Concept and significance of the intermediate proceedings in criminal procedure
The intermediate proceedings in criminal procedure constitute an independent phase of proceedings under the German Code of Criminal Procedure (StPO). Their function is to determine whether the public charges brought shall be admitted to trial, i.e. whether sufficient suspicion exists against the accused. Thus, the intermediate proceedings form the interface between the conclusion of the investigations (preliminary proceedings) and the conduct of the main hearing (main proceedings).
Legal framework of the intermediate proceedings
Regulations in the Code of Criminal Procedure
The intermediate proceedings are set out in §§ 199 to 211 StPO. They are initiated when the indictment is received by the court (§ 199 StPO). The relevant provisions govern the procedure and the rights of the parties involved, in particular the ability to submit motions for evidence or raise objections against the indictment.
Functions and objectives
The core function of the intermediate proceedings is to protect the main proceedings from unjustified charges against the accused and to prevent unnecessary or unlawful main hearings. In this way, it acts as a supervisory instance over the investigations carried out by the public prosecutor’s office and grants the accused, for the first time, access to judicial legal protection.
Process and participants in the intermediate proceedings
Receipt of the indictment
With the application for admission of the indictment, the public prosecutor’s office submits the indictment along with the case files to the competent court. This court first reviews the formal requirements of the indictment in accordance with § 200 StPO.
Statement by the accused
As soon as the indictment has been received, it is forwarded to the accused and their defense counsel, giving them the opportunity to respond and to submit motions for evidence or objections against the opening of the main proceedings (§ 201 StPO).
Participation of other parties to the proceedings
Other parties admitted to the proceedings, such as joint plaintiffs, also receive access to the files and may submit a statement.
Scope of the court’s review
Review of sufficient suspicion
In the intermediate proceedings, the court examines whether sufficient suspicion exists (§ 203 StPO). Sufficient suspicion exists if, based on a preliminary assessment of the files, a conviction is more likely than not.
Legal and factual examinations
Within this review, the court also assesses whether proper procedure was followed, such as observing the requirement for expedited proceedings, due service of documents, and timely submission of the indictment. Furthermore, the court checks for any procedural obstacles, such as statute of limitations, immunity, or lack of procedural requirements.
Treatment of motions for evidence in the intermediate proceedings
The court must decide on requests for the taking of evidence submitted by the accused or the defense. The court may also, on its own initiative, become aware of significant investigative measures and order them (§ 202 StPO).
Further investigations and supplementary questioning
If the court considers further investigative measures necessary to form its opinion, it may order the public prosecutor’s office to carry these out as so-called supplementary investigations.
Possible decisions in the intermediate proceedings
Opening of the main proceedings
If the court affirms the existence of sufficient suspicion, it orders the opening of the main proceedings and sets a date for the main hearing (§ 207 para. 1 StPO).
Non-opening of the main proceedings
If the court denies the existence of sufficient suspicion or other procedural obstacles are present, it refuses to open the main proceedings by way of an order (§ 204 StPO). An immediate appeal may be lodged against this order.
Partial opening or limitation of the main proceedings
The court may also open the main proceedings only with respect to certain counts of the indictment or place limitations (§ 207 para. 2 StPO). The indictment is binding unless it is clearly unfounded or if a legal reclassification (“reinterpretation”) occurs pursuant to § 206a StPO.
Special issues and legal remedies
Legal remedies against decisions in the intermediate proceedings
An immediate appeal may be lodged against the refusal to open the main proceedings pursuant to § 210 StPO. If the main proceedings are opened, admission of the indictment is generally not subject to appeal; however, all defense rights remain available in further proceedings.
Significance in juvenile criminal proceedings and expedited proceedings
A procedure equivalent to the intermediate proceedings is also conducted in juvenile criminal proceedings (§ 33 JGG). In expedited proceedings, such as penal order proceedings or accelerated proceedings, the intermediate proceedings are omitted pursuant to special provisions.
Practical relevance and significance within the overall criminal justice system
The intermediate proceedings ensure an effective filtering function in criminal procedure. It protects both the public interest in effective legal protection and the defense rights of the accused. Statistically, numerous indictments during the intermediate proceedings result in non-opening of the main proceedings or restriction of the subject matter of the proceedings, underlining the relevance of this procedural stage for fair and rule-of-law criminal justice administration.
Summary
The intermediate proceedings in criminal procedure represent an essential and legally defined phase in German criminal proceedings. They ensure an objective review of the indictment for a likelihood of conviction and, in doing so, provide for efficient and lawful conduct of criminal proceedings. Through its filtering function, the intermediate proceedings prevent unfounded main hearings and effectively protect the parties to the proceedings from state overreach.
