...about Criminal Proceedings (From Report to Conviction)

The process from the report of an offence to conviction is long, complex and take years. We have complied in the following what is important and what options are available.

Reporting an Offence

The police and the public prosecution office only take action if they know about a criminal offence. By filing a complaint, the police and the public prosecution office are informed about a criminal offence. Anyone can report an offence at any police station, public prosecution offices or in court. The report can be either written or oral and must be received by authorities. The report must be made in the official language German. Prosecuting authorities (police and public prosecution office) are obliged by law to investigate the facts of the case. From this point on, the preliminary investigation begins, e.g. court hearings of witnesses, taking of evidence and so on. If an interpreter is needed for the court hearing, the prosecuting authorities must be informed in advance. Public authorities need to know which language is required, then they will take care of it.

You can report an offence in person or online via form: https://polizei.sachsen-anhalt.de/das-sind-wir/polizei-interaktiv/e-revier/

Personal details must be given when reporting an offence: first and last name (if necessary, birth name), date of birth, place of birth and address of residence or address at which documents may be served.

Please note: Any person who fakes an offence, knowingly suspects someone wrongly or knowingly makes false statements is liable to prosecution. In this case, knowingly means being fully aware of telling something false.

Being affected by an offence can be bad. Many affected people consider whether

reporting an offence at all. Since they do not know the person who committed the crime, or they think reporting an offence will not help. Or the affected person is ashamed of the situation.

However, a report is important so the police can investigate. This can ensure that the offence will be clarified and the person who committed it has to come to terms with his or her own actions.

Counselling agencies can help when any uncertainty occurs. There you can decide together whether you want to report an offence and they show you how to do it. Here you can find some counselling agencies in Saxony-Anhalt.

Report of an Offence (Strafanzeige) vs. Request to Prosecute (Strafantrag)

A distinction is made between a report of an offence and a request to prosecute in Germany.

A report of an offence is only a notification of a fact to the prosecuting authorities. Therefore, the public authorities are only informed. The offence can be reported by affected persons as well as by people who have knowledge of the facts of the case. (see above: Reporting an Offence) The report must be made in German.

With a request to prosecute, the person reporting an offence does not only want to inform about the fact but wants the offence to be prosecuted. For this purpose, a written declaration must be made. The written declaration must also be made German.

You do not necessarily have to decide what exactly you want to happen. When you report an offence, the prosecuting authority (e.g. police) informs you whether it is a report of an offence or a request to prosecute.

This difference is mainly important because in some cases the public prosecution office can only investigate if this is wanted by the person affected. This is done by a request to prosecute. This is called a criminal offence prosecuted only upon request by the victim.

A request to prosecute is only possible within 3 months. This applies from the time when one is informed about the offence and the offender.

These are offences such as: insult, malicious gossip (üble Nachrede) or defamation, trespass, criminal damage and theft of property of minor value.

In addition, there are criminal offences (Offizialdelikte) in which the public prosecution office investigates on its own, i.e. "ex officio". These are offences such as: murder, robbery, fraud or field of economic crime.

Warrant of Arrest

Warrant of arrest is either requested as part of the preliminary investigation or after a conviction. It is issued by judges on the basis of an application from the public prosecution office.

An arrest is a serious interference with a person's rights and is therefore only issued under the following conditions:

strong suspicion of an offence (high probability, not only initial suspicion)
ground for arrest (risk of flight, witness tampering or influencing evidence, risk of recidivism, severity of the offence)

Proportionality is always reviewed.

None of the persons affected is informed in advance of a warrant of arrest. Therefore, the provisional arrest takes place unexpectedly.

If the police have a warrant for a person's arrest, they try to find the person and bring him or her into custody. For this purpose, the place of residence and possibly the place of work are visited. If necessary, other persons will also be asked.

The warrant of arrest remains effective until the person in question is found.

At first, the police take the person into custody, hands over the warrant of arrest, and explains the most important rights.

After one day in prison at the latest, the person is brought to the judges and can explain himself/herself. Then, the judges can confirm or revoke the warrant of arrest or seek for alternatives (such as confiscation of the passport).

