Is it a punishable offense to pass judgment?

Course of criminal proceedings

Overview
Completion of the investigation
terminating the proceeding
Penalty order
Fine (daily rates)
accusation
Main hearing
Appointment & Revision

Course of the criminal proceedings from the point of view of the accused

Individual penal norms and offenses under criminal law are more or less known to many people. Especially if you are confronted with criminal proceedings for the first time as a victim or as a relative of a victim, you are usually well advised to familiarize yourself better with the specific course of criminal proceedings:

What should one do in the case of a preliminary investigation, a criminal order or an indictment and how can the lawyer help as a criminal defense lawyer in criminal proceedings? What does the specific course of criminal proceedings actually look like?

At this point, we will provide you with a brief and rough overview of the course of the criminal proceedings and give you further tips on how to behave.

1. Investigation

If there is an initial suspicion of a criminal offense, the criminal prosecution authorities, with the assistance of their auxiliary officers (the police), determine the specific situation (Section 152, Paragraph 2 of the Code of Criminal Procedure). It acts ex officio or on the basis of a criminal complaint. Any citizen can file a criminal complaint. If a criminal complaint is required, e.g. in the case of offenses against honor, such a complaint must be made by the injured party.

In the preliminary investigation the facts are first determined and circumstantial evidence or evidence is collected, witnesses are interrogated and those involved in the crime are also questioned about what happened. The accused should remain silent at this stage, if possible, and should not give any testimony without legal assistance, as his testimony can be used against him in the later proceedings. The public prosecutor's office, as the “mistress of the preliminary investigation”, in theory determines facts both for and against the accused. The practice is often different in criminal proceedings - the police often act "success-oriented": In the context of an investigation, it can be very desirable for success-oriented police officers to convict a perpetrator as soon as possible and to conclude an investigation as soon as possible. Exonerating circumstances tend not to be ascertained or are rated unilaterally at the expense of the (alleged) perpetrator. In practice, the police often act independently and anything but judgmental. Only in the case of extensive investigations that interfere with the fundamental rights of the citizen (e.g. Searches) or that concern a serious offense, the public prosecutor's office is actively involved and directs the proceedings.

The important thing is: Take every criminal accusation and criminal proceedings seriously! If a preliminary investigation has been initiated against you, an initial suspicion has already been affirmed, which can quickly lead to "sufficient suspicion" and thus to an indictment.

2. Completion of the investigation by the police and the public prosecutor's office

At the latest when, in the opinion of the public prosecutor, all necessary investigations have been completed, the accused will be given a fair hearing. This is usually done by summoning the suspect to be heard by the police. At this point in the criminal proceedings at the latest, you should hire a good criminal defense attorney so that he can first request access to the files. It is not advisable to subject yourself to a personal questioning before viewing the files. During an interrogation, you face trained investigators who are not always friendly to you. If an entry or a statement on your defense appears to be useful, this should be done in writing by your defense attorney, if possible, after he has worked through the investigation files and discussed the defense strategy with you.

If there is an urgent suspicion of detention such as the risk of flight or the risk of flight, the risk of blackout or repetition, the public prosecutor will apply to the responsible investigating judge for one in the criminal proceedings arrest warrant. For a search warrant with a subsequent house search, the requirements are considerably lower. A qualified criminal defense attorney and lawyer will advise you on the likelihood of such coercive measures in your case.

It is also important here that the accused does not make a statement without consulting a specialist lawyer for criminal law and that every step is discussed with the lawyer. In cases of house searches or orders Custody There are other points to consider, about which we will explain to you in the context of legal advice and point out possible solutions.

After the preliminary investigation has been completed, three scenarios are possible in criminal proceedings:

3a. terminating the proceeding

At this stage, criminal proceedings are at a crucial turning point:

If, from the point of view of the defense, there is insufficient evidence, the criminal defense attorney will apply to the public prosecutor to discontinue the proceedings in the absence of sufficient suspicion. If the public prosecutor's office approves the defense attorney's request, the proceedings are discontinued in accordance with Section 170 (2) StPO - the best result for the accused.

In cases in which it is a first offense and the allegation is in the area of ​​minor guilt, the proceedings can also be discontinued in accordance with Section 153 (1) StPO. In all of these cases, no further investigation is carried out and the proceedings are terminated without conviction or conditions.

However, the proceedings can also be discontinued against conditions; the accused can be charged with a monetary condition or other conditions (e.g. offender-victim compensation). The proceedings will then be temporarily discontinued and, once the condition has been met, it will be finally discontinued. In this way, too, in many cases we can avoid not only an indictment or a penalty order and the main hearing, but also a guilty verdict and the imposition of a penalty.

A stop in criminal proceedings according to § 153a StPO is in many cases a worthwhile goal and has many advantages: Despite fulfilling a condition, the accused can still claim to be innocent. The setting is not entered in the federal central register or in the police clearance certificate. This type of attitude also has the advantage that the investigation process cannot be restarted unless the act subsequently turns out to be a crime.

3b. The penalty order

Furthermore, after the preliminary investigation has been concluded, the public prosecutor's office can apply directly to the court for the issue of a penalty order instead of filing an indictment. However, this must not be a serious act, i.e. a maximum of a fine or imprisonment of up to one year on the legal side.

The penalty order can usually be found in simple criminal cases. Its primary purpose is to speed up criminal proceedings. In these cases, the accused can raise the objection within 2 weeks of the issuance of the penalty order, so that the criminal proceedings are decided by judgment in the context of a main hearing. If no objection is filed within the deadline, the penalty order becomes final and acts like a criminal judgment.

