Can a prosecutor prosecute his own child?
Michael Bauer law firm, your law firm for criminal law, traffic law, passenger transport law and traffic law in Munich
Frequently asked questions about criminal law
Attorney Silvia Kober provides the answers
A note in advance: The answers can only be kept general and represent above all else no legal advice for the specific case!
Contact with the law enforcement authorities triggers stress, insecurity and feelings of fear in most people, regardless of whether you are the suspect or his family member. This is also more than understandable: terms are often used that laypeople do not understand, one even fears for one's personal freedom, friends and acquaintances give advice with which one can do little.
Basically, however, it means: do not take reproach lightly and, if necessary, seek legal help in good time!
INVITATION TO ACCEPT
I have received a summons for an interrogation. I am referred to as a suspect there.
This usually means that an investigation has been formally initiated against you. An accused is only the suspect against whom proceedings are being conducted.
I haven't done anything, why am I being investigated?
According to the law, the public prosecutor's office is obliged to investigate if it becomes aware of the suspicion of a criminal offense through a report (by a third party) or by other means. This is called compulsion to persecute. For an initial suspicion, it (only) has to appear possible that there is a criminal offense that can be prosecuted. In addition, the public prosecutor's office is obliged to determine not only the burdensome, but also the exonerating circumstances. The investigations are therefore necessary to clarify the facts.
Do / should I appear at the interview?
If it is a question of a police interrogation, you do not have to appear for this. It is also not possible to forcibly show you off. It is different, however, if you are supposed to appear for questioning by the public prosecutor or the investigating judge. Failure to show up here may mean that you may be forcibly brought before you.
Do I have to / can I say something during the interrogation?
In principle, every accused has a statutory right to refuse to testify. Section 136 (1) sentence 2 of the Code of Criminal Procedure (StPO) states: "He [the accused] must be informed that he is free, according to the law, to comment on the accusation or not to testify, and at any time, even before his Interrogation to question a defense attorney to be chosen by him ”. No negative conclusions for the accused may be drawn from a refusal to testify (“He has something to hide”). However, whether it makes sense to actually make use of the right to refuse to testify can best be clarified by talking to a lawyer.
Do I have to / should I hire a lawyer now?
Of course, nobody can force you to hire a lawyer. However, it makes perfect sense to do so for a number of reasons. It happens quickly that one as a suspect has the desire to have to say something in his defense, to “bring the complainant to justice” etc. Unfortunately, the statements made and the behavior of the accused also easily correspond to his Disadvantage can be interpreted. In the end one has “talked about head and neck”. In order to avoid this, the lawyer can advise you on the basis of his experience and specialist knowledge on how best to proceed in this specific situation, e.g. whether or not to make use of a right to refuse to testify. In addition, unlike the accused, the lawyer can request access to the files. This means that he can obtain comprehensive information about the status of the investigation and the background that led to the investigation. Based on the knowledge gained in this way, it is possible for the lawyer to develop an optimal defense strategy.
What does identification service actually mean?
On the one hand, there are identification measures that are intended to prove the guilt or innocence of an accused in criminal proceedings, and on the other hand, measures for identification purposes that serve the precautionary provision of aids for research and investigation into criminal offenses. Measures such as the creation of fingerprints or photos can be considered.
But I don't want my fingerprints to be taken. Can the police do that anyway?
Yes, this can be forcibly done against your will by special order and without prior notice. The accused can be forcibly brought to the police authority and held by police officers for taking fingerprints or photos. If necessary, the use of a police grip or handcuffing is also possible.
Can the police have my blood drawn?
Yes. In addition, she may also carry out simple physical examinations to establish procedural facts. The accused must tolerate physical examinations, but cannot be forced to actively participate. However, the examination can also be forcibly carried out. Acceptance of more than one blood sample by a doctor, for example after a traffic control, cannot be demanded. For example, the “exercises” on the occasion of the blood test to determine fitness to drive do not have to be performed. Information about "drinking pleasure" does not have to be given either.
Under what circumstances can the police conduct a search of my house?