Provisional arrest without a warrant of arrest is possible if for example the offender has been "caught in the act". Additionally, the identity must not be ascertainable or there must be a risk of flight. Moreover, the requirements for warrant of arrest apply, i.e. urgent suspicion and grounds for arrest.

Criminal Proceedings

Preliminary Investigation

The public prosecution office investigates together with the police if there is a case of a criminal offence and checks whether there is sufficient suspicion against an accused person to prove that he or she committed the offence.

If there is very strong suspicion against a person, the public prosecution office files charges against the person.

A bill of indictment is filed and sent to the respective court. The bill of indictment contains the file and the application for a main hearing.

The bill of indictment is then sent to the accused person. The public prosecution office is granted a certain period of time to file evidentiary motions or to make declarations.

The court checks whether and to what extent the indictment will be approved, i.e. to what extent a main hearing will be held.

The court may terminate the proceedings, also in exchange for the issuance of conditions and directions.

The court will decide to open main proceedings if it allows a main hearing to take place. The court determines specifically what will be the subject of the main hearing, i.e. which offences are to be judged.

Main Hearing

During the main hearing, clarification is to be provided as to whether the indictment is justified.

The public prosecution reads out the indictment admitted by the court, which is taken from the decision to open main proceedings.

The main hearing is conducted by the presiding judge. All other judges are only allowed to ask questions if they are requested to do so.

Initially, there is a hearing of evidence in which, for example, witnesses are heard and, if necessary, documents are read out.

All parties must cooperate, except the accused person and his or her immediate family. Should someone make use of their right to remain silent, no disadvantages may arise as a result.

The objective is to establish the true facts of the case. If the evidence is not sufficient, new evidence must be collected.

The public prosecution office, the defence counsel and the defendant can make a statement after any taking of evidence.

If there is no further evidence, the decision will be in favour of the defendant.

After all the evidence has been discussed, the public prosecution and the defence counsel make closing statements. The defendant has the final word.

In a secret consultation, all judges must reach a decision and make a judgement.

Criminal Defence and Court-Appointed Defence Counsel

Criminal Defence

Section 137 of the German Code of Criminal Procedure states that every accused person has the legal right to get a lawyer as defence counsel. The lawyer represents and supports the accused person.

They defend the accused person in criminal proceedings, ensure regulatory compliance and claim extenuating circumstances for the defendant.

Their aim is to achieve the mildest possible judgement, the termination of proceedings or the acquittal for the accused person.The lawyer organises an interpreter, if necessary.

Court-Appointed Defence Counsel

In some criminal proceedings a criminal defender has to be on site.

If the accused person has not instructed a criminal defence, the state provides a court-appointed defence counsel.

Court-appointed defence counsellors are criminal defenders. So, they have the same responsibilities as criminal defenders.

Criminal defence is mandatory, if:

the severity level of the alleged offence is high
a conviction may result in severe consequences
the accused persons cannot defend themselves.

Every lawyer can be a court-appointed defence counsellor. Make sure that your lawyer is a specialist in the relevant field of law, for example crime law.

The accused persons can choose their lawyers and are not obliged to accept a court-appointed defence counsellor. You can appoint your lawyer freely, it is just up to your budget, to pay the lawyer on your own. In any case, lawyers must be present in the criminal proceedings described above.

So, the court-appointed defence counsel is not provided depending on the income of the accused person. It depends on the type and level of imminent penalty.

In criminal proceedings where no criminal defence is required, lawyers must be paid by the accused person if they wish to be defended.

The court-appointed defence counsel is not always free of charge. If the accused person gets convicted, he or she has to pay a part of the overall costs of proceedings. Costs of proceedings include costs for the court, the court-appointed defence counsel, and optionally for interpreters. In case of an acquittal, the costs for court proceedings, lawyers and optionally for interpreters will be paid by the state.

Usually an application for a court-appointed defence counsel is not necessary, because the court has to organise this ex officio. However, it is recommended to submit an application anyway, because facts alone may not reflect the urgency of a court-appointed defence counsel yet.

