahren), in which a court reviews the charges brought by the prosecutor
• Main proceedings (Hauptverfahren), which lead to a public trial and a verdict

The StPO also governs appeals against court decisions and the enforcement of sentences. The accused has specific rights and defense options at each stage, so knowing where a case stands is essential to responding at the right time and in the right way.

Investigation proceedings begin as soon as the prosecutor becomes aware of a suspected criminal offense (Section 160 StPO). This may happen through a criminal complaint (Strafanzeige), police findings, or other information. An investigation requires an initial suspicion, meaning concrete factual indications that an offense has been committed. Once that threshold is met, the prosecutor must generally investigate the facts and must look for evidence in the accused’s favor as well as evidence against them.

From the outset, the accused has the right to remain silent and the right to consult a criminal defense lawyer. A defense lawyer has a statutory right to inspect the case file (Akteneinsicht) and the evidence held by the authorities (Section 147 StPO). Before the investigation is formally concluded, this access can be restricted where it could jeopardize the investigation, and an accused without a lawyer has only a more limited right to see the file. This is one of the main reasons to instruct a lawyer before responding to the authorities in any way.

If you receive a summons to police questioning (Vorladung) as the accused (Beschuldigter), you are not legally required to attend. A summons from the prosecutor or a court is different: you must appear, and you can be brought in by force if you do not (Sections 133 and 163a (3) StPO). Witnesses (Zeugen) are in a different position, as they must attend police questioning and give evidence where the summons is issued on the prosecutor’s instructions (Section 163 (3) StPO). Your summons should state whether you are being questioned as the accused or as a witness. As the accused, you always keep the right to remain silent, even when you are required to attend. Since this is not always easy to tell from a German letter, speak to a lawyer before you respond.

The measures used depend on the circumstances of the case, and each has its own legal requirements depending on how far it interferes with the rights of the accused. The most common measures in practice include:

• Searches of homes and other premises
• Seizure of evidence
• Summons to police questioning
• Questioning of witnesses
• Identification processing, such as taking fingerprints and photographs
• Surveillance of telecommunications

A court may also order pre-trial detention (Untersuchungshaft) during the investigation by issuing an arrest warrant (Haftbefehl). This requires a strong suspicion that the accused committed the offense and a ground for detention, such as a risk that the accused will flee or tamper with evidence. Detention must also be proportionate to the seriousness of the case and the expected sentence (Section 112 StPO). For certain very serious offenses, such as murder, detention can be ordered even without a specific ground. The lack of a permanent residence in Germany can be a factor when the court assesses the risk of flight. If pre-trial detention is ordered, our criminal defense lawyers review your legal options and support you in applying for a detention review or filing a detention appeal.

If you are brought before a judge to decide on pre-trial detention, or are accused of a serious crime (Verbrechen), meaning an offense with a minimum sentence of one year’s imprisonment (Section 12 StGB), the law requires that you be represented by a defense lawyer (Section 140 StPO). If you do not have one, a court-appointed lawyer (Pflichtverteidiger) will be assigned. This is not automatically free of charge, however: if you are convicted, you will generally have to pay the costs.

If you do not speak German, the court will appoint an interpreter or translator free of charge for the entire criminal proceedings, where this is necessary for you to exercise your rights (Section 187 (1) of the Courts Constitution Act, Gerichtsverfassungsgesetz, GVG). As a rule, this includes a written translation of detention orders, indictments (Anklageschriften), penalty orders (Strafbefehle), and judgments that are not yet final (Section 187 (2) GVG). If you have a defense lawyer, an oral translation or a summary may be provided instead. If you are arrested, you have the right to have the consulate of your home country informed and to send it messages (Section 114b (2) StPO).

If you are outside Germany when you learn of an investigation, or you live here but would prefer not to deal with the German authorities directly, you can instruct the lawyers at Schlun & Elseven Rechtsanwälte remotely. We inspect the case file on your behalf and handle correspondence with the police, the prosecutor, and the courts. As a rule, a trial cannot take place without the defendant present (Section 230 StPO). If you fail to appear without a sufficient excuse, however, the court can order that you be brought before it or issue an arrest warrant. Other steps, such as a penalty order, can become final without you ever appearing in Germany. If you receive a letter from a German police authority, prosecutor, or court, speak to a lawyer before you respond.

