Received an indictment – what to do? An overview of the process, rights, and deadlines.
An indictment is a written application from the public prosecutor's office to a court, initiating criminal proceedings. If you receive an indictment, it means that you have been investigated for a crime. In the indictment, the public prosecutor's office describes the alleged offense and summarizes the findings of the investigation. The indictment then forms the basis for a trial.
Section 1: Investigation Procedure
Before charges are filed, an investigation is conducted against the accused. This refers to the part of the proceedings in which the relevant authorities (police and public prosecutor's office, and possibly customs or tax investigators) investigate whether a crime has been committed. To this end, all available and ascertainable evidence is sought and evaluated. During the course of, or at least before, the conclusion of, the investigation, the accused must be given the opportunity to be heard; that is, to comment on the matter.
Those who receive an indictment have therefore usually already been informed of the proceedings beforehand, for example through a summons as a suspect. If this is ignored without consulting a lawyer, investigating authorities usually assume that the accused person does not wish to make any statements about the matter. Then – if the public prosecutor's office, after its final decision, sees what is known as sufficient suspicion of a crime (more on this below) – charges are filed.
You should not appear for questioning as a suspect without a lawyer – even if you are innocent and only want to clarify the facts. Even unfavorable wording in such cases can lead to charges being filed later. Therefore, it is always advisable to seek legal counsel if you receive a summons.
Section 2: Intermediate Procedure
With the filing of charges, the criminal proceedings enter the preliminary stage. An indictment is issued pursuant to Section 170 Paragraph 1 of the Code of Criminal Procedure (StPO) as soon as the public prosecutor's office has exhausted all available measures for clarifying the facts of the case and is convinced, based on sufficient evidence, that the accused can be proven to have committed a criminal offense. This requires a sufficient suspicion of a crime. This situation arises when, based on a preliminary assessment of the evidence, a conviction of the accused appears more likely than an acquittal. Thus, an indictment means that the public prosecutor's office – based on the results of the investigation and its legal evaluation – does not consider a dismissal of the criminal proceedings or a termination of the proceedings by means of a summary penalty order to be appropriate.
After the public prosecutor's office has prepared the indictment, it is sent to the competent court along with the investigation file. The court then examines, pursuant to Section 199 Paragraph 1 of the Code of Criminal Procedure, whether there is indeed sufficient suspicion of a crime and whether the main proceedings should be opened. With the filing of the indictment, the person previously referred to as the "suspect," against whom the public prosecutor's office has alleged the crime, becomes the "defendant" (Section 157 of the Code of Criminal Procedure).
Before the court makes a final decision on whether to open the main proceedings, the indictment will also be served on the accused. At this point, it is essential to contact a criminal defense attorney. to exhaust all possibilities for terminating the proceedings or to prepare as effectively as possible for the main proceedings. Generally, after service of the indictment, there is a deadline for submitting a statement, during which objections can be raised and motions for the admission of evidence can be made pursuant to Section 201 Paragraph 1 Sentence 1 of the German Code of Criminal Procedure (StPO). However, since this deadline is quite short, a lawyer should be contacted as soon as possible. A defense attorney can raise legal objections at this stage, for example, by filing a motion to dismiss the main proceedings pursuant to Section 204 of the StPO. Because dismissals by the court are rare, it is worth considering whether it might be more advantageous to present exculpatory evidence at a later hearing.
If the court admits the charges, it issues an order to commence proceedings (§ 203 of the Code of Criminal Procedure). The deciding court is the same court that will also be responsible for the subsequent main hearing. This also means that the court decides, even before a main hearing takes place, whether—based on the case file—it sees sufficient suspicion of a crime, i.e., the likelihood of a conviction. If, however, the court is not convinced that sufficient suspicion of a crime exists, the charges are dismissed by means of an order not to commence proceedings (§ 204 para. 1 of the Code of Criminal Procedure), and the proceedings are discontinued.
Contents of an indictment
An indictment essentially has two functions. Firstly, the informational function – an indictment must contain the necessary information specified in Section 200 of the Code of Criminal Procedure: an indictment must include details of the accused and, if applicable, their defense counsel, the competent court, the alleged offense and its legal elements, as well as any elements of the commission of the offense and available evidence.
Secondly, an indictment serves a delimitation function. The accused, or rather the defendant, must know precisely what they can be punished for. They cannot be convicted for acts not covered by the indictment. However, it is possible to further specify the indictment or adapt it to any new evidence obtained as the proceedings progress.