The police may carry out a house search by order of a suspect, but also of another person. The prerequisite for a search of a suspect is that there is a likelihood that a particular crime has already been committed. The purpose of the search is to arrest the suspect or to find evidence. In any case, there must be a presumption that the purpose of the search can be achieved. Another person can be searched if there are facts that a searched person, trace or thing is in the rooms to be searched. The house search takes place in the presence of a judge or public prosecutor. If neither of the two is present, if possible two community officials or members of the community in whose district the search is taking place should be called in. It is generally advisable to request written notification after the search has ended, stating the reason for the search or the criminal offense. If items are taken, you can request a list of them or a certificate stating that nothing suspicious has been found.
What can I, as a suspect, be searched?
Apartments and rooms used by the suspect (e.g. also workplaces or hotel rooms) may be searched. The suspect himself can also be searched, for things or traces in or under clothing, on the surface of the body and, for example, in the mouth. The IT system can also be searched for files, etc.
Do I have to participate in the search in any way?
No you don't have to. You just have to put up with the search. However, the police can also use force, e.g. open the apartment by force, break open doors, cupboards or drawers.
What if something is found? Can the police just take it with them?
If an object that could be of importance as evidence is found, it must be secured as a matter of principle. If the item is not given up voluntarily, it will be confiscated.
Will I get my seized / confiscated items back?
If it is an object that was obtained through a criminal offense, it will not be returned to the accused. If the item was given out voluntarily, it will be returned to the person who made it available.
Under what circumstances do I come into custody?
A pre-trial detention can be ordered if the accused is strongly suspected of the offense and there is a reason for detention. Urgent suspicion means that there is a high probability that the accused is a perpetrator or participant in a crime.
There are the following reasons for imprisonment:
- Escape: Anyone who gives up his apartment before, during or after the act without moving into a new one or moves abroad with the effect that he is inaccessible to investigating authorities and courts and whose access is also denied because of the expected execution of sentences is fugitive.
- Keeping oneself hidden: Whoever lives unannounced, under a false name or in an unknown place, in order to evade the proceedings permanently or for a longer period of time, is hidden.
- Escape risk: it exists when an assessment of the circumstances of the case makes it more likely that the accused will evade the proceedings than that he would remain available to him.
- Risk of darkening: exists if the behavior of the accused gives rise to the urgent suspicion that certain actions have affected factual or personal evidence (e.g. it will be destroyed, witnesses are threatened) and that this will make it more difficult to ascertain the truth.
How long can pre-trial detention last?
In principle, pre-trial detention is limited to a maximum of 6 months since the arrest warrant was issued. However, the arrest warrant must be revoked beforehand if the conditions for pre-trial detention are not met or if the detention is disproportionate. On the other hand, detention can continue for more than 6 months if a judgment is not yet possible due to the particular difficulty or the scope of the investigation.
Can my family visit me while in custody?
Basically yes. However, these are mostly individual permits, i.e. each visit must be re-applied for and approved. The duration of the visit is redefined every time. Telephone calls with family members may only be permitted in individual cases if there is a particularly justified interest.
Are there ways of checking whether pre-trial detention was actually legally ordered?
First of all, the accused can apply for a detention review. This obliges the competent judge to examine whether the arrest warrant is to be revoked or whether its execution is to be suspended. An appeal against the decision on the application is possible. If the pre-trial detention lasts longer than three months without the accused having filed an application for a detention review or lodged a complaint, a detention review is carried out automatically. If you already have a defense attorney at this point, he will be able to advise you on these issues.
DISCONTINUED PROCEEDINGS / PRESENTATION
I got a letter from the prosecutor. It says that the preliminary investigation against me was discontinued according to Section 170 (2) of the Code of Criminal Procedure. What does that mean?
This means that there is not enough cause to bring a public lawsuit. This usually means that the accused is not sufficiently suspected of the offense accused of him, so the offense cannot be proven. Or, there is a procedural obstacle, e.g. the act must be proven, but is already statute-barred.
Are there any other ways that an investigation will be closed?