Frequently asked questions
Who is responsible in the intermediate proceedings for the decision to open the main proceedings?
In the intermediate proceedings, the court of first instance responsible for adjudication under the applicable procedural rules is competent to make the decision. Specifically, in criminal matters, this is, pursuant to § 207 StPO, the Schöffengericht (panel court), the Landgericht (regional court), or the Oberlandesgericht (higher regional court), depending on jurisdiction for the main hearing in the given criminal case. The court, after completion of investigations and receipt of the indictment from the public prosecutor’s office, examines whether the requirements for opening the main proceedings are met. There is a peculiarity for indictments before the local court with a single judge, where the judge at the Amtsgericht as a single judge decides on the opening. Upon reaching this stage, the public prosecutor’s office relinquishes its sole authority to direct proceedings; judicial oversight guarantees independent and legal review of the investigations and indictment before the start of the public main hearing.
What legal remedies are available to the accused in the intermediate proceedings?
Various defense options are available to the accused in the intermediate proceedings. Under § 201 StPO, he or she may comment on the indictment and present exculpatory facts or evidence (so-called counterstatements or objections against the opening of the main proceedings). Under § 202 StPO, the accused may also file motions for evidence that may prompt the court to conduct further factual clarification. If the accused feels that the charges are unwarranted or groundless, he or she may explicitly apply for non-opening of the main proceedings (“no sufficient suspicion”). The appointment of a court-assigned defense counsel can also be requested if the conditions of § 140 StPO are met. All submissions by the accused and defense aim to ensure the court conducts a full and as objective as possible review of the indictment.
What rulings can the court issue in the intermediate proceedings?
The court essentially has three decision alternatives in the intermediate proceedings. First, it can open the main proceedings for trial if it affirms sufficient suspicion (§ 203 StPO). Second, it may refuse the opening due to a lack of sufficient suspicion (§ 204 StPO). In that case, the proceedings are discontinued; a renewed indictment may still be brought under certain circumstances (§ 211 StPO). Third, the court may limit the indictment on legal grounds, for example, by removing certain counts from the proceedings or by providing legal notice of procedural obstacles pursuant to § 206a StPO. The decision is issued in the form of an order and must be communicated to the defendant and the public prosecutor’s office.
To what extent is the court in the intermediate proceedings bound by the indictment?
While the court is bound by the facts as presented in the indictment during the intermediate proceedings, it is not bound by the legal assessment of the public prosecutor’s office. The court independently examines whether the facts set out in the indictment constitute sufficient suspicion and which statutory offences might be fulfilled. If the court disagrees with the public prosecutor’s legal assessment, it may open the proceedings on the basis of another criminal offence (§ 207 para. 1 StPO), provided this is covered by the facts described in the indictment and the accused is not taken by surprise as to the facts or their legal significance.
Can additional investigative measures be ordered during the intermediate proceedings?
Yes, pursuant to § 202 StPO, the court may, in the intermediate proceedings, order on its own initiative or upon request by the parties that specific investigations be conducted or expanded. The court is required to clarify all circumstances that may contradict sufficient suspicion; especially if there are doubts about the available evidence. It may summon witnesses, appoint expert witnesses or obtain documents. These supplementary investigations serve to enable an appropriate decision on the opening of the main proceedings and to prevent arbitrary or unfounded indictments.
What legal remedies are available against decisions of the court in the intermediate proceedings?
If the opening of the main proceedings is refused and the proceedings are discontinued by order (§ 204 StPO), the public prosecutor’s office may file an immediate appeal pursuant to § 210 StPO. Conversely, if the main proceedings are opened, such an order generally cannot be appealed—exceptions exist only in very specific circumstances, for example, if there is simultaneously an order under § 206a StPO (discontinuation due to a procedural obstacle). The accused thus may not appeal “in isolation” against the decision to open proceedings; legal protection is in this respect confined to the main proceedings and the objections available there.
Does the public main hearing already begin with the intermediate proceedings?
No, the intermediate proceedings do not form part of the public main hearing, but are an independent stage of proceedings accessible only to the court and the parties involved in the proceedings—primarily the public prosecutor’s office and the accused with their defense counsel. The public is not involved in the intermediate proceedings, and an oral hearing generally does not take place. The intermediate proceedings end with the court’s decision on whether or not to open the main proceedings. Only upon issuance of the opening order does the main hearing, which is generally public (§ 169 GVG), begin.
