Practice areas
Criminal law – act before the file works against you.
In criminal proceedings the opening phase decides the course. Anyone who as an accused person speaks too early or as an injured party waits too long worsens their position in a way that can later hardly be corrected. Our task is to structure that phase.
General information. The legal assessment depends on the circumstances of each case.
Circumstances
Clarify the context
Evidence
Preserve documents
Deadlines
Explain any urgency
Approach
Discuss the next steps
Overview
Two roles, one set of proceedings
Criminal proceedings with an economic background differ from the classic picture of a criminal trial. They rarely begin with an arrest and usually with a letter: a summons to an interview, notice of a search, a communication that an investigation has been opened. By that point a file already exists whose contents you do not know – the authority, by contrast, knows them very well. That asymmetry is the real disadvantage, and it can be offset only by access to the file and by silence, not by attempts at explanation.
For the accused a simple principle therefore applies, which is nonetheless difficult at the moment of the first confrontation: there is no duty to comment on the matter, and there is practically no situation in which a spontaneous statement without knowledge of the file is an advantage. We take over communication with the authority, apply for access to the file and only then develop a defence strategy – which may also consist in continuing to remain silent.
For injured parties the starting position is the reverse. Anyone harmed by fraud, embezzlement or computer fraud has an interest in an investigation being conducted, because criminal proceedings open avenues of access that private individuals and companies do not have: information from banks, access to communications data and, in suitable cases, the seizure of assets. A structured criminal complaint that presents the facts chronologically and with supporting evidence is dealt with differently from a brief report without annexes.
The intersection of both roles lies in access to the file. As an injured party you can apply for inspection and thereby obtain findings that are usable in civil proceedings – for example on the identity of account holders or on the flow of funds. That is precisely why we do not treat criminal and civil steps separately, but align their sequence with one another. How that looks in a fraud case we describe in the Fraud & Scam practice area.
Typical matters
- Defence in the investigation, particularly in property offences
- Attendance at searches and seizures
- Representation as an injured party, including access to the file
- Structured criminal complaints with an evidence overview
- Adhesion proceedings to pursue claims in the criminal trial
- Proceedings with a foreign element and mutual legal assistance requests
Frequently asked questions
What injured parties and accused persons frequently ask
The answers set out the framework in which we work. What applies in your case depends on the contents of the file, which we must first inspect.
Risks
Where proceedings are decided early
The following points come up regularly – and they almost always take effect in the opening phase, when those involved still believe the matter can be cleared up with an explanation.
The spontaneous statement
A conversation on the telephone or a brief explanation “for clarification” is recorded and becomes part of the file. Contradictions with later statements can hardly be removed and have an incriminating effect.
Possible measures: conduct communication through legal representation, apply for access to the file and weigh a statement only afterwards.
Seizure without objection
In searches, data carriers and documents are taken without the scope being recorded or an objection being declared. That makes later legal protection considerably more difficult.
Possible measures: request a seizure inventory, have an objection recorded and review proportionality.
The thin complaint
A complaint without a chronology and without annexes is processed with considerably lower priority than one that substantiates the facts and names lines of inquiry.
Possible measures: set out the facts chronologically, name the evidence and identify concrete lines of inquiry.
Time lost on assets
While the proceedings get under way, sums continue to be forwarded. What is not secured early is later regularly no longer reachable – independently of the outcome of the criminal proceedings.
Possible measures: review civil security in parallel and consider proposing an asset freeze.
Time limits in injured-party proceedings
Remedies against discontinuation notices and applications for access to the file are subject to time limits. Anyone who files the notice away unanswered loses options.
Possible measures: review the notice and the time limits and weigh the remaining remedies.
Parallel proceedings
Criminal and civil proceedings influence one another. A civil step that is too early can warn the other side; action that is too late can trigger limitation.
Possible measures: align the sequence of steps and plan access to the file as a source of information.
International
Criminal proceedings with a foreign element
As soon as accused persons, accounts or servers lie abroad, questions of jurisdiction and mutual legal assistance come before the substantive assessment. German authorities cannot investigate directly abroad; they depend on mutual legal assistance, and its duration often determines the course of the proceedings more strongly than the evidence.
For injured parties that means: findings often arise more quickly through payment service providers and banks within the EU than through the seat of the perpetrators. We therefore frame complaints so that they name reachable lines of inquiry, and we coordinate in parallel with locally admitted professionals in the states concerned.
- Mutual legal assistance
- Within the EU through the European Investigation Order, outside it under treaties and national law. Processing time is the governing factor.
- European Arrest Warrant
- In extradition requests, procedural safeguards and proportionality are to be reviewed; an early defence in the requested state is regularly advisable.
- Asset recovery
- Seizure and confiscation decisions are in principle mutually recognised in the European judicial area, which enables access across borders.
- Language and service
- Service and translations extend proceedings. We factor this effort in from the outset, rather than supplying it afterwards.
Related information
Related information
- Fraud & ScamImmediate assistance, preservation of evidence and the alignment of complaint and civil action.
- Commercial lawOfficers’ liability, contractual risks and enforcement of claims.
- For businessesCompliance, internal investigations and payment fraud.
- All practice areasAn overview of the areas in which we advise and represent clients.
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- General information. The legal assessment depends on the circumstances of each case.