Ending a German investigation without charges

By Dr. Julius Hagen, Attorney at Law

The legal basis affects the outcome

At the end of the investigation, the German public prosecutor decides whether to bring charges. Section 170(2) requires discontinuance where the evidence falls short of the prosecution threshold. German procedure also permits closure for minor alleged wrongdoing or after compliance with a condition. In those cases, some suspicion may remain.

The reason for discontinuance can affect separate regulatory proceedings. It should therefore be considered before the client accepts a condition. Prosecutors sometimes give only brief reasons, so the wording and scope of the written decision need to be checked.

Section 170(2) – the evidence does not support charges

The German prosecution threshold is known as hinreichender Tatverdacht. A conviction must appear probable on a provisional assessment of the available evidence. If this threshold is not met, section 170(2) requires the prosecutor to discontinue the case. The same provision applies where the conduct recorded in the file does not amount to a criminal offence.

The defence submission should identify the gap in the prosecution case. A transfer establishes that money moved between accounts. It does not by itself prove that a managing director breached a fiduciary duty. A document found on a shared server may leave authorship and knowledge unresolved.

Witness evidence may also fall short of the threshold. Its value can depend on personal knowledge and consistency with the contemporaneous record. The submission should focus on the points at which the alleged chain of proof fails.

Section 170(2) discontinuance contains no finding of guilt. It does not have the finality of an acquittal. New evidence may lead to the investigation being reopened before the limitation period expires.

Section 153 – discontinuance for minor culpability

Section 153 applies to offences classified as Vergehen. Any culpability would have to be minor, and there must be no public interest in prosecution. Court approval is generally required. For certain offences with limited consequences, the prosecutor may decide alone. No condition is imposed.

The assessment concerns the suspect's actual contribution. A subordinate role may carry weight, as may a modest loss that has already been repaid. German law does not require a confession. An account given in anticipation of an agreement can remain in the file if the proposal is rejected.

Section 153a – provisional discontinuance subject to conditions

For a Vergehen, the public prosecutor may provisionally refrain from bringing charges with the consent of the court and the suspect. The seriousness of the alleged culpability must permit this outcome. The agreed condition must also be capable of removing the public interest in prosecution. Payment of a sum of money is common.

The case remains provisionally closed until the condition has been fulfilled. Once the client complies in full and on time, the conduct can no longer be prosecuted as a Vergehen. Amounts already paid are not refunded if the condition remains unfulfilled and the proceedings continue.

Consent under section 153a does not constitute a confession. The client still needs a reliable basis for the decision. The condition must be affordable. Where financial information is submitted in support of a lower payment, counsel should define the scope of disclosure in advance.

Section 153a may remove litigation risk and avoid a public trial. Before accepting it, counsel should assess whether the file supports a section 170(2) application. This keeps the more favourable basis for discontinuance in consideration.

Discontinuing an offence or limiting the remaining case

Where several separate offences are under investigation, section 154 allows the public prosecutor to set one aside. Its expected sanction must generally add little to another sentence. Section 154a addresses the scope of a single alleged offence. It permits separable parts or selected legal violations to be removed from the continuing prosecution.

Both decisions reduce the remaining case. The written order should identify what is still being prosecuted. Provisionally excluded matters may return under the statutory rules and can retain relevance to the proceedings that continue.