Certified Specialist Lawyer for Criminal Law

Criminal Law Info

• Cybercrime

• Behavior during searches and arrests

• Speech is silver, silence is golden

• Public defender

• Victim protection

• Who is the best criminal defense attorney?

Cybercrime

The term cybercrime describes such crimes that are directed against the Internet, data networks, information technology systems or their data or that are committed using this information technology (e.g. using Clearnet / Visible Web, DeepWeb and Darknet).

The range of criminal offenses on and via the Internet is large and cannot be described conclusively. Currently widespread manifestations of cybercrime occur in a variety of ways, often through the infection and manipulation of computer systems with malware, or through network intrusions and DDoS attacks, the spread of malware and fraud, e.g. B. for the purpose of identity theft using phishing, the operation of botnets, digital extortion using ransomware, but also in very complex forms such as CEO fraud by means of social engineering, in which the weak point human being is deliberately exploited.

Behavior during searches and arrests

In principle, a search of an apartment or business premises may only be carried out with the consent of the person concerned, or in accordance with Sections 102, 105 StPO (Code of Criminal Procedure) after a court order, or in the event of imminent danger. During an investigation, the investigating authorities and in particular the prosecution authority regularly obtain judicial orders to search residential and business premises in order to secure evidence there. If it is assumed that there is imminent danger, i.e. