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Criminal Procedure Code (Strafprozeßordnung, StPO)

In the cases referred to in Sections 52 and 53a, information acquired through a measure pursuant to subsection 1 may only be used if, taking into consideration the significance of the underlying relationship of trust, this is not disproportionate to the interest in establishing the facts or determining the whereabouts of an accused person. Section a subsection 4 shall apply mutatis mutandis.

Insofar as the court does not approve such use, the decision shall be binding for the further proceedings. In exigent circumstances the order may also be issued by the presiding judge. His order shall become ineffective unless confirmed by the criminal division within three working days. The order shall be limited to a maximum duration of one month. An extension of the measure for subsequent periods of up to one month shall be admissible providing the conditions for the measure continue to exist, taking into account the information acquired during the investigation.

If the duration of the order has been extended for a total period of six months, the Higher Regional Court shall decide on any further extension orders. In particular, it shall state in relation to each individual case. If the conditions for the order no longer exist, the court shall order the termination of the measures, unless termination has already been initiated by the public prosecution office. Termination of the measure may also be ordered by the presiding judge. The usable personal data obtained through a measure pursuant to Section c may be used in other criminal proceedings without the consent of the persons being monitored only for the purposes of resolving a criminal offence in respect of which measures pursuant to Section c could have been ordered, or to establish the whereabouts of a person accused of such a criminal offence.

The use of personal data obtained through a measure pursuant to Section c, even such data as is acquired pursuant to Section c subsection 6 , first sentence, second part of the sentence, for the purposes of averting danger is only admissible to avert an existing danger of death in an individual case or to avert an imminent danger to the life or liberty of a person or to objects of significant value which serve to supply the population, are of culturally outstanding value, or are referred to in section of the Criminal Code.

The usable personal data obtained through a measure pursuant to Section c may also be used to avert an imminent danger to other significant assets in individual cases. If the data is no longer required for the purposes of averting the danger or for a pre-judicial or court examination of the measures implemented to avert the danger, recordings of such data are to be deleted without delay by the institution responsible for averting the danger.

The fact of deletion is to be documented. Insofar as deletion is postponed merely for an eventual pre-judicial or court examination, the data may be used solely for this purpose; access is to be denied for any use for other purposes. Insofar as usable personal data has been obtained by means of a respective police measure, such data may not be used in criminal proceedings without the consent of the person under surveillance by virtue of such measure, except for the purpose of clearing up a criminal offence in respect of which the measure pursuant to Section c could have been ordered, or to determine the whereabouts of a person accused of such criminal offence.

A measure pursuant to the first sentence, number 2, shall be admissible only if the object of the enquiry is a criminal offence of substantial significance. In respect of other persons,. Such data may not be used for any purpose beyond the comparison of data in order to locate the device ID and card number sought, and the data is to be deleted without delay once the measure has been completed. The order shall be limited to a maximum period of six months. An extension of not more than six months in each case shall be admissible if the conditions set out in subsection 1 continue to exist.

Section j [Request for Information]. If the request for information pursuant to the first sentence refers to data by means of which access to terminal equipment, or to storage media installed in such terminal equipment or physically separate therefrom, is protected section subsection 1 , second sentence, of the Telecommunications Act , information may only be requested if the statutory requirements for the use of such data have been met.

In exigent circumstances the order may also be issued by the public prosecution office or by the officials assisting it section of the Courts Constitution Act. In this case a court decision is to be sought without delay. The first to third sentences shall not apply if the person concerned already has or must have knowledge of the request for information or if the use of the data has already been permitted by a court decision. The fulfilment of the conditions pursuant to the fourth sentence shall be documented.

Notification shall take place insofar as and as soon as this can be effected without thwarting the purpose of the information. It shall be dispensed with where overriding interests meriting protection of third parties or of the person concerned himself constitute an obstacle thereto. Where notification is deferred pursuant to the second sentence or dispensed with pursuant to the third sentence, the reasons therefor shall be documented. Section 95 subsection 2 shall apply mutatis mutandis. They shall be added to the files only if the requirements for a notification pursuant to subsection 5 have been met.

Following a transfer of the data to another agency, the labelling is to be maintained by such agency. In the notification, mention should be made of the option of subsequent court relief pursuant to subsection 7 and the applicable time limit. Notification shall be dispensed with where overriding interests of an affected person that merit protection constitute an obstacle thereto.

Furthermore, notification of a person listed in numbers 2, 3 and 6 of the first sentence who was not the target of the measure may be dispensed with if such person was only tangentially affected by the measure and it may be assumed that the person has no interest in being notified. Investigations to determine the identity of a person listed in the first sentence are to be carried out only if this appears necessary taking into account the degree of invasiveness of the measure in respect of the person concerned, the effort associated with establishing their identity, as well as the resulting detriment for such person or other persons.

Where notification is deferred pursuant to the first sentence, the reasons shall be documented on the file. The court shall decide upon the duration of any further deferrals. The court may approve the permanent dispensation with notification where there is a probability bordering on certainty that the requirements for notification will not be fulfilled, even in future.

If several measures have been implemented within a short period of time, the time limit mentioned in the first sentence shall begin upon conclusion of the last measure. In the case of Section c the time period mentioned in the first sentence shall be six months. In all other cases the court situated where the competent public prosecution office is located shall be competent.

Even after completion of the measure and for up to two weeks following their notification, the persons named in subsection 4 , first sentence, may apply to the court competent pursuant to the first sentence for a review of the lawfulness of the measure, as well as of the manner and means of its implementation. An immediate complaint against the decision shall be admissible. Where public charges have been preferred and the accused has been notified, the court seized of the matter shall decide upon the application in its concluding decision.

The fact of the deletion is to be documented. Insofar as deletion of the data has been deferred merely for the purposes of a possible court review of the measure, the data shall not be used for any other purpose without the consent of the persons concerned; access to the data is to be restricted accordingly. A body search, a search of the property and of the private and other premises of a person who, as a perpetrator or as an inciter or accessory before the fact, is suspected of committing a criminal offence, or is suspected of accessoryship after the fact or of obstruction of justice or of handling stolen goods, may be made for the purpose of his apprehension, as well as in cases where it may be presumed that the search will lead to the discovery of evidence.

For the purposes of apprehending an accused who is strongly suspected of having committed a criminal offence pursuant to section 89a of the Criminal Code or pursuant to section a, also in conjunction with section b subsection 1 , of the Criminal Code, or one of the criminal offences designated in this provision, a search of private and other premises shall also be admissible if they are located in a building in which it may be assumed, on the basis of certain facts, that the accused is located. The persons called in as members of the community may not be police officers or officials assisting the public prosecution office.

The requesting agency shall be entitled to participate. No such request shall be necessary if the search is to be carried out on premises which are inhabited exclusively by persons other than members of the Federal Armed Forces. If he is absent, his representative or an adult relative, or a person living in his household, or a neighbour shall, if possible, be called in to assist. Upon request, he shall also be given a list of the objects which were impounded or seized; if nothing suspicious was found, he shall be given a certificate to this effect.

The public prosecution office shall be informed thereof. The first sentence shall not apply to searches carried out pursuant to Section subsection 1 , second sentence. Objects impounded or seized shall be listed exactly and, in order to prevent mistakes, shall be marked with an official seal or in some other appropriate manner. In all other cases they shall deliver any papers, the examination of which they deem necessary, to the public prosecution office in an envelope which shall be sealed with the official seal in the presence of the holder.

Data which may be of significance for the investigation may be secured; Section 98 subsection 2 shall apply mutatis mutandis. Section a [Undercover Investigators]. Undercover investigators may also be used to clear up felonies where certain facts substantiate the risk of a repetition.

Their use shall only be admissible where other means of clearing up the serious criminal offence would offer no prospect of success or be much more difficult. Undercover investigators may also be used to clear up felonies where the special significance of the offence makes the operation necessary and other measures offer no prospect of success.

They may take part in legal transactions using their legend. In exigent circumstances and if the decision of the public prosecution office cannot be obtained in time, such decision shall be obtained without delay; the measure shall be terminated if the public prosecution office does not give its consent within three working days. Consent shall be given in writing and for a specified period. Extensions shall be admissible providing the conditions for the use of undercover investigators continue to apply.

In exigent circumstances consent of the public prosecution office shall suffice. Where the decision of the public prosecution office cannot be obtained in time, such decision shall be obtained without delay. The measure shall be terminated if the court does not give its consent within three working days.

Subsection 1 , third and fourth sentences, shall apply mutatis mutandis. The public prosecution office and the court responsible for the decision whether to consent to the use of the undercover investigator may require the identity to be revealed to them. Undercover investigators may enter private premises using their legend with the consent of the entitled person.

Such consent may not be obtained by any pretence of a right of access extending beyond the use of the legend. At a checkpoint all persons shall be obliged to establish their identity and to subject themselves or objects found on them to a search. Certain types of motor vehicles may be exempted from the provisional withdrawal of permission to drive if special circumstances justify the assumption that the purpose of the measure will not be jeopardized thereby.

Section b [Securing of Objects]. Section 94 subsection 3 shall remain unaffected. Where certain facts substantiate the suspicion of the offence and the time limit referred to in the first sentence is not sufficient given the particular difficulty or particular extent of the investigations or for another important reason, the court may, upon application by the public prosecution office, extend the measure provided the grounds referred to justify their continuation. Unless there are cogent grounds, the measure shall not be continued for longer than a period of twelve months. Section c [Effecting Seizure].

