What does an investigation file contain and where is it created?
The assertion of the file inspection law is a criminal lawyers’ core business.
The normal way a criminal announcement starts when the client – often completely unexpected – receives a letter from the police department of the alleged crime scene.
In it it is stated roughly depending on the state:
“in regard of the current investigation under §§ 223, 224 StGB… you are invited to take this letter with you to Mr. X on 20/04 at 12.30, interrogation room 0815”.
Or you receive a questionnaire with the allegation, in which you are supposed to state your earnings, as well as your job position and educational status.
Then you are supposed to state your rights in small boxes on the back.
The crowning conclusion is often in the last sentence:
“If you do not appear on this date, we have to assume that you do not want to exercise your right to be heard”.
In investigations the contents of the investigation file outlines the hypothetical raised suspicions against the client. Because a suspicion is always just a guess, which does not have to come true.
As a defender, I see my task to act on my mandates behalf against a suspicion of authority and issue a punitive legal statement that the case for an urgent or probable cause is just not enough.
One must understand:
The accusations against someone arise by lawsuit or complaint principle of a third natural person or by the state according to its own perception of an offense or by an international rogatory, e.g. by an European Member State or by the Office of Criminal Investigation of another federal state of Germany.
But private companies, i.e. legal persons may pressure people indirectly, which can lead to a criminal case.
The cancellation of a current account agreement by a German bank with a business partner, now accused of economic crimes, results in the creation of a so-called Red Band (because files of state prosecutors have red covers) and obliges the prosecutor of economic affairs to launch an investigation and because of accusations of money laundering.
The persecution is obliged to do so because of the so-called principle of legality; §§ 152 II, 163 StPO.
This means that events of everyday life, like withdrawals, transfers and cash deposits into your own account can lead to criminal proceedings.
Because German banks are obliged to do suspicion charges to a central clearing house at the BKA in Wiesbaden, if the cash deposit exceeds 10,000.00 €.
It is therefore not surprising in this context that the conviction figures in money laundering § 261 StGB are extremely low while the numbers for clients with inconsequential settlements are extremely high.
What value is gained by insights into the files?
The meeting with the lawyer is for the reporting of his assessment of the facts of the matter to the client and the quality of the evidence for public or private accusations raised against him.
Among these is an experienced and substantiated forecast to ascertain whether there would be a criminal case, whether and how the criminal case can be settled and whether and under what effort an acquittal can be achieved.
The assertion of own rights of the accused at the interrogation table of the police does not lead to any benefit of clients. The oppressively acting police is obliged to prosecute criminal acts.
In order to safeguard the rights of the accused, he should consult a lawyer instead of accepting the “invitation” of the police.
This is done after a consultation between the client and the lawyer. Then right of remain silent is then used and the file is formally requested, which the state must comply with, see § 147 StPO.
This post is also available in: German