For example, if an accused person is ill and cannot defend himself or herself, the court would not have this information yet. In this case, a court-appointed defence counsel makes sense.

It is advisable to ask lawyers beforehand whether you should apply. This will help you, because in your application you will have to justify why a court-appointed defence counsel is necessary if it is not for a reason clearly stated in the German Code of Criminal Procedure.

Assistance with Costs for Legal Advice and Court Costs (Beratungskostenhilfe & Prozesskostenhilfe)

Everyone is entitled to their own rights. However, this is often associated with high costs. Because everyone has the right, even if they cannot raise the necessary money for it, they can apply for assistance with costs for legal advice or later eventually assistance with court costs.

Assistance with Costs for Legal Advice (Beratungskostenhilfe)

If someone has limited financial means, he or she is entitled to receive assistance with costs for legal advice. The application for assistance with costs for legal advice is made either at the appointed law firm or directly at the Local Court (Amtsgericht). When applying, applicants must disclose their financial status.

The application for assistance with costs for legal advice at the Local Court (Amtsgericht) and the issuance of the permit is free of charge. In case someone decides to consult up with a law firm, he or she has to pay 15€ to the respective law firm. Some law firms waive the 15€. If the request for assistance with costs for legal advice is granted, the law firm receives the money for the consultation from the state treasury.

Assistance with Court Costs (Prozesskostenhilfe)

Basically, assistance with court costs works in a similar way to assistance with costs for legal advice, but it is intended to help with court proceedings. The costs of court, interpreters and experts as well as legal representation costs can be covered by this (but not the costs of the lawyer on the opposing side). The application must also be filed with the court.

Appellate Remedy

Appellate remedies may be lodged by the accused person or the public prosecution office within a certain period of time.

Appellate remedies can be an appeal or a revision and are used to challenge a previous judgement. If appellate remedies are filed, the proceedings go to the next higher instance (e.g. from the Local Court (Amtsgericht) to the Regional Court (Landgericht) or from the Regional Court (Landgericht) to the Higher Regional Court (Oberlandesgericht).

If the defendant has himself or herself appealed, the first sentence determined may not be increased to the disadvantage of the accused person when the case is reconsidered. The first judgement then applies. However, this is not the case when appellate remedies are filed by the public prosecution office (i.e. the opposing side).

Appeal on Fact and Law

An appeal on fact and law is an appellate remedy that can be filed after a judgement. The case is then reassessed by the next higher court in terms of its content and reopened independently of the criminal proceedings before it. New evidence, witnesses or expert opinions may also be considered.

Appeal on Points of Law

In an appeal on points of law, the case is not reopened in terms of its content, but the previous court instance is examined for errors of law during the concluded proceedings. The issue is whether the court either violated procedural rules or misapplied the law beforehand. Usually, an appeal on points of law is lodged against a judgement that was passed in the Regional Court (Landgericht).

Penalties and Sanctions

In theory, penalties are imposed to compensate for the injustice committed to a crime and/or to prevent future crimes. There are different types of penalties. The law distinguishes between principal and additional penalties.

Principal penalties are fines and penalties of imprisonment. An additional penalty would be, for example, a driving ban.

Penalties have a significant impact on the convicted. The effect of the penalties on every individual case has to be taken into consideration with the conviction.

Additionally, motives for the offence also play a part in the imposition of penalties. These include, for example:

Motives and objectives,
Attitude and will,
The modus operandi and the consequences,
Previous life of the accused person,
Personal and financial circumstances of the offender,
conduct and efforts after the offence.

Fines

Being sentenced to a fine means that the convicted person has to pay money to the Treasury or, for example, to a charitable organisation. The penalty is the loss of money and therefore limitations to the previous living standard. Fines are a way of warning and deterrence without tearing the convicted person away from their family and social relations.

The assessment of a fine is based on the daily rate and the amount of daily rates. The daily rate depends on the offence. That means the daily rate for a particular offence is about the same for everyone who is convicted for it. The amount of the daily rates depends on personal and financial circumstances of the convicted person and is based on their net income (section 40 (2) German Criminal Code). Maintenance costs, for example, are also taken into account.