Criminal proceedings in Germany can be dismissed by the prosecutor or the court on several grounds, ending the case without a trial or a conviction. For the accused, a dismissal is the best possible outcome. Once the investigation is complete, the prosecutor decides how to proceed, and the main grounds for dismissal are:

• Dismissal for lack of evidence under Section 170 (2) StPO, where there are insufficient grounds for suspicion or the investigation has not produced enough evidence.
• Dismissal on grounds of minor culpability under Section 153 StPO, which applies to less serious offenses (Vergehen), meaning offenses with a minimum sentence of less than one year’s imprisonment or that are punishable by a fine, where the culpability of the accused would be minor and there is no public interest in prosecution.
• Dismissal subject to conditions under Section 153a StPO, which requires the consent of the accused and usually of the court. The proceedings are provisionally suspended while the accused meets certain conditions within a set deadline, such as making a payment to a charitable organization or the state treasury, or performing community service. Once the conditions are met, the offense can no longer be prosecuted.

A dismissal subject to conditions is not a conviction and is not entered in the Federal Central Criminal Register (Bundeszentralregister) (Sections 3 and 4 BZRG). It is, however, recorded in a separate register of criminal proceedings (Section 492 StPO), which is used mainly by prosecutors and other criminal justice authorities in later proceedings.

Where the circumstances of the case permit, we work toward a dismissal during the investigation stage by persuading the prosecutor that the evidence is weak or that the allegation is minor.

Instead of filing an indictment, the prosecutor may apply for a penalty order under Section 407 StPO. A penalty order is a conviction issued by the court in writing, without an oral trial. It can only be used for less serious offenses where the prosecutor considers a trial unnecessary. A penalty order usually imposes a fine, but where the accused has a defense lawyer, it can also impose a prison sentence of up to one year, suspended on probation.

An objection to a penalty order must be filed within two weeks of it being served (Section 410 (1) StPO). If the deadline passes, the penalty order becomes final and has the same effect as a conviction after trial. Because the deadline is short, this is a particular risk for anyone who does not read German or is away when the order arrives. Do not decide whether to object without first speaking to a criminal defense lawyer, who can assess your prospects if the case goes to trial.

If the prosecutor considers that there are sufficient grounds for suspicion, they file an indictment with the competent criminal court. The interim proceedings that follow are a judicial review of the indictment, in which the court examines whether the case is strong enough to open the main proceedings (Section 199 StPO). At this stage, we can still raise objections to the case going to trial. If the court is satisfied, it issues an order opening the main proceedings (Eröffnungsbeschluss) under Section 203 StPO, and a trial date is set. If not, it refuses to open them (Section 204 StPO).

The trial (Hauptverhandlung) is the core of the criminal proceedings and, unlike the earlier stages, is generally open to the public. It begins with the reading of the indictment, after which the defendant may respond to the charges or choose to remain silent. The court then hears the evidence, questioning witnesses and hearing experts, and we can file motions to admit evidence and question witnesses ourselves. The trial ends with closing arguments from the prosecutor and the defense, followed by the verdict.

At the end of the trial, the court delivers its verdict (Section 260 StPO). The verdict may be an acquittal, a conviction, or, where there is a procedural bar to continuing the case, a dismissal of the proceedings. If the defendant is convicted, the court determines the type and severity of the sentence. Both the prosecutor and the defendant can challenge the verdict, and the type of appeal available depends on which court delivered it.

If the verdict was delivered in the defendant’s absence, the appeal deadline generally runs from the date the verdict is served rather than from its delivery. We assess the prospects of each type of appeal and take the necessary steps within that deadline.

