General criminal law
Discontinuation on a charge of fraud
Proceedings discontinued in respect of a fraud charge
A client of Rechtsanwältin (lawyer) Elger-Günther, a young father, was accused of having cashed a bearer cheque without authorisation and to his own advantage (fraud under sect. 263 StGB, German Criminal Code). The file was worked through carefully and a convincing written submission was drafted. The public prosecutor's office thereupon discontinued the proceedings for lack of sufficient suspicion under sect. 170 (2) StPO (German Code of Criminal Procedure).
What section 170 (2) StPO means
The public prosecution service discontinues an investigation under section 170 (2) StPO where the enquiries do not establish sufficient suspicion. Suspicion is sufficient where, on a provisional assessment, a conviction appears more likely than an acquittal. Without that threshold, no charge may be brought.
Such a discontinuation is neither a conviction nor a condition imposed on the accused. It does not appear in the Führungszeugnis, the German certificate of conduct. The prosecution may reopen the matter if new facts or evidence come to light.
How an investigation proceeds up to that decision
Proceedings usually begin with a report to the police or an observation by the authorities themselves. The police secure evidence, interview witnesses and summon the accused for questioning. The file then passes to the public prosecution service, which directs the investigation.
The defence obtains access to the case file under section 147 StPO. Only then can it be assessed what the allegation rests on and whether a written submission is useful. At the end the prosecution decides whether to bring charges, apply for a penal order or discontinue the case.
Rights of the accused during the investigation
Details of identity must be given. A statement on the substance of the matter is voluntary: under sections 136 (1) sentence 2 and 163a (4) StPO, an accused person is free to remain silent on the allegation. Silence may not be used as an inference against them.
A defence lawyer may be instructed at any point, including before the first interview. Only after access to the case file has been granted will a decision be made as to whether to make a statement on the substance of the matter. This is general information on criminal proceedings and does not replace advice on an individual case.
Provisions: § 263 StGB · § 170 Abs. 2 StPO
The proceedings described here have been concluded. The outcome of any case always depends on its individual circumstances.