Download PDF Strafprozeßordnung - StPO (Deutschland) (German Edition)

Upon notification of a decision which is contestable by way of appellate remedy within a given time limit, the person concerned shall be informed of the options for contesting such decision and of the relevant prescribed time limits and forms. Where an appeal on fact and law may be filed against the judgment, the defendant shall also be informed of the legal consequences arising out of Section 40 subsection 2 and Sections and The court registry shall take care that the service is effected.

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This shall not apply to decisions concerning order at the sittings. The statutory time limits shall be considered to be time limits within the meaning of Section , second sentence, of the Civil Procedure Code. Persons participating in criminal proceedings who have the authority to summon witnesses and experts directly shall charge the court bailiff with service of the summons. The official who orders the service shall have the right to choose the publication.

Only those parts of judgments and rulings containing the operative provisions shall be affixed. Service on the public prosecution office shall be made by producing the original copy of the document to be served. Where a time limit begins to run upon service, the public prosecution office shall note the day of production on the original. In calculating a time limit determined in days, the day of the time or the event determining the beginning of the time limit shall not be counted.

If a person was prevented from observing a time limit through no fault of his own, he shall be granted restoration of the status quo ante upon application. Failure to observe the time limit for filing an appellate remedy shall not be considered a fault if instructions pursuant to Section 35a, Section subsection 2, third sentence, or Section subsection 2, third sentence, have not been given.

If the time limit is observed, it shall be sufficient for the application to be filed in time with the court which is to decide on the application. The omitted act shall subsequently be undertaken within the time limit for filing the application. Where this is done, restoration may also be granted without an application being filed. The Federal President shall be examined in his residence. He shall not be summoned to the main hearing. The record of his examination by the court shall be read out at the main hearing. The record of their judicial examination shall be read out at the main hearing.

At the same time, a coercive fine shall be imposed on him and if the coercive fine cannot be collected, coercive detention shall be ordered. A witness may also be brought before the court by force. Section shall apply mutatis mutandis. In the case of repeated non-appearance the coercive measure may be imposed a second time. If the witness is sufficiently excused thereafter, the orders made shall be revoked under the conditions set out in the second sentence.

If the statutory representative is accused himself he may not decide on the exercise of the right of refusal to testify; the same shall apply to the parent who is not accused, if both parents are entitled to act as statutory representative. They may revoke the waiver of this right during the examination. The persons specified in Section 53 subsection 1 , numbers 1 to 4, shall decide whether these assistants should exercise their right to refuse to testify, except if such a decision cannot be obtained within a foreseeable period. The reason for which the witness in the cases of Sections 52, 53 and 55 refuses to testify shall be substantiated upon request.

A sworn affirmation by the witness shall be sufficient. Before examination, witnesses shall be admonished to tell the truth and shall be informed that their statements must be made under oath, except as otherwise provided or permitted by law. At the same time instruction shall be given on the importance of the oath, on the possibility to choose between the oath with religious affirmation or without religious affirmation, and on the criminal law consequences of incorrect or incomplete statements. The examination shall be recorded:.

Section b subsection 6 and Sections and e shall apply mutatis mutandis. Witnesses shall be placed under oath individually after they have been examined. Except as otherwise provided, the oath shall be taken at the main hearing. Witnesses shall be sworn in private prosecution proceedings only if it is deemed necessary by the court because of the decisive importance of the statement, or in order to obtain a true statement. The relatives of the accused specified in Section 52 subsection 1 shall have the right to refuse to give testimony under oath; they shall be informed of this right.

The reason for administering an oath to a witness outside the main hearing shall be indicated in the record. The examining judge may suspend the administration of an oath and reserve it for a new decision of the commissioning or requesting court, if facts appear in the examination which would justify an unsworn examination. These facts shall be noted in the record. The affirmation shall be equivalent to an oath; the witness shall be informed of this fact. If a witness, after having been examined under oath, is examined a second time in the same preliminary proceedings or main proceedings, the judge, instead of administering a second oath, may have the witness confirm the correctness of his statement by reference to the oath previously taken.

Witnesses who have made observations in their official capacity may state their place of work instead of their place of residence. Under the condition set out in the first sentence, the presiding judge may permit the witness not to state his place of residence during the main hearing. However, if so asked at the main hearing, he shall be required to state in what capacity the facts he is indicating became known to him. They shall only be included in the files when the danger ceases. With the consent of the public prosecution office a lawyer may be assigned for the duration of the examination to witnesses who previously had no legal counsel if it is evident that they are unable to exercise their rights themselves during the examination and if any of their interests that are worthy of protection cannot be taken into account in another way.

