Concept and Significance of the Criminal Investigation
Die criminal investigation constitutes a central phase in German criminal procedure law, during which criminal offenses are clarified and the necessary evidence is collected. It regularly begins with the initial suspicion of a criminal offense and serves to determine whether and by whom an unlawful act was committed, and with what degree of culpability. The criminal investigation thus forms the essential basis for the decision to file a public charge as well as for the judicial main proceedings.
Legal Framework of the Criminal Investigation
The Code of Criminal Procedure (StPO)
The legal provisions governing the criminal investigation are mainly found in the Code of Criminal Procedure (StPO). There, the commencement, conduct, rights and obligations of parties involved, as well as the possible termination of the investigation, are detailed.
Terminology: Investigation and Inquiry Proceedings
In practice, the criminal investigation is mainly referred to as the investigation proceedings . The term “inquiry” appears especially in the context of historical procedural codes and, in a broader sense, is still used, but generally refers to the preliminary investigation proceedings (§§ 152 et seq. StPO).
Course of the Criminal Investigation
1. Initiation of the Investigation
The criminal investigation is typically initiated by indications of the existence of a criminal offense, such as through the filing of a criminal complaint, a motion for prosecution, or through the authorities’ own observations (§ 152 (2) StPO). Mere initial suspicion is sufficient.
2. Investigative Measures
In the course of the criminal investigation, the investigative authorities—namely the public prosecutor’s office and the police—are obligated to investigate the facts comprehensively and objectively. Investigative measures include, among others:
- Questioning of suspects and witnesses
- Search of dwellings, objects, and persons
- Seizure of evidence
- Securing and evaluating data
- Ordering of surveillance measures (e.g. telephone monitoring, surveillance)
- Establishing identity
Many of these measures involve significant interference with fundamental rights and are therefore subject to judicial order, for example searches (§ 105 StPO) or pre-trial detention (§ 112 et seq. StPO).
3. Participants in the Criminal Investigation
The key authorities and individuals involved are:
- public prosecutor’s office (has control over the proceedings, so-called mistress of the investigation proceedings)
- police authorities (carry out investigations on the instructions and under the supervision of the public prosecutor’s office)
- suspect (person suspected, against whom the proceedings are directed)
- third parties concerned (such as witnesses, victims, experts)
- defense counsel (protecting the rights of the accused)
- court (in judicial decisions on special measures)
4. Duration and Conclusion of the Investigation
The criminal investigation must generally be conducted expeditiously. It ends either with the discontinuation of the proceedings in accordance with § 170 (2) StPO (for lack of sufficient suspicion) or with the filing of public charges (§ 170 (1) StPO), which leads to the judicial main proceedings.
Legal Status and Rights of Parties Involved
Rights of the Accused
The person referred to as the suspect in a criminal investigation has numerous procedural rights, including:
- Right to be heard (§ 163a StPO)
- Right to remain silent (§ 136 StPO)
- Right to information about the allegation
- Right to inspect the files (through a defense lawyer)
- Attendance rights in connection with certain investigative measures
- Right to appeal measures of law enforcement agencies
Rights of Other Parties
Witnesses, experts, and victims also have specific rights in a criminal investigation, such as witness counsel, information about their own involvement, and, at least in part, a right to be informed about the status of the proceedings.
Duties of Involved Parties
The parties have duties to cooperate (for example, the obligation to testify), but must also be protected against self-incrimination and unjustified interference by comprehensive due process guarantees.
Special Features in Cases of Serious Interference
Measures such as pre-trial detention and searches may only be ordered under particularly strict legal conditions and after a proportionality assessment. As a rule, this requires the approval of an independent court.
Termination and Consequences of the Criminal Investigation
At the end of the criminal investigation, the public prosecutor’s office stands public prosecutor’s office before deciding whether the gathered evidence justifies what is known as ‘sufficient suspicion.’ If this is the case, it files public charges before the court. Otherwise, the proceedings are formally discontinued. The accused will be informed, and, where applicable, personal data will be deleted in accordance with data protection.
Special Forms and Features
Special Cases in Criminal Investigation
Investigation Proceedings against Juveniles
Juvenile criminal law (§§ 1 et seq. JGG) provides for special rules regarding the course and legal consequences of investigations, such as the priority of educational measures and special procedural rights.
International Investigations
In cases with an international connection—such as offenses committed abroad or involving foreign parties—cooperation with investigative authorities of other countries may be required under international legal assistance rules.
Tax and Business Criminal Law
Investigations in business and tax criminal matters are often conducted by specialized investigative offices. However, they are subject to the same procedural principles of criminal procedure.
Non-prosecution and Discontinuation of Proceedings
In certain circumstances, such as minor culpability, the public prosecutor’s office may refrain from prosecution under §§ 153 et seq. StPO already during the investigation proceedings.
Remedies and Oversight of the Investigation
For all adverse measures taken during the investigation, the affected parties have legal remedies available, particularly a complaint (§§ 304 et seq. StPO) or an application for a judicial decision (§ 23 EGGVG).