The provisions of the Act on Compulsory Sale by Public Auction and Compulsory Administration in respect of the extent of seizure on compulsory sale by public auction shall apply mutatis mutandis. The provisions of the Code of Civil Procedure on compulsory execution in respect of claims and other property rights shall apply mutatis mutandis. The request to make the declarations referred to in section subsection 1 of the Code of Civil Procedure shall be linked to seizure.

The seizure shall be entered in the Register in respect of those ships, ship constructions and aircraft that are entered in the Register of Ships, in the Register of Ship Constructions or in the Register of Liens on Aircraft. Application for such entry may be made in respect of ship constructions or aircraft that have not been, but are capable of being, entered in the Register; the provisions governing an application by a person who is entitled to request entry in the Register by virtue of an executory title shall apply mutatis mutandis in this case.

The sum paid pursuant to the first sentence, number 1, shall be substituted for the asset. The measure pursuant to the first sentence, number 2, may be made dependent on the person concerned providing security or fulfilling certain conditions. Attachment may only be ordered by virtue of a fine or of the anticipated costs if judgment has been passed against the defendant imposing punishment.

Attachment shall not be ordered to secure execution costs or negligible amounts. Section e [Order for Seizure or Attachment]. Officials assisting the public prosecution office section Courts Constitution Act shall also be competent to order seizure of a moveable asset Section c, subsection 1 in exigent circumstances. This shall not apply when seizure of a moveable asset has been ordered. In all cases the person concerned may apply for a court decision at any time.

In addition, notice may also be published in some other suitable manner. Personal particulars may only be published insofar as their provision is essential for enabling the aggrieved persons to access the secured assets in order to enforce their claims. Once the security measures have been concluded the public prosecution office shall initiate the deletion of the publication inserted in the Federal Gazette.

Section f [Effecting Seizure and Enforcing Attachment]. Section 98 subsection 4 shall apply mutatis mutandis. The same shall apply mutatis mutandis to the applications referred to in Section c subsection 4. Subsection 2 shall apply mutatis mutandis. The public prosecution office or, upon the application of the public prosecution office, the court that ordered the attachment shall be competent to order attachment of a registered ship or ship construction and to order attachment of a claim arising out of the attachment pursuant to Section d.

The decision shall be given in the form of an order that may be contested by the public prosecution office, the accused and the aggrieved person by means of an immediate complaint. Approval shall be refused if the aggrieved person cannot furnish prima facie evidence that the claim arose from the criminal offence.

Section of the Code of Civil Procedure shall apply. Entry of the prohibition of alienation in the Land Register for the benefit of the state shall also apply, for the purposes of section subsection 1 , second sentence, of the Civil Code, as an entry for the benefit of those aggrieved persons who, during seizure, are entered in the Land Register as beneficiaries of the prohibition of alienation. Proof that the claim arose from the criminal offence can be furnished to the Land Registry by submission of the order granting approval. The second and third sentences shall apply mutatis mutandis to the prohibition of alienation in the case of ships, ship constructions and aircraft referred to in Section c subsection 4.

The legal force of the prohibition of alienation for the benefit of the aggrieved person shall not be affected by revocation of seizure. The first and fifth sentences shall apply mutatis mutandis for the effect of the lien which arises in respect of the moveable assets through the enforcement of the attachment Section d.

They shall not apply if the object is subject to confiscation. The priority of such right shall not be lost by virtue of revocation of the attachment.

The consent of the owner shall not be required for the change of priority. In all other respects section of the Civil Code shall apply mutatis mutandis. Section g subsection 2 , second to fourth sentences, and subsection 3 , third sentence, shall apply mutatis mutandis. Section i [Maintenance of Seizure].

In such a case, it shall describe what was acquired. Insofar as the preconditions for section 73a of the Criminal Code apply, the court shall determine a sum of money equivalent to the value of what was acquired. Time shall start to run with effect from the binding judgment.

Secured assets shall be listed in the order. Section of the Code of Civil Procedure shall not apply. If it is proven that the aggrieved person was satisfied out of assets that were not seized or distrained by way of enforcement of attachment, the court shall revoke the seizure Section c or attachment in rem Section d upon application by the person concerned.

With the notification, attention is to be drawn to the consequences listed in subsection 5 and to the option of enforcing claims by way of compulsory execution or enforcement of attachment. Section e subsection 4 , first to third sentences, shall apply mutatis mutandis. At the same time, the state may realize the lien based on enforcement of attachment in rem in accordance with the provision of Part Eight of the Code of Civil Procedure.

The proceeds as well as any money deposited as security shall fall to the state. Upon realization the right to payment which arose pursuant to the first sentence shall also expire insofar as the proceeds of realization do not exceed the amount of the claim. Section l subsection 4 shall apply mutatis mutandis. The order may be challenged by way of immediate complaint. Once the order has legal force the court shall initiate the deletion of the publications in the Federal Gazette initiated pursuant to subsection 4. The right to compensation shall be excluded.

