Concept and legal classification of the accused
The term accused person is a key term in German criminal procedural law. It refers to a person against whom, after the conclusion of the public prosecutor’s investigations, a main court proceeding is to be initiated concerning a specific matter. The status of the accused generally follows that of the suspect and precedes the status of defendant . The precise definition, rights, obligations, and legal status of the accused are governed by Sections 199 et seq. of the Code of Criminal Procedure (StPO).
Distinction: suspect, accused, defendant
In German criminal proceedings, it is crucial to distinguish between different parties to the proceedings:
- Suspect: A person who is subject to an investigation and is considered by the investigatory authorities as a possible perpetrator of a criminal offense.
- Accused: The status of being accused arises upon conclusion of the investigations, when the public prosecution files formal charges (§ 170 Para. 1 StPO) and the court decides whether to open the main trial.
- Defendant: If the main trial is opened and the indictment admitted (§ 203 StPO), the accused attains the status of defendant.
Thus, the stage of the accused is situated directly between the investigation and the main proceedings and marks an important procedural step.
Legal position of the accused
Rights of the accused
The accused is entitled to extensive procedural rights that serve to protect the person and ensure a fair trial. The most important rights include:
- Right to be heard: Before issuing an order to open the main trial, the accused must be heard pursuant to § 33 Para. 3 StPO.
- Right of access to files: According to § 147 StPO, the accused has the right to inspect the investigation files.
- Right to defense: The accused can defend themselves in the further proceedings and choose a defense counsel.
- Right to file motions and to request recusals: For example, the right to challenge a judge under § 24 StPO or to file motions for evidence under § 244 StPO.
- Right to be present: The accused has the right to be present at all court interrogations and hearings.
Duties of the accused
The accused is also subject to certain obligations within the criminal proceedings. These include, in particular:
- Duties to cooperate: Although there is no general obligation to actively participate in clarifying the facts of the case (right to remain silent under § 136 StPO), there may be, in individual cases, duties to appear.
- Obligations to be reachable and to appear when summoned: The accused must comply with court summonses. Unexcused absence can lead to coercive measures (§ 134 StPO).
Procedural classification
Transition from suspect to accused
The status as accused regularly begins when the indictment or an equivalent application is received (§ 199 Para. 1 StPO). After the investigations are concluded, the prosecutor reviews whether there is sufficient suspicion against the suspect and then files charges with the competent court. The court then decides in the so-called interim proceedings on the opening of the main trial.
Interim proceedings and order to open trial
Das interim proceedings form the procedural stage at which the accused can exercise their rights before the court decides whether the indictment will be admitted to the main hearing. In this phase, the accused can respond to the indictment, submit requests for evidence, or raise objections.
If the interim proceedings end with an order to open the trial (§ 203 StPO), the accused becomes the defendant and the main trial begins. If there is insufficient suspicion, the proceedings are discontinued (§ 204 StPO).
The accused in juvenile criminal law and the law on administrative offenses
In juvenile criminal law, the term accused person is used analogously to general criminal law. However, the procedural rules provide for additional safeguards and a stronger focus on educational aspects.
In administrative offense proceedings, there is no comparable term; instead, reference is made to the person concerned.
Significance and functions of the accused status
The position as accused has far-reaching importance for the criminal proceedings:
- Safeguarding of proceedings: Judicial review before the opening of the main trial ensures that sufficient suspicion exists and that the rights of the individual are preserved.
- Right to appeal: The accused can appeal against certain decisions in the interim proceedings, for example by lodging a complaint against the opening of the main trial.
- Protective rights: The accused enjoys all procedural guarantees, particularly the right to fair treatment and effective defense.
Summary
The term accused person describes, in German criminal procedural law, a person against whom charges have been brought after completion of the investigation but for whom admission to the main hearing has not yet occurred. The associated legal position is characterized by extensive protections as well as duties to cooperate. The interim proceedings safeguard the rights of the accused and create a balanced relationship between the pursuit of criminal prosecution and the protection of individual freedom. The status of the accused is thus a central element of the rule-of-law criminal justice system and makes a significant contribution to procedural fairness.
Frequently Asked Questions
What rights does an accused person have in criminal proceedings?
