Category: General

Access to the files

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.

Defense in the interim process or float state after prosecution opening

The criminal proceedings against one or more defendants end according to § 169 StPO with a handwritten closure statement in the files. If the prosecutor therefore considers to raise a public action, it must note the conclusion of its investigation in the files.

The opening of a judicial criminal proceeding depends then on the approval of the indictment, as the prosecutor (in adversarial proceedings: teams of defendant or its defender) submitted it at the court.

Because of this procedural limbo state between a mature prosecution and process approval in the courts, this phase is also called “interim procedure” of criminal proceedings.

The decisive factor is the courts review whether it accepts the prosecution facts and their criminal category for the time being and whether it considers the defendant reasonably suspicious of the offense under German criminal law (§§ 199, 204 StPO).

Because the course responsible under § 199 for the trial decides whether the main process is opened or suspended, an active defense in the interim process can work towards negotiating the criminal case in another court.

The scope of the audit of the state attorney has therefore two levels:

  • Is the accused reasonably suspicious considering the evidence offered by the prosecution?
  • Has the seised court in regard to the criminal expectancy of the accused the right jurisdiction?

Again, as in all stages of the proceedings, the accused can use a lawyers help.

Even if the court accepts the probable cause of the accused, it is not automatically responsible. Otherwise, an indictment for egg theft could be admitted at the jury court, if only the presented evidence would suffice to find him guilty for theft (§ 242 StGB).

Whether a certain German criminal court is responsible for a criminal trial is handled in the regulations of the Gerichtsverfassungsgesetz (GVG).

It is there to make a qualitative distinction, that simple offenses can settled at the lowest court, i.e. the Amtsgericht and crimes with a criminal expectancy of 4 years at a regional court. Exceptions to this are for example murder, which the Schwurgerichtskammer of the regional court has jurisdiction (§ 74 para. 2 GVG) or the Kammergericht in Berlin for state security matters (§ 74a GVG).

Criminal lawyers therefore work their way up to see which court has jurisdiction. This is of course only based on experience and remains uncertain.

Active attorney work therefore consists in taking away the process from the addressed court and to ensure that the trial is handled in a court of a lower order.

This is firstly advantageous because of the limited criminal case of a “smaller court” for the client, such that a sentence may not be higher than certain length. Another advantage is that we now don’t have to deal with the “better” judges which would sit at the higher court.

Therefore the lawyer has to check:

  • whether reasonable suspicion can be kept by the court and
  • whether the court lacks jurisdiction and therefore has to open the proceedings at a court of a lower order.

The former is a backed by creating and sending a written proposal to close the case for lack of probable cause (lack of evidence)

An auxiliary request for referral to a lower court also requires a lawyers written pleading.

It remains that legal criminal assistance can lead to beneficial results for the client in each stage of the procedures.

Office and living space searches

Right to attend of the lawyer of the accused at business and living space searches

If the police want to search your premises or your home for evidence, you should consult a lawyer for advice and instruct him to be present during the search.

For the lawyer to be able to be present at a police raid results legally from the fact that the accused in both his business premises and living space has a right to exercise his house right in spite of police action.

The owner of the house right decides who is allowed in there and this also includes the right for his defender to be there and monitor police activity.

This means that the police will have to wait before carrying out their search operation until the lawyer arrives.

This is the only way to ensure that confiscation directory required by law is created by the police and only those evidences are seized that were supposed to be able to be found by the court order (§ 94 “as evidence for the investigation”).

The same is true in urgent cases, in which the police orders the search warrant themselves. Unfortunately, past cases show that the police without the presence of a lawyer confiscates material and objects overly generous, which always means additional lost time by the court.

Furthermore, items are confiscated, which are not covered under evidence.