The investigative process – The Attorney General in Düsseldorf

STATUS: 2022

LAW OF GERMANY- Code of Criminal Procedure (StPO)

Criminal Complaint

In the case of a number of criminal offenses ( e.g. trespassing , bodily harm , insult ), the law stipulates that a criminal offense may only be prosecuted on application. In this case, the criminal complaint must be made by the person entitled in writing or on the record of the public prosecutor ‘s office , the police or the court . This can also be done by telegraph or fax. A criminal complaint is any communication of facts which, in the opinion of the complainant, give cause for criminal prosecution. It obliges the investigating authorities to carry out an examination. A complaint can be filed with the public prosecutor ‘s office , the police or the local court . A specific form of display is not required. If it is only given verbally, it must be notarized. The authentication is usually done by means of a written record. A confidential report is just as possible as a report limited to specific persons or actions. Note that injured persons are those who have been directly affected in their legal interests or who have suffered direct damage as a result of the act, the act of committing it, or it has been legally established.

Initiation of the procedure

The initiation of an investigation usually presupposes that a criminal prosecution authority becomes aware of facts that justify the suspicion that a criminal offense has been committed or is still ongoing. They can obtain this knowledge based on a criminal complaint filed by a citizen – not necessarily the person injured by the crime. However, it is just as possible that the prosecuting authority learns about the facts giving rise to suspicion through a newspaper publication or that a public prosecutor or a police officer makes corresponding observations themselves, for example as a road user.

In principle, not only the public prosecutor’s office, which is primarily responsible for this, but also any other criminal prosecution authority , in particular the police, can initiate preliminary proceedings. In addition, the other prosecuting authorities have the “right of first access”, which entitles them, but also obliges them, to investigate the facts of the case and to carry out all investigations that cannot be postponed.

The initiation of investigations does not require a formal act, especially not a written one, but can also be carried out impliedly by first gathering evidence, such as interviewing accident witnesses, inspecting the scene of the crime or securing traces of a burglary.

As long as no specific person is considered to be the perpetrator, the investigations are directed “against unknown” and are conducted by the public prosecutor under the reference “UJs”; one therefore speaks of “UJs things”. As soon as the suspicion relates to one or more specific persons (who do not necessarily have to be known by name), the prosecuting authority directs the investigations against this person(s) and thus makes them suspects .

A little statistics: In 2020, the public prosecutor’s offices in North Rhine-Westphalia initiated a total of 1,136,598 investigations against suspects who were known by name and completed 1,134,566 investigations against suspects who were known by name in the same period. 59.2% of the completed procedures were completed within the first month and a further 38.9% within the first year. In addition, a total of 870,039 criminal charges against persons unknown were processed in 2020.

Conduct of the investigations

Investigations are the gathering of evidence . This includes, in particular, the questioning of witnesses, including those injured as a result of the crime reported, the securing of all traces at the scene of the crime and all other evidence. The investigating public prosecutor either carries out such investigative actions himself or commissions one of the other prosecuting authorities, in particular the police, to do so. Their help is indispensable for solving crimes because of their human and technical equipment and the special criminalistic training.

An important part of the investigation is the questioning of the suspect . This person has a legal right to be given the opportunity, before the conclusion of the investigation, to learn about the existing suspicions, to comment on them and, if necessary , to apply for individual evidence to be taken in order to exonerate him or her. The interrogation may not be replaced by reading out the minutes of an earlier interrogation or a statement and If the evidence of a fact is based on the perception of a person, then this is to be heard at the main hearing(250StPO.

Often enough, witnesses, experts or suspects are not willing to appear before the police and testify. However, the witnesses are obliged to do so if the summons to the questioning is based on an order from the public prosecutor’s office. The public prosecutor’s office itself can summon all of the above-mentioned persons and they are obliged to comply with this summons. If necessary, the public prosecutor’s office can also order a forced demonstration, which is regularly carried out by the police. In addition, a large number of other coercive measures , such as searches of persons or apartments, physical examinations, observations, telephone tapping, the use of technical means , etc. possible. The requirements for such measures and the authority to issue orders are regulated in detail in the Code of Criminal Procedure. The more such a measure interferes with the individual rights of a person, the stricter the requirements for ordering it. Many of these measures require a court decision.

In individual cases it is unavoidable to take the accused into custody . This primarily serves to ensure that the accused does not evade the proceedings or influence co-accused or witnesses in an unfair manner or otherwise destroy or remove evidence, etc.