Yes. Pursuant to Section 153 (1) of the Code of Criminal Procedure, the public prosecutor's office can suspend the case on the grounds of insignificance. If there is no insignificance and if "the severity of the guilt" does not conflict with it, a provisional suspension is possible according to § 153a StPO against fulfillment of conditions (e.g. payment of a sum of money, charitable services etc.) Once the conditions have been met, the proceedings will be finally discontinued.
What happens if there is no hiring?
If there is no cessation after the investigation has been completed, the public prosecutor's office believes that there is sufficient reason to file a lawsuit or to issue a penalty order, i.e. the public prosecutor's office considers it probable, based on the preliminary assessment and the contents of the file, that the accused will be convicted. An indictment or a penalty order is served on the accused.
What is a penalty order?
In criminal proceedings for an offense (threat of imprisonment for up to one year or a fine) before the criminal judge and the lay judge's court, the public prosecutor can request that the proceedings be carried out without a main hearing. Instead of a judgment, a penalty order is issued directly to you without you having to appear in court beforehand.
How can you defend yourself against a penalty order?
The accused can appeal against a penalty order within two weeks of delivery. If the objection is not raised in time, the penalty order becomes final after the deadline. So in this case too: act quickly!
I've got an appointment for the main trial against me, but I'm afraid to go. What can happen if I don't show up?
The presence of the accused is mandatory at the main hearing. If the accused remains without a sufficient apology (here it does not depend on whether one has apologized, but whether the court thinks that the accused is also excused), he is threatened with forcible presentation or even the issuance of an arrest warrant against him.
I don't want there to be any spectators at the main hearing, I'm embarrassed. Can i achieve this?
In principle, the court hearings against adults, including the pronouncements of verdicts, are public, i.e. the accused cannot exclude viewers. However, court hearings against young people (14 to not yet 18 years of age) are not public. In special cases, the public can be excluded, e.g. to protect personal rights (privacy, political views ...), to protect the life of a witness, trade secrets, etc.
Do I have to say something in the main hearing?
No. After the prosecutor has read out the indictment, the judge is obliged to inform the accused that he is free, according to the law, to comment on the allegations or to remain silent. The only information that the accused must provide is the information required to establish identity (name, age, home address, marital status). The complete silence of the accused must not be interpreted at his expense. If you really want to comment on the matter, but at the same time fear that you are not able to express yourself very well, it is possible that your defense attorney will make a statement for you or read out a written statement from you.
Someone from my family is called to witness. Does he have to testify against me?
No. Relatives of the accused have a so-called right to refuse to give evidence. Relatives are e.g. the fiancé, the spouse (also the divorced), parents, children, siblings. The relatives must be informed by the judge of their right to refuse to testify and must expressly declare their refusal. The refusal to testify can relate to the entire testimony, but also only to a part (e.g. individual questions) and can also be explained during the testimony.
A friend of mine is called to witness. Can he say something wrong in my favor?
Witnesses must testify truthfully in court. The judge expressly draws your attention to this duty of truth. If the witness lies in court, he faces severe penalties. A false statement is punished with a prison sentence of three months to five years. If the witness swears wrongly, he will be punished with a prison sentence of not less than a year. The accused will also be punished if he persuades the witness to do so, or if he even tries to persuade him to give false evidence.
CONSEQUENCES OF THE DEED
How is a fine calculated?
The fine is generally imposed in daily rates. The number of daily rates is a minimum of five and a maximum of 360. The judge determines the exact number depending on the guilt of the perpetrator. The amount of the individual daily rate is 1/30 of the monthly net income of the defendant (minus e.g. maintenance obligations). An example to clarify: The defendant earns € 600 net per month.The verdict reads: "The accused is sentenced to 25 daily rates of 20 euros each." The judge means that 25 daily rates are appropriate for the guilt and the act of the convicted person. 20 euros are 1/30 of the monthly net wage. In total, the convict has to pay a fine of 500 euros. If, for economic reasons, it is not possible to pay the entire amount at once, the judge can allow the convicted person to pay in installments.
What does the length of imprisonment depend on?
