Understanding the German Criminal Justice System

Facing criminal charges in any jurisdiction is a deeply stressful and potentially life-altering experience. In Germany, the criminal justice system — governed primarily by the Strafgesetzbuch (StGB, the Criminal Code) and the Strafprozessordnung (StPO, the Code of Criminal Procedure) — operates under principles that differ in important ways from common law systems such as those in the United Kingdom or the United States. Understanding these differences, and knowing your rights from the earliest possible stage, is essential to mounting an effective defence.

German criminal proceedings are broadly divided into the investigative phase (Ermittlungsverfahren), the intermediate proceedings (Zwischenverfahren), and the main trial (Hauptverhandlung). Each phase presents distinct challenges and opportunities. Critically, decisions made — or statements given — during the investigative phase can have a profound and sometimes irreversible impact on the outcome of the entire case. This is why immediate legal representation from the moment you become aware of any suspicion or investigation is not merely advisable — it is imperative.

Your First and Most Important Right: The Right to Silence

Under Section 136 StPO, every accused person in Germany has the right to remain silent. You are under no legal obligation to make any statement to the police, the public prosecutor (Staatsanwaltschaft), or any other investigating authority. This right applies from the very first contact — whether you receive a summons, are stopped on the street, or are arrested.

Despite this clear legal protection, many individuals — particularly those who believe they have nothing to hide or who feel that cooperation will help their case — make voluntary statements that later prove damaging. German investigating authorities are trained interviewers. Statements made without legal counsel, even well-intentioned ones, frequently contain inconsistencies, omissions, or characterisations that can be used against you.

The safest and legally correct response upon being questioned as a suspect is to identify yourself, provide your basic personal details as required by law, and then state clearly: 'I wish to exercise my right to remain silent and I request the assistance of a defence lawyer.' Nothing more. Your lawyer will then advise you on whether, when, and how to engage with the investigation.

It bears emphasising that exercising your right to silence cannot be used as evidence of guilt in German proceedings. No adverse inference can be drawn from your refusal to answer questions. This is a fundamental principle of the German system and one that every accused person should understand and rely upon without hesitation.

Types of Criminal Offences Under German Law

German criminal law distinguishes between Verbrechen (serious crimes carrying a minimum sentence of one year's imprisonment) and Vergehen (less serious offences). Serious crimes include murder, manslaughter, robbery with aggravated circumstances, and large-scale drug trafficking. Less serious offences — which nonetheless carry significant penalties including fines and custodial sentences — include fraud, theft, dangerous bodily harm, and a wide range of economic and white-collar offences.

White-collar criminal cases — including Betrug (fraud), Untreue (breach of fiduciary duty), Steuerhinterziehung (tax evasion), Geldwäsche (money laundering), and Insolvenzstraftaten (insolvency offences) — represent a significant portion of the criminal cases handled by LexBerg. These cases are often characterised by lengthy and complex investigations, large volumes of documentary evidence, and highly technical legal and financial issues. They require not just criminal law expertise but an understanding of commercial, tax, and insolvency law.

For individuals facing allegations in an international context — where the alleged conduct spans multiple jurisdictions or involves foreign parties — the complexities multiply further. Questions of jurisdiction, mutual legal assistance treaties, and the admissibility of evidence obtained abroad must all be navigated carefully.

The Investigation Phase: What to Expect

Most criminal proceedings in Germany begin with the public prosecutor initiating an investigation, often following a complaint (Strafanzeige) by a third party or a referral from the police. The prosecutor directs the investigation and decides whether to bring formal charges (Anklage) or drop the matter.

During the investigation, authorities may conduct searches of your home or business premises, seize documents and electronic devices, monitor your communications, and interview witnesses. If you are arrested, you must be brought before a judge within 24 hours, who will decide whether to issue a detention order (Untersuchungshaft) — pre-trial detention — or release you, potentially subject to conditions.

The conditions under which pre-trial detention may be ordered are strictly defined under German law: there must be a strong suspicion of an offence, and either a risk of flight, a risk of evidence tampering, or — for the most serious offences — a risk of repetition. Having experienced legal counsel from the outset significantly increases the prospects of challenging a detention order successfully or avoiding it altogether through early intervention.

Choosing the Right Defence Lawyer

The right to retain a lawyer of your choice is guaranteed under Section 137 StPO. In serious cases, the court may appoint a Pflichtverteidiger (mandatory defence counsel) if you do not retain one yourself — but this appointed counsel may not have the specific expertise your case demands, and you always retain the right to instruct your own lawyer instead.

When selecting a criminal defence lawyer in Germany, look for specialist expertise in the specific type of offence you face. A lawyer with deep experience in white-collar and economic crime may not be the right choice for a serious violent offence, and vice versa. You should also consider whether your case has any international dimensions that require cross-border expertise.

At LexBerg, Maximilian Schreiber leads our criminal defence practice with a track record that includes complex white-collar fraud cases, professional disciplinary proceedings, and high-profile criminal trials before regional and appellate courts throughout Germany. Our criminal team works closely with our corporate, tax, and employment practices where the facts of a case require an integrated approach across different legal disciplines.