Pre-trial detention may only be ordered by a judge and provided that the suspect is strongly suspected of the crime he or she is charged with and that there is a risk of escaping or collusion or that the suspect has already fled. If the strong suspicion relates to certain offences, for example sexual offences, the order of pre-trial detention is permissible under further narrow conditions even if there is a risk of repetition. Pre-trial detention always presupposes that the accused is brought before the judge after being arrested by the police and given the opportunity to comment on the accusation. Finally, the execution of pre-trial detention must comply with the principle of proportionality.

After six months, a criminal division of the Higher Regional Court examines at regular intervals whether pre-trial detention is still permissible, whether its duration is still appropriate in view of the seriousness of the offense and the expected sanction, and whether the prosecuting authorities are carrying out the investigations with the special required in detention matters have led to acceleration. If one of these requirements is not met, the Higher Regional Court orders the immediate release of the accused. 

Completion of the investigation

Once all the necessary evidence has been collected, the public prosecutor’s office has to decide how the investigation should be concluded.

Possible ways of completing the procedure

In this resolution of the prosecutor, there are several possibilities:

filing of the public complaint

If there is sufficient suspicion of the person accused of the crime he or she is accused of – in other words – a conviction is more likely than an acquittal, the public prosecutor usually files a public complaint. Prior to this, the public prosecutor checks whether the accused has had a “fair hearing”, which means that he or she has had an opportunity to comment on the accusation. If necessary, the accused will be summoned for questioning or the police will be charged with the “responsible questioning” of the accused.

If the facts of the case are simple, the accused has confessed and a main hearing is not necessary to assess the legal consequences of the offence, he or she applies to the court to issue a penal order. This application must already state a certain legal consequence, usually a fine, possibly combined with a driving ban or the withdrawal of the driver’s license.

penalty order can also impose a prison sentence of up to twelve months, the enforcement of which is suspended on probation; however, this presupposes that the accused has defense counsel or that a public defender is appointed for him or her. If the judge has no objections to issuing the penalty order applied for, he or she issues it. The accused then still has the opportunity to appeal against the penalty order within two weeks of service. Then the court will hold a normal main hearing.

A little statistics: In 2020, the public prosecutor’s offices in North Rhine-Westphalia closed 108,931 of the 1,134,566 investigations against known suspects, i.e. 9.6%, by applying for a penalty order.

If the requirements for the penal order procedure are not met, but the facts of the case are nevertheless simply structured, the public prosecutor can also issue a conviction (this means – in contrast to a conviction – any court decision on the criminal charge, possibly also an acquittal ). ) indeed apply for the accelerated procedure .

In these proceedings, the court can, under certain conditions, decide within a very short period of time on the criminal charge and impose a fine or imprisonment of up to twelve months, the latter, however, only against a (possibly dutifully) defended accused or a (possibly dutifully) defended accused, impose. 

Another type of public complaint is the filing of an indictment . For this purpose, the public prosecutor draws up a bill of indictment in which the accusation and the evidence are named. Depending on the severity of the accusation, the charge is brought before the criminal judge, the juvenile court or a large criminal chamber of the regional court, in proceedings against juveniles or adolescents accordingly before the juvenile court judge, the juvenile court or the juvenile chamber of the regional court.

A little more statistics: In 2020, the public prosecutor’s offices in North Rhine-Westphalia concluded a total of 116,151 preliminary investigations, i.e. 10.2%, with indictments.

Hiring due to lack of sufficient suspicion

If the investigations have not resulted in sufficient suspicion and there are no approaches for further investigations or if these do not appear promising based on experience, the public prosecutor’s office will discontinue the investigation.

There may be insufficient suspicion, for example, because the accused can not be proven to have participated in a crime . There are many reasons for this: Often there are no witnesses or other evidence that can be used to prove involvement in a crime, or the accused has a convincing alibi, or the investigations have shown that the accusation is unfounded or that the behavior of the of the accused, for example through self-defense (§ 32 StGB ), was justified.

There is also insufficient suspicion if a procedural impediment has emerged, for example because the act has already expired or a necessary criminal complaint is missing. There are a variety of possible procedural obstacles, but they only come into play in rare cases.

Finally, there is also insufficient suspicion if the accused acted without fault . This includes both cases of incapacity (Section 20 StGB ) and cases in which the behavior of the accused was excused, for example due to an excusable state of emergency (Section 35 StGB-Strafgesetzbuch ).