The costs of criminal proceedings depend on how and when the case ends. If you are convicted, you generally bear the costs of the proceedings (Section 465 StPO). If you are acquitted, the court refuses to open the main proceedings, or the court dismisses the case, the state generally bears the costs and your necessary expenses (Section 467 StPO). Necessary expenses include your lawyer’s fees, but only up to the statutory rates, so any higher fees agreed with your lawyer are not reimbursed (Section 464a StPO). If the prosecutor dismisses the case during the investigation, before any charges have been filed, or the case ends with a dismissal subject to conditions under Section 153a, you generally bear your own expenses. This is worth weighing when deciding whether to accept a dismissal subject to conditions or to pursue an acquittal.

For foreign nationals, the end of criminal proceedings does not necessarily end the matter. A conviction can trigger a separate administrative process under German immigration law, independent of the criminal sentence itself.

Expulsion (Ausweisung) under Section 53 of the Residence Act (Aufenthaltsgesetz, AufenthG) is not an additional penalty for the offense. The immigration authorities assess whether the person’s continued presence endangers public safety and order. They then weigh the public interest in the person leaving Germany against the person’s interest in remaining, taking into account all the circumstances of the individual case.

Section 54 AufenthG sets out the factors that weigh in favor of expulsion. The most relevant in criminal cases are final convictions for intentional offenses, where the weight depends on the type of offense and the length of the sentence. A suspended prison sentence also counts, and some grounds apply even without a conviction.

Section 55 AufenthG sets out the factors that weigh in favor of remaining. These include holding a permanent residence permit (Niederlassungserlaubnis) after several years of lawful residence and having been born in Germany or arrived as a minor. Family ties also carry significant weight, particularly living with German family members or exercising custody of or access to a child.

Some groups are protected by a considerably higher threshold (Section 53 (3) and (3a) AufenthG). These include holders of an EU long-term residence permit (Daueraufenthalt-EU), Turkish nationals with residence rights under the EU-Turkey Association Agreement, and recognized refugees. For EU citizens and their family members, the right of residence is governed by the Freedom of Movement Act/EU (Freizügigkeitsgesetz/EU, FreizügG/EU) instead. Under this act, a criminal conviction alone is never sufficient to end the right of residence, and the protection becomes stronger the longer the person has lived in Germany (Section 6 FreizügG/EU).

If expulsion is ordered, the residence permit (Aufenthaltstitel) lapses automatically under Section 51 (1) No. 5 AufenthG, and the person is obligated to leave Germany. An expulsion order is not the same as deportation, however. Under Section 60 AufenthG, deportation is prohibited where the person’s life or freedom would be threatened on grounds recognized under the 1951 Refugee Convention. It is also prohibited where the person would face serious harm, such as the death penalty or torture, or where deportation would breach the European Convention on Human Rights. A serious criminal conviction can remove the protection based on the Refugee Convention, but not the protection against serious harm or under the European Convention on Human Rights.

Where deportation is not possible, it is suspended, and the person receives a Duldung (temporary suspension of deportation) under Section 60a AufenthG. A Duldung is not a residence permit. The obligation to leave Germany remains in place, and the suspension ends as soon as the reasons preventing deportation no longer apply.

Because criminal and immigration consequences are closely linked, decisions made during the criminal proceedings can have a significant effect on the later immigration outcome. Many of the grounds for expulsion depend on a final conviction and the sentence imposed, so it can make a decisive difference whether a case ends in a dismissal, a penalty order, or a conviction after trial. Even accepting a penalty order with a suspended sentence, without any trial taking place, can create grounds for expulsion. At Schlun & Elseven Rechtsanwälte, our criminal defense and immigration lawyers advise on both together where a case has immigration implications.

At Schlun & Elseven Rechtsanwälte, our criminal defense team represents clients at every stage of criminal proceedings in Germany, from the first police summons through to an appeal. We advise in English and, where necessary, handle cases fully remotely, which is why clients from all over the world instruct us when they face proceedings in Germany. Every inquiry is treated in strict confidence, and our cost structure is transparent from the outset. Once instructed, we notify the prosecutor that we represent you, request access to the case file, and only then advise you on whether and how to respond to the allegations. If you have received a summons, a penalty order, or any other letter from a German police authority, prosecutor, or court, contact us to have your situation reviewed and your options explained.