Where the examination concerns. Section subsection 4 and Section subsection 1 shall apply mutatis mutandis to the assignment. The decision shall not be contestable. The subject of the investigation and the name of the accused, if there is an accused, shall be indicated to the witness before the examination. At the same time a coercive fine shall be imposed on him and if the fine cannot be collected, coercive detention shall be ordered.

Chapter VI concerning witnesses shall apply mutatis mutandis to experts, except as otherwise provided by the following sections. He shall agree with them on a time limit within which their opinions may be rendered. The fact, however, that the expert was examined as a witness shall not be a reason for challenge. The appointed experts shall be made known to the person entitled to challenge if there are no special circumstances to the contrary.

An expert may also be released for other reasons from his obligation to render an opinion. Members of the Federal Government or of a Land government shall be subject to the special provisions relating to them. At the same time a coercive fine shall be imposed on him. In the case of repeated disobedience the coercive fine may be assessed a second time in addition to the costs.

The assessment of a coercive fine must be preceded by an admonition setting an extension of the time limit. In the case of repeated failure to observe the time limit the coercive fine may be assessed again. An oath shall be administered to the expert upon application by the public prosecution office, by the defendant, or by defense counsel.

An expert is to be given the opportunity, during the course of the preliminary proceedings, to prepare the opinion that he is to render at the main hearing, if it is expected that the committal of the accused to a psychiatric hospital, to an institution for withdrawal treatment or to preventive detention will be ordered. The court may not make this order if it is out of relation to the importance of the matter or to the penalty or to the measure of reform and prevention to be expected. It shall have a delaying effect.

Photographs and fingerprints of the accused may be taken, even against his will, and measurements may be made of him and other similar measures taken with regard to him insofar as is required for the purposes of conducting the criminal proceedings or of the police records department. The examination and the taking of blood samples may only ever be carried out by a physician. Where minors lack intellectual maturity or where minors or persons placed in care due to mental illness or mental or emotional deficiency have no sufficient understanding of the importance of their right of refusal, their statutory representative shall give the decision; Section 52 subsection 2 , second sentence, and subsection 3 shall apply mutatis mutandis.

If the statutory representative is precluded from giving a decision Section 52 subsection 2 , second sentence or is prevented from giving a decision in time for other reasons, and the immediate investigation or taking of blood samples for securing evidence seems necessary, these measures shall be admissible only upon special order by the judge. The decision ordering the measures shall not be contestable. The evidence furnished pursuant to the third sentence may be used in further proceedings only with the consent of the statutory representative authorized to do so.

Section 81a subsection 3 shall apply mutatis mutandis. Direct force may be used only upon special order of the judge. The order shall presuppose either that the person concerned insists upon the refusal despite the imposition of a coercive fine or that there are exigent circumstances. Upon the request of the woman who is to be examined, another woman or a relative is to be admitted. Examinations pursuant to the first sentence shall also be admissible to obtain similar findings on material obtained by measures pursuant to Section 81c.

Findings on facts other than those referred to in the first sentence shall not be made; examinations designed to establish such facts shall be inadmissible. Subsection 1 , third sentence, and Section 81a subsection 3 , first part of the first sentence, shall apply mutatis mutandis. The written order shall state which expert is to carry out the examination.

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The experts shall take technical and organizational measures to ensure that inadmissible molecular and genetic examinations cannot be carried out and that unauthorized third parties cannot obtain knowledge of the examinations. The material to be examined shall be given to the expert with no indication of the name, address or day or month of birth of the individual concerned. Where the expert is not a public agency, Section 38 of the Federal Data Protection Act shall apply with the condition that the supervisory authority shall also monitor compliance with data protection rules even if it has no sufficient indication that such rules are being violated and if the expert is not processing personal data in computer files.

Information other than that required to establish the DNA code may not be ascertained during the examination; tests to establish such information shall be inadmissible. In preliminary proceedings the judge shall decide whether the experts shall render their opinion in writing or orally. The provisions concerning evidence by witnesses shall apply if experienced persons have to be examined to prove past facts or conditions the observation of which required special professional knowledge.

If a judicial inspection takes place, the facts as found shall be stated in the record and such record shall reflect what traces or signs were missing, although their presence could have been presumed according to the special nature of the case. The physician shall not be called in if this is obviously not necessary for clarification of the facts.

One of them must be a court physician or the head of a public forensic or pathology institute or a physician of the institute entrusted with this task and having specialist knowledge of forensic medicine. The autopsy shall not be performed by the physician who treated the deceased person during his illness directly preceding his death. However, that physician may be asked to attend the autopsy to give information relating to the medical history. The public prosecution office may attend the autopsy. Where exhumation is ordered, notification of a relative of the deceased person has to be ordered at the same time, if the relative can be located without special difficulty and the purpose of the investigation is not endangered by such notification.