This question can only be answered as a theoretical case and in broad outline. In principle, the minimum imprisonment term is one month and the maximum (if not life imprisonment) 15 years. First of all, according to the Criminal Code, every act has a so-called penalty framework. Here the legislature prescribes which punishment it finds appropriate at least (or at most) for a certain act. Example: Section 242 of the Criminal Code (theft) says the thief is punished with a prison sentence of up to five years. That is, the judge can impose a sentence from one month to five years. Within this framework, he determines the punishment at his own discretion. In doing so, he takes into account which facts speak for and against the accused (e.g. previous convictions, motives for the act ...).
When is there probation?
If the accused is sentenced to a term of imprisonment of no more than one year, the sentence is suspended on probation if the social prognosis is favorable. Favorable social prognosis means that the judge is convinced that the likelihood of future unpunished behavior on the part of the convicted person is greater than that of new offenses. The judge takes into account, for example, the personality of the convicted person, his living conditions or the circumstances of his act. If the accused is sentenced to imprisonment of more than one but less than two years, the prison sentence can only be suspended on probation under special circumstances. If convicted to a term of imprisonment of more than two years, no suspension on probation can take place.
What does probation mean?
If the custodial sentence is suspended, the court also determines the length of the probationary period. This is between 2 and 5 years. The probation period should not be confused with the duration of the imprisonment. To clarify: The defendant is sentenced to 8 months' imprisonment, which is suspended on probation. At the same time, the court stipulates that the probation period is 3 years. This means that the convicted person has to live free from punishment for the next 3 years, so he has to prove himself.
What else can be in the probation decision?
In the probation decision, the court can, for example, impose a condition in accordance with Section 56 b of the Criminal Code. The content of the condition can include compensation for damages, the payment of a certain amount to a non-profit organization, another charitable service or the payment of a sum of money to the state treasury. In addition, the court can also issue instructions in accordance with Section 56 c StGB, such as a notification requirement. Finally, the court can also place the convicted person under a probation officer for the duration or part of the probationary period in accordance with Section 56d StGB.
When can parole be revoked?
If the convicted person commits new crimes during the probation period, the probation can be revoked and the convicted person has to “serve” his sentence. However, there is also a risk of revocation in the event of gross or persistent violations of the probation conditions. If you find yourself exposed to new criminal charges during an open probation, the appointment of a defense lawyer is strongly recommended.
FEDERAL CENTRAL REGISTER / MANAGEMENT CERTIFICATE
When do I have a criminal record?
A criminal record includes fines of more than 90 daily rates and sentences of more than 3 months' imprisonment.
What goes into the federal central register?
In principle, every criminal conviction is entered in the BZR. On the other hand, it will not be entered if a preliminary investigation into a criminal offense has been initiated but the result has been discontinued (according to Sections 170 (2), 153 or 153a of the Code of Criminal Procedure).
How long does an entry remain in the Federal Central Register?
The so-called maturity for repayment depends on the amount of the fine. In the case of convictions of fines below 90 daily rates, the repayment period is 5 years if no custodial sentence etc. are entered in the BZR. A prison sentence of less than 3 months is expired after 5 years if there are no other entries. If there are pre-entries, the repayment period is 10 years. A custodial sentence of more than three months up to a year is also repaid after 10 years if the sentence has been suspended and there are no other prior entries. In all other cases the repayment period is 15 years.
What is the certificate of good conduct?
The certificate of good conduct is information from the federal central register. In principle, fines of more than 90 daily rates and imprisonment sentences of more than three months are entered in the certificate of good conduct. If a previous conviction has already been entered in the BZR, or if the conviction was made for a sexual offense, minor convictions are also entered.
Does my employer need to know about my conviction?
Basically: if you have no entry in the certificate of good conduct, you may call yourself “not previously convicted”. In the case of certain professional groups (e.g. employees in the public service, soldiers in the German Armed Forces, teachers ...), however, the courts and public prosecutor's office automatically notify the employer or employer according to the "order on notifications in criminal matters".
I do not agree with the verdict. What can I do about it?
