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GERMANY – Code of Criminal Procedure

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The investigation, arrest, indictment and conviction of suspected offenders

constitute individual stages of the criminal investigation, intermediate and
main proceedings and are regulated as such in the German Code of
Criminal Procedure.

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 already 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.

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. This so-called 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 and insult. This can only be filed by
the injured person himself.

If there is an initial suspicion, 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.
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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 German CrPC, the public prosecutor’s office is, in principle,
obliged to investigate not only the circumstances serving to incriminate but
also to exonerate / clear 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 ;
(i) Investigative measures without an order by the investigating
judge – without a judge’s prerogative
(ii) Investigative measures with the request of the investigating judge
– relative reservation of the right to a judge
(iii) Investigative measures only with the order of the investigating
judge – absolute reservation of the judge

This list of possible measures is not exhaustive. Ultimately, the public

prosecutor’s office and its investigators have a wide range of investigative
measures when clarifying a case’s facts. To counter these measures without
impairing or thwarting the rights of the accused or other persons concerned,
the assistance of an experienced and competent lawyer is essential.

In addition, there is the possibility of having specific coercive measures

reviewed by the courts. The person concerned can take legal action against
how the coercive measure is carried out or against the order itself.
Depending on the measure, this legal protection is based on complaint
or appeal to the judge.
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Interrogation
One of the most critical measures in the preliminary proceedings is
questioning the alleged crime participants and witnesses to what happened.
No statement should be made without legal counsel at this stage (especially
when the police open up to the suspect to interrogate them as an
“accused”). Investigators are trained to ask questions that could put the
suspect in a bind and are increasingly success-oriented. This often results in
hasty, ill-considered and incriminating statements, which can be used
against the accused in the main proceeding.

Under German Code of Criminal Procedure, the accused must appear for
questioning if the public prosecutor’s office has issued a corresponding
summons. The accused then has special rights during the interrogation,
which must be explained to them in advance by the interrogator:
 Knowledge of the offence – the accused must be informed of the
offence with which they are charged.
 Freedom to testify – the accused must be informed that they always
have the right to remain silent. They do not have to incriminate
themselves.
 Legal assistance – the accused must be given the right to legal
assistance and, if necessary, an interpreter.
 Right to request evidence – the accused may name exculpatory (free
from charge) evidence.

Pre-trail Detention
Another decisive coercive measure is pre-trail detention under the Code.
The public prosecutor’s office can apply for an arrest warrant from the
investigating judge responsible for these proceedings to detain a person
who is urgently suspected of the offence and for whom there are grounds
for detention.
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Results of the Preliminary Investigation

If all possible investigative measures by the public prosecutor’s office and
the police to clarify the facts have been exhausted and the necessary
information and evidence on the alleged offence have been collected, three
variants are conceivable for the outcome of the preliminary proceedings ;
1. The proceedings against the accused may be discontinued.
2. A penalty order may be issued or
3. A charges may be brought before the criminal court.

After the investigation has been completed, the accused’s defence counsel
may also be given access to the investigation file. According to the Code,
the accused is only entitled to this right under certain conditions and upon
request. From this point of view, consulting a qualified legal advisor is also
recommended.

Discontinuation of Proceedings
The public prosecutor’s office may discontinue the proceedings against the
accused if the investigation results do not provide sufficient grounds for
bringing a public prosecution or if there is a lack of adequate evidence of
the offence.

If, on the other hand, there is evidence with which the public prosecutors
can, in principle, bring charges against the accused, further possibilities for
discontinuance arise under certain conditions, where the Code provides the
option of discontinuing criminal proceedings in the case of insignificance.
Such insignificance can be assumed if the proceedings only concern a
misdemeanour – a criminal offence with a maximum sentence of up to one-
year imprisonment, the culpability of the offender would be considered
minor, and there is no public interest in prosecuting the offender.
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Should there be a public interest in prosecution, it is nevertheless possible

to apply for the proceedings to be discontinued. In this case, however, the
filing of charges is only waived with the consent of the court responsible
for opening the main proceedings of the accused and is subject to
conditions and instructions. The conditions may relate to the payment of a
fine or the performance of community service. The advantage of this type
of discontinuation of proceedings is that there is no indictment before the
criminal court and, thus, no main public hearing.