Additionally, the investigation is subject to judicial and parliamentary oversight, especially through submissions, complaints, and, where applicable, parliamentary investigatory committees in cases of serious procedural violations.
References and Legal Foundations
- Code of Criminal Procedure (StPO)
- Courts Constitution Act (GVG)
- Juvenile Courts Act (JGG)
- European Convention on Human Rights (ECHR), Art. 6
- Professional commentaries on the StPO and relevant monographs on criminal procedure
The criminal investigation is a fundamental element of state criminal justice. It ensures the lawful clarification of criminal offenses while comprehensively taking into account the fundamental rights of all parties involved and forms the backbone of lawful criminal prosecution in Germany.
Frequently Asked Questions
How does a criminal investigation proceed in Germany?
A criminal investigation typically begins with an initial suspicion that is triggered either by a report to the police, by the authorities’ own inquiries, or by information from other agencies. If such suspicion exists, the police or the public prosecutor’s office commence an investigation. These investigations include collecting evidence, such as questioning witnesses, inspecting crime scenes, securing objects, seizures, and, where necessary, searches ordered by a judge. In the course of the investigation, the public prosecutor’s office can order or apply for specific measures, such as pre-trial detention, provided the legal requirements are met. The person concerned enjoys rights throughout the entire proceedings, including the right to counsel and the right to remain silent. The investigation concludes either when the public prosecutor’s office discontinues the proceedings for lack of sufficient suspicion or files charges with the competent court.
What rights do suspects have during a criminal investigation?
Suspects in criminal investigation proceedings have numerous statutory rights. They have the right to remain silent and not to incriminate themselves. They also have the right to be represented by counsel of their choice or, upon request, to have a court-appointed counsel assigned. They are entitled to inspect the investigation file (through their lawyer) and to respond to the allegations. During searches and seizures, certain formal requirements and the principle of proportionality must be observed; usually, a judicial order is required. If they are arrested, they must be informed of their rights and promptly brought before a custody judge. The right to notify a family member and receive medical care in custody is also legally guaranteed.
When can searches or seizures be carried out as part of a criminal investigation?
Searches and seizures are particularly invasive measures, permissible only under strict conditions. A search of a residence or other premises usually requires a judge’s order unless there is imminent danger. The prerequisite is concrete suspicion that the measure will lead to discovery of evidence or the sought-after person. Similar rules apply to the seizure of objects. Judicial orders must be explained in detail, and the measures must be recorded and documented. The person affected or their counsel may file legal remedies, such as a complaint, against the search or seizure. The relevant legal basis is provided in the Code of Criminal Procedure (StPO), particularly §§ 94 et seq. and 102 et seq.
How does the investigation phase differ from the main trial phase?
The investigation phase is the stage of evidence collection and fact-finding, during which it is determined whether sufficient suspicion exists to justify bringing charges. Witnesses are heard in this phase, evidence is secured, and the accused is confronted with the accusations for the first time. If the phase ends with an indictment and the court allows it, the main trial phase follows: the court examines whether the allegation is confirmed. In the main trial, the principle of direct oral presentation and public hearings applies. The evidence is taken in the hearing, the accused is questioned again, and witnesses and experts are called. At the end, a judgment is handed down, which may result in conviction or acquittal.
What legal options does an accused person have to resist investigative measures?
An accused person can defend themselves against investigative measures by various legal means. The complaint pursuant to the Code of Criminal Procedure (StPO) provides a remedy against searches, seizures, or other coercive measures. Pre-trial detention can be challenged through a detention review or a detention complaint. Legal counsel can apply for access to the case file, file motions to discontinue the proceedings, or submit exculpatory evidence. During the entire proceedings, the right to be heard and to a fair trial applies. Objections and requests for evidence may be submitted during both the investigation and later the main proceedings. Furthermore, unlawful measures can be immediately reviewed by the court.
What is the role of the public prosecutor’s office in the criminal investigation?
The public prosecutor’s office is the mistress of the investigation proceedings and has primary responsibility for its conduct. It decides whether and to what extent investigations are conducted, may order or apply for investigative measures, and supervises police activities. The public prosecutor’s office evaluates the collected evidence and decides whether to discontinue proceedings (e.g., due to lack of evidence or insignificance), apply for a penal order, or file charges. It is obliged to act objectively and must investigate and consider both incriminating and exonerating circumstances. In some cases, such as serious criminal offenses, it conducts investigations itself and is the first point of contact for defense counsel and defendants.
What happens if the criminal investigation proceedings are discontinued?
If a criminal investigation proceeding is discontinued, it means that the public prosecutor’s office does not see sufficient suspicion to file charges or other grounds for discontinuation exist, such as lack of evidence, withdrawal of the complaint, or insignificance (the latter usually requires court approval). The person concerned is considered innocent in the sense of criminal law, there is no entry in the Federal Central Register, and no public announcement is made. Some discontinuations are, however, conditional under § 153a StPO (e.g., payment of a monetary condition). If proceedings are dropped, seized objects are generally returned. Complainants or private prosecutors can file complaints against decisions of the public prosecutor’s office.