Appeal and appeal against the judgments of the criminal judge and the lay judge are permissible. Only an appeal against judgments of the criminal chambers, the jury courts and the higher regional courts is permissible. Appeals can be lodged within one week of the announcement of the judgment for the record of the office or in writing. In the event of an appeal, the entire procedure is reopened, while in the case of an appeal, the court only reviews the judgment for errors. If you are not represented by a lawyer when the judgment is pronounced, the court will give you an information sheet on the legal remedies. Otherwise, your lawyer will be able to advise you on whether and to what extent it makes sense to file an appeal. Due to the one-week deadline, it is important to act quickly! If the deadline is missed, the judgment becomes final, i.e. it can no longer be challenged.
What is a criminal complaint? Where can i make one?
A criminal complaint informs the authorities of a situation which, in the opinion of the complainant, gives rise to criminal prosecution. It is understood as a suggestion to the law enforcement authorities to check whether there is any reason to initiate criminal proceedings. Anyone can file a criminal complaint with the public prosecutor, any police station or the local courts. This can be done by telephone, verbally or in writing.
What is a criminal complaint?
Certain criminal offenses (e.g. insulting) are only prosecuted by the authorities if the injured party (the victim of the crime) expressly declares that he wishes to be prosecuted. This declaration is called a criminal complaint. In contrast to a criminal complaint, the criminal complaint can only be made by the injured party (or their legal representative). A criminal complaint must be made in writing or on record (i.e. speaking in person) to a court, the public prosecutor's office, or in writing to a police authority. It should be noted that the criminal complaint must be submitted by the injured party within 3 months of becoming aware of the offense and the perpetrator (if necessary against a stranger).
Can anything happen to me if I file a criminal complaint against someone?
If a complaint is made even though the person making the complaint knows that the facts presented by him are incorrect (the person complained about is not the perpetrator at all), he is liable to prosecution for false suspicion (Section 164 StGB). This is punished with a prison sentence of up to five years or a fine.
After I filed a complaint, the prosecutor received a letter. It says that the proceedings against the person reported will be closed and that I will be referred to private legal action. What does that mean?
In the case of certain criminal offenses (e.g. insults or bodily harm, full list in Section 374 of the Code of Criminal Procedure), the public prosecutor will only bring charges if this is in the public interest. This is the case when the legal peace is disturbed beyond the life of the injured party and criminal prosecution is a current concern of the general public. If the public prosecutor's office thinks that this is not the case, they drop the proceedings and refer the injured person to private legal action. In a private lawsuit, the injured party assumes the role of the public prosecutor, so to speak, with the aim of punishing the accused. In this case, the private plaintiff must first provide security to the court.
When can I appear as a joint plaintiff?
The secondary lawsuit allows injured persons who are particularly worthy of protection to pursue their personal interests in a legal process. The co-plaintiff can defend himself against denial or trivialization of his violation, in particular through his active participation (e.g. questions and explanations). Section 395 of the Code of Criminal Procedure regulates the criminal offenses in which the injured party can appear as a joint plaintiff (e.g. rape, bodily harm ...). The close relatives of the person killed by a crime may also act as joint plaintiffs. In certain serious cases, the court appoints a lawyer to assist the joint plaintiff at his request. In these cases, the cost of the lawyer is borne by the state. Otherwise, the joint plaintiff can apply for legal aid for the assistance of a lawyer. The accused can also be charged the costs of attorney's private prosecution.
I was hit and injured by one person. How do I get compensation for pain and suffering from the criminal court?
In a criminal process, the assertion of compensation for pain and suffering is only possible to a limited extent in the so-called adhesion procedure. In criminal proceedings, it is primarily about the state punishing the perpetrator for violating the law through his behavior, because illegal behavior is of course condemned by the state. A conviction, e.g. for bodily harm, shows the state to the convicted person that such behavior will not be tolerated. The civil courts, in turn, deal with the question of whether the injured person will receive compensation for pain and suffering. Here the injured party can appear as the plaintiff against the injuring party and demand compensation from him.
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