Investigation proceedings in Germany
All criminal proceedings in Germany begin with the initiation of an investigation by the investigating authorities. The investigating authorities are the police, the public prosecutor’s office, customs and the tax investigation department. The investigating authorities initiate criminal proceedings if they become aware of facts that give rise to the suspicion that a criminal offence has been committed. This is the so-called initial suspicion according to § 152 para. 2 StGB.
I. Defend. You.
In most cases, police will become aware of this due to the filing of a criminal complaint by some citizen. The criminal complaint is usually filed with the police, however, any person may file a criminal complaint independently. Not surprisingly, the police itself is entitled to initiating criminal proceedings ex officio, which is the case usually when police officers themselves become aware of criminal offences presently being committed. The Courts also are entitled to send court files to the public prosecutor’s office in case their legal conclusions may warrant investigation or even the public prosecutor’s action prior to or during a trial. Suspicion of false testimony or trial fraud represent examples for that matter. In the past, it has also happened that the public prosecutor’s office has initiated preliminary proceedings based on press reports.
The relevant facts of the case are investigated by the police, customs or the tax investigation department. The police question witnesses, collect documents, confiscate evidence and then submit the files and evidence to the public prosecutor’s office for a decision. This can take place at an early stage during the investigation if the police wants an interim decision from the public prosecutor’s office or if criminal procedural applications have to be made.
Examination in preliminary proceedings by the public prosecutor’s office
The public prosecutor’s office examines the facts submitted to it by the other investigating authorities. The public prosecutor’s office assesses the facts and then decides how further investigations should proceed. This can be done by submitting applications to the investigating judge (application for a search warrant, application for questioning by a judge, application for telephone surveillance, application for an arrest warrant). The public prosecutor’s office must examine whether there is sufficient suspicion, cf. section 170(1) of the Code of Criminal Procedure, against the accused. This is done by gathering evidence. As a rule, such investigations are carried out by the investigators of the public prosecutor’s office. These are usually police officers. They then conduct interviews on behalf of the public prosecutor’s office, for example, or secure evidence at the crime scene.
Once all the necessary evidence has been collected and the accused has had the opportunity to comment on the case, the public prosecutor’s office decides how the investigation should be concluded. The public prosecutor’s office can bring public charges (Section 170 (1) StPO), discontinue the proceedings for reasons of expediency (Section 153 StPO, Section 153a StPO, Section 31a BtMG) or discontinue the proceedings due to a lack of sufficient suspicion (Section 170 (2) StPO).
How should you behave as a defendant in the preliminary proceedings?
If you have learnt that an investigation is being conducted against you, this does not mean that the “child has already fallen into the well”.
You should exercise your right to remain silent, cf. section 136 (1) sentence 2 of the Code of Criminal Procedure. It states (as of 14 January 2022):
The accused must be informed that, according to the law, he is free to comment on the accusation or not to testify on the merits and to question a defence counsel of his choice at any time, even before he is questioned.
Hire a criminal defence lawyer in the preliminary proceedings
You should immediately instruct an experienced criminal defence lawyer, preferably a specialist lawyer for criminal law, to represent you during the preliminary proceedings. Because “the baby has not yet fallen into the well”. On the contrary, an experienced criminal defence lawyer already has the opportunity to influence the proceedings at this stage and bring them to an end before charges are even brought. It is therefore important that you contact a criminal defence lawyer as soon as you become aware of the preliminary proceedings in order to avoid losing valuable time.
How do you know that you are under investigation?
You are requested by the police to submit a written statement
This letter states that you are the subject of an investigation and that you are now being given the opportunity to respond. However, you are not obliged to respond to this letter. You are only obliged to give your name and address to the police. Normally, you do not even need to provide this, as you have already received a letter with the correct address. You can therefore only be advised not to react to this letter, but under no circumstances to give any information to the police. It is best to consult a criminal defence lawyer, as they can apply for access to the files on your behalf.
You will receive a summons from the police
The same applies here as with the request for a written statement. You are not obliged to provide the police with information about the case. Make use of your right to remain silent. You do not yet have access to the files and therefore do not know how well-founded the allegations are. It is better to consult a defence lawyer and if not, make use of your right to remain silent. If you make a mistake here, even the most experienced defence lawyer may not be able to help.
You receive a summons from the public prosecutor’s office
In contrast to the situations mentioned above, you should comply with the summons as far as possible. If you receive a summons from the public prosecutor’s office, you are obliged to appear. Otherwise, you may be brought before them. But here too, you are not obliged to make a statement. Make use of your right to remain silent. If you have hesitated beforehand, you should actually consider contacting a criminal defence lawyer in these cases. In some cases, the defence lawyer can find out the reason for the summons from the public prosecutor’s office. Although they cannot always prevent you from having to appear before the public prosecutor’s office, they will accompany you to the appointment and advise you.
It may also be the case that you receive the summons from the police on behalf of the public prosecutor’s office. In this case, you are also obliged to go to the police.
In both cases, you should be represented by a criminal defence lawyer immediately.
Your home is searched and you are arrested
It is often the case that you first know that criminal proceedings are being conducted against you because your home is being searched. In the worst case scenario, you will be arrested immediately. In this case, an arrest warrant has already been issued. It is also possible that you will only be arrested provisionally.
In both cases, it is important to call a lawyer immediately or inform a third party. It is illegal for them not to make this one phone call. However, they will still be prohibited from doing so. Remain calm. Tell the police officers that you want to speak to a lawyer IMMEDIATELY. Exercise your right to remain silent. It is important to emphasise that you wish to speak to a lawyer. This prohibits the prosecuting authorities from questioning you further without further explicit, qualified instruction. If you do so anyway without having been instructed, this can lead to a ban on the utilisation of evidence, i.e. the information you provided to the police officers can no longer be used.
In this case, you must call the police immediately:
+49 431 – 979 940 20
Immediately draw attention to the search/arrest situation. Give your full name, date of birth and address. I also need the file number on the arrest warrant or search warrant, as well as the name of the court.
In 99% of cases, it will say “Amtsgericht” (local court) plus the place at the top left. So Kiel Local Court or Munich Local Court.
Below this there are usually 2 file numbers such as 43 Gs 2598/24 and 593 Js 12345/23. I need these two file numbers. Ideally also the name of the police officer and how I can contact him by telephone.