Course of the Investigation and Your Rights
Two paths lie at the end of the investigation. If the investigation provides sufficient grounds for bringing public charges, the public prosecutor’s office files an indictment with the competent court (§ 170 (1) StPO). Otherwise, it discontinues the proceedings (§ 170 (2) StPO).
At the start of every interview, the accused must be informed what offence they are charged with. They must be advised that they need not testify on the matter and may consult a defence lawyer at any time, even before the interview (§ 136 (1) StPO). The same caution applies to police questioning (§ 163a (4) StPO).
Access to the file is a right of the defence lawyer (§ 147 (1) StPO). As long as the conclusion of the investigation has not been recorded, access can be refused if the purpose of the investigation would otherwise be jeopardised (§ 147 (2) StPO). If the accused is in pre-trial detention, access must generally still be granted. We read the file before we make any statement.
Penalty Order: Two-Week Objection Period
A penalty order sets out the legal consequences of an offence in writing, without a hearing and without a prior hearing by the court (§ 407 (1) and (3) StPO). It is issued only for minor offences and only on written application by the public prosecutor’s office.
The defendant may lodge an objection within two weeks of service, in writing or on the record at the court registry (§ 410 (1) StPO). If the deadline expires, the penalty order is equivalent to a final judgment (§ 410 (3) StPO).
Not every conviction is entered in the certificate of good conduct, however. A fine of no more than 90 daily rates remains unmentioned as long as no further sentence is recorded in the register (§ 32 (2) no. 5 of the Federal Central Criminal Register Act). We check whether your penalty order stays below this threshold before the objection period expires.
Common Charges and Their Sentencing Ranges
The sentencing range determines where the case is heard. If a custodial sentence of more than four years is expected in the individual case, the public prosecutor’s office brings charges before the Regional Court, otherwise before the Local Court (§ 24 (1) GVG). Minor offences with an expected sentence of up to two years are decided by a single criminal judge at the Local Court (§ 25 GVG).
The competent courts in Augsburg are the Local Court and the Regional Court.
Assault, Theft and Fraud
§ 223 (1) StGB criminalises physical maltreatment and injury to health, with a custodial sentence of up to five years or a fine. If a weapon, a dangerous tool or a further participant is involved, § 224 (1) StGB applies: six months to ten years, or three months to five years in less serious cases.
Theft (§ 242 (1) StGB) and fraud (§ 263 (1) StGB) carry a custodial sentence of up to five years or a fine. For a minor offence, the public prosecutor’s office may, with the consent of the court and the accused, provisionally refrain from prosecution and impose conditions, such as a payment or victim offender mediation (§ 153a (1) StPO).
Once the conditions are fulfilled, the offence can no longer be prosecuted as a minor offence. We work towards this outcome for first-time offenders.
Traffic Offences and Drug Offences
Drink driving is punishable by a custodial sentence of up to one year or a fine (§ 316 (1) StGB). Also relevant are leaving the scene of an accident (§ 142 StGB) and endangering road traffic (§ 315c StGB). If there are urgent grounds to assume that the driving licence will be withdrawn, the judge can provisionally withdraw it already during the investigation (§ 111a (1) StPO).
If the court withdraws the driving licence (§ 69 StGB), it simultaneously sets a bar of six months to five years during which no new licence may be issued (§ 69a (1) StGB). Where the accused possessed drugs only for personal use in a small quantity, the public prosecutor’s office may refrain from prosecution (§ 31a (1) BtMG). This is exactly where we start with our application.
Pre-Trial Detention and Juvenile Criminal Law in Augsburg
Two procedural situations follow their own rules: pre-trial detention under § 112 StPO and juvenile criminal law under the JGG. Both require early applications, because otherwise the court decides on the basis of the public prosecutor’s file alone. We handle both in Augsburg.
Pre-Trial Detention: Review of Detention under § 117 StPO
Pre-trial detention may be ordered where the accused is strongly suspected of the offence and a ground for detention exists (§ 112 (1) StPO). Grounds for detention are flight, risk of flight and risk of suppression of evidence (§ 112 (2) StPO). Risk of reoffending is added as a separate ground for detention, but only for the catalogue offences under § 112a (1) StPO.
The accused may have the court review at any time whether the arrest warrant should be set aside or its execution suspended (§ 117 (1) StPO). Alongside this application, an appeal is not admissible (§ 117 (2) StPO).
Beyond six months, execution of the detention may continue only if particular difficulty, particular scope or another important reason has so far prevented a judgment; the Higher Regional Court decides on this (§ 121 (1) and (2) StPO). We apply for access to the file and review of detention on the first day.
Juvenile Criminal Law: Age Limits and Legal Consequences
A juvenile is a person who, at the time of the offence, is 14 but not yet 18 years old; a young adult is a person who is 18 but not yet 21 years old (§ 1 (2) JGG). The judge applies juvenile criminal law to young adults where an overall assessment of the personality shows a level of maturity equivalent to that of a juvenile, or where a juvenile-type offence is present (§ 105 (1) JGG).
The legal consequences are graduated. Disciplinary measures and youth custody are only considered once educational measures are not sufficient (§ 5 (1) and (2) JGG). Youth custody is at least six months and at most five years, or at most ten years for a serious crime carrying a maximum sentence of more than ten years under general criminal law (§ 18 (1) JGG).
Before the juvenile judge at Augsburg Local Court, we work towards the lowest possible level of consequence.
Further Information
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