Defence during a German criminal investigation

By Dr. Julius Hagen, Attorney at Law

Defence before the prosecutor makes a decision

A summons or search is often the first sign that a German investigation exists. By then, the authorities may already have interviewed witnesses and reviewed data. The file shows the basis of the suspicion and provides the foundation for deciding how the client should respond.

The allegation is shaped during the investigation

German investigation proceedings begin when an authority takes an identifiable step towards prosecuting a person for an alleged offence. Suspects often learn about the case much later. Witness interviews may have taken place in the meantime. In white-collar matters, the public prosecutor sometimes has extensive company records before the person concerned becomes aware of the investigation.

The material is used to form a preliminary account of events. Established facts may appear alongside assumptions. A transfer of funds proves that a payment occurred. Its commercial purpose and the participants' knowledge require further examination. A message also has limited meaning until its author and context have been established.

When the investigation is complete, the public prosecutor decides whether to discontinue the case, apply for a penal order or bring charges. Defence submissions can affect that decision once the factual basis of the suspicion is known.

Any statement should follow review of the file

Suspects have the right to remain silent. Exercising this right must not be held against them. A suspect is not required to attend an interview requested by the police. Attendance is required when the summons comes from the public prosecutor or a court, although the right to remain silent continues.

An early statement is difficult to undo. A truthful account may still cause difficulties when the precise direction of the allegation is unknown. An approximate date or an unclear phrase may be given more weight in the file than the client intended. The account can also open a new line of inquiry.

Access to the evidence allows the decision to be made on a sound basis. Some cases require only a limited correction. Others call for a documented written submission. There are also cases in which a statement offers no identifiable advantage. Its timing and scope depend on the current contents of the file.

Access to the file and review of the evidence

Section 147 of the German Code of Criminal Procedure allows defence counsel to inspect the case file and examine evidence held by the authorities. The file may include digital analyses and records obtained from other proceedings. While the investigation continues, the public prosecutor may restrict access to parts of the material if disclosure would jeopardise the purpose of the investigation.

That restriction does not apply to certain records. Under section 147(3), access may never be refused to records of the suspect's own interviews, records of specified judicial investigative acts and expert reports.

The written file must be compared with the underlying evidence. The discovery of an object in a shared home does not establish who controlled it. A message can be assessed properly only after the user and conversation context are known. The value of a witness account also depends on how it arose and whether other evidence supports it. Details of this kind can change the assessment of the suspicion.

Placing exculpatory material before the authorities

Review of the file identifies any need for further clarification. Counsel may submit a document, request a particular investigative step or obtain an expert assessment. In some cases, evidence must first be preserved because it may otherwise disappear. Electronic data subject to a short retention period is one example.

Timing requires care. An incomplete record may reinforce the wrong impression. Identifying a witness too early can complicate an independent interview if the parties then contact each other. Each proposed step is assessed by reference to the information it may produce and its likely effect on the remaining investigation.

Where the suspicion is insufficient, counsel can make the case for discontinuance under section 170(2) of the Code of Criminal Procedure. Other outcomes may be available, depending on the evidence. Consequences outside the criminal case also matter because different outcomes may be treated differently by professional or immigration authorities.