good to know | Jofer · Lajtkep & Colleagues

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good to know

The following notes with regard to trials are supposed to give a rough overview of all the relevant aspects of this topic. We refrained from mentioning legal paragraphs or instances of jurisdiction, as there is more than enough specialist literature.

Apart from indispensable legal knowledge, a good criminal defence needs empathy, intuition, experience and creativity. Every case affects a human being’s fate in a particular situation.

This is why every case is different and deserves individual consideration.

You cannot study criminal defence at university or in books. Similarly, the solution is not to be found on the internet, like the right treatment of a serious disease.

Just like we question and analyse the investigators‘ work, this happens the other way round as well. Especially in significant cases, it is of particular interest to see who has taken over the defence and which steps one can expect next.

Therefore, we cannot discuss publicly...

  • ... how we examine the investigators‘ work in each and every case.

  • ... how police investigators do their job and how to deal with them.

  • ... which counter strategies and preventive measures we recommend, if there is a subpoena or a loss of property looming.

  • ... which measures for sentences are used within the judicial sector.

  • ... how we prepare our clients for their trial.

  • ... which appeals are likely to be successful in court.

  • ... how we have experienced certain judges or attorneys, ..

... or, in short: how we precisely do our job.

Of course, no culprit is at the total mercy of the in investigative authorities. The code of criminal procedure contains rules which apply to all persons involved in the criminal case. Many investigators play be these rules, some do not. The defence has to point out a breach of the rules, enforce the defendant’s rights, strengthen their position and aim for the best possible result.

It is nonetheless important for every defendant to know about possibly decisive topics, which are described in the following sections.

Tasks of a defence attorney

The term üdefence attorneyü is not protected. Every licensed lawyer may call themselves a defence attorney, irrespective of their professional competence and experience.

There are only known experts in our law firm. We only treat cases in criminal law and accompany our clients personally and legally through this difficult phase of their lives – independent of their alleged deed.

The start of the prosecution is usually connected with a great amount of stress for the defendant, whether it is about a minor or a major offense.

We discuss with you the personal risks connected to the allegations and what options there are.

Many clients fear that they can be considered “guilty” from the moment they mandate a criminal lawyer. This is nonsense. If you are charged with any form of criminal behaviour, then you are indeed a defendant. As a witness as well as a defendant, you have the right to hire a lawyer during every phase of the proceedings (the authorities even have the explicit duty to inform you of this).

If you hire a defence attorney, he or she acts as some kind of “firewall” between you and the investigators so that all communications between you and the investigative authorities only run past him or her – even if the police do not like it.

Amongst other things, this includes:

  • assessing the facts and the legal situation: probability of a sentence, assessing the nature of a possible sentence (best case vs. worst case), recommending behaviour against the investigative authorities (talking or staying silent?).

  • clarifying in which phase the proceedings currently are.

  • appealing to inspect the files (Only a lawyer has the right to request this; the defendants themselves cannot inspect the files. Our clients may receive a complete copy of the files, if they wish.).

  • assessing whether the investigations are thorough and just.

  • communicating with the police, the main customs office, the tax authorities, the office of the district attorney and the court.

  • accompanying you to interrogations – if an interrogation appears to be sensible.

  • developing a defence strategy.

  • drafting a written defence, in which you comment on the allegations from a legal and/or factual point of view to reach a suspension of the proceedings or set the right tone if a trial is unavoidable.

  • clarifying if a “deal” is possible.

  • accompanying you to and representing you at court.

  • advising you after the legally binding end of the trial (if necessary).

Being a culprit is a formal status. You become a culprit (in summary proceedings you are the “person concerned”) when the investigative authorities (police, customs, tax investigations or public prosecution) think that there is an initial suspicion of a crime. This can be raised through a criminal complaint by a third party or through findings by the investigative authorities.

You will learn about your status as a culprit in one of the following ways:

  • As a witness, you are suddenly instructed of your rights, because your statement has raised an initial suspicion.

  • You receive a letter in which you are summoned to a formal hearing.