Moveable assets which have been seized or otherwise secured pursuant to Section 94 or which have been seized pursuant to Section c subsection 1 shall be handed over to the aggrieved person from whom they have been taken as a result of the criminal offence if his identity is known, if the claims of third persons do not present an obstacle and if the assets are no longer required for the purposes of the criminal proceedings. Section f subsection 5 shall apply. The public prosecution office may obtain a decision of the court if the rights of the aggrieved person are not evident.

In the cases referred to in Section i subsection 2 , assets which have been attached Section d may be sold after the judgment has become binding, if this appears expedient. The proceeds shall be substituted for the objects. The officials assisting it section of the Courts Constitution Act shall have the authority to order such sale if there is a danger that the object will be subject to deterioration before the decision of the public prosecution office can be obtained. The public prosecution office shall have the authority to make such order if there is a danger that the object will be subject to deterioration before the decision of the court can be obtained; subsection 2 , second sentence, shall apply mutatis mutandis.

The order, as well as the time and place of the sale, shall be made known to them as far as this appears to be practicable. The use admissible pursuant to section of the Code of Civil Procedure may be ordered at the same time as the emergency sale or subsequently, either proprio motu or upon application of the persons designated in subsection 4 , or in the case of subsection 3 , first sentence, also upon application by the public prosecution office. If it appears expedient, an emergency sale may be ordered in some other manner and by a person other than the bailiff.

Sections to , , to , a and a shall apply mutatis mutandis. The court, and in urgent cases the presiding judge, may order suspension of the sale. Seizure may be further restricted in the order. The order of the public prosecution office shall become ineffective if it is not confirmed by the judge within three days.

If the time limit set in the first sentence is not sufficient due to the particular scope of the investigations the court may, upon application by the public prosecution office, extend the time limit by another two months. The application may be repeated once. Section o [Attachment in Rem for a Property Fine]. In the attachment order a sum of money shall be specified whose deposit shall have the effect of hindering enforcement of attachment and of entitling the debtor to apply for revocation of enforced attachment.

The amount concerned shall be governed by the circumstances of the case in question, namely by the anticipated amount of the property fine. This may be assessed. The request for discharge of attachment shall contain the facts required for specifying the amount of money. If the public prosecution office has made the order, it shall apply for judicial confirmation of the order within one week. The accused may apply for a judicial decision at any time. Section p [Seizure of Property].

The time of seizure shall be indicated in the order. It may not be ordered if it is disproportionate to the significance of the case or to the penalty or measure of reform and prevention likely to be imposed. A copy of the warrant of arrest shall be handed over to the accused at the time of his arrest; if he does not have a sufficient command of the German language he shall additionally be provided with a translation in a language he understands. If it is not possible for a copy and, where necessary, a translation to be handed over to him, he must be informed without delay, in a language he understands, of the grounds for his arrest and the accusations levied against him.

In that case the copy of the warrant of arrest and, where necessary, a translation shall subsequently be handed over to him without delay. If written instruction is clearly insufficient, oral instruction shall also be given. The same procedure shall apply mutatis mutandis if it is not possible to give instruction in writing; written instruction shall, however, be given subsequently insofar as this can reasonably be done.

The accused shall confirm in writing that he was given instruction; if he refuses, this shall be documented. An accused who does not have a sufficient command of the German language or who is hearing impaired or speech impaired shall be advised in a language he understands that he may, in accordance with section subsections 1 to 3 of the Courts Constitution Act, demand that an interpreter or a translator be called in for the entire criminal proceedings free of charge. A foreign national shall be advised that he may demand notification of the consular representation of his native country and have messages communicated to the same.

The same duty shall exist in respect of every further decision on the continuation of detention. Section d [Communication of Information to the Penal Institution]. In addition, it shall inform the penal institution concerning. The first and second sentences shall apply mutatis mutandis in the event of changes in the communicated facts. Communications shall be dispensed with insofar as the facts have already otherwise become known to the penal institution.

Moreover, the public prosecution office shall transmit a copy of the bill of indictment to the penal institution and communicate the preferment of charges to the court competent pursuant to Section subsection 1. Section e [Communication of Information by the Penal Institution]. The penal institution shall, proprio motu , communicate to the court and to the public prosecution office information obtained during the execution of remand detention, insofar as such information, in the opinion of the penal institution, is of importance for the fulfilment of the duties of the recipients and has not already otherwise become known to them.