Unless there are particular impediments, the identity of the deceased person shall be established before the autopsy specifically by questioning persons who knew the deceased person. If there is an accused, the corpse should be shown to him for the purpose of identification. The autopsy shall extend, if the condition of the corpse permits, to the opening of the head, of the chest cavity and of the abdomen. When opening the corpse of a new-born child, the examination shall be directed in particular to the question whether it was alive after or during birth, and whether it was mature or at least capable of continuing its life outside the womb.

The opinion of this agency shall be obtained concerning falsity or adulteration as well as concerning the probable method of counterfeiting. To ascertain the authenticity or falsity of a document, as well as to ascertain the author of a script, a handwriting comparison may be conducted with the assistance of experts. This shall not apply to persons entitled to refuse to testify. Submission or delivery of files or of other documents officially impounded by authorities or public officials shall not be requested if their superior authority declares that the publication of these files or documents would be detrimental to the welfare of the Federation or of a German Land.

The first sentence shall apply mutatis mutandis to files and other documents held in the custody of a Member of the Federal Parliament or of a Land Parliament or of an employee of a Federal or Land parliamentary group where the agency responsible for authorizing testimony has made a corresponding declaration. Objects covered by the right of physicians, dentists, psychological psychotherapists, psychotherapists specializing in the treatment of children and juveniles, pharmacists and midwives to refuse to testify shall also not be subject to seizure if they are in the custody of a hospital, nor are objects to which the right of the person to refuse to testify mentioned in Section 53 subsection 1 , numbers 3a and 3b, extends if they are in the custody of the counseling agency referred to in that provision.

The restrictions of seizure shall not apply if the persons entitled to refuse to testify are suspected of incitement or accessoryship, obstruction of justice or handling stolen goods or where the objects concerned have been obtained by a criminal offense or have been used or are intended for use in perpetrating a criminal offense or where they emanate from a criminal offense. The third sentence of subsection 2 shall apply mutatis mutandis.

Seizure pursuant to Section 97 subsection 5 , second sentence, in the premises of an editorial office, publishing house, printing works or broadcasting company may be ordered only by the judge. The person concerned may at any time apply for a judicial decision. As long as public charges are not preferred, the decision shall be made by the Local Court in whose district the seizure took place.

If a seizure, seizure of mail or a search has already been made in another district, the Local Court in the district of which the public prosecution office conducting the preliminary proceedings has its seat, shall give a decision. The person concerned may also in this case submit the application to the Local Court in whose district the seizure took place. If this Local Court is not competent pursuant to the fourth sentence the judge shall forward the application to the competent Local Court. The person concerned shall be informed of his rights.

The requesting agency shall be entitled to participate. No such request shall be necessary if the seizure is to be made in places which are inhabited exclusively by persons other than members of the Federal Armed Forces. Their use shall not be admissible. Where the public prosecution office has made the order, it shall request its confirmation by the judge without delay.

The order shall become ineffective if it is not confirmed by the judge within three days. The order shall be made in writing. It must name the person obliged to transmit the data and shall be limited to the data and comparison characteristics required for the individual case. The transmission of data whose use runs counter to special Federal, or the corresponding Land , rules on use of data, may not be ordered.

Sections 96, 97, 98 subsection 1 , second sentence, shall apply mutatis mutandis. Personal data transferred to other data carriers shall be erased without delay as soon as they are no longer required for the criminal proceedings. Personal data obtained by dint of the comparison may be used as evidence in other criminal proceedings only insofar as during their evaluation information was obtained which is required to clear up a criminal offense referred to in Section 98a subsection 1.

Upon completion of a measure pursuant to Section 98a, the agency responsible for monitoring compliance with data protection rules by public bodies shall be informed. In order to clear up a criminal offense or to determine the whereabouts of a person sought in connection with criminal proceedings, personal data from criminal proceedings may be compared by machine with other data stored for the purposes of criminal prosecution or execution of sentence, or in order to avert danger.

Opposing special Federal or Land rules on use of data shall remain unaffected. Seizure of mail and telegrams addressed to the accused held in the custody of persons or enterprises providing, or collaborating in the provision of, postal or telecommunications services on a commercial basis shall be admissible.

It shall also be admissible to seize mail and telegrams in relation to which facts exist from which it can be concluded that they originate from the accused or are intended for him and that their content is important for the investigation. He may transfer this authority to the public prosecution office as far as this is required in order not to endanger the success of the investigation by a delay.

The transfer shall not be contestable; it may be revoked at any time. As long as an order has not been made pursuant to the second sentence, the public prosecution office shall immediately submit to the judge the delivered items, i. The judge who ordered or confirmed the seizure shall decide whether to open a delivered item. Interception and recording of telecommunications may be ordered if certain facts substantiate the suspicion that a person was the perpetrator or inciter of, or accessory to.

The order may be made only against the accused or against persons about whom it can be assumed, on the basis of particular facts, that they are receiving messages intended for the accused or receiving or transmitting messages from the accused or that the accused is using their connection. In exigent circumstances, the order may also be given by the public prosecution office. The order of the public prosecution office shall become ineffective if it is not confirmed by the judge within 3 days. The type, extent and time of the measures shall be specified in the order. The order shall be limited to a maximum of 3 months.

An extension of not more than 3 months shall be admissible if the prerequisites designated under Section a continue to exist. Whether and to what extent measures are to be taken in this respect shall follow from section 88 of the Telecommunications Act and from the Ordinance issued thereunder for the technical and organizational implementation of intercepting measures.

Section 95 subsection 2 shall apply mutatis mutandis. The judge and the person bound by subsection 3 shall be informed of the termination. The destruction shall be recorded in writing. Section 98b subsection 1 , second sentence, Section b subsection 1 , third sentence, subsections 2 , 4 and 6 shall apply mutatis mutandis. In exigent circumstances the order may also be issued by the presiding judge.

His order shall become ineffective unless confirmed by the penal chamber within three days. Section b subsection 2 , first to third sentences, shall apply mutatis mutandis. This shall also apply if it is to be expected that all the information to be gained by the measure shall be subject to a prohibition on use.

Where the persons entitled to refuse testimony are suspected of incitement or accessoryship, obstruction of justice or of handling stolen goods, the first sentence shall not apply; moreover, this circumstance must be taken into consideration when proportionality is assessed. A decision on the admissibility of using information shall be given during the preparatory proceedings by the court designated in the first sentence of subsection 2. Extensions of not more than four weeks each time shall be admissible providing the conditions for the measure continue to exist.

Section b subsections 4 and 6 shall apply mutatis mutandis. Personal data obtained by a measure pursuant to Section c subsection 1 , number 3, may be used for the purposes of evidence in other criminal proceedings only insofar as during their evaluation information emerges which is required to clear up a criminal offense referred to in Section c subsection 1 , number 3. Prior to preferment of public charges the court designated in subsection 2 , first sentence, shall decide; thereafter, the court seized of the case.

Strafprozessrecht – in action

The latter may express an opinion on the question of lawfulness in the decision concluding the proceedings. The report shall be supplemented as appropriate after the proceedings have been concluded. If notification has not taken place within four years following conclusion of the measure, the public prosecution office shall be required to file a new report to that effect each year. Where, in the cases falling under Section c subsection 1 , number 3, notification does not take place within six months after the measure has been completed, further deferral of notification shall require the consent of a judge.

Prior to preferment of public charges the court designated in the first sentence of subsection 2 shall decide; thereafter, the court seized of the case. The same rule shall be followed if, after it was opened, its retention is not required. They shall only be included in the files if the preconditions set out in subsection 1 have been fulfilled. 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 offense, 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 and in the cases where it may be presumed that the search will lead to the discovery of evidence.

For the purpose of apprehending an accused who is strongly suspected of having committed an offense pursuant to section a of the Penal Code, or one of the offenses designated in this provision, a search of private and other premises shall also be admissible if they are in a building where, on the basis of certain facts, the accused is presumed to be.

Searches pursuant to Section subsection 1, second sentence, shall be ordered by the judge; the public prosecution office shall be authorized to order searches in exigent circumstances. The persons called in as members of the community shall not be police officers or officials assisting the public prosecution office. No such request shall be necessary if the search is to be made in places 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 neighbor shall, if possible, be called in to assist. This provision shall not apply to the occupants of the premises indicated in Section subsection 2. Upon conclusion of the search, the person affected by the search shall, upon his request, be given a written notification in which the reason for the search Sections , and, in the case of Section , the criminal offense must be specified.

Upon request, he shall also be given a list of the objects which were impounded or seized; if nothing suspicious was found, a certificate indicating this fact shall be given to him. The public prosecution office shall be informed thereof. The first sentence shall not be applicable as far as a search is made pursuant to Section subsection 1 , second sentence. Objects impounded or seized shall be exactly listed and, in order to prevent an exchange, shall be marked with an official seal or in another proper 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 closed with the official seal in the presence of the holder. Undercover investigators may also be used to clear up serious criminal offenses where there is a risk of repetition in view of certain facts. Their use shall only be admissible if clearing up the serious criminal offense using some other means would offer no prospects of success or be much more difficult.

