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.

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