Hiring decision, the public prosecutor’s office informs the person making the complaint in a written notification in which the main reasons for the termination are set out. If the person making the complaint has been harmed by the criminal offense for which investigations were carried out and if the issue is not exclusively one of private prosecution (1), he or she will also be informed that he or she can have this attitude checked by the supervisor by way of a complaint Attorney General can reach. Under certain additional conditions, which include the involvement of a lawyer and compliance with a large number of formalities, the competent Higher Regional Court can appeal against their decision with an application in the Complaint enforcement proceedings are invoked. If necessary , the Higher Regional Court can order further investigations or an indictment by the public prosecutor. Section 381 of the Code of Criminal Procedure supports filing of private prosecution.

Opportunity recruitment

In addition, the public prosecutor’s office can discontinue preliminary proceedings under special conditions, also in accordance with provisions to be assigned to the principle of opportunity ; this may require the approval of the court. According to these provisions, the court can also discontinue the criminal proceedings after the indictment has been brought; depending on the type of recruitment, however, this is only permissible upon application or with the consent of the public prosecutor.

The most important such setting options are:

A (final) termination of the procedure according to § 153a StPO – Strafprozessordnung   is possible if the accused fulfills conditions or instructions given to him or her by the public prosecutor’s office or the court, and these conditions or instructions are suitable for the public interest in criminal prosecution remove.

Such an attitude is only permissible in the case of offenses and if the seriousness of the guilt does not oppose it. As possible conditions or instructions, the law names, among other things, the provision of reparations to the injured person, the payment of a sum of money to the state treasury or a charitable institution, the regular fulfillment of maintenance obligations, the provision of other charitable services, participation in a traffic seminar and the serious effort to reach a compromise with the injured person and to make amends for all or most of what he or she has done. Recruitment according to this regulation can in part also provide for very high monetary conditions. In practice – rather rarely – up to six or seven-digit amounts of money occur.

An example:  In the so-called Mannesmann trial before the district court in Düsseldorf, the subject of which was bonus payments in connection with the hostile takeover of Mannesmann by the Vodafone Group in 2000, the proceedings against all the accused were dropped in November 2006 and large sums of money were imposed.

A bit of statistics again: In 2020, the public prosecutor’s offices in North Rhine-Westphalia concluded a total of 32,640 (= around 2.87%) of the preliminary investigations with such an attitude.

In cases in which the accused is accused of a misdemeanor, there is no public interest in criminal prosecution and the guilt of the accused would be low, a termination is possible under § 153 StPO even without conditions or instructions.

An example:  A person with no criminal record steals goods of little value from a shop (this should not regularly exceed the amount of 25 to 50 euros).

On the other hand, Section 154 of the Code of Criminal Procedure allows the proceedings to be discontinued if the accused has already received or is expecting a sentence or measure of reform and prevention for another offense and the penalty to be expected for the new offense is not of considerable importance or the other Punishment seems sufficient to influence the perpetrator and to defend the legal system and a judgment for the new offense cannot be expected within a reasonable period of time.

An example: An accused person has already been sentenced to several years in prison for robbery. Even before he or she starts the sentence, there is another procedure for fraudulent transport (use of public transport without a valid ticket). The punishment to be expected for this, in addition to the several years’ imprisonment for robbery, would not carry much weight.

In criminal proceedings for certain offenses that protect personal legal interests, such as trespassing, insult, “simple” bodily harm, etc., in which there is no public interest in criminal prosecution, for example because the crime happened in a circle of friends or in the neighborhood of the injured person, the public prosecutor’s office sets up the proceedings according to § 376 StPO  and refers the injured person to  private prosecution . This means that it is up to the injured party to decide whether criminal prosecution should take place. 

An example: During a private garden party, there is a small argument, in the course of which the accused insults the injured person and friends of his or her as a “stupid dog” and “idiot” and he or she missed a lighter slap.

In addition, there are a number of other hiring options for special cases, such as acts with a foreign element or acts committed abroad, for acts for which the accused became a victim of blackmail, in extradition cases, among other things.

NOTE

  1. A private prosecution is the prosecution of a criminal offense requested by the injured party or another person entitled to file a complaint. It is permissible for certain criminal offenses such as bodily harm or property damage .

Ref: Ministry of Justice North Rhine-Westphalia


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