Falsche Verdächtigung: what to do when the report against you is wrong

§ 164 Abs. 1 StGB requires several conditions at the same time: another person must be accused, and that before an authority, before a public official or military superior competent to receive reports, or publicly. The allegation must concern an unlawful act or the breach of an official duty, it must be made against better knowledge, and it must be done with the intention of bringing about official proceedings or other official measures against that person or of causing them to continue. The range of penalty is imprisonment of up to five years or a fine.

§ 164 Abs. 2 StGB covers the same course of events in a second form: another assertion of a factual nature made against better knowledge that is capable of bringing about official proceedings against another person or of causing them to continue. § 164 Abs. 3 StGB provides for an increased range of six months to ten years where the offence is committed in order to obtain a reduction of sentence or a dispensing with punishment under the provisions named there; in less serious cases three months to five years.

The decisive concept is acting against better knowledge. It describes an inner process. Anyone who wants to establish it has to show not only that the report was incorrect, but also that the person making it knew this. A counter-report therefore raises a question of proof quite different from the one that concerns the person wrongly accused.

Alongside this stands § 145d StGB, the feigning of a criminal offence. Anyone who, against their better knowledge, pretends to an authority or to a body competent to receive reports that an unlawful act has been committed is punished with imprisonment of up to three years or a fine, in so far as the act is not already subject to a penalty under one of the other provisions named there, among them § 164 StGB. § 145d Abs. 2 StGB covers deception about who took part in an offence. Unlike § 164 StGB, § 145d StGB does not require that a particular other person be accused.

Three provisions determine the room for manoeuvre.

You are to be informed that you are free to comment on the charge or to make no statement on the matter and to consult a defence lawyer of your choice at any time, including before your examination (§ 136 Abs. 1 Satz 2 StPO). Anyone who sees themselves wrongly accused wants to explain everything at once. That is precisely how statements arise that are later measured against the case file.

The defence lawyer is permitted to inspect the files that are before the court or that would have to be submitted to it if a charge were brought (§ 147 Abs. 1 StPO); an accused person without a defence lawyer can obtain Akteneinsicht under § 147 Abs. 4 StPO, there subject to additional restrictions. Only the case file shows what the allegation rests on.

And the Staatsanwaltschaft has to investigate not only the circumstances serving to incriminate but also those serving to exonerate, and to see to the taking of evidence where there is a risk that it will be lost (§ 160 Abs. 2 StPO). The second half of the sentence is what matters where message histories or witnesses have to be secured before they disappear.

At the end stands the decision under § 170 StPO: where the investigation provides sufficient grounds for bringing the public charge, the Staatsanwaltschaft brings it; otherwise it discontinues the proceedings (§ 170 Abs. 1 und Abs. 2 StPO).

Where the untrue assertion is made not before an authority but towards third parties, the provisions protecting honour come into consideration. § 186 StGB concerns üble Nachrede, the assertion of a dishonouring fact that cannot be proved true: asserting or disseminating a fact that is capable of making another person contemptible or of lowering them in public opinion, where that fact cannot be proved true. The range extends to one year of imprisonment or a fine, and where the offence is committed publicly, in a meeting or by disseminating a piece of content, to two years or a fine.

§ 187 StGB concerns Verleumdung, the same conduct against better knowledge, with imprisonment of up to two years or a fine, and where the offence is committed publicly, in a meeting or by disseminating a piece of content, up to five years or a fine.

§ 193 StGB is to be borne in mind. Under it, among other things, statements made in order to exercise or defend rights or to pursue legitimate interests, as well as official reports, are criminal only in so far as the existence of an insult follows from the form of the statement or from the circumstances. That provision is one of the reasons why a report of a criminal offence is not a criminal offence merely because it later turns out to be incorrect.

How a defence works in the investigation, and when a written submission comes into consideration, is described on our page on general criminal law.