Criminal Procedure in Germany: StPO and Criminal Procedure

German criminal procedure is governed by the Strafprozessordnung (StPO), the Code of Criminal Procedure, enacted in 1877 and extensively amended since. The StPO regulates the conduct of criminal proceedings from investigation through trial and appeal. It reflects the inquisitorial tradition modified by adversarial elements, with the judge playing an active role in establishing the facts. The StPO balances the state’s interest in effective law enforcement with the rights of the accused, including the presumption of innocence, the right to remain silent, the right to counsel, and the right to a fair trial. The StPO is supplemented by the Courts Constitution Act (GVG), which establishes the institutional framework for criminal courts, and by the Federal Constitutional Court’s fundamental rights jurisprudence.

The Investigation Stage

Criminal proceedings begin with the investigation (Ermittlungsverfahren) conducted by the public prosecutor’s office (Staatsanwaltschaft). The prosecutor determines whether there is sufficient suspicion to bring charges. The police, acting under the prosecutor’s authority, conduct the initial investigation under section 163 StPO, gathering evidence, interviewing witnesses, and securing forensic material. The investigation must cover both incriminating and exonerating circumstances (section 160(2) StPO) — the prosecutor has a duty to investigate objectively and may not focus solely on evidence supporting a conviction. The suspect has the right to remain silent (Aussagefreiheit), the right to counsel of their choice, and the right to access the investigation file (Akteneinsicht) once the investigation has concluded. If the prosecutor finds sufficient suspicion (hinreichender Tatverdacht), charges are filed with the competent court. If insufficient suspicion exists, the investigation is closed.

Pre-Trial Procedure

The court reviews the charges in an intermediate procedure (Zwischenverfahren) after the indictment is filed. The presiding judge examines whether the charges are sufficiently supported to justify trial. The judge may reject the charges if insufficient suspicion exists, require supplementation, or accept the indictment and schedule the main hearing. The defendant receives the indictment and has the opportunity to respond. Pre-trial detention (Untersuchungshaft) is available only under strict conditions: the court must find reasonable suspicion of a criminal offence, a statutory ground for detention (including flight risk, obstruction risk, or the seriousness of the offence in cases involving certain serious crimes), and proportionality. The European Court of Human Rights has emphasised that pre-trial detention must not exceed a reasonable period. The German legal framework requires judicial review of detention at regular intervals and provides for compensation in cases of unlawful detention. Detention may not exceed six months absent special circumstances, and the grounds for continued detention must be reviewed at least every three months.

The Main Hearing

The main hearing (Hauptverhandlung) is the central stage of German criminal procedure. It is governed by the principles of orality (Mündlichkeit), requiring that evidence be presented orally, immediacy (Unmittelbarkeit), requiring that the court consider only evidence presented in the hearing and that witnesses be examined directly, and publicity (Öffentlichkeit), requiring that the hearing be open to the public unless specific exceptions apply. The presiding judge controls the proceedings and conducts the examination of the accused and witnesses. The prosecution presents the charges in a statement of indictment. The defendant is examined about personal circumstances and the charges and may make a statement. The court takes evidence, examining witnesses and experts directly. The parties — prosecution and defence — have the right to question witnesses and to make submissions (Antragsrecht). The hearing concludes with closing statements by the prosecution and the defence, the last word of the accused, and the judgment. The judgment must be reasoned and delivered orally or in writing within specified time limits, typically within one week.

Procedural Rights of the Accused

The StPO guarantees extensive procedural rights to the accused. The right to remain silent (Aussagefreiheit) is a fundamental protection, and the accused must be informed of this right before questioning. The right to counsel (Recht auf Verteidigerbeistand) attaches from the earliest stage and is mandatory for serious offences. The accused has the right to access the investigation file (Akteneinsichtsrecht) once the preliminary investigation has concluded, enabling effective preparation of the defence. The right to present evidence (Beweisantragsrecht) allows the defence to request the taking of specific evidence, and the court may refuse only on limited grounds. The principle of fair trial (fair trial) derived from the Rechtsstaat requires equality of arms between prosecution and defence. The StPO also provides for the exclusion of evidence (Beweisverwertungsverbote) obtained in violation of procedural rules, particularly where fundamental rights have been infringed.

Appeals

The StPO provides several remedies. Appeals on fact and law (Berufung) from the Amtsgericht (local court) lie to the Landgericht (regional court), where a full retrial occurs with re-examination of evidence. Appeals on law only (Revision) from the Landgericht and the Oberlandesgericht lie to the Federal Court of Justice (BGH). The Revision court examines whether the judgment was based on legal error, including procedural errors and misapplication of substantive criminal law. The defendant may also challenge detention orders (Haftbeschwerde) and other interim decisions. Victims may participate as private accessory prosecutors (Nebenklage), with rights including the right to be present, to question witnesses, and to challenge the judgment. The principle of double jeopardy (ne bis in idem) under Article 103(3) GG prohibits multiple prosecutions for the same offence, though exceptions exist for retrials (Wiederaufnahme) where new evidence emerges. The appeal system ensures that errors can be corrected while respecting the finality of criminal judgments.