Criminal Defense

Basic Principles of Criminal Proceedings

Most people find out about a preliminary investigation through a letter. Some find out through a call from the police, and some only find out when officers show up at their door.

What to do next depends on where you are in the proceedings. Criminal proceedings follow a structured process with their own deadlines and fixed decision points. At some of these points, you can significantly influence the course of the proceedings; others, once they have passed, can hardly be corrected.

As a defense attorney, I become involved at most of these stages—and am most effective early on, because later on, much of the process is simply a matter of managing the situation. This page describes the process: what happens at each stage, what rights you have, what deadlines apply, and where key decisions are made. You’ll also find more detailed information on specific charges.

Overview

• Subpoena
• Search and Seizure
• Preliminary Investigations and Access to Case Files
• Arrest and Pretrial Detention
• Family Members in Criminal Cases
• Penalty Order
• Trial, Plea Agreement, Appeal
• Side effects
• Defense and Costs
• Special Features of Individual Procedures

What is documented on the day of the search will later determine what can even be disputed. Make your objections while the officers are still in the house or immediately afterward: an objection to the seizure, a list of the items, and a request for a court ruling are things that cannot be done retroactively—they must be done in a timely manner.

Access to the case file is the point at which I, as your defense attorney, can do something that you yourself cannot. Only then can we assess whether it makes sense to enter a plea, whether dismissal of the case is a possibility, and what the prosecution is actually basing its suspicions on. Anything before that is mere speculation.

In detention cases, every day counts, and the first decisions are made before most family members even know where the person in question is. A detention review, a detention appeal, and a motion to suspend detention are not automatic—they must be requested and supported by a statement of reasons.

See the subtopics:

Subpoena — Defendant, Witness, or Affected Party

A letter, a phone call, or a visit from the police does not necessarily indicate what role you will play in the investigation. Suspect, witness, or simply a party involved in a fine proceeding—these are three different legal statuses with very different obligations.

As a general rule, you are not required to comply with a police summons as a suspect, nor are you required to testify regarding the matter (Section 163a of the Code of Criminal Procedure). However, if you are summoned by the public prosecutor’s office or a court, you are required to appear. Witnesses must comply with a summons from the public prosecutor’s office or a court; in the case of a police summons to appear as a witness, they are required to do so only if the summons is based on a request from the public prosecutor’s office (Section 161a of the Code of Criminal Procedure (StPO)). The hearing form in a fine proceeding is not a summons, but rather an opportunity to be heard (Section 55 of the Administrative Offenses Act (OWiG)).

A person’s role may change over the course of the proceedings. Someone who is questioned as a witness may become a defendant during the questioning. That is why the first question is not what should be said, but in what capacity the person is being questioned.

That's why the first question people ask me is almost never "What should I say?" but rather "What does the letter say?" The role, the responsible department, and the date determine everything else—and can be clarified in a few minutes before any response is sent.

Search and Seizure

During a search, officers present a court order or invoke a situation of imminent danger. They enter premises, examine documents, and seize cell phones, computers, and data storage devices.

Four procedures are often confused, even though they are legally distinct: the search (Section 102 of the Code of Criminal Procedure), provisional seizure, formal confiscation (Section 94 of the Code of Criminal Procedure), and the subsequent review of data (Section 110 of the Code of Criminal Procedure). The distinction is of practical significance because judicial protection is tied to the coercive measure—not to a voluntary handover.

With digital devices, access extends beyond what the object itself might suggest. A cell phone contains communications, location data, photos, cloud accounts, business accounts, and data belonging to unrelated third parties. The extent to which such access is permitted has not been definitively clarified. On March 13, 2025, the Federal Court of Justice ruled that forcing a person to place a finger on a device for biometric unlocking may be covered by Section 81b of the Code of Criminal Procedure (2 StR 232/24). However, this ruling does not address either the applicability of this provision to other biometric characteristics or the scope of the subsequent analysis. With regard to accessing data stored remotely in the cloud, the scope of Section 110(3) of the Code of Criminal Procedure (StPO) remains controversial.

Two rights take effect immediately on the day of the search. Upon request, a list of the items seized must be provided (Section 107 of the Code of Criminal Procedure). Furthermore, a court order may be sought to challenge a seizure by the police or the public prosecutor’s office (Section 98(2) of the Code of Criminal Procedure); the individual must be informed of this right.

Preliminary Investigations and Access to Case Files

The public prosecutor’s office oversees the preliminary investigation; the police conduct the bulk of the investigative work. The status of the investigation remains unknown to the accused at first. There is no statutory maximum duration—depending on the scope of the case, the number of parties involved, the volume of data, and the need for expert opinions, investigations can take weeks, months, or, in complex cases, years. Only in cases involving detention does a special requirement for expedited proceedings apply.

Ultimately, one of four decisions is reached, and the differences are significant. The dismissal due to insufficient grounds for suspicion (Section 170(2) of the Code of Criminal Procedure) and the dismissal due to the minor nature of the offense (Section 153 of the Code of Criminal Procedure) do not constitute a conviction. A dismissal subject to conditions (Section 153a of the Code of Criminal Procedure) is not a conviction either, but it typically results in a fine. An indictment or a motion for a summary penalty order transfers the case to the court.