Default Imprisonment

In case the fine cannot be paid, it can be replaced with default imprisonment. This requires the convicted person to go to prison. A daily rate equals one day in prison.

Already paid off amounts of money are taken into account and deducted from the stay in prison. Likewise, a default imprisonment can be terminated by paying off the remaining fine.

Avoiding Enforcement of Default Imprisonment through Community Service

In case the fine cannot be paid but you also do not want to go to prison, you can apply to pay off the fine in the form of serving community service instead.

This Community service has to be applied for at the corresponding public prosecution office.

The daily rate determines the number of work days.

The daily rate as well as the number of daily rates is usually included in the letter received from court.

Community service can be served at an association, for instance. Associations such as support for offenders or the probation service (SDJ) can assist in the process of finding a placement and with the application.

Penalty of Imprisonment

If you are sentenced to a penalty of imprisonment, you will usually have to go to prison (unless you are given probation). The aim and purpose of a prison is, on one hand, to protect the public from the convicted person and on the other to support them in a way that enables them to lead a crime-free life in the future.

A conviction to less than 6 months is rather rare. The highest possible conviction is an imprisonment for life followed by preventive detention. In Germany, for life means that you can be released after 5 years at the earliest. This applies to adults that are convicted according to the German Criminal Code. Juveniles convicted under the Youth Courts Act can get a penalty of imprisonment between 6 months and 10 years.

You can find further details in the other sub-sections of our website.

Imprisonment for Life

The court lays down a minimum sentence for imprisonment for life.

This means that an application for early release with probation can only be applied for after 15 years. If the application is rejected, a new application may be made after 2 years. Life imprisonment is imposed if the judgement or a later order describes "particular severity of guilt", such as for example murder.

The consent to the release depends, among other things, on the dangerous classification of the prisoner (hazard forecast/legal forecast).

Preventive Detention

A convicted person is only placed in preventive detention after serving a sentence of imprisonment. The person is no longer considered a prisoner, but a detainee. For example, detention rooms are bigger than prison rooms. The court must already include preventive detention in the judgement at the time of conviction. Just before the end of the penalty of imprisonment, it will be examined whether preventive detention or probation will come into effect. This means that you are allowed out of the prison, but you receive a probation officer (supervision of conduct).

Preventive detention is imposed when the offender is considered to be particularly dangerous to the general public or the offender has already repeatedly committed offences and the conviction is based on serious criminal offences.

The placement is not limited in time. It is examined annually whether the detainee can be released. If this is the case, a supervision of conduct will be appointed, for a minimum of 2 and a maximum of 5 years. However, after 10 years of preventive detention, substantial reasons must be presented why the convicted person still cannot be released.

Probation or a suspended prison sentence

In the case of a sentence of up to 2 years' imprisonment, the sentence may be suspended. The court sets a specific probation period during which the convicted person can prove that the conviction alone was sufficient as a warning to avoid committing further crimes. This probation period may be for 2 to 5 years per case. The suspended sentence (duration) can be modified within the probation period.

Often, the convicted person is given conditions and instructions in addition to the probation.

During the probation period, there are regular meetings with the probation officer or probationer. Which person you get is assigned and sent in writing.

If new crimes are committed or the instructions and conditions are violated or not complied with, the prison sentence must be served.

Youth Penalty

Youth penalties set their focus on the educational concept. Imposition and implementation of penalties are therefore based on parenting ideas. Instead of focusing on the offence, the convicted person and their growth and development is the centre of attention. Juvenile crime law applies to juveniles up to 18 years old and under certain conditions up to 21 years.

Educational Measures

The aim of educational measures is to guide and support juveniles. Educational measures are often implemented by instructions according to section 10 of the Youth Courts Act. Among those directives are, care orders and social skills training for example.

Disciplinary Measures/Juvenile Detention

Disciplinary measures are used in particular to punish offences and are carried out through reprimands, conditions and juvenile detention. However, they are not real criminal penalties and do not entail an entry in the criminal register, except for the Register of Youth Offences. In this case, the reprimand is merely a formal rebuke of the judge and is often combined with other sanctions. Conditions serve as restitution for the caused damage and include excuses, certain tasks and sums of money.

