What to do if you receive a summons?
A summons is an official invitation from the police, public prosecutor, or court to a personal interrogation or to give evidence. It serves to clarify the facts of an investigation or trial. A summons can be issued either as a suspect or as a witness.
Summons as an accuser
A person is considered to be accused in criminal proceedings if objectively a Initial suspicion It is established that a crime has been committed, and for this reason, an investigation has been initiated by the law enforcement authorities. The initiation of such an investigation can result from a criminal complaint or, in accordance with the principle of legality in criminal law, from the police receiving concrete evidence that substantiates the suspicion of a crime. Often, the moment a letter arrives with a summons as a defendant in criminal proceedings represents the moment at which you learn of criminal proceedings pending against you.
Behavior when summoned as an accused person
A summons as a suspect is issued by the police or the public prosecutor's office. Generally, you are not required to appear when issued a police summons. As a suspect in criminal proceedings, you have the right to refuse to testify. Exercising this right must not be construed to your disadvantage, and you should exercise it in almost every case. Even if you are innocent, there is a risk of self-incrimination by making a statement. The old saying "Speech is silver, silence is gold" applies here. Canceling a summons scheduled by the police, or giving a reason for the cancellation, is also not mandatory. However, the police often suggest this through appropriate wording.
It's not always easy to determine which course of action is most appropriate in a specific situation when dealing with the police or public prosecutor. Regardless of whether you are guilty or innocent, you should always contact a lawyer. They can verify your identity with the relevant authorities and handle communication, submit requests for access to files, and prevent devastating errors from occurring due to improper conduct. A statement, if appropriate, can also be made at a later stage of the proceedings, in some cases, for example, only in writing through your lawyer. However, the appropriate course of action can only be determined once the investigation results to date are known based on the investigation file.
Should a Summons from the public prosecutor or the court If an appearance has been ordered, you are generally obligated to appear. Such a measure can also be enforced if you fail to appear despite a proper summons. Even if there is a general obligation to appear, there is not always an obligation to make a statement under these circumstances. Even as an accused, you are required to provide information about yourself.
Interrogation of the accused
In every investigation, the accused must be given the opportunity to be questioned pursuant to Section 163a Paragraph 1 Sentence 1 of the Code of Criminal Procedure (StPO). In the event that a statement is to be made – advisable only after consultation with a lawyer (!) – this questioning is usually conducted by the police or the public prosecutor. The accused is first informed of the alleged offense (Section 136 Paragraph 1 Sentence 1 StPO) and instructed of his rights and obligations (Section 136 Paragraph 1 Sentence 2 StPO). This is followed by questioning about the allegations made against him. This conversation is always recorded. If no or inadequate instructions are given, this may under certain circumstances result in a statement made during the investigation not being used in a possible later court case.
Rights and obligations as an accused person
As an accused person, you are free to comment on the accusation or not to testify on the matter. This right stems from the rule of law and serves to guarantee a fair criminal trial. One is not obligated to incriminate oneself. This also does not mean that doing so makes one appear suspicious. Investigators' questions are often aimed at getting suspects to make a specific statement, because, in our experience, investigators are often biased and pursue a particular "objective" due to their premonitions and experiences. In a subsequent main hearing, if necessary, the principle of free evaluation of evidence applies, meaning that judges can decide for themselves how to evaluate statements.
In addition, as an accused person, according to Section 137 Paragraph 1 Sentence 1 of the Code of Criminal Procedure, in every procedural situation, Right to consult a lawyer. Exercising this right is of immense importance to avoid mistakes and to ensure the protection of the accused's rights!
Summons as a witness
Witnesses are persons who are involved in criminal proceedings in which no investigation is being conducted against them, can and should make a statement about their own perceptions and experiences. Witness evidence is one of four key forms of evidence in criminal proceedings, along with documentary, expert, and visual evidence. However, witness evidence is considered one of the least reliable because it is characterized by subjective feelings. Furthermore, memories often fade or become more unclear or mixed with other experiences the more time passes. In principle, however, every person, regardless of their age or mental state, is considered capable of testifying.
Behavior when summoned as an accused person
Should you a summons as a witness from the court or the public prosecutor they are generally obliged to appear at the hearing in accordance with Section 48, Paragraph 1, Sentence 1 of the Code of Criminal Procedure. Otherwise, the costs caused by your failure to appear may be imposed on you in accordance with Section 51, Paragraph 1, Sentence 1 of the Code of Criminal Procedure. Since a change in the law in 2017, the police can also compel witnesses to appear to give evidence by order of the public prosecutor. police summons However, if you are a witness and are not requested by the public prosecutor, you are not obliged to attend the appointment or cancel it.
Witness testimony
According to Section 68b Paragraph 1 of the Code of Criminal Procedure, a witness is permitted to legal assistance This is important because it's not uncommon for a witness's testimony to lead to an accusation in criminal proceedings. A lawyer can help determine the content and scope of the testimony and, if necessary, intervene at the appropriate points.
According to Section 55 Paragraph 1 of the Code of Criminal Procedure, a Right to refuse to provide information, if answering questions would put him or a relative at risk of being prosecuted for a criminal offense or administrative offense. relatives of the accused, i.e. fiancés, spouses, life partners and direct relatives or in-laws, may refuse to testify according to Section 52 para. 1 of the Code of Criminal Procedure. Right to refuse to testify According to Section 53 of the Code of Criminal Procedure, this also applies to those who are bound by professional secrecy.
Whether as a defendant or a witness, a subpoena often represents an exceptional situation that is extremely stressful for most people. This makes legal representation all the more important. We recommend this, regardless of the type of subpoena you have received in criminal proceedings—whether as a defendant or as a witness.