The public prosecutor’s office decides which course of action to take before the case is brought before a court. This distinction has greater implications than it might initially appear: laws governing criminal records, residency, business operations, firearms, and professional licensing attach different consequences to the various possible outcomes of the proceedings.

The right to inspect case files belongs to the defense counsel (Section 147 of the Code of Criminal Procedure), not to the accused. During ongoing investigations, access may be partially restricted if it would otherwise jeopardize the purpose of the investigation. In cases involving detention, information essential to the detention decision must be made available. The practical point: Anyone who makes a statement before the contents of the case file are known establishes a narrative against which every subsequent statement will be measured—even if that initial statement was merely incomplete and not false.

When it comes to electronic records and large datasets, there is debate in practice regarding the form and format in which data must be provided in order for access to the records to be considered effective. The law does not contain any provision on this matter that covers all cases.

Arrest and Pretrial Detention

Anyone who is taken into provisional custody must be brought before a judge without delay, no later than the day after the arrest (Section 128 of the Code of Criminal Procedure). The judge will then decide whether to release the person, suspend the arrest warrant, or order pretrial detention.

Pretrial detention requires strong suspicion of a crime, a legal ground for detention, and proportionality (Section 112 of the Code of Criminal Procedure). The grounds for detention are primarily flight, risk of flight, and risk of tampering with evidence; in cases limited by law, the risk of reoffending may also apply.

The factual findings from this initial decision will be carried forward into the subsequent proceedings. This applies to residence, social ties, financial circumstances, income from abroad, and contacts with co-defendants. An assessment of the risk of flight, once recorded in the case file, remains valid beyond the hearing.

A review of detention may be requested at any time (Section 117 of the Code of Criminal Procedure); in addition, an appeal against detention may be filed. As a general rule, pretrial detention may be extended beyond six months only if particular difficulties, the extensive scope of the investigation, or another important reason have prevented a verdict from being reached; the Higher Regional Court—in Berlin, typically the Kammergericht—then decides on this matter (Sections 121, 122 of the Code of Criminal Procedure). This review must be conducted at least every three months. If detention is based solely on the risk of reoffending, a maximum duration of one year generally applies (Section 122a of the Code of Criminal Procedure).

Restrictions on detention—including visitation, mail, and telephone use—are governed by Section 119 of the Code of Criminal Procedure (StPO) and are subject to judicial review. Provisional restrictions imposed by the public prosecutor’s office or the detention facility must generally be submitted to the court for approval within three business days.

Pretrial Detention — What Family Members Need to Know

At first, family members usually only learn that someone cannot be reached. Afterward, responsibility is divided among the police, the district attorney’s office, the court, and the correctional facility—agencies with different responsibilities and different limits on the information they can provide.

There is no general right of the family to receive information regarding the charges, the grounds for detention, or the contents of the case file. Section 114c of the Code of Criminal Procedure (StPO) protects the right of the arrested person to notify a family member or a trusted person. This does not imply a right of family members to receive such information.

Therefore, reliable information is available to those who have access to the case files. This is the practical reason why family members typically consult a defense attorney first in criminal cases.

Penalty Order — Two-Week Appeal Period

A summary judgment is issued without a prior trial. If it is not contested, it has the same legal effect as a final judgment. The deadline for filing an objection is two weeks from the date of service (Section 410 of the Code of Criminal Procedure).

A summary judgment may include a fine, a warning with the possibility of a penalty, a driving ban, revocation of a driver’s license, and forfeiture. A suspended prison sentence of up to one year is possible, but only if the defendant has a defense attorney (Section 407 of the Code of Criminal Procedure). If the court is considering such a penalty and no defense counsel has been appointed, a public defender must be assigned (§ 408b StPO).

The objection may be limited, for example, to the amount of the daily fines or to a single legal consequence; parts of the decision that are not challenged may become final in their own right. Anyone who fails to appear at the main hearing following an objection without a valid excuse risks having the case dismissed (Section 412 of the Code of Criminal Procedure).

The same two-week deadline applies to appeals against a notice of a fine (Section 67 of the German Administrative Offenses Act (OWiG)).

In such cases, the first thing I check is the date of service, and then whether the objection can be limited in scope. Together, these steps take less time than the deadline—but letting the deadline pass without taking action is irreversible.

For detailed information on the content, objections, driver's license, and registry consequences: Summary Judgment.

Trial, Plea Bargain, Appeal

The trial proceeds according to a sequence prescribed by law: roll call, attendance check, identification, reading of the indictment, instruction of the parties, presentation of evidence, closing arguments, final statements, and judgment (Section 243 of the Code of Criminal Procedure).

A plea agreement (§ 257c StPO) is reached more frequently than is generally assumed. The subject matter may only consist of admissible legal consequences and procedural measures; a guilty verdict and measures for rehabilitation and prevention are excluded, and the court’s duty to provide information remains in effect. If a plea bargain fails, the admissibility of statements made in connection with the plea bargain depends on why and at what stage of the proceedings it failed. The blanket assumption that a confession made in this context is always inadmissible is incorrect. Following a plea agreement, an immediate waiver of the right to appeal is precluded (Section 302 of the Code of Criminal Procedure).