Undercover investigators may also be used to clear up serious criminal offenses where the special significance of the offense makes the operation necessary and other measures would offer no prospects of success. They shall be entitled to take part in legal transactions using their legend. Consent shall be given in writing and for a specified period. Extensions shall be admissible providing the conditions for use of undercover investigators are still fulfilled. In exigent circumstances consent of the public prosecution office shall suffice. The measure shall be ended if the judge does not give his consent within three days.

Subsection 1 , third and fourth sentences, shall apply mutatis mutandis. The public prosecutor and the judge responsible for the decision whether to give consent may require the identity to be revealed to them. In all other cases, maintaining the secrecy of the identity in criminal proceedings shall be admissible under the terms of Section 96, particularly if there is cause for concern that revealing the identity will endanger the life, limb or liberty of the undercover investigator or of another person or endanger the continued use of the undercover investigator.

Undercover investigators may use their legend and enter private premises with the consent of the entitled person. Such consent may not be obtained by any pretense of a right of access extending beyond the use of the legend. Personal data obtained by use of undercover investigators may be used as evidence in other criminal proceedings only insofar as during their evaluation information was obtained which is required to clear up one of the criminal offenses listed in Section a subsection 1 ; Section d subsection 2 shall remain unaffected.

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 94 subsection 3 shall remain unaffected. Where the time limit referred to in the first sentence is not sufficient, given the special difficulties or special extent of the investigations or for another important reason, the judge may, upon application by the public prosecution office, extend the measures by a maximum of three months provided the grounds referred to justify their continuation.

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 Civil Procedure Code 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 Civil Procedure Code 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 entered, 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.

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. Officials assisting the public prosecution office section Courts Constitution Act shall also be competent to order seizure of a movable asset Section c subsection 1 in exigent circumstances.

This shall not apply when seizure of a movable asset has been ordered. In all cases the person concerned may apply for a judicial decision at any time. 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 judge, and in exigent circumstances also the public prosecution office, shall be competent to order attachment of a registered ship or ship construction and to order attachment of a claim.

The decision shall be given in 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 has arisen from the criminal offense. Section of the Civil Procedure Code shall be applied. Entry of the prohibition of alienation in the Land Register, for the benefit of the state, shall also apply, in respect of the application of section subsection 2 , 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 offense 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. 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. Consent by the owner shall not be required for the change of priority. In all other respects section of the Civil Code shall be applied mutatis mutandis. Section g subsection 2 , second to fourth sentences, and subsection 3 , third sentence, shall apply mutatis mutandis.

If the judgment does not order forfeiture or forfeiture of equivalent value simply because claims of an aggrieved person within the meaning of section 73 subsection 1 , second sentence, of the Criminal Code negate this, or because the proceedings pursuant to Sections and are confined to the other legal consequences, seizure pursuant to Section c may be maintained for a period of not more than three months so far as immediate revocation would be unjust in respect of the aggrieved person.

Movable assets which have been seized or otherwise secured pursuant to Section 94 or which have been seized pursuant to Section c subsection 1 should be handed over to the aggrieved person, from whom they have been taken as a result of the criminal offense, if he is known, if the claims of third persons are not an obstacle and if the assets are no longer required for the purposes of the criminal proceedings.

The proceeds shall be substituted for the objects. The officials assisting it section Courts Constitution Act shall have the authority to order such sale if the object is 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 the object is 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 time and place of the sale, shall be made known to them as far as this appears to be practicable. The public prosecution office shall take the place of the court responsible for execution Section Civil Procedure Code in the cases of subsections 2 and 3 , second sentence; in the cases of subsection 3 , first sentence, the court seized of the case. The use admissible pursuant to section of the Civil Procedure Code may be ordered at the same time as the emergency sale or subsequently, either propio motu or upon application of the persons designated in subsection 4 , or in the case of subsection 3 , first sentence, also upon application of the public prosecution office.

In respect of orders by the public prosecution office or the officials assisting it after preferring public charges subsection 3 , second sentence, subsection 5 the person concerned may request the decision of the court seized of the case subsection 3 , first sentence.

The court — in urgent cases the presiding judge — may order suspension of the sale. Seizure may be further restricted in the order. Seizure of other printed material or of another object within the meaning of section 74d of the Penal Code may, in exigent circumstances, also be ordered by the public prosecution office. 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 scale 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. 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 should contain the facts required for specifying the sum 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.

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. If this is not possible he must be provisionally informed of the offense of which he is strongly suspected. In that case he shall subsequently be informed of the content of the warrant of arrest without delay.

The judge shall be competent to make the order. He shall be given an opportunity to remove grounds for suspicion and arrest and to present those facts which speak in his favor. At this examination, as far as possible, Section subsection 3 shall be applicable. If the examination shows that the warrant of arrest has been revoked or that the person apprehended is not the person designated in the warrant of arrest, the apprehended person shall be released.