  • You are visited at usually unsociable hours and are confronted with a search warrant or a warrant of arrest.

You need to expect actions like these, if…

  • …you run the risk of receiving a criminal complaint against yourself.

  • …you might have been actively involved in or responsible for (e.g. as a CEO) criminal activities.

  • …an audit (by a tax inspector, customs or a social insurance agency) comes to a sudden end.

  • …you are somehow involved in a casualty.

The problem is that preliminary proceedings are defined as “secret proceedings” in criminal law; this means that...

  • …it is possible you have been registered as a culprit for quite some time, although you had no knowledge of it.

  • …the investigators do not need to tell you what they already know and what their suspicion is exactly based on.

  • …you may have been put under surveillance for some time (e.g. phone tapping or observation).

In short, the investigators have more information than you. Conversely, it is hard for you to evaluate what the accusations are actually based on. Especially in complex cases (casualties, economic and fiscal crimes, embezzling of salaries, etc.), the persons involved are not really aware of any wrongdoing, which might be punishable.

The consequences are often unwanted and unconscious self-incriminations because of problematic statements and rash cooperation with the investigators.

A criminal case has various phases with different regulations and ways of influencing the proceedings.

preliminary investigations

As soon as preliminary investigations are conducted, a citizen becomes a culprit. He or she will have this status until the end of the investigations.

Culprits do not need to take an active part in the investigations. However, they have to tolerate compulsory measures like searches, arrests, bookings or medical examinations (e.g. taking blood samples).

We discuss extensively whether our clients should give any information during questioning. Usually, we advise them to remain silent at first.

After the end of the investigations, which usually is the case when the police have handed over the files to the public prosecutor, the defence may inspect the files (in case of an arrest, the defence may inspect the files earlier). We copy or scan the files and send them back to the public prosecutor’s office. We discuss the files with our client and draft a written defence to comment on the allegations.

Public prosecution then has the following options:

  • returning the files to the police to conduct further investigations

  • stopping the proceedings, if a fine is paid (after consulting with the defence)

  • requesting a penalty order (= an offer to finish proceedings in written form without a trial). The files are handed over to the judge who usually signs the penalty order. You have two weeks to file a protest against this verdict. This deadline is to be taken seriously. If you miss it, the penalty order turns into a final judgement.

  • drafting an indictment, which is handed over to court together with the files. The court examines the indictment. We now enter the phase of…

interlocutory proceedings:

During interlocutory proceedings, the court sends the indictment to the culprit, who is now a defendant, and gives him or her another possibility to comment on the allegations.

It might make sense to draft a written defence even in this phase, if public prosecution has ignored important aspects or if the legal evaluation of the indictment is dubious.
Statistically, the majority of all indictments are accepted. (The reason for this is the fact that the public prosecutor can appeal, if the indictment is not accepted, which results in more work for the judge.)
If the indictment is accepted, a trial is unavoidable.

the trial:

The trial is at the centre of criminal procedure. It depends on the individual case when the trial will take place, after the indictment has been accepted. Depending on the workload of the court, it could take months before the trial starts.

In larger lawsuits, courts coordinate the days of the trial with the defence. However, they hardly take the defendant’s dates and/or appointments into account.

We prepare the trial extensively with our clients and work out a defence strategy, which includes:

  • informal contacts with public prosecution and/or the court, the preparation of a deal (of course only if our client agrees) if applicable

  • talking or remaining silent

  • the client’s demeanour in court

  • preparation of appeals/requests

  • presenting further witnesses and when to do so

  • possible reparations

  • how to deal with journalists

We contact the other defendants‘ lawyers, if it is sensible and necessary. Such a collaborative defence may be reasonable in each phase of the proceedings. However, a cooperation of different defence attorneys always focuses on the best interests of our client.

The progression of the trial is always extremely individual, which is why we cannot provide more information at this point.

It is our goal to reach the best result possible for our client, no matter how...!

Following the saying “silence is golden” has one particular reason; apart from securing evidence, judicial measures like searches (i.e. raids) and crime scene investigations serve another purpose:

During their so-called “first strike” (police speak), the investigators will try to gain as much information as possible by questioning people straight away, sometimes completely informally as preliminary informational talks.

Statements made during such preliminary informational talks (which are legally adequate) are particularly dangerous. They are acceptable in court, although they are usually not formally documented, evaluated and signed. During this phase, the interviewee does not even have to have his right read and thus feels relatively safe. The investigators note what they have heard or believe to have heard. Inconsiderate and offhand remarks – nervous or hoping to be soon done with it – often lead to you receiving the status of a culprit. Of course, the purpose of the first strike is not only to gather information but also to throw people off their guard.

Every investigator knows this: as soon as lawyers are involved, this strategy works only in a very limited way, which is also why they try to work with informational talks as long as possible. It is only when you are read your rights that you realise you have become a culprit and that it might have been a mistake to talk.

Please note: Even if there is only an abstract chance of self-incrimination, you have the right to remain silent (§ 55 “Strafprozessordnung (StPO)” (code of criminal procedure)). You also have the privilege to refuse to give evidence if you run the risk of incriminating close relatives or your spouse (§ 55 “Strafprozessordnung (StPO)”)

Due to professional reasons, some occupational groups, e.g. doctors, tax accountants or auditors, also have the privilege to refuse to give evidence.

Incidentally, nobody is obliged to cooperate with the police – however, no one will explicitly tell you this.

This means: you stay silent, ponder the situation and consult somebody. Only then will you decide, if and what kind of information you will provide.

In short, we recommend the following behaviour during searches:

  • Stay silent.
  • Request to have a look at the search warrant or the warrant of arrest. Write down the names of all investigators present at the search (they often carry business cards).
  • Do not sign a declaration of agreement concerning the seizure of property (formally, the seizure then becomes a confiscation, which you can legally fight to have your property returned).
  • In case of seizures or confiscations, please make sure that every item which is taken away is listed in the respective register. If necessary, take photos (e.g. with your phone) of the seized/confiscated items.
  • Do not let any evidence “disappear”. This could justify a warrant of arrest due to a danger of collusion.
  • Do not take an active part in the search (however, there are cases in which participating might make sense in order to make sure that not too much is taken away).
  • Call your defence attorney. He or she will talk to the investigators, examine the warrant(s), make sure that the compulsory measure is executed in due form and prevents undue questioning of the people involved.
  • Write down what you can remember after the search.

Should the investigators carry a warrant of arrest, there is nothing you can do against that. Even an immediate statement will not prevent you from being taken into custody.

The conditions for a warrant of arrest are:

  • a strong suspicion of a criminal act

  • flight risk and/or danger of collusion and/or danger of recurrence

You should assume that there have been (undercover) investigations for weeks, maybe even months, since this is the only way to justify a strong suspicion of a criminal act in front of the custodial judge, who needs to sign the warrant.

The police do have the right to detain a suspect temporarily without a warrant, which often happens in cases of grievous bodily harm, like homicide, rape, sexual abuse, robbery, narcotics abuse and the like. The detainee must see a custodial judge until the end of the following day.

In the meantime, the police will try to question the detainee – without a lawyer present, if possible – and confirm their suspicion. In a situation like this, the golden rule is: no statement whatsoever without a lawyer.

A flight risk is often founded in the potential severity of the sentence, a registered residence and assets abroad and even knowledge of foreign languages. Therefore, foreigners are more often put under investigative custody than other culprits.

A danger of collusion is often assumed when the culprits lets evidence disappear (or has tried to do so) or if arrangements with other culprits are to be expected. The rationale behind this argument is often a (legally unwarranted) coercive detention to force a confession out of the detainee. In other words: if the detainee gives any information, there is no danger of collusion anymore. Despite the fact that this measure does not conform to the law, it is common practice and a very effective way of speeding up the prosecution.

An investigative custody is generally only rarely founded in a danger of recurrence. This is, however, often the case in connection with any kind of abuse or habitual offenders.

Revoking a warrant of arrest requires that the strong suspicion of a criminal act and/or the reasons for the detention are not existent anymore, which is very rarely the case.