Juvenile Detention

As a disciplinary measure, juvenile detention represents a deprivation of liberty. There are three different forms of juvenile detention: detention during leisure time, short-term detention, and long-term detention.

Detention during leisure time is usually carried out on weekends (Saturday morning through Sunday evening or Monday morning).

Short-term detention lasts a maximum of four days.

Long-term detention can last from one week to a maximum of 4 weeks.

Youth Penalty

Youth penalty, according to section 17 of the Youth Courts Act, is the only real criminal penalty and represents the last means of juvenile criminal justice. Only if all other measures have been unsuccessful, the youth penalty can be imposed with a duration of 6 months to 10 years.

It is implemented in a juvenile detention centre, similar to a penal institution.

Conditions for the imposition of the youth penalty are a "harmful inclinations" and a "seriousness of guilt".

Youth penalties can be suspended on probation if the penalty does not exceed 2 years. In addition, it has to be expected that the conviction is warning enough and that the educational influence during the probation period assisted to live life free from penalties in the future.

Conditions and Directions

The convicted person who remains at liberty on probation may be given conditions and directions by the court under section 56b (1) of the German Criminal Code, in addition to the suspended prison sentence. However, these must be acceptable for the convicted person. The conditions and directions are intended to support the convicted person in not committing any more offences in the future.

Conditions

The legal conditions under the German Criminal Code could be:

to compensate for the offence caused (for example, through a victim-offender mediation),
to pay a sum of money in favour of a non-profit institution or the state treasury,
or to perform community service.

Directions

According to section 56c (2) of the German Criminal Code, possible directions include:

obligatory notifications, at specified times to the court, probation officers or other authorities
make changes with regard to vocational education or profession, leisure activities, residence or economic circumstances (e.g. search for vocational education, change of residence, debt counselling)
prohibition of contact with certain persons or groups of persons
prohibition of the use of certain objects
instructions to stay away from certain places
order to fulfil maintenance obligations (especially in proceedings in family matters)

Furthermore, there are some directions that can only be ordered by the courts if the convicted person agrees to these procedures. These include, according to section 56c (3) of the German Criminal Code:

to undergo medical treatment of an invasive nature or addiction treatment
stay in a suitable placement such as a home or a psychiatric institution (for example, in the case of mental health problems or conflicts within the family).

Remand Detention

The detention of an investigator is a measure to secure a preliminary investigation. Remand detention is intended to ensure that the accused person cannot influence the criminal proceedings in a negative way. It is ordered by a judge as soon as the relevant conditions are met. The order must be written and contain details of the accused person, the ground for arrest and all the facts.

The necessary requirement for applying for remand detention is that the person is urgently suspected of the offence and additionally there must be a ground for arrest.

Grounds for arrest include:

suspicion of risk of flight and suspicion of offence against life
risk of recidivism of offence
the risk of the investigation being concealed (i.e. that there is a risk of evidence being destroyed, changed, provided or falsified, or that the investigation could be made more difficult by influencing parties to the proceedings)

The period of remand detention either ends under section 121 of the German Code of Criminal Procedure if:

6 months has been reached
the requirements for remand detention are no longer given,
continuing the remand detention is no longer proportionate to the facts and the expected sentence
or in the event of an acquittal or discontinuation of the proceedings

In juvenile criminal law, remand detention is only applied under certain conditions after a proportionality test. It must be strongly examined whether other measures cannot be taken.

for more information (sources)

Bernd-Dieter Meier (2009): Strafrechtliche Sanktionen. Springer-Verlag. Berlin, Heidelberg
Axel Dessecker (2014): Die Vollstreckung lebenslanger Freiheitsstrafen. Dauer und Gründe der Beendigung im Jahr 2013. elektronische Schriftenreihe der KrimZ. Wiesbaden
Müller/ Nedopil/ Saimeh/ Habermeyer/ Falkai (Hrsg.) (2012): Sicherungsverwahrung – Wissenschaftliche Basis und Positionsbestimmung. Medizinische Wissenschaftliche Verlagsgesellschaft. Berlin

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