It happens in life that on a very bad day even the average person involved in average business may get to the attention of the prosecutor’s office.
Carelessness, insufficient understanding of the situation and other unfavourable circumstances may aggravate the troublesome situation in which this person finds himself and may lead to a severe exposure of his property and liberty.
In these kinds of situations usually personal experience does not exist, which makes it difficult to stay calm and reasonable. Being exposed to interrogation, arrest, personal search or even confiscation of property therefore requires assistance of a lawyer the earlier the better. This is especially true for persons who are not sufficiently acquainted with official language and laws of the country, where the incident occurred.
On a better day the average person is only of interest to the prosecutor’s office because he has available information about the committal of a crime, being only a witness without being involved in the committal of that crime as such.
In this context it is interesting to note that not long ago rules have changed in Germany in relation to witnesses. Before that happened in accordance with § 161 of the old version of the Regulation on Criminal Procedure (StPO) witnesses were only obliged to comply with requests from the prosecutor’s office to testify but not to comply with those issued by the police. Even an obligation to testify at the police or to talk to the police at all did not exist.
After recent changes in European legislation from 24.08.2017 in Germany entered into force a “Law on a more effective and better suitable to reality criminal law procedure” that introduced obligations for witnesses to comply with requests to testify from police officers that are formally assistants to the prosecutor’s office and act on behalf and upon an order from the prosecutor’s office. Obviously this additional requirement of an order from the prosecutor’s office will not matter much in practice because obviously in real life it won’t be difficult to obtain such rather quick in any case with the help of modern means of communication.
Rights and obligations of persons who are under suspicion of having committed a crime look much differently. The purpose of all criminal investigation is to find out all the circumstance of the matter and whether or not it will be possible to have enough evidence for a positive court verdict. Thereby the prosecutor may undertake everything permitted under the law to find out the truth about what has happened. Therefore it is important to be aware that already during the investigations of the prosecutor’s office the future of the proceedings will be predetermined to a certain degree, this is why it is important to know the rules of the game already at this stage.
Who is officially charged with an offence ?
A suspect becomes a person charged with an offence if the prosecutor’s office takes a formal decision to start criminal investigation against that person. When the prosecutor receives a complaint of a criminal offence and the result of first investigations shows that the suspect did not commit the crime, then the prosecutor finishes investigations without informing the suspect. Such information is only necessary in the cases of § 170 (2) S. 2 StPO.
In the opposite case the prosecutors office hands the results of investigations over to the competent court and after that the competent judge takes a decision in an intermediate court proceeding (Zwischenverfahren) that a main proceeding is necessary and opens main proceedings in the near future or refuses to do so.
Right to be heard, right to refuse to give evidence
Effective legal protection requires that the person charged receives sufficient information about what he is charged for. This is why the prosecutor’s office is obliged to give information about existing suspicions. This right is called the right to be heard and it means that the unfavourable result of proceedings may only be used before court if beforehand the suspect had sufficient opportunity to give his views on the the results of investigation and the circumstances of the incident.
Already during the preliminary investigations conducted by the prosecutor’s office (Ermittlungsverfahren) is applicable § 33 StPO which requires that before every decision that is based on new facts or new evidence the charged person must be heard. If that is impossible, then the hearing must be done later, but the sooner the better, § 33a StPO.
The charged person himself has to decide whether it is more favourable to testify and to give own views or to refuse to do so and to be silent. He is not obliged to afflict himself. If the charged person decides to give his views, as a rule he is not obliged to tell the truth. However, his right to protect himself with lies does not apply, if as a consequence of this other crimes would be committed, for example “false suspicion”, § 164 StGB. Something else is true if that “false suspicion” does only occur as a result of denying the own guilt when only one other person could have committed the crime.
Although the person charged has a right to lie to the prosecutor’s office, they in turn have the right to indicate that it might be more beneficial for the prosecuted person to tell the truth, because it usually has a positive impact on the degree of guilt, when the perpetrator helps to shed light on the matter.
The right to be heard is of great constitutional meaning. This is why the charged person has to be well informed about this right and on his right not to comment at all, already before the interrogation starts. The instruction needs to include that the person charged has a right of the presence of a lawyer and persons from foreign countries prosecuted need to be informed that they have a right to receive support by their respective consulate.
The collected evidence is not allowed to be used in court proceedings if it has not been collected in accordance with the law, even if this did only not happen due to coincidental circumstances.
The law prohibits various ways of interrogation that are listed in § 136a StPO such as «mistreatment, fatigue, torment, deception, hypnosis». Even if the charged person explicitly declared his consent to such proceeding, they remain prohibited and their results shall not be used in a verdict.
The person charged himself also has a right to file an application to collect evidence even before the main proceedings (Hauptverhandlung) (§ 166 Abs. 1 StPO) starts.
Attorney at Law
The person charged has the right to take advantage of the assistance of up to three lawyers at all stages of criminal legal proceedings. The attorney at law other than the person charged has the right to request access and examination of all documents that the prosecutors office has available in relation to the given case. He will receive a full set of documents which he may copy and send to the person charged . It is advisable that the charged person will only express his views in writing or by word of mouth after taking full note of the documents of the prosecutors office. This way the lawyer receives a full picture of the matter and will be better able to assess the situation and file applications or indicate to existing prohibitions to use evidence and possibly might achieve a cease of investigations already at an early stage.
