Indictment received in Germany

By Dr. Julius Hagen, Attorney at Law

The court has not yet accepted the charges

A German indictment states the offence the prosecution intends to bring before the court. It presents a factual account and explains how the available evidence is understood. The document often reads as if the allegations had already been judicially confirmed.

They have not. Service of the indictment usually begins the intermediate proceedings, known as the Zwischenverfahren. The court reviews the file and decides whether a conviction appears sufficiently likely to justify opening the main proceedings. The accused is given a deadline to raise objections or request limited additional evidence.

What conduct is actually being charged?

The indictment must identify the event that the court is being asked to try. This is usually straightforward where the case concerns one clearly defined incident. Difficulties arise where several similar events or a longer period are combined into one account.

The problem is not limited to financial or corporate cases. It may also arise where the prosecution relies on repeated meetings, several alleged transfers or a series of communications. The accused must be able to understand which individual conduct is said to be criminal and what personal contribution is alleged.

Minor drafting weaknesses do not automatically invalidate an indictment. The issue becomes significant where the alleged event can no longer be distinguished reliably from other conduct or where the accused person’s role remains unclear.

Presence or contact does not establish participation

In many cases, the underlying event is not disputed. The central issue is whether the accused personally took part in it and with what degree of knowledge.

Presence at a location may be incriminating, but it does not automatically prove an active contribution. The same applies to contact with another suspect or access to shared premises and devices. Where several people are involved, the file must support the individual attribution of conduct and intent.

The prosecution may combine several indications into one coherent account. The defence must examine whether the links between those indications are supported by evidence or merely assumed.

Evidence and interpretation

A message may be authentic while its meaning remains disputed. It may form part of a longer conversation or refer to a different event. The same difficulty arises where a phone or account was used by more than one person.

Witness evidence also requires context. Memory may be incomplete. Later conversations can affect recollection. A co-defendant may have an interest in reducing their own responsibility.

Police reports often summarise extensive material. Those summaries already contain interpretation. They should be checked against the underlying messages, recordings and other source evidence.

The threshold for opening the main proceedings

The court does not need to be convinced of guilt at this stage. It must nevertheless consider a later conviction sufficiently likely after a preliminary assessment of the file.

This requires more than a legally possible allegation. The available evidence must support the accused person’s role and the required mental element. Where the case depends on one disputed statement, uncertain identification or an inference that is not supported by the source material, the opening decision may require closer scrutiny.

The intermediate proceedings are not a substitute for the criminal trial. They may, however, prevent an unsupported or overly broad allegation from proceeding unchanged.

Access to the case file

The indictment is a summary of the prosecution’s position. A proper response normally requires access to the evidence behind that summary.

The file may show that a message was quoted without its context or that a witness made a different statement earlier in the investigation. It may also show that the evidence is stronger than the indictment alone suggests.

Where important file sections or digital analyses are still missing, an immediate written response may be premature. The defence should not answer a completed prosecution narrative before checking its factual basis.

When a written submission may be useful

A focused submission may affect the opening decision where one verifiable fact undermines the allegation. A documented absence from the alleged location or an objective record contradicting the alleged role may be sufficient.

A broader statement can create difficulties. It commits the accused to a factual position and may prompt further investigation. It may also alert the prosecution to weaknesses that can still be addressed before trial.

A submission at this stage should therefore serve a clear procedural purpose. Otherwise, it may be preferable to prepare the defence after a complete review of the file.

The court’s decision

The court may admit the charges for trial, exclude individual parts of the case or apply a different legal classification.

It may refuse to open all or part of the proceedings where the evidence does not support a sufficient prospect of conviction. Discontinuation may also remain possible after the indictment has been filed.

An opening order does not determine guilt. It moves the case into the trial stage, where the defendant’s position and the evidence must be prepared for the main hearing.

Consequences outside the criminal case

An indictment may affect employment, immigration status or personal relationships. Whether any authority or third party becomes involved depends on the individual circumstances.

Statements made to employers, authorities or other persons should be coordinated with the criminal defence. An explanation given outside the criminal proceedings may later become part of the evidence.