The deadlines for filing appeals are short: one week for an appeal (§ 314 StPO), one week for a cassation appeal (§ 341 StPO), and, as a general rule, one month after the deadline for filing the cassation appeal to file the statement of grounds (§ 345 StPO).

Consequences — Driver's License, Criminal Record, Assets, Residence

Some of the consequences occur before the verdict is handed down and do not fall within the jurisdiction of the criminal court.

A driver’s license may be provisionally revoked as early as the preliminary investigation stage (Section 111a of the Code of Criminal Procedure). If it is revoked by a court, it expires when the judgment becomes final; the suspension period before a new license can be issued is generally six months to five years, and in exceptional cases, it is permanent (Section 69a of the Criminal Code (StGB)).

Assets may be subject to seizure just as early. If there are urgent grounds for a subsequent recovery of the value of the property, an asset seizure order shall be issued (Section 111e of the Code of Criminal Procedure); this covers both movable and immovable property. If the amount of the seizure exceeds 20,000 euros, an appeal may be filed (§ 310 StPO).

Other authorities determine further consequences based on the information from the proceedings: the Federal Central Register and the certificate of good conduct, which are not the same and are subject to different time limits (Sections 32 et seq. BZRG); eligibility under firearms law (Section 5 WaffG); prohibition on engaging in certain trades (§ 35 GewO); the professional ban (§ 70 StGB); and the right of residence, which does not have a fixed criminal threshold but requires a balancing of interests (§§ 53, 54 AufenthG).

For these positions, the nature of the outcome of the proceedings is decisive. Dismissal pursuant to § 170(2), § 153, or § 153a; a final and binding summary judgment or conviction—these are five different outcomes with five different sets of consequences.

These consequences must be taken into account from the very beginning of the defense. Whether you ultimately retain your driver’s license, a permit, or a residence permit is often decided not by the verdict, but by what you agree to beforehand.

Public Defender

A defense attorney is retained by the client, while a public defender is appointed by the court. The appointment is not based on a lack of financial means, but rather because the law deems a defense necessary in certain cases (Section 140 of the Code of Criminal Procedure) — in cases of criminal charges, during pretrial detention, when a professional ban is imminent, during proceedings before a lay judges’ court or a higher court, when the factual or legal situation is complex, or when the defendant is clearly unable to defend themselves. Criminal proceedings do not provide for general legal aid for defendants.

Two implications of this are rarely mentioned. Pursuant to Section 141 of the Code of Criminal Procedure (StPO), the appointment of a public defender is generally made upon request, unless the case falls under the category of ex officio appointment—in other words, it does not occur automatically in every situation. Furthermore, it does not mean that the state treasury will ultimately bear the costs: In the event of a conviction, the fees for the court-appointed defense counsel may be charged to the convicted person as costs of the proceedings (Section 465 of the Code of Criminal Procedure). In the event of an acquittal, a decision not to prosecute, or a dismissal of the case, the state generally bears the costs, with exceptions (Section 467 of the Code of Criminal Procedure).

The process for replacing a defense attorney is also regulated: A court-appointed defense attorney will not be replaced simply because the relationship of trust is later described as having broken down. The law requires specific grounds for replacement (Section 143a of the Code of Criminal Procedure).

Special Features of Individual Procedures

The steps outlined above apply regardless of the charges. Some aspects of the procedure may differ.

Traffic cases are divided into criminal proceedings and administrative fine proceedings, each with its own rules regarding appeals, appearance in court, and appeals to a higher court. Exemption from the requirement to appear in person is governed by § 73 OWiG; an appeal to a higher court is not available against every judgment (§ 79 OWiG).

In cases of cybercrime, the focus is on digital evidence. Depending on the allegations, covert measures may be considered—telecommunications surveillance, retrieval of traffic data, and online searches—each with its own list of offenses and thresholds for intervention (Sections 100a, 100b, and 100g of the Code of Criminal Procedure).

As of April 1, 2024, cannabis is no longer uniformly subject to narcotics laws but rather to the Recreational Cannabis Act. This does not mean that everything is decriminalized; Section 34 of the Recreational Cannabis Act (KCanG) continues to contain criminal provisions. For certain acts that are no longer criminal offenses, §§ 40 through 42 of the KCanG provide for a procedure to expunge criminal records.

Financial crimes involve a great deal of documentation and expert opinions; asset freezing is often considered at an early stage. In the case of companies, parallel proceedings under civil, labor, regulatory, or insolvency law are also involved.

In juvenile criminal law, juvenile court services, expanded options for dismissing cases, and the general rule that hearings are not open to the public (Section 48 of the Juvenile Court Act) shape the proceedings. For young adults between the ages of 18 and 21, the decision as to whether juvenile or adult criminal law applies is made only during the proceedings (Section 105 of the German Juvenile Court Act (JGG)).

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