It is obvious that persons charged for criminal offences are not without rights during preliminary criminal investigation (Ermittlungsverfahren). However, many suspects are not aware of their rights and as a consequence commit serious mistakes. Often declarations of persons charged are made without being acquainted with the relevant documents of the prosecutor’s office and without having received appropriate legal advice of a lawyer beforehand, which may have serious negative consequences that later cannot – or only with great efforts – be repaired by a lawyer . This is why it is advisable to consult a lawyer in these cases the sooner the better even if the person charged is deeply convinced of his own innocence.
Obligations of the charged person
The person charged is only obliged to give full and correct information about his identity such as profession and place of residence . If he refuses to do so the prosecutor’s office has a right to start an identification verification procedures (Identitätsfeststellung) in accordance with § 163b StPO or personality verification procedures (Personenfeststellungsverfahren). In addition the prosecutor’s office has a right to execute identification treatment (Erkennungsdienstliche Behandlung). The person charged in these cases may expect an administrative penalty if he refuses to cooperate and does not provide these pieces of information (Ordnungswidrigskeitsverfahren, § 111 OWiG).
The costs of criminal law proceedings
Court Fees
As a general rule the convicted carries all the fees for criminal law proceedings including fees of lawyers, transport costs, etc., and in addition to that all costs of other involved persons (experts, fees for lawyer of соистца (Nebenkläger), compensation for witnesses, etc). The fees for the court are fixed according to the verdict that has been issued. If the verdict consists of an imprisonment of up to six months or a monetary penalty of up to 180 daily rates of income the court fee is 140 EURO. If the verdict consists of an imprisonment of up to one year or a monetary penalty of more than 180 daily rates of income the court fee is 280 EURO. If the verdict consists of an imprisonment of up to two years the court fee is 420 EURO and if it consists of an imprisonment of up to four years the court fee is 560 EURO, up to 10 years 700 EURO and in case of a life-imprisonment 1.000 EURO. In case of a monetary penalty the court fee comprises of 10 % of the sum of the penalty; however at least 50 EURO but not more than 15.000 EURO. Details are regulated by Court Fees Act (Gerichtskostengesetz).
In case of a verdict of non-guilty (Freispruch) the state carries the costs of proceedings and necessary costs of the charged person § 467 (1) StPO. Other than a monetary penalty the costs of criminal proceedings can not be turned into an imprisonment. If the convict refuses to pay for the costs an ordinary monetary obligation will come into existence. Its exchange to an imprisonment is not possible.
The rule that the convict has to carry the costs of the proceeding also applies as a general rule to juvenile convicts, however in these cases the court has the right at its own discretion according to pedagogical considerations to lower the costs or to dispense them completely (Freistellung).
Fees of lawyers
The amount of the fee that the lawyer may ask for largely depends on at which court level the proceedings took place, i.e. whether the ordinary criminal court (Strafrichter und Schöffengericht), or at second level a criminal chamber and a chamber for criminal juveniles (Große Strafkammer und Jugendkammer) or at hightest level (Schwurgericht) or (Oberlandesgericht) were to decide.
The second criteria for determination of the lawyers fee is the kind of activity of the lawyer
Activity without appointment
For providing advice by word of mouth or in writing – without being appointed as a defender or another participant of the proceeding – the attorney at law receives a fee from 15 EURO up to 190 EURO nett from a consumer, and if the client would be an entrepreneur up to 250 EURO. If the lawyer works for more than one client the fee increases. For example, the fee increases to 247,50 EURO if the lawyer works for two consumers.
In order to be entitled to receive fee for criminal investigation proceedings it is sufficient that the lawyer declares to the police/prosecutor’s office that he defends his client and that he requests access to the documents of the case.
The mentioned maximum fees only take effect if the lawyer did not conclude an agreement on remuneration with his client. In this case these limits are not applicable.
A lawyers may act as a representative of private action (Privatklage) , accessory prosecution (Nebenklage) , accessory participant (Nebenbeteiligten), victim
All these activities are of same value this why in general all activities are equal with respect to the amount of the fees.
These fees cover all secondary activities of the lawyer in that particular level of jurisdiction. In every new instance new fees are due. They are higher in appeal and revision proceedings,
Fees increase if additionally property claims are pursued or the verdict covers forfeiture of property items or driving licence.
Usually in criminal law proceedings lawyers and their clients conclude an agreement on remuneration because the fees according to the law are too low to fully reflect the usual efforts of lawyers.
In criminal law proceedings applies the rule that the state compensates the fees that an innocent person would have to pay for his legal defence. However this extends only to the amount that the lawyer would be entitled to under the law and not to what has been agreed upon in a separate agreement on remuneration.
If the person charged does not wish or is not able to involve a lawyer in severe cases of a “necessary defence”(Notwendige Verteidigung, §§ 140 ff. StPO) the state is obliged to order an assigned counsel (Pflichtverteidiger).
Preliminary investigation (Ermittlungsverfahren) is called the preparatory phase of criminal proceedings (Vorverfahren). It aims at investigating and collecting charging and discharging evidence in relation to the suspect and the circumstances of the crime in question. The costs of a preliminary investigation (Ermittlungsverfahren) conducted by the prosecutor’s office do not belong to the costs of the court proceedings that will occur later. They are not offset or credited to the former.