If a warrant is to be suspended on certain conditions (which happens much more often), the success of this motion depends very much on the charges against the culprit. Even in complex, long-lasting criminal economic cases, a warrant of arrest may be suspended after a formal hearing.

Typical conditions for the suspension of a warrant are:

  • handing in all your passports and ID cards

  • regular registration with the police

  • no contact with witnesses or other culprits

  • bail (several thousand up to several million Euros, depending on the charges; bank guarantees are usually accepted)

Conversely, a warrant of arrest puts public prosecutors under major investigative pressure, since they have six months to make significant progress in providing enough evidence to have a case. Otherwise, the Higher Regional Court may revoke the warrant after one of its regular examinations of the warrant.

To fight a warrant of arrest from a legal point of view, one can request a review of a remand in custody or appeal against a remand in custody.

Since detainees have the right to have a lawyer from the first day of their arrest, they are appointed one, if they do not name anyone (more about that later).

All further details (visiting rights, legal steps, questionings, behaviour during detention) are then discussed with your lawyer.

Not only culprits are put under arrest. For several years, investigators (especially of the main customs office) have intensified and improved their efforts with regard to “financial repression”.

Here is an example: During a raid against illicit employment, the offices of a construction company are searched and the main culprit is temporarily detained. What nobody knows is that at the same time, all private and commercial accounts of the company are frozen and its clients are told that outstanding debits are attached, while the company receives an interdiction of payment.

How was that possible? In the run-up to the raid, the company’s accounts and its business relations have been under investigation for months. The company itself even provided the data, since it was forced to do so during an audit by the customs office.
From an organisational point of view, the customs offices are part of the financial authorities and have comprehensive auditing powers.

As a consequence, the company has become financially immobilised, “the state” has attached all significant assets (even valuable cars and the contents of security containers) and its most important clients know that their construction project is very likely to be in serious trouble. Usually, contracts are terminated and payments are suspended.

Over the past few years, customs offices and police authorities have introduced more and more “disgorgement departments”, whose goal it is to investigate financial circumstances, attach financial assets and prepare the necessary judicial decisions.

Therefore, measures like these are very common with economic crimes and offenses against property. Especially in connection with charges like fraud, tax evasion, offenses against the Securities Exchange Act (“Wertpapierhandelsgesetz”), illicit employment, narcotics trade, environmental offenses and many other crimes, they serve the purpose of compensating the victims or preparing the forfeit of financial assets.

As a consequence, culprits have no money to live on and no assets to use for voluntary compensation; they and their families are virtually penniless.

Your defence lawyer discusses with you how you can prevent such a scenario and which measures you should take if the worst case has indeed happened.

Having a “clean slate” and not being previously convicted is very important for many people.

Good to know: your criminal record shows only a part of your entry in the “Bundeszentralregister” (federal central criminal register). The regulations for entries and deletions are laid down in the “Bundeszentralregistergesetz” (federal central criminal register law). [Please note: fines of more than 90 day rates are entered in the criminal record as well as fines beneath this threshold, if there are previous entries.]

By default, public prosecution obtains a copy of your criminal record from the registry authority for every criminal case. When we investigate the files, we receive this copy and can examine it. Previous entries, which the clients might have forgotten about, may play a central role for the severity of the sentence.

A previous entry in your criminal record (e.g. 45 day rates for drunk driving) causes a small subsequent fine (e.g. 30 day rates for a delayed filing of insolvency) to appear on your criminal record as well. If you then apply for a job and have to present a criminal record, you appear to be a “broke alcoholic”.

If and how long you are on probation can also be gleaned from your criminal record. These entries are particularly important in choosing a defence strategy.

What is more, suspects are regularly entered into police-internal databases, even if their investigation has been stopped. We will tell you more about this in person.

You have probably never heard of something called “MiStra” (“Anordnung über Mitteilung in Strafsachen” (order on reporting criminal matters)). This administrative order by the Federal Ministry of Justice regulates which public and private offices have to be informed about the initiation of criminal proceedings by public prosecution. This list is particularly important, since informing certain third parties may have a whole array of consequences, which might be even worse than the criminal case itself.

