Investigation Proceedings

Your lawyer will handle all communication with the public prosecutor and police on your behalf and request access to the files from the competent public prosecutor’s office. Based on the file inspection, an effective defense strategy can be developed. This often aims to have the proceedings dismissed during the investigation phase.

Engaging a professionally experienced lawyer already during the investigation proceedings also has the advantage that a detailed statement can be prepared for the public prosecutor’s office at this early stage of the proceedings. This statement will address the accusations in detail, both legally and factually, with the goal of achieving a dismissal of the proceedings due to insufficient suspicion of an offense, pursuant to Section 170 (2) of the Code of Criminal Procedure (StPO).

Be aware that a lawyer will inform you of your fundamental rights at an early stage of the investigation proceedings.

As a suspect in criminal proceedings, you have the right to remain silent. If you exercise this right, it may not be held against you.

Therefore, you are also not obliged to comply with such a summons. Even if you believe you are innocent, you should never appear for an interrogation with the police (without legal counsel).

Initial Suspicion: Initiation of Investigation Proceedings

The purpose of investigation proceedings is to investigate and clarify criminal offenses. As a consequence of the principle of legality, the public prosecutor’s office has control over the proceedings at this stage of the criminal procedure, pursuant to Section 152 (2) StPO.

Investigation proceedings are generally initiated when there is suspicion of a criminal offense. This suspicion can be brought to the attention of the public prosecutor’s office through a report or by other means. The suspicion of a criminal offense triggers the public prosecutor’s duty to investigate the facts, pursuant to Section 160 (1) StPO. If there are then sufficient factual indications of a criminal offense, the public prosecutor’s office is obliged to initiate investigation proceedings pursuant to Section 152 (2) StPO.

The initiation of investigation proceedings requires the assumption of an initial suspicion against the accused. This is already given if the commission of a criminal offense does not appear to be completely ruled out, i.e., if sufficient factual indications make the existence of a criminal offense appear possible according to criminalistic experience, Sections 152 (2), 160 (1) StPO.

Public Prosecutor’s Powers in Investigation Proceedings

The public prosecutor’s office is the “master of the investigation proceedings” and may use the support of the police in investigating the facts.

If police officers act as investigating officers of the public prosecutor’s office, Section 152 GVG, they are bound by the instructions of the public prosecutor’s office. The police act primarily repressively to investigate criminal offenses and secure evidence.

The public prosecutor’s office and the police have a multitude of investigative measures at their disposal in investigation proceedings. In addition to the general powers of witness interrogation, Section 163a StPO, provisional arrest, Section 127 StPO, or identification procedures under Section 81b StPO, particular emphasis should be placed on searches, seizures, and confiscations due to their frequent occurrence and sometimes severe intensity of interference.

An initial suspicion and the presumption that the objective of the proportionate search pursuant to Section 102 StPO will be achieved are generally sufficient to legitimize a search of a suspect under Sections 102 et seq. StPO. The search can serve to find evidence, but also to apprehend the accused. Pursuant to Section 103 StPO, a search of innocent persons may also be permissible in principle. The limited competence to conduct searches at night, Section 104 StPO, must be observed.

The asset freeze under Sections 111e et seq. StPO is experienced as very incisive. This allows the court, and in case of imminent danger the public prosecutor’s office, to secure the assets of the accused by order (to secure the enforcement of a later possible confiscation of value compensation) if there is an initial suspicion.

The asset freeze is then carried out in accordance with Section 111f StPO. Particularly because of its far-reaching impact on the legally acquired assets of the accused, the asset freeze is one of the most serious coercive measures in criminal procedure.

The regulation of Section 94 StPO allows access to objects that can serve as potential evidence, providing for the securing and seizure of objects for evidentiary purposes if there is an initial suspicion. Depending on whether the surrender is voluntary, it is a securing pursuant to Section 94 (1) StPO or a seizure pursuant to Section 94 (2) StPO. In this respect, any prohibitions on seizure must be observed, Sections 96 et seq. StPO.

Conclusion of Investigation Proceedings: Dismissal or Indictment

After the investigation proceedings – using the aforementioned or various other investigative measures – have been concluded, it is up to the public prosecutor’s office to decide on the further course of the proceedings, depending on the degree of suspicion determined:

The proceedings can be dismissed pursuant to Section 170 (2), Section 153 or Section 153a StPO, whereby a Dismissal under Section 170 (2) StPO will occur if the investigations have not established sufficient suspicion of an offense. The accused must be informed of the dismissal of the proceedings by means of a dismissal notice.

Despite sufficient suspicion of an offense, a dismissal under Sections 153 et seq. StPO may occur due to insignificance, as a consequence of the principle of expediency.

Section 153 StPO then provides for a dismissal without conditions, while Section 153a StPO is conditional.

In the event of sufficient suspicion of an offense being established, the public prosecutor’s office files an indictment pursuant to Section 170 (1) StPO by submitting a bill of indictment to the competent court. Sufficient suspicion of an offense is assumed if, after a preliminary assessment of the evidence, a conviction of the accused appears more likely than an acquittal. The public prosecutor’s office then sends the investigation file and the indictment prepared by it. With its receipt, the indictment is filed, so that the so-called intermediate proceedings begin, in which the court decides whether the main proceedings will be opened or otherwise provisionally dismissed. In addition, the accused now becomes the defendant. If, according to the results of the preliminary proceedings, there is sufficient suspicion, the court decides to open the main proceedings (cf. Section 203 StPO).

It is incumbent upon the public prosecutor’s office to issue a penalty order for minor offenses under Section 407 StPO or to request accelerated proceedings under Section 417 StPO in a factually simple case or with clear evidence.

Engage a Defense Lawyer as Soon as Possible in Investigation Proceedings

Contact us as soon as you receive a summons. We will inform the police and/or public prosecutor’s office that you will not appear for the appointment. From that moment on, all communication with the investigative authorities will be handled by our law firm.

Furthermore, we will immediately request access to the files, as only with the file can it be determined what the public prosecutor’s office specifically accuses you of and on what evidence and indications the accusation is based.

We will discuss the accusation with you, develop a defense strategy, and particularly consider whether it makes sense to submit a statement to the public prosecutor’s office already during the investigation proceedings. Such a statement at this stage of the proceedings can often lead to the dismissal of the proceedings or at least allow the public prosecutor’s office to be presented with the facts from your perspective.

Investigation Proceedings – Key Tips at a Glance:

• Stay Calm
• Remain Silent
• Do Not Follow the Police Summons
• Do Not Fill Out Any Questionnaire or Sign Anything
• Contact Us