Important: From a legal point of view, a legally binding penalty order is to be assessed like a legally binding criminal judgment, with all its consequences (criminal record, enforceability, etc.).

The most common sanction issued under penalty orders is a fine:

Fine - Daily Rates

The penalty system of the fine is often not easy to understand for laypeople. The legislature has determined two factors that ultimately measure the amount of the fine individually according to the gravity of the offense and the personal circumstances of the accused. Among other factors, the financial circumstances of the accused or defendant are primarily determined by the income or earnings that he has net per month.

  • The daily rates can be calculated from the monthly net income of the accused. This is divided by thirty.

Example: If the accused earns 3,000 euros net per month, this results in a daily rate of 100 euros. In some cases, current payment liabilities (such as debt repayment) are deducted. There are no fixed, binding regulations as to which liabilities are deductible and which are not.

  • The number of daily rates depends on the degree of guilt of the offender and is imposed by the court depending on the situation at hand (e.g. first-time offender).

Example: If the defendant is sentenced to a fine of 120 daily rates, the fine would amount to a total of 12,000 (120 x 100) euros plus the costs of the proceedings if the net monthly salary was 3,000 euros.

3c. The indictment - the interim trial

If the public prosecutor's office brings an indictment in the criminal proceedings, it is served on the court. The so-called interim proceedings begin with the receipt of the indictment. The once accused is then “accused” until a decision has been made on the opening of the main proceedings.
However, before the main hearing takes place, the criminal defense lawyer (and the accused) is served with the indictment by the judge in the criminal proceedings. Now the defense attorney can intervene again in criminal proceedings and prevent the opening of the main proceedings by means of motions. Especially when it comes to legal questions, the defense attorney can use good arguments to ensure that the prosecution is not opened or not opened in full. The defense attorney can also influence the contents of the file with requests for evidence and, if necessary, also work towards a termination of the proceedings in the interim proceedings.

At the same time, the interim trial should become the development of a tactic - and of course the right defense - now that the specific charge and evidence that the prosecution has filed with the files is known. Both the inspection of files and the naming of further witnesses or evidence allow the defense attorney a certain degree of freedom of action even at this stage of the procedure.

4. The main proceedings with the main hearing

If the main proceedings in criminal proceedings are opened by the court and the indictment is admitted, then a main hearing is scheduled.

The main hearing in criminal proceedings can itself last for many days or, in the case of complex issues, for weeks or months. The procedure and length of time for the main hearing depend on the matter itself and can be significantly influenced by the work of the public prosecutor and the defense lawyer.

Course of the criminal proceedings

1. Main hearing
  • Questions about the person of the accused, reading of the indictment
    (Statement by the accused).

2. Taking of evidence

  • Hearing of witnesses / experts, reading of documents, taking of evidence, etc.
  • Then: the prosecutor's plea (and application for the penalty).
  • This is followed by the defense counsel's plea and the defendant's “last word”.

3. Decision of the court

  • The court then withdraws for a secret discussion and immediately afterwards pronounces the judgment (“In the name of the people the following judgment is issued:”). Here, the court can deviate from the requests of the public prosecutor or the defense counsel or correspond to one of them.
  • Until a judgment is pronounced, the proceedings can still be discontinued during the main hearing if, for example, the defendant's guilt has now turned out to be less serious after taking the evidence into account.

Tip: Your criminal defense attorney will actively lead your defense during the main trial and introduce all available witnesses and documents to the process that will help to relieve you. During the court hearing, he will sound out your chances and prospects and advise you on the current status of the proceedings as to whether it makes sense to submit an admission. He will also advise you on a possible judgment agreement in criminal proceedings, if the hearing gives cause for it. According to our understanding of criminal defense, advice in criminal proceedings from a specialist lawyer for criminal law will help you to decide whether you want to take a position on the allegations and, if applicable, with what content and at what point in time.

If there is no termination, the main proceedings end in criminal proceedings with a judgment by the court. This can mean an acquittal as well as a conviction with a fine up to imprisonment for many years. After the new tightening the severest sanction of the German criminal law is the life imprisonment with determination of the particular gravity of the guilt and subsequent preventive detention.

After the judgment has been issued, defense lawyers and the public prosecutor's office in criminal proceedings have the opportunity to lodge further legal remedies, such as an appeal or an appeal. If both sides waive further legal remedies in criminal proceedings, the judgment will become final and effective as soon as possible.

5. Appeal and Revision

Basically, after the judgment has been pronounced, the legal process in criminal proceedings or in criminal proceedings is not yet exhausted. The convicted person can appeal against the judgment of a local court (e.g. in Hamburg), in which the judge has to decide again on the situation. The entire process in criminal proceedings thus takes place “from the beginning”. The only legal remedy against judgments of the regional court is an appeal, in which the judgment is checked for procedural errors or errors in the substantive application of law by the higher regional court or - if the first instance has already taken place before a regional court - before the Federal Court of Justice.

Further information can be found on the pages for Revision as vocation.

Do you have any further questions or do you need support in current criminal proceedings?
Contact us. We would like to help you. As a criminal defense attorney and specialist lawyer for criminal law, Dr. Böttner provides advice and defense for criminal proceedings in Hamburg and nationwide.

Reading tips on criminal proceedings (current case law)

Criminal defense

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