If they are found guilty, holders of a hunting license (threshold: 59 day rates), air traffic personnel (zero tolerance), holders of a driver’s license (e.g. in case of drug abuse even if they were not driving), members of many occupational groups (lawyers, physicians, health care personnel, auditors, CEOs, other entrepreneurs, etc. - just to name a few) run the risk of losing their job, license or title.

For every case, we discuss the consequences and precautions with our clients.

Under “MiStra” (cf. above), we have already discussed consequences which may arise from criminal procedures. There is a long list of financial and occupational consequences, which may have life-long effects on your existence:

  • disciplinary consequences: suspension of promotion, salary cuts, removal from office

  • trade bans

  • damage claims under civil law (also negligence offenses)

  • tax claims (back payments including)

  • social security claims (back payments, late payment fines, …)

  • bans concerning flight safety

  • consequences for your driver’s license

  • ...

We provide advice for any of the above topics.

The “Strafprozessordnung (StPO)” (code of criminal procedure) explicitly lays down the option to have a lawyer present during questioning by the police, public prosecution or a judge.

While witness assistance is nothing out of the ordinary in economics and politics, private persons often express reservations. People often ask us: “Doesn’t it look strange if I am accompanied by a lawyer?”

The answer is simple: no, it doesn’t. Being questioned is an exceptional, potentially stressful situation for anyone. After all, you are in some kind of relation to the crime or the culprit.

Witness advisers make sure that…

  • the witness is well-prepared for questioning (files, potential self-incrimination, discussing of critical aspects),

  • questioning and legal instructions are in line with the “Strafprozessordnung (StPO)” (code of criminal procedure), which reduces the danger of being pressured by the investigators,

  • questions are fair (i.e. unambiguous and not suggestive),

  • the records are correct,

  • the witness does not testify against him- or herself (if necessary, the witness can consult with the adviser who may enforce the witness‘ right to remain silent),

  • the witness is aware of what he or she has said (he or she receives the records of the questioning), i.e. the adviser makes notes of the entire statement or parts of it.

For all these reasons, witness assistance has become one of the classic fields of work for any defence lawyer. Your legal expenses insurance often bears the costs.

Cheap lawyers who used to give legal advice for € 9,99 will not solve your problem. This kind of offer is simply just bait.

We are convinced that every person who is in need of legal advice should have the chance to get know their lawyer to get a good personal impression.

Conversely, we evaluate during an initial consultation if we are willing to take a client and if the “chemistry” is right. We usually do not charge anything for this kind of consultation, which mainly serves the purpose of getting to know each other.

In civil law, the remuneration of a lawyer is based on the value in litigation. Such a value does not exist in criminal law, which means that in every single case a certain fee is agreed upon. With companies, we usually arrange an hourly fee. For private persons an all-inclusive price for each case is more convenient, since this way the costs are more predictable. What is more, it is better and more relaxing if the “clock is not ticking” during personal consultations.

We are also happy to take cases of people who have taken a legal expenses insurance – provided your insurance company is willing to settle the bill. In case of traffic violations this is usually not a problem (sometimes on the condition of a small deductible). We obtain the cover note from your insurance company and proceed to settle the bill directly with them.

In case of criminal procedures, there are many insurance companies with different insurance policies – however, problems often arise in the small print.

Companies have often taken special legal expenses insurance for their staff, also covering criminal procedures. We settle the bill, which is based on hourly rates, directly with the insurance company. People in management positions are usually provided with a D&O (directors and officers) insurance, which also covers criminal law. We clarify the conditions for our clients and settle the bill directly with the insurance company. If necessary, we will discuss further details during our initial consultation.

We act as public defenders only in exceptional cases. Depending on the jurisdiction, judges have a list of public defenders who they prefer for various reasons. We are not on this list, since we do not like to be economically dependent on those who later give the verdict.

However, if we can continue one of our regular cases only as public defenders due to financial reasons (i.e. the public purse pays the fees for a public defender), we will of course keep supporting our client.