Other rights of the penal institution to communicate information to the court and to the public prosecution office shall remain unaffected. He shall be given an opportunity to remove grounds for suspicion and arrest and to present those facts which speak in his favour. If the examination shows that the warrant of arrest has been revoked, that an application for its revocation has been made by the public prosecution office Section subsection 3 , or that the person apprehended is not the person designated in the warrant of arrest, the apprehended person shall be released. If he raises other objections to the warrant of arrest or its execution which are not manifestly unfounded, or if the court has doubts regarding the continuation of detention, it shall inform the competent court and the competent public prosecution office accordingly without delay, using the fastest means available in the circumstances; the competent court shall review without delay whether the warrant of arrest is to be revoked or its execution suspended.

The following measures, in particular, may be considered:. In particular, an instruction not to have contact with co-accused persons, witnesses, or experts may be considered. Any diverging provisions in a statutory instrument issued under the Act on Payments to and from Courts and Judicial Authorities shall remain unaffected. Section b [Execution of Detention; Precedence]. Execution of remand detention shall precede the execution of detention pending extradition, provisional detention pending extradition, detention pending deportation and detention pending exit from the Federal territory.

Execution of other custodial measures shall precede the execution of remand detention, unless the court rules otherwise because the purpose of remand detention so requires. The right of complaint against the decision following the application shall remain unaffected. The court may order that under the conditions set out in the first sentence the oral hearing shall be conducted in such a way that the accused is located in another place than the court and the hearing is simultaneously transmitted audio-visually to the place where the accused is located and to the courtroom.

If the accused is not brought to the oral hearing and if the procedure pursuant to the second sentence is not followed, defence counsel shall safeguard his rights at the hearing. In that case, the accused shall be assigned defence counsel for the oral hearing if he does not yet have such counsel. The court shall determine the type and extent of evidence to be taken.

Criminal Procedure Code (Strafprozeßordnung, StPO)

If this is not possible, the decision shall be given within one week at the latest. In particular, it may be ordered that. The orders shall be made by the court. If its order cannot be obtained in time, the public prosecution office or the penal institution may make a provisional order. The order shall be submitted to the court for approval within three working days unless it has meanwhile ceased to be operative.

The accused shall be informed of orders. The order pursuant to the second sentence, number 2, shall include the authorization to terminate visitation and telecommunication as well as to hold correspondence and packages. The court may revocably transfer the implementation of orders to the public prosecution office, which may avail itself of the services of the officials assisting it and the penal institution in effecting such implementation.

The transfer shall be incontestable. The information may be given by the accused himself. The accused shall be advised in good time prior to the commencement of telecommunication of the duty to so inform. They shall apply mutatis mutandis to communication of the accused with. The measures necessary to determine the existence of the conditions set out in the first and second sentences shall be taken by the authority competent pursuant to subsection 2. The application shall not have suspensive effect. The court may, however, make provisional orders. In this case as well, the competence of the court shall be determined by Section Section a [Applications in Respect of Decisions and Measures].

An application for a court decision may also be made if an official decision applied for in the execution of remand detention is not given within three weeks. In particular, it is to be revoked if the accused is acquitted or if the opening of the main proceedings is refused, or if the proceedings are terminated other than provisionally. Simultaneously with this application, the public prosecution office may order the release of the accused. If the main proceedings commenced prior to the expiry of the time limit, the running of the time limit shall be suspended until pronouncement of the judgment.

It may refer the review of remand detention to the court having jurisdiction according to the general provisions for a period not exceeding three months. This review must be repeated no later than every three months. They shall be entitled only to lodge an immediate complaint against the decision. Before a decision is given concerning the complaint, these persons and the public prosecution office shall be given an opportunity to support their applications orally and to discuss the investigations which were made.

After expiry of the time limit for lodging a complaint the decision shall take binding effect as a final civil judgment. In urgent cases the presiding judge may also issue the warrant of arrest. If the warrant of arrest has been issued by a court hearing the complaint, jurisdiction shall rest with the court that gave the preceding decision. If the preparatory proceedings are conducted at another place, or if remand detention is executed at another place, the court may, upon application by the public prosecution office, transfer its jurisdiction to the Local Court competent for that other place.

If that place is divided into more than one court district, the Land government shall issue a statutory instrument determining which Local Court is to be competent.

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The Land government may transfer this authorization to the Land department of justice. During appellate proceedings on law, the court whose judgment is being contested shall have jurisdiction. Sections and shall apply mutatis mutandis subject to the proviso that the Higher Regional Court shall review whether the requirements for provisional placement continue to apply.

The release shall not be delayed by the fact that appellate remedies have been sought. This shall apply mutatis mutandis if a criminal offence may be prosecuted only with authorization or upon request for prosecution. The warrant of arrest shall be limited to a maximum period of one week running from the day of the arrest. Otherwise he shall issue a warrant of arrest or a placement order upon application by the public prosecution office or, if the public prosecutor cannot be reached, ex officio.