If he otherwise makes objections against the warrant of arrest or against its execution which are not manifestly unfounded, or if the judge has doubts regarding the continuation of detention, he shall inform the competent judge accordingly without delay, using the fastest means available in the circumstances. The accused shall be informed of this right and shall be instructed pursuant to Section subsection 4.

In particular, the following measures may be considered:. In particular, an instruction not to have contact with co-accused, witnesses, or experts may be considered. The right of complaint against the decision following the application shall remain unaffected. The accused shall be informed about his right to submit a request.

Sections , and shall apply mutatis mutandis. If the accused is not brought to the oral hearing, defense counsel shall safeguard his rights at the hearing. In that case, defense counsel shall be assigned for the oral hearing if the accused does not yet have such counsel. Section , and shall apply mutatis mutandis. The court shall determine the type and extent of evidence to be taken. A record shall be made of the hearing; the provisions of Sections to shall apply mutatis mutandis. If this is not possible, the decision shall be given at the latest within one week.

Sections to and subsection 2 shall apply mutatis mutandis to the application for review of detention Section subsection 1 and to the application for an oral hearing. In other respects as well he shall, as far as possible, be kept separate from convicted prisoners.

This request may be withdrawn at any time in the same manner. The arrested person may also be placed in one and the same room with other prisoners if his physical or mental condition so requires. He should not be shackled during the main hearing. In urgent cases, the public prosecutor, the director of the prison, or another official under whose supervision the arrested person is detained may impose interim measures.

These shall require the approval of the judge. 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.

In cases over which a Higher Regional Court has jurisdiction pursuant to section of the Courts Constitution Act, the Federal Court of Justice shall give a decision instead. The Higher Regional Court may decide on the continuation of remand detention after the oral hearing; in that case, Section a shall apply mutatis mutandis.

For the further review of remand detention Section subsection 1 the Higher Regional Court shall have jurisdiction until a judgment is given imposing imprisonment or a custodial measure of reform and prevention. 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. In the cases of Section subsection 1 the Higher Regional Court shall decide on an application for an oral hearing at its discretion. This review must be repeated after three months at the latest.

In the cases of Section subsection 1 , execution of detention may not be maintained longer than one year, if it is based on the grounds for arrest under Section a. They shall be entitled only to lodge an immediate complaint against the decision. Before a decision is given concerning the complaint, those persons and the public prosecution office shall be given an opportunity to support their applications orally and to discuss the investigations which were made.

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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 issue the warrant of arrest. If the warrant of arrest has been issued by a court hearing the complaint, the jurisdiction shall rest with the judge who issued the preceding decision. If the preparatory proceedings are conducted at another place, or if remand detention is executed at another place, the judge may transfer jurisdiction to the judge of the Local Court of that other place, provided the public prosecution office so applies.

If that place is divided into more than one court district, the Land government shall issue an ordinance 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. After the filing of an appeal on law, the court whose judgment is contested shall have jurisdiction.

Criminal Procedure Code (Strafprozeßordnung, StPO)

Individual measures, particularly those under Section , shall be ordered by the presiding judge. In urgent cases he may revoke the warrant of arrest or suspend its execution Section if the public prosecution office consents; otherwise the decision of the court shall be obtained without delay. If the person to be committed has a statutory representative, the latter shall also be informed of the decision. The release shall not be delayed by the fact that appellate remedies have been sought. Section subsection 3 shall apply mutatis mutandis.

The establishment of the identity of a person by the public prosecution office or by officials in the police force shall be determined by Section b subsection 1. This shall apply mutatis mutandis if a criminal offense 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. The judge shall examine the person brought before him in accordance with Section subsection 3. Otherwise he shall issue a warrant of arrest or a committal order upon application by the public prosecution office or, if the public prosecutor cannot be reached, ex officio.

Section subsection 4 shall apply mutatis mutandis. 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, give a decision on release, detention, or provisional committal of the arrested person. If, because of a suspected criminal offense 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. Section subsection 3 shall be applied. In these cases the police authorities may also issue a wanted notice. The offense of which he is suspected as well as the place and time of its commission shall be stated.

Section a subsection 1 shall apply mutatis mutandis. The provisions of Sections 94 and 98 shall apply mutatis mutandis. Section 70 subsection 3 of the Penal Code shall apply mutatis mutandis. An accused shall be brought before the judge without delay and be examined by him. He shall not be kept in custody by virtue of the order for longer than until the end of the day following the time when he was first brought before the court.

