Anyone who becomes part of German criminal proceedings from abroad often underestimates how early the decisive course is set. Frequently the case is already running before the person concerned even learns of it. This article explains in outline who investigates in Germany, how the proceedings run and which rights you have. It does not replace advice in the individual case.
Who investigates in Germany
Unlike in some other legal systems, the investigation in Germany is led by the public prosecutor, not by an investigating judge. The police investigate on instruction, but the prosecutor sets the direction and decides in the end whether charges are brought, the case is dropped or a penal order is requested. As soon as an initial suspicion is directed at a specific person, that person becomes an accused and gains particular rights. The proceedings often become visible to the person concerned only late, through a summons, a search or a questioning, and it is not rare for someone to be treated first as a witness before the suspicion turns against them.
How the proceedings run
The investigation is the decisive first stage. Evidence is secured here, searches and seizures can take place, in serious cases also pre-trial detention, and the accused is summoned for questioning, before which they must be informed of their rights. At the end there is the indictment, the discontinuation of the case, often subject to conditions, or the penal order, which proposes a penalty without an oral hearing and which can be challenged.
If charges are brought, the court examines in the intermediate stage whether to open the main proceedings. In the following main hearing the evidence is taken in court, witnesses and experts are heard, and the judgment is delivered at the end. Depending on the instance, an appeal on the facts or on points of law is possible against the judgment, with very short deadlines of usually one week already applying to lodging it. Anyone who misses this deadline loses the remedy.
Your most important rights as an accused person
You do not have to incriminate yourself and have the right to remain silent, without any disadvantage arising from it. You should use this right as long as you do not know the content of the file. You may bring in a defence lawyer at any time, who alone obtains access to the file, and in certain cases a court appointed defence lawyer is assigned to you. If you do not sufficiently command German, you are entitled to an interpreter for the whole proceedings. As a foreign national you can also request that your consulate be informed.
When the case also touches Spain
If your case touches Spain as well as Germany, through assets, residence or business activity, both sides should be considered together from the start. German authorities can request evidence in Spain through the European Investigation Order, and the confiscation of assets does not stop at the border either. The German defence is handled by our partner Barba & Partner in Munich, the Spanish side by Fukuro Legal, coordinated as one cross-border defence. How closely such cooperation works is also shown in our article on money laundering investigations between Germany and Spain.
Common questions
Will I learn that I am being investigated?
Not always straight away. An investigation can run for a while before it becomes visible through a summons, a search or a questioning. Do not react at that moment without legal advice, because this is often where the decisive course is set.
Do I have to give a statement at questioning?
You must give details on your identity, but not on the matter. You may use your right to silence without disadvantage, and that is sensible precisely while the file is still unclear.
Do I need my own lawyer in Germany if I live in Spain?
For the German side yes. Through the cooperation this can be combined with the criminal defence in Spain, so both countries stay coordinated. We are happy to review your situation confidentially through the Fukuro Legal contact page.