If public charges have already been preferred against the arrested person, he shall be brought before the competent court either immediately or upon the direction of the judge before whom he was first brought; this court shall, at the latest on the day after the arrest, decide on release, detention, or provisional placement of the arrested person. If, because of a suspected criminal offence which can only be prosecuted upon application, a warrant of arrest is issued before the application is filed, the person entitled to file such application or, if there is more than one such person, then at least one of them shall be immediately informed of the issuance of the warrant of arrest and be notified that the warrant of arrest will be revoked if the application is not filed within a time limit to be determined by the judge, not to exceed one week.

If no application for prosecution is filed within this time limit, the warrant of arrest shall be revoked. The decision on issuance of a warrant of arrest or a placement order shall be obtained without delay and at the latest within one week. In exigent circumstances and where the judge or the public prosecution office cannot be reached in time, the officials assisting the public prosecution office section of the Courts Constitution Act shall also be entitled to exercise this power subject to the same conditions.

In the cases referred to in the second sentence the decision of the public prosecution office shall be obtained without delay. The order shall become ineffective if not confirmed within twenty-four hours. The offence of which he is suspected, the place and time of its commission, as well as circumstances that may be relevant for his apprehension can be indicated.

Section a [Notice to Determine Whereabouts]. When determining the whereabouts of a witness it shall be made clear that the person sought is not the accused. There shall be no public search where overriding interests of the witness meriting protection present an obstacle thereto. Pictures of the witness may be used only where other means of determining his whereabouts would offer no prospect of success or be much more difficult.

Section b [Publication of Pictures]. The publication must make it clear that the person in the picture is not an accused person. Section c [Order and Confirmation of Searches]. Searches pursuant to Section a subsections 1 and 2 shall be ordered by the public prosecution office; in exigent circumstances they may also be ordered by the officials assisting it section of the Courts Constitution Act.

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In all other cases search orders made by officials assisting the public prosecution office section of the Courts Constitution Act shall become ineffective if not confirmed by the public prosecution office within one week. Sections 94 and 98 shall apply mutatis mutandis. The accused shall be brought before the judge without delay and shall be examined by him. He shall not be kept in custody by virtue of the order for longer than the end of the day following the moment he was first brought before the court.

He shall be advised that the law grants him the right to respond to the charges, or not to make any statement on the charges, and the right, at any stage, even prior to his examination, to consult with defence counsel of his choice. He shall further be advised that he may request evidence to be taken in his defence and, under the conditions set out in Section subsections 1 and 2 , request the appointment of defence counsel in accordance with Section subsections 1 and 3. In appropriate cases the accused shall also be informed that he may make a written statement, and of the possibility of perpetrator-victim mediation.

Coercion may be used only as far as this is permitted by criminal procedure law. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited. Statements which were obtained in breach of this prohibition shall not be used, even if the accused consents to their use.

Not more than three defence counsel may be chosen. Subsection 1 , second sentence, shall apply mutatis mutandis. An exclusion which is to be revoked in accordance with number 3 may be maintained for a limited time, at the most however for one more year, if the particular difficulty or the particular scope of the case or another important reason do not yet permit a decision to be taken on the opening of the main proceedings. In relation to other matters he shall not visit the accused if the latter is not at liberty.

Subsection 4 shall apply mutatis mutandis. If in the preparatory proceedings the investigations are conducted by the Federal Public Prosecutor General, or if the proceedings are pending before the Federal Court of Justice, the Federal Court of Justice shall decide. If the proceedings are pending before a panel of the Higher Regional Court or of the Federal Court of Justice, another panel shall decide.

The submission shall be made upon application by the public prosecution office or ex officio through intervention of the public prosecution office. He may make submissions in the proceedings. Prior to preferment of public charges and subsequent to final conclusion of the proceedings the order pursuant to the first sentence shall be given by the court that has to decide on exclusion of defence counsel.

The ruling shall take the form of an incontestable order. The main hearing may be interrupted for up to thirty days. The determination of inadmissibility shall be equivalent to exclusion within the meaning of Sections a, b and d. The decision on this shall be taken by the court before which the proceedings are pending. The time limit for the summons shall be one week; it may be reduced to three days. Section a subsection 2 , first sentence, shall apply to the hearing of the president of the Bar Association mutatis mutandis.

The extent to which evidence is taken shall be determined by the court in the exercise of its duty-bound discretion. Records of the hearing shall be made; Sections to shall apply mutatis mutandis. If this is not possible the decision shall be given no later than within one week. The president of the Bar Association shall not be entitled to lodge a complaint.

The attorney engaged as defence counsel may, with the consent of the person who selected him, entrust the defence to a jurist who has passed the first examination for the judicial service and has been employed there for at least one year and three months. Applications filed by accused persons with a speech or hearing impairment shall be granted.