He shall be advised that the law grants him the right to respond to the accusation, or not to make any statements on the charges and, even prior to his examination, to consult with defense counsel of his choice. He shall further be instructed that he may request evidence to be taken in his defense. In appropriate cases the accused shall be informed that he may respond in writing. 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 agrees to their use. Not more than three defense 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. Defense counsel shall also be excluded from participating in proceedings the subject of which is one of the criminal offenses designated under section 74a subsection 1 , number 3, section subsection 1 , number 3, of the Courts Constitution Act or non-performance of the duties pursuant to section of the Penal Code concerning criminal offenses of high treason or endangering external security pursuant to sections 94 to 96, 97a, of the Penal Code, if in view of certain facts there is reason to assume that his participation would endanger the security of the Federal Republic of Germany.

Section a subsection 3 , first sentence, number 1, shall apply mutatis mutandis. If in the preparatory proceedings the investigations are conducted by the Federal Prosecutor General, or if the proceedings are pending before the Federal Court of Justice, the Federal Court of Justice shall give the decision. If the proceedings are pending before a panel of the Higher Regional Court or 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 defense counsel.

The order shall be given in a decision which is incontestable. The court shall appoint another defense counsel for the duration of the order to safeguard the rights under Sections and The main hearing may be interrupted for up to thirty days. The determination of inadmissibility shall be equal 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 summoning a person shall be one week; it may be reduced to three days.

The public prosecution office, the accused and in the cases of Section c subsection 2 , third sentence, the president of the Bar Association shall be notified of the date of the oral hearing. 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.

A decision rejecting the exclusion of defense counsel pursuant to Section a shall not be contestable. The attorney-at-law engaged as defense counsel may, with the consent of the person who selected him, entrust the defense 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 who are deaf or dumb shall be granted. The appointment of defense counsel pursuant to Section subsection 4 shall remain effective for the further proceedings under the prerequisites designated in subsection 1 , number 5, unless another defense counsel is appointed. The public prosecution office shall request such appointment if in its opinion the assistance of defense counsel pursuant to Section subsection 1 or 2 will be necessary.

Upon conclusion of the investigations Section a he shall be appointed upon application by the public prosecution office. The accused is to be given the opportunity of naming an attorney-at-law within a time limit to be specified. The presiding judge shall appoint defense counsel named by the accused unless there are significant grounds for not doing so.

The appointment shall be revoked if another defense counsel is soon to be chosen and such counsel accepts the mandate. However, the court may also decide to suspend the hearing. 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.

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.

Strafprozessordnung StPO (Deutschland) (German Edition) eBook: Deutschland: theranchhands.com: Kindle Store

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.

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.

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.

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.

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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. 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. The data may be transmitted to criminal prosecuting authorities only. If the public prosecution office or one of the officials assisting it has made the order, the public prosecution office shall apply for judicial confirmation of the order without delay. Section b subsection 1 , third sentence shall apply mutatis mutandis. It shall describe the person whose data are to be stored as precisely as possible, by reference to particular features or characteristics, in the light of the information available about the suspect or suspects at the time of the order.

The order shall specify the nature and duration of the measures. It shall be limited to a particular area and to a maximum period of three months. One extension of not more than three further months shall be admissible if the conditions designated in subsection 1 continue to apply.

The personal data obtained by the measures shall be deleted without delay as soon as they are not, or are no longer, required for the criminal proceedings; storage of the data exceeding the duration of the measures subsection 3 by more than three months, shall be inadmissible. The public prosecution office shall be notified about the deletion. In exigent circumstances, the order may also be made by the public prosecution office.

Where the public prosecution office has made the order, it shall apply for court confirmation without delay. The order shall be limited to a maximum of one year. It may be extended by not more than three months in each case, insofar as the conditions for making the order continue to apply. An order issued by the public prosecution office or the officials assisting it shall become ineffective if not confirmed by the court within three working days.

Section b subsection 1 , fourth and fifth sentences, and subsection 2 , second sentence, shall apply mutatis mutandis. The official directing official activities on the spot shall be authorized to apprehend persons who wilfully disturb his official activity or oppose orders given by him within the scope of his authority, and to have them kept in custody until termination of his official tasks, but not beyond the next day. In exigent circumstances, the judge may, even without an application, undertake the necessary investigatory acts if a public prosecutor is not available.

In the cases referred to in Sections and the authority to give further directions shall lie with the public prosecution office. A record shall be made of each judicial investigatory act. A registry clerk shall be called in to make such records; the judge may dispense with this if he considers the presence of a recording clerk not to be necessary. In urgent cases the judge may call in a person to be sworn in by him as recording clerk.