Section 3: Main Procedure
If the main proceedings are opened, the court will first serve the accused with the opening order along with a summons to the main hearing. As a defendant, you are obligated to appear at the main hearing. Under no circumstances should you risk failing to appear, as otherwise you may be forcibly brought in by the police or, in the worst case, an arrest warrant may even be issued against you (§ 230 of the German Code of Criminal Procedure).
The length of a trial depends on the complexity of the alleged offense and the evidence presented to prove the charge. Depending on the time required for taking evidence—for example, how many witnesses need to be heard or other evidence needs to be examined or read aloud—a trial can be concluded within a day or last for several days, weeks, or even months.
defense
During the preliminary investigation and preliminary proceedings, you are generally not obligated to have legal representation. However, it is usually advisable even at these early stages of the criminal proceedings because a criminal defense attorney possesses the necessary expertise and experience to achieve the best possible outcome for you. Furthermore, only a lawyer can request access to the case file on your behalf. Reviewing the investigation files allows you to understand the status of the authorities' investigation, enabling the development of a defense strategy and, if necessary, early intervention in the criminal proceedings – in favor of the suspect, accused, and later, defendant.
In certain cases, however, legal representation is mandatory. These are the cases of mandatory defense, which are listed, for example, in Section 140 Paragraph 1 of the German Code of Criminal Procedure (StPO), but may also arise in a specific individual case due to the seriousness of the offense, the severity of the expected legal consequences, or the complexity of the factual and legal situation (Section 140 Paragraph 2 StPO). If the alleged offense constitutes a felony or another case requiring mandatory defense, you may nominate a defense attorney of your choice within a deadline set by the court. This attorney will then be appointed as your court-appointed counsel for the subsequent proceedings, i.e., both for the preliminary proceedings and later for the main trial. Otherwise, if you do not nominate a defense attorney and no privately retained attorney identifies themselves to represent you, the court will appoint one.
As experienced criminal defense lawyers, the attorneys at our criminal law firm are happy to assist you!
FAQ:
What is an indictment and what information is contained in an indictment?
The indictment is a letter from the public prosecutor's office in which a defendant is accused of a crime, the circumstances are explained, and any evidence for the accusation is named.
What happens after the indictment is served?
After the indictment has been served, the accused or their defense counsel may raise objections or submit motions for a subsequent trial. The court then examines whether the indictment is admissible for trial. If so, a date for the trial is subsequently set.
What deadlines must be observed when filing charges?
The court serves the accused with the indictment and, pursuant to Section 201 of the Code of Criminal Procedure, requests that they declare within a short period whether they wish to request the taking of evidence or raise objections to the commencement of the main proceedings. The date of service of the indictment should be documented in any case, because the subsequent period for submitting a statement is quite short (usually 1-2 weeks). This period can be extended upon request.
Does being charged mean you will be convicted?
No. An indictment means that there is sufficient suspicion of a crime against the accused person. Whether this person is actually convicted is decided by the court during a trial.
Is one required to respond to an indictment?
No, even as an accused person you have the right to remain silent. This right cannot, in principle, be used against you.
Is it necessary to appear at the main hearing?
Yes, as a defendant you are obligated to appear. Otherwise, there is a risk that you will be forcibly brought in by the police or that an arrest warrant may be issued.
How does a trial proceed?
In a main hearing, the case is first called, then attendance is taken, and the public prosecutor reads the indictment. The defendant has the right to comment on the charges against him; however, he may also remain silent. This is followed by the taking of evidence, in which, for example, witnesses are heard or documents are examined (so-called visual inspection). Finally, the defense and the prosecution deliver their closing arguments, the defendant has the last word, and the court renders its verdict.
Do you need a lawyer for a trial?
Generally, this is only necessary if the alleged offense constitutes a crime (with a potential sentence of more than one year) or if special circumstances justify mandatory legal representation. However, it is always advisable to consult a lawyer and be represented by legal counsel in court.
What penalty is possible if charged?
This depends on the specific crime alleged in the indictment. The final sentence is determined by the court after the outcome of the main trial.
What is the difference between an indictment and a verdict?
With an indictment, the public prosecutor's office accuses a person of a crime. This accusation is based on the results of the investigation. A court judgment establishes the facts of the case as they appear – to the court's satisfaction – according to the evidence presented during the main hearing. The court determines a sentence for a proven crime.
What is the difference between an indictment and a penal order?
A summary penalty order imposes a penalty without a trial. It thus replaces a court judgment. An indictment, on the other hand, means that a trial is held before a conviction or acquittal.
How do I get access to files?
A lawyer can submit a request for access to the files on your behalf. It then takes anywhere from a few days to a few weeks until the file is actually available.