The presiding judge shall appoint such defence counsel unless there is an important reason for not doing so. The appointment shall be revoked if another defence counsel is soon to be chosen and such counsel accepts the mandate. However, the court may also decide to suspend the hearing. If a decision is served on the accused, defence counsel shall be simultaneously informed thereof even if a written power of attorney is not contained in the file; he shall also be provided with a copy of the decision. Defence counsel may not appear for more than one person accused of the same offence.

Nor may he appear in a single proceeding for more than one person accused of different offences. The decision to reject shall be taken by the court before which the proceedings are pending or which would be competent to hear the main proceedings. If the prerequisites of the first sentence have been fulfilled, and if the accused is in remand detention or if, in the case of provisional arrest, this has been requested, information of relevance for the assessment of the lawfulness of such deprivation of liberty shall be made available to defence counsel in suitable form; to this extent, as a rule, inspection of the files shall be granted.

The decision shall not be contestable. If the public prosecution office refuses inspection of the files after noting the termination of the investigations in the file, or if it refuses inspection pursuant to subsection 3 , or if the accused is not at liberty, a decision by the court competent pursuant to Section may be applied for. These decisions shall be given without reasons if their disclosure might endanger the purpose of the investigation. Defence counsel shall be notified as soon as he once again has the unrestricted right to inspect the files.

Subsection 2 , first part of the second sentence, subsection 5 and Section subsection 5 shall apply mutatis mutandis. Where written correspondence is subject to monitoring pursuant to the first sentence, devices which exclude the possibility of handing over documents and other items shall be put in place for conversations with defence counsel. The provisions concerning seizure shall remain unaffected. The judge shall keep secret any knowledge which he obtains during monitoring. Time and place of the main hearing shall be communicated to him or her in time.

The opening of a court investigation shall be conditional upon preferment of charges. The approval of the court shall not be required in the case of a misdemeanour which is not subject to an increased minimum penalty and where the consequences ensuing from the offence are minimal. The decision shall be given in a ruling. The ruling shall not be contestable. In particular, the following conditions and instructions may be applied:.

The public prosecution office may subsequently revoke the conditions and instructions and may extend the time limit once for a period of three months; with the consent of the accused it may subsequently impose or change conditions and instructions. If the accused complies with the conditions and instructions, the offence can no longer be prosecuted as a misdemeanour.

If the accused fails to comply with the conditions and instructions, no compensation shall be given for any contribution made towards compliance. Section a subsection 2 shall apply mutatis mutandis. Subsection 1 , third to sixth and eighth sentences, shall apply mutatis mutandis. The decision pursuant to the first sentence shall be given in a ruling. The fourth sentence shall also apply to a finding that conditions and instructions imposed pursuant to the first sentence have been met.

The first sentence shall apply mutatis mutandis if an instruction to participate in a social skills training course is given pursuant to other criminal law provisions. Offences for which there is criminal liability pursuant to the Code of Crimes against International Law shall be subject to Section f. The same shall apply if the perpetrator has made such contribution by disclosing to an agency after the offence such knowledge as he had with respect to endeavours involving high treason, endangering the democratic state based on the rule of law, treason, and endangering external security.

If, in the cases referred to in Section c subsection 1 , number 1, the accused is a German, however, this shall only apply if the offence is being prosecuted before an international court of justice or by a state on whose territory the offence was committed or a citizen of which was injured by the offence. The same shall apply if a foreigner who is accused of a criminal offence that was committed abroad is resident in Germany but the requirements of the first sentence, numbers 2 and 4, are met and transfer to an international court of justice or extradition to the prosecuting state is admissible and intended.

The limitation shall be included in the records. An application by the public prosecution office for reintroduction shall be granted. If the preferring of public charges for a misdemeanour depends on the evaluation of a question which must be determined according to civil law or administrative law, the public prosecution office may set a time limit to decide the question in civil proceedings or in administrative court proceedings.

The person who reported the criminal offence shall be notified thereof. After this time limit has expired without any result, the public prosecution office may terminate the proceedings. If the absence of the accused or some other personal impediment prevents the opening or conduct of the main proceedings for a considerable time, and if public charges have not yet been preferred, the public prosecution office may provisionally terminate the proceedings after it has clarified the facts so far as possible and secured the evidence so far as necessary.

At every stage of the proceedings the public prosecution office and the court are to examine whether it is possible to reach a mediated agreement between the accused and the aggrieved person. In appropriate cases they are to work towards such mediation. An agreement may not be accepted against the express will of the aggrieved person. Section b [Transmission of Personal Data]. The files may also be sent to the commissioned agency for inspection if provision of information requires disproportionate effort. A non-public agency shall be informed that the transmitted information may be used solely for the purposes of the perpetrator-victim mediation or for reparation of damage.

The commissioned agency may only collect personal data, and only process and use such information, to the extent that the person concerned has given his consent and that this is necessary for carrying out the perpetrator-victim mediation or the reparation of damage. Upon conclusion of their activity they shall report to the public prosecution office or the court to the necessary extent.