Penalty Order
The public prosecutor’s office can also apply to the criminal court to issue
a penalty order instead of an indictment. In the penalty order proceedings,
the accused’s final conviction can occur without an oral (public) main
hearing. The accused may object to a penalty order issued before the
competent criminal court within two weeks of service. However, the
objection proceedings may end again in a main oral hearing.

The Indictment
For the public prosecutor’s office to bring an indictment there must be
sufficient suspicion of an offence against the accused. This is given if there
is an overwhelming probability that the accused will be convicted after a
preliminary assessment of the evidence situation.

Intermediate Proceedings
After the public prosecutor’s office has filed the indictment, the so-called
interim proceedings are opened. The court responsible for the main hearing
then decides, whether the main proceedings are to be opened or the
proceedings are to be discontinued. The files are presented to the court and
reviewed. In addition, the accused becomes a defendant when the
indictment is filed. Further motions for evidence may be filed, and proof
may be ordered until the decision on the opening of the main proceedings.
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The court then initiates the main proceedings with the opening decision if,
according to the results of the preliminary proceedings, the accused appears
to be sufficiently suspicious of a criminal offence.

After the start of the intermediate proceedings, but before the opening of
the main proceedings, the indictment is forwarded to the accused.

Main Proceedings
After the opening decisions, the presiding judge sets a date for the main
hearing. Depending on the complexity of the facts in question and the list
of evidence, the main hearing may end after only a few hours or be delayed
for several days, weeks or months.
 First, the presiding judge determines whether the accused and their
defence counsel are presented and whether the evidence has been
produced, notably whether the summoned witness and experts have
appeared.
 The witnesses then leave the courtroom. The presiding judge
questions the accused about their circumstances. As with the
questioning of the accused in the preliminary proceedings, an
interpreter shall be available to the accused in the main hearing if
necessary.
 In the next step, the prosecutor present reads out the indictment. In
addition, the accused is informed that they are free to comment on
the indictment. In doing so, the court may not draw any negative
conclusions from the defendant’s silence. The presumption of
innocence applies to the accused until the prosecution has proven the
contrary beyond doubt.
 With the beginning of the taking of evidence, the court advances to
the core of the main proceedings. Witnesses and experts are heard,
documents are read, and judicial inspections are carried out. Under
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the Code, the court must ascertain the truth and extend the gathering
of evidence to all facts and evidence that are important for the
decision.
 After the gathering of evidence has been completed, the closing
statements are made by the public prosecutor and then by the
accused or their defence counsel. The German Code of Criminal
Procedure finally gives the accused the right to have the last word.
 The court then withdraws for deliberations and pronounces the
verdict at the end of the leading hearing. The judge is free in
reaching their verdict and is not bound by the motions of the public
prosecutor or the defence counsel. Depending on the offence,
everything is open, from an acquittal to a fine or imprisonment.
Verdict and Possible Legal Actions
The pronouncement of the verdict ends the main proceedings. Following
the criminal proceedings in court, the judgment is written down, signed by
the deciding judge and recorded in a public register. After the conclusion of
the proceedings, the defence lawyer and the public prosecutor’s office can
file further appeals to challenge the verdict.

An appeal may be lodged against the judgments of a criminal judge or the

court of lay assessors. This means that, in principle, a request is admissible
against the decisions of the first instance (local court). The offence charged
depends on whether a first-instance trial occurs at the district or regional
court.

In the appeal, the entire criminal proceedings start all over again. A new
hearing of evidence takes place so that the facts of the case are legally and
factually reheard and decided. Particular attention must be paid to
compliance with the first limit. This is because the appeal must be filed
within one week of the pronouncement of the judgment.
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An appeal is admissible against the verdict of the criminal divisions and

jury courts. This refers to the first-instance and second-instance judgments
of the Regional Court. However, an appeal may also challenge the first-
instance decisions of a higher regional court. In contrast to the appeal
proceedings, the taking of evidence is not repeated in the appeal
proceedings. Only the legal issues and decisions are heard and reviewed.
The appeal is also subject to a time limit and must be filed within one week
of the pronouncement of the judgment.

After that, legal recourse is generally exhausted, and the judgement of the
appellate instance becomes final. If the appeals are not lodged or not
lodged in time, the first- or second-instance judgment becomes final and
can, in principle, no longer be overturned. Therefore, compliance with the
time limit is of decisive importance for the legal protection of the accused.