Accused in Germany with no residence here: what § 132 StPO requires

Beschuldigter is the person against whom an investigation is being conducted. That is neither a charge nor a judgment, but a role in the proceedings.

Staatsanwaltschaft is the authority that directs the investigation. It decides whether a charge is brought, whether the case is discontinued, or whether a Strafbefehl is applied for; the police investigate but do not decide.

Strafbefehl is a written decision made without any oral hearing. An objection (Einspruch) is possible within two weeks of service; if it is not lodged in time, the Strafbefehl has the same effect as a final and binding judgment (§ 410 StPO). What applies where that time limit has been missed through no fault of your own is set out further below under "If the time limit has already expired".

Zustellung is the formal delivery of a document. Time limits run from the moment of service, regardless of whether you have read the contents.

Service on a representative appointed by legal transaction has the same effect as service on the person represented (§ 171 ZPO, the Zivilprozessordnung, the German Code of Civil Procedure), and the provisions of the Code of Civil Procedure apply accordingly to service in criminal proceedings (§ 37 Abs. 1 StPO).

That means: whatever is served on the authorised person counts as having been served on you. The time limit runs from that day, even if you are in another country and know nothing about it yet. In this way the period for lodging an objection against a Strafbefehl can expire without any hearing ever having taken place (§ 410 StPO).

Two conclusions follow. First: anyone who has granted such an authority should make sure that they learn quickly what arrives there. Second: a defence lawyer of your choice who has produced a power of attorney is deemed authorised to accept service and other communications on behalf of the accused person (§ 145a Abs. 1 StPO); a summons may be served on that lawyer only if the power of attorney expressly authorises this (§ 145a Abs. 2 StPO). The post then arrives at a place where somebody knows what has to be done.

Then § 132 StPO precisely does not apply, because that provision presupposes that the conditions for an arrest warrant are not met. Pre-trial detention requires a strong suspicion that the person committed the offence and a ground for detention (§ 112 Abs. 1 StPO). One of those grounds is the risk of flight: it exists where, on an assessment of the circumstances of the individual case, there is a risk that the accused person will evade the criminal proceedings (§ 112 Abs. 2 Nr. 2 StPO). A residence abroad is one of the circumstances discussed in that context; on its own it is not a ground for detention, and the assessment remains one of the individual case.

Where an arrest warrant has been issued on the ground of a risk of flight alone, the judge may suspend its execution if less intrusive measures are sufficient. The statute names, among other things, reporting requirements, a prohibition on leaving the place of residence without permission, and the provision of appropriate security (§ 116 Abs. 1 StPO). The judge determines the type and the amount at their free discretion; the security is to be provided by depositing cash or securities, by creating a pledge, or by a guarantee given by suitable persons (§ 116a Abs. 1 und 2 StPO). Anyone who applies for the suspension against security and does not live within the area in which the statute applies must likewise name a Zustellungsbevollmächtigter (§ 116a Abs. 3 StPO).

A third provision concerns provisional arrest: where the accused person has no fixed residence or abode in Germany and the conditions for an arrest warrant are met only because of a risk of flight, the arrest may be dispensed with if it is not to be expected that a custodial sentence will be imposed or a custodial measure of correction and prevention ordered for the offence, and if the accused person provides appropriate security for the fine that is to be expected and for the costs of the proceedings (§ 127a Abs. 1 StPO); § 116a Abs. 1 und 3 StPO applies accordingly (§ 127a Abs. 2 StPO).

The language of the court is German (§ 184 GVG, the Gerichtsverfassungsgesetz, the Courts Constitution Act). Where a hearing involves people who do not speak German, an interpreter is to be called in (§ 185 Abs. 1 GVG).

For the accused person this goes further. The court calls in an interpreter or a translator for an accused or convicted person who does not speak German, in so far as this is necessary for the exercise of their rights in the criminal proceedings; they are to be informed of this in a language they understand, together with the information that they may claim this assistance free of charge for the whole of the criminal proceedings (§ 187 Abs. 1 GVG). A written translation of orders depriving a person of liberty, and of indictments, Strafbefehle and judgments that are not yet final, is also necessary as a rule (§ 187 Abs. 2 GVG).

Regardless of language, this applies: you do not have to comment on the accusation, and you may consult a defence lawyer at any time, including before the interview (§ 136 Abs. 1 Satz 2 StPO).

What a conviction means for a visa, a residence permit or naturalisation is not a question of criminal law. That is a matter of residence and immigration law, it follows rules of its own, and it has to be examined separately. Do not rely here on information obtained in the criminal proceedings.