The public prosecution office or the court shall inform the commissioned agency of its own motion and without delay of the time when proceedings are concluded. The public charges may not be withdrawn after the opening of the main proceedings. An oral information shall be recorded in writing. Transmission may be dispensed with if.

For this purpose it may avail itself of the service of the court assistance agency. Any information which is obtained nonetheless may not be used. Any recording of such information is to be deleted without delay. The fact that the information was obtained and deleted shall be documented. Where information about a person referred to in the first sentence is obtained through an investigation measure that is not aimed at such person and in respect of which such person may refuse to testify, the second to fourth sentences shall apply mutatis mutandis.

Insofar as is expedient, the measure should be dispensed with or, to the extent possible for this type of measure, restricted. The first sentence shall apply mutatis mutandis to the use of information for evidential purposes. The first to third sentences shall not apply to attorneys, persons who have been admitted to a Bar Association pursuant to section of the Federal Regulations for Practising Lawyers and non-attorney providers of legal services who have been admitted to a Bar Association.

If the offence may only be prosecuted upon application or with authorization, the first sentence shall apply in the cases referred to in Section 53 subsection 1 , first sentence, number 5, as soon as and insofar as the application for prosecution has been filed or the authorization granted. Section b [Discussion of the Status of Proceedings].

The public prosecution office may discuss the status of the proceedings with the participants, insofar as this appears suitable to expedite the proceedings. The essential content of this discussion shall be documented. The authorities and officials in the police force shall be obliged to comply with the request or order of the public prosecution office and shall be entitled, in such cases, to request information from all authorities. Section d, subsection 5 , number 3 shall remain unaffected. Examination under oath shall be reserved for the judge.

However, the imposition of detention shall remain reserved for the court competent pursuant to Section Sections to , , to , a and a shall each apply mutatis mutandis. Court decisions pursuant to the first and second sentences shall not be contestable. If the public prosecution office additionally considers it necessary that an arrest or detention order be issued, it may also, without prejudice to Sections and a, submit such an application before the court designated in the first sentence.

The Local Court in the district of which the investigation procedures are to be carried out shall be competent to undertake court examinations and inspections if the public prosecution office submits its application to such court in order to speed up proceedings or to avoid inconvenience to the persons concerned.

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During appellate proceedings on law, the court whose judgment is contested shall be the competent court. After final conclusion of the proceedings, subsections 1 and 2 shall apply mutatis mutandis. Following an application for reopening of proceedings, the court competent to decide in the reopened proceedings shall be the competent court. To this end they shall be entitled to request, and in exigent circumstances to demand, information from all authorities, as well as to conduct investigations of any kind insofar as there are no other statutory provisions specifically regulating their powers.

Where it appears necessary that a judicial investigation be performed promptly, transmission directly to the Local Court shall be possible. Section 58a subsection 1 , first sentence, subsections 2 and 3 and Section 58b shall apply mutatis mutandis. In simple matters it shall be sufficient to give him the opportunity to respond in writing. The decision of the court shall be incontestable. The suspect may be kept in custody if the identity cannot be established by other means or only with considerable difficulty. Under the prerequisites of the second sentence, it shall be admissible to search the suspect and the objects found on him as well as to carry out measures for identification purposes.

Measures of the kind designated in subsection 1 , second sentence, may not be taken if they are disproportionate to the importance of the matter; measures of the kind designated in subsection 1 , third sentence, may not be taken against the will of the person concerned. The arrested person shall be brought without delay before the judge at the Local Court in the district of which he has been apprehended for the purpose of deciding on the admissibility and continuation of the deprivation of liberty, unless it would presumably take longer to obtain a decision by the judge than would be necessary to establish his identity.

This shall also apply if, in the case of the first sentence, passports and identity cards are automatically machine-read. To compare with the current status of the German version, see http: For conditions governing use of this translation, please see the information provided under "Translations". Section 41a [Electronic Document]. Section 62 [Oath in Preparatory Proceedings]. Section 63 [Oath on Examination by Commission]. Section 64 [Form of Oath].

Section 65 [Affirmation Equivalent to an Oath]. Section 81h [Serial Molecular and Genetic Examination]. Section j [Request for Information]. Section a [Undercover Investigators]. Section b [Securing of Objects]. Section c [Effecting Seizure]. Section e [Order for Seizure or Attachment]. Section f [Effecting Seizure and Enforcing Attachment]. Section i [Maintenance of Seizure]. Section o [Attachment in Rem for a Property Fine].

Section p [Seizure of Property]. Section d [Communication of Information to the Penal Institution]. Section e [Communication of Information by the Penal Institution]. Section b [Execution of Detention; Precedence]. Section a [Applications in Respect of Decisions and Measures].