1 - Notes
Proceedings may be discontinued (Einstellung) at any point, either by the public prosecutor or, after the prosecution has been brought, by the court. There are various ways in which proceedings can be discontinued. The main ones in practice are as follows.
Proceedings can be discontinued provisionally, for example if you are absent for a long period. Proceedings can also be discontinued if the investigation does not produce sufficient grounds to bring charges, in which case the public prosecutor may reopen the proceedings at any time (subject to certain periods of limitation), for instance if new evidence comes to light.
The proceedings can also be discontinued definitively. This can happen in the case of offences where the degree of culpability is small and there is no reason to believe that prosecution would be in the public interest. Proceedings may also be discontinued conditionally, for example on condition that you pay a fine or comply with an order, such as an order to attend road safety classes.
At the end of an investigation into a minor offence (Vergehen) the public prosecutor, rather than bringing a prosecution, may apply to the court in writing for a summary order (Strafbefehl). The court may make a summary order if it considers the written evidence sufficient. A summary order describes the offence briefly and imposes a stated penalty. If you do not object, the summary order has the same effect as a final judgment.
A summary order has limited legal consequences. It normally imposes a fine. It may also impose a driving ban. Provided you have a defence lawyer, you may also be sentenced to a term of imprisonment of no more than one year, but probation must be granted.
If you do wish to object, you have two options:
In the case of a fine, you may confine your objection to the daily quota used to calculate the fine. If you and the public prosecutor agree, the court can take a decision without a full trial.
If you do not limit your objection, the case will go to trial. You do not have to appear in person, but may be represented by a lawyer. Witnesses do not need to appear in person either. Minutes of examinations of witnesses can be read out with your agreement, if you are present at the trial.
At the end, the court will deliver judgment. It is not bound by the penalty imposed in the summary order: it may also impose a higher penalty, within the legal sentencing limits.
Where the facts are simple and the evidence is clear, the public prosecutor can also apply to the court for expedited proceedings (beschleunigtes Verfahren). Proceedings of this kind may be resorted to for example if you are not resident in Germany and there is reason to believe that you will not appear at a later court hearing.
If the public prosecutor applies for expedited proceedings, the trial will take place immediately or within a short time. There is no need for a court decision to proceed to the trial stage, as there is with an ordinary prosecution: there are no intermediate proceedings.
In expedited proceedings there are simpler rules allowing the court to refuse applications to have certain evidence considered.
The scope for sentencing is likewise limited. The court can impose only a fine, or a term of imprisonment of no more than one year. It may also withdraw your driving licence.
Unless you are already being represented by a lawyer, the court must appoint one if you are suspected of a more serious crime (Verbrechen), or if the likely sentence in the event of a conviction is more than one year’s imprisonment, or if you are being held in pre‑trial custody, or you are unable to defend yourself for other reasons. In expedited proceedings a defence lawyer will be appointed if the likely sentence is more than six months. The court’s obligation to appoint a lawyer does not depend on your financial status.
The court appoints the lawyer. It must allow you to choose your own lawyer if you so wish and to nominate that lawyer to the court. If you do not nominate a lawyer, the court will designate one itself.
The court‑appointed defence lawyer can be changed only in exceptional cases. You may also appoint a different lawyer of your own choice, in which case the court will usually withdraw the appointment of the court‑appointed lawyer. If you do choose your own lawyer you will have to pay the costs yourself, except in so far as the costs have to be borne by the state in the event of an acquittal.
What data is kept?
The police keep their own databases of information obtained during investigations.
The public prosecutor’s office also stores data during and after an investigation. Information obtained in the course of an investigation is also kept in a central register of prosecutions. There are specific periods set by law after which the information must be deleted.
Records of convictions in criminal cases are kept in the Federal Central Criminal Register (Bundeszentralregister). You have no say about whether this data is recorded. Convictions are deleted after a specified time if no fresh convictions have been added. The length of time depends on the severity of the sentence.
What data are consulted in criminal proceedings and when?
The police and public prosecutor may access their own databases at any time. They have no direct access to the Federal Central Criminal Register. When the court prepares for the trial it will request an extract from the register.
Do the data play a role at the investigation stage?
If there are records of previous investigations, the public prosecutor’s office must take these into account if, for example, it is checking the possibility of discontinuing proceedings under Sections 153 and 153a of the Code of Criminal Procedure.
Do the data play a role at the trial stage?
The law allows previous convictions recorded in the central register to be taken into account at the trial. If you are found to have previous convictions, they may have a negative effect on the sentence. Data kept only by the public prosecutor or the police may not be taken into account in sentencing.
How can I find out what information has been stored about me, and what can I do about it?
You can find out what data concerning you has been stored by applying to the departments that record the data.
You can apply to have the data deleted by the department. If the department refuses to do so, you may have the decision reviewed by a court.
The Central Criminal Register is governed by the Federal Central Criminal Register Act. Data stored by the public prosecutor is subject to Sections 483 ff. of the Code of Criminal Procedure; the central register of prosecutions is covered by Section 492(1) of the Code of Criminal Procedure, with further details in a Regulation; police databases are governed by the Federal Office of Crime Prevention Act and the police legislation of the Länder.
You have the right to challenge measures taken during an investigation. The remedies open to you include filing a police complaint or applying for the matter to be decided by a court.
You can lodge a complaint (Beschwerde) against such a court decision.
If the police or the public prosecutor have taken a measure without a warrant, you can apply to have it reviewed by the court retrospectively. If you object to a seizure, the matter will be brought before a judge automatically, and you do not need to apply to the court.
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Last update: 13/04/2018