Prosecution

This section will instruct you all about being prosecuted, behind bars, tried in court. This page will have some introducing remarks.

Contents: 1.) General Hints,  2.)  Defense,   3.)  1st Hearing

1.)  General Hints

What will happen if the police yell: „Halt! Stehenbleiben! Polizei!” (Stop where you are! Police!) and I run away?

That depends on the situation. If you use force against the police, shaking yourself loose for instance – then you are resisting legitimate public authority, and you are subject to a fine. If you just take off, without being held, you will be fined € 20. If your command of German is negligible and you have not been here for long, then the police may and ought to refrain from penalizing you. This will most likely only apply to policemen in civilian clothing.
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I recently got a fine for not filling the trashcans correctly. I was instructed to put paper into the blue cans, plastics with the “green dot” into the yellow cans, etc. Is this not preposterous?

Welcome to German red-tape! No. According to German law you are obligated to help preserve nature. This is also to be done by sorting your disposals into different cans that you will find at your house. The German comedian Otto describes this rule very neatly in a scene from his movie “Otto Der Außerfriesische”: He is standing together with neighbors at their garbage can. He stopped his neighbor as she was about to throw a tea bag into bio-waste can. "You are not to dispose teabags as bio-trash." Upon the puzzled look on her face, he continued instructing her: "Order rules here! The paper tag belongs in the paper container, the metal clip belongs in the yellow container, the string is normal garbage, the tea leaves themselves, they are really bio waste!" Disobeying this rule will surely not give reason to expel you, but theoretically it could lead to a fine. However, the chances of this happening inside a normal are virtually zero.
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What is the difference between a fine and a penalty in money?

German agencies, that are authorized to prosecute people, consider a fine (Bußgeld) a punishment for violating an administrative regulation (Ordnungswidrigkeit). A punishment in money (Geldstrafe), however, is a penalty for committing a crime; in other words, for violating a law. If you ever come before a penal judge, he will recite your record of punishments but none of your fines. He will be influenced only by those punishments, not by any fines you may have been forced to pay for wrong parking or speeding in the past. Why should you learn this legalese? Simple. The penalty in money (just as well as imprisonment) can hinder the prolongation of your residency or maybe even have you deported immediately. Bear in your mind, your Ausländeramt will be ex officio informed of any prosecution against you! Never will they be informed about your speeding ticket.
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When does prosecution start?

The initial phase of German criminal prosecution is the pre-trial investigation. The purpose of this investigation is to determine whether there are sufficient grounds to warrant a formal indictment against a person suspected of having committed an offense. This investigation is normally conducted by the public prosecutor, or by police authorities who are under his supervision. As far as possible, all evidence relating to the alleged offense is collected, whether it is in favor of, or against, the accused. The German authorities methodically complete each stage of pre-trial proceedings. Pre-trial detention may last several months in complicated cases. The case file is developed by obtaining judicial statements of witnesses, opinions from various experts, police investigative summaries, photographs, sketches, laboratory reports, and so on. Once the pre-trial investigation has been completed, the case will be brought to trial before the appropriate court.
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I received a “Strafbefehl” (punishment order) the other day. As I understand it, it means I have to run out and punish someone. What’s going on?

No one is ordering you to punish anybody. That is reserved to the government and its executive bodies. On the contrary, it is you, who is being punished for a minor crime. Normally, the law requires you to be heard in court before the authorities punish you. But in cases involving simple facts and legal questions, you can be sentenced to a minor punishment in a summary proceeding. Typical crimes handled like this involve no serious personal injury, petty theft, insults, minor assaults and the like.
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I disagree with my punishment! It was only a minor offense I committed. My punishment is much too high. How can I fight it?

You have two weeks time to appeal this punishing order. That means if you did not receive the Strafbefehl in a dark blue envelope then service might not be valid (§410 I 1 StPO). The postman usually gives this dark yellow envelope directly to you. Alternatively, it will be handed to any adult answering the door with your name on the bell.  
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What happens if I appeal? Do I have to appeal everything?

Your case will be tried in court. However, keep in mind that the judge does not have to reduce your sentence: he may even make it worse. There is an unwritten rule that appealing a Strafbefehl will only worsen the sentence unless you have good reasons for a reduction. In this regard, the best thing you can provide is new or extra evidence of your innocence. 
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While driving down the street, the police pulled me over. How should I behave best?

The best to do is to remain in your car, keep calm, put a smile on your face, speak friendly with them. Do not leave the car, if not asked to. Have your papers ready. If you remain calm, even though being arrested, you will be treated gently. Really, officers are mostly quite friendly.  
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Heck, I’ve  just been accused of a crime. As I’m not a German, Germany surely will not try me, or will it?

That’s no good news. Can my consul fetch me out of jail.

What can a consul do for my benefit?

2.  Defense

I haven’t made up my mind if I should employ a lawyer. What sense does it make? I’m sure that I’ll prove my innocence when I tell them my story.

How the heck do I find an English-speaking attorney?

The consular officer will, as soon as possible, provide you with a representative list of English-speaking attorneys. However, an attorney cannot be selected for you, nor can legal advice be given.
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A good friend of mine is willing to defend me in court. He has not only the gift of gab, but also even more the gift of persuasion. Will the court accept him as my defense attorney?

Assuming your friend has no legal education as to be shown, than the answer is a clear “no”. In accordance with §137 StPO, you can obtain the services of an attorney at any time during the proceedings. The number of selected defense attorneys may not be more than three. The defense attorney must either be licensed to practice before German courts or be a law professor at a German university (§138 I StPO).
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What function does a judge have here in Germany? Does he just sit back in a comfortable chair and let the attorneys have all the show?

The judge is the person who leads not only the penal proceedings, as soon as it comes to the formal accusation, but also – and especially – the trial. At the oral hearing, all parties in the case must be heard. The taking of evidence (Beweisaufnahme) is managed by the court. A written record must be made of the hearing and the record must be signed by the presiding judge and the official in charge of the records (§§271, 273 StPO).
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I know all the facts of my case. I know I am innocent. The court will decide for me. So do I really need an attorney?

In minor cases, you are free to defend yourself. In more serious cases, a defense attorney is compulsory (§140 StPO). This helps to ensure the rule of law and it protects you as well. These are the kinds of cases in which an attorney is compulsory:

• when the court can sentence you to at least one year in prison,

• when the facts or laws in the case are complicated,

• when you are unable to defend yourself because you have no knowledge of the German language or because you do not understand what is happening / has happened to you.
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The court is urgently garbling something to me that I cannot at all understand. My German is too poor to follow the judge. Do I not have the right to a translator?

Yes, in accordance with the rule of law (§185 I 1 GVG, Art. 20 III, 2 II GG). German courts must make it possible for you to understand why the district attorney wants you to be punished. Make sure your attorney applies for the translator. 
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3.  First Hearing (Erste Vernehmung)

I just heard that tomorrow the judge will hold a hearing in my case. However, its not supposed to be the trial. What’s this all about?

This initial hearing before the judge is intended to give you an opportunity to refute the suspicion of guilt and to produce facts which would be in your favor. At the opening of the hearing, the judge will identify if you are the person against whom an offense is charged and which paragraphs of the penal code might be applicable. You will be informed that the law permits you to remain silent, make statements, or consult a lawyer before answering any questions. You will also be informed of your right to request investigations on your behalf to bring to light any exonerating evidence.
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I heard from cellmates that the investigating police are tough guys during interrogation. They twist your arms, punch you in the stomach, slap your face and a lot more. Gee, I thought I was in modern Europe.

Hmm. Are you sure that you are talking about Germany? The person charged must be able to make voluntary decisions and may not be restricted or influenced by mistreatment, exhaustion, physical interference, drugs, torture, deception or hypnosis. Compulsion may be applied only as allowed by the law of criminal procedure. Any threat to apply measures contrary to that law, or promises of advantage not provided by this law, are forbidden (§136a StPO).
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Gee, I just heard that there is an arrest warrant for me and that the cops are about to haul in – for what ever reason. I got a good job. If I were to be arrested off my job, I can forget returning there again. I could deposit a bail. Is there any chance to cancel the arrest warrant?

The judge may suspend an arrest order imposed solely on the grounds of suspicion of flight when justice may still be served by other means. Alternative measures include:

1. The regular appearance by the accused at predetermined times before the investigating judge, police or other officials as directed.
2. The individual may not leave his designated area of residence without the specific approval of the judge or police.
3. Payment of a security deposit (bail) by the suspect or any other party.
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