In this case the record shall be produced without delay after conclusion of the hearing. The provisional records shall be placed on file or, if they are not suitable for such purpose, they shall be kept together with the files, at the registry. Tape recordings may be erased once the proceedings have been concluded with binding effect or have been otherwise terminated. The fact of their approval shall be noted down. The record shall be signed by the participants or a note shall be made therein as to why the signature was not added. If the contents of the record have only been recorded provisionally, it shall be sufficient for the records to be read out or played back.

The record shall indicate that this happened and that approval was given, or what objections were raised. The reading or submission for inspection or the playing back may be omitted if the participating persons, insofar as it concerns them, dispense with this after the recording; the record shall indicate that such waiver was pronounced. If the contents of the record have been wholly or partly recorded by means of a tape recorder and without involving a recording clerk, the judge and the person who produced the record shall sign it.

The latter shall sign with the addendum that he confirms the accuracy of the transcript. Proof of inaccuracy of the transcript shall be admissible. This shall apply in particular if it is to be feared that a witness will not tell the truth in the presence of the accused. The notification shall be dispensed with if it endangers the success of the investigation. Persons entitled to be present shall not have the right to request a change of the date set down for a hearing when prevented from being present.

The experts named by the accused shall be permitted to participate in the inspection and the required investigation to the extent that the activity of the experts appointed by the judge is not impeded thereby. If there is an imminent risk of serious detriment to the well-being of the witness in the event of his being examined in the presence of persons entitled to be present and if that risk cannot be averted in some other way, the judge shall carry out the examination separately from those entitled to be present.

There shall be simultaneous audio-visual transmission of the examination to the latter. Their rights of participation shall otherwise remain unaffected. The decision pursuant to the first sentence shall be incontestable. If the Federal Public Prosecutor General is conducting the investigations, the investigating judges of the Federal Court of Justice shall take their place. If the public prosecution office is considering preferment of public charges, it shall make a note of the conclusion of the investigation in the files.

The public prosecutor shall notify the accused thereof if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he requested such notice or if there is a particular interest in the notification. If the public prosecution office does not grant an application for preferring public charges, or after conclusion of the investigation it orders the proceedings to be terminated, it shall notify the applicant, indicating the reasons.

On the filing of the complaint with the public prosecution office the time limit shall be deemed to have been observed. He shall be instructed as to this right and as to the form such application shall take; the time limit shall not run if no instruction has been given. The application must be signed by an attorney; legal aid shall be governed by the same provisions as in civil litigation. The application shall be submitted to the court competent to decide. If after hearing the accused, the court considers the application to be well-founded, it shall order preferment of public charges.

This order shall be carried out by the public prosecution office. Security shall be furnished by depositing cash, shares or bonds. The court shall, at its discretion, determine the amount of security to be furnished. At the same time the court shall specify a time limit within which the security is to be furnished. Sections to Deleted. The file shall be submitted to the court with the bill of indictment.

In addition, the evidence, the court before which the main hearing is to be held, and defence counsel shall be indicated. This may be dispensed with if the charges are preferred before the criminal court judge. Before the court decides on the opening of main proceedings, it may order individual evidence to be taken to help to clear up the case. The order shall be incontestable. Where the court is considering the opening of main proceedings, it may discuss the status of the proceedings with the participants, insofar as this appears suitable to expedite the proceedings.

The court shall decide to open main proceedings if in the light of the results of the preparatory proceedings there appear to be sufficient grounds to suspect that the indicted accused has committed a criminal offence. The court may, by order, provisionally terminate the proceedings if the absence of the indicted accused or some other personal impediment prevents the holding of the main hearing for a considerable time. The presiding judge shall secure the evidence, so far as this is necessary.

If a penal norm applicable at the time the offence was committed is amended prior to the decision and if pending criminal court proceedings concern an offence which was punishable under the former law but which is no longer punishable under the new law, the court shall terminate the proceedings by an order made outside the main hearing.

The order shall be contestable by immediate complaint. The presentation of the relevant results of investigations may be dispensed with. In proceedings in which a Higher Regional Court has decided in the first instance the Federal Court of Justice may decide that the main hearing shall be held before another panel of the same court.

If the opening of the main proceedings was refused by an order which is no longer contestable, the charges may be resumed only on the basis of new facts or evidence. Section [Applicability of Section a]. Sections a and b Deleted. The registry shall ensure that the summonses are issued and the notifications dispatched. This may also be done by the court. The order concerning the opening of the main proceedings shall be served on the defendant at the latest with the summons.

The defendant shall then be asked what applications, if any, he wants to make for his defence at the main hearing. In addition to the defendant, court-appointed defence counsel shall always be summoned; defence counsel of choice shall be summoned if the court was notified of such choice. He shall be notified of the direction made following this request. He shall be authorized to do so even without a previous application.