An accused person in criminal proceedings enjoys a variety of rights that serve to ensure a fair process and safeguard their interests. The most important rights include the right to be heard, which means that the accused is permitted to respond to the allegations made against them. They have the right to inspect the case files, so that they or their defense counsel can review all file contents in order to prepare an adequate defense. The accused is also entitled to appoint a defense counsel of their choice or, if certain conditions are met, to have a court-appointed counsel assigned. The right to refuse to testify is also a fundamental right, meaning the accused is free not to make any statement regarding the matter, and this cannot be held against them. Finally, the accused has the right to make applications, present evidence, and name witnesses. Throughout the entire proceedings, the presumption of innocence must be observed; the burden of proof lies with the prosecution.
Does the accused have to appear at every interrogation?
An accused person is generally obliged to attend any appointment that has been scheduled by the court or the public prosecutor’s office, if so ordered. If they fail to appear without an excuse, the court may impose a fine or order them to be brought in by force. However, there is no obligation to cooperate in their own conviction. The accused does not have to make any statement on the matter and may limit themselves to providing only personal details, which are often minimal (name, date of birth, address). If the accused wishes to exercise the right to remain silent, they may declare this at any time, including at short notice during the interrogation.
When and how does a suspect become an accused person?
The change of status from suspect to accused occurs in criminal proceedings after the conclusion of the investigation by the public prosecutor. As soon as the investigation is completed and the prosecution is convinced that sufficient suspicion exists, it brings public charges by submitting an indictment to the competent court. With the court’s service of the indictment and the opening of the main trial, the person under suspicion becomes the accused. In certain types of proceedings (e.g., the interim stage before the main hearing), a formal status as accused exists, which transitions to that of defendant upon opening of the main hearing.
Does the public prosecutor inform the accused about the progress of the proceedings?
Within the legal requirements, the public prosecutor is obliged to inform the accused about significant steps in the proceedings. At the latest, with service of the indictment, the accused is given the opportunity to respond to the charges and submit motions for evidence. Even when an indictment is filed for the main hearing, the accused is formally notified of the progression. During the investigation, there is generally no entitlement to ongoing information, unless the accused submits a request for access to the files or for information on the status of proceedings. The accused must be specifically notified about the discontinuation of proceedings, possible arrest warrants, or dismissals on the grounds of minor culpability.
What are the consequences for the accused if the proceedings are discontinued?
If the proceedings against the accused are discontinued, this means that the criminal proceedings against them are terminated and no criminal sanctions will follow. The discontinuation can occur for various reasons—for example, if the suspicion is not confirmed, there are procedural obstacles, or if the court decides under the principle of opportunity (e.g., for minor cases). In some cases, discontinuation is linked to conditions and instructions that the accused must fulfill for the discontinuation to become final (e.g., payment of a sum of money under § 153a StPO). Upon the discontinuation taking effect, the accused continues to be regarded as not convicted; there is no prejudgment. The accused can, if necessary, request a certificate confirming discontinuation.
Can legal remedies be lodged against measures taken by the investigative authorities or by the court?
The accused has the right to lodge legal remedies against certain actions of the prosecution and the courts. This specifically includes a complaint against arrest warrants, search orders, seizures, or other court orders that infringe their rights. It is also possible, under certain circumstances, to challenge the opening of the main trial, for example through the interim proceedings, during which the accused can raise objections to the indictment and to the proceedings. The accused has further remedies such as appeal or revision against the judgment of the court. An effective remedy requires that the formal and substantive requirements (e.g., time limits) are met.
What effects does the status as accused have on professional and personal life?
The status as an accused can have substantial effects on professional and personal life, even if no guilt has yet been established. In public service, for instance, disciplinary proceedings may be initiated or temporary suspension may be imposed. In the private sector, labor law consequences or temporary suspensions can also arise if the employer learns of the investigation. In one’s social environment, being listed as an accused can lead to stigmatization or family strain. However, the presumption of innocence applies, meaning no prejudice is to be drawn solely from the status of being accused. In sensitive professions (e.g., security services, childcare), however, official measures (such as provisional revocation of licenses) may be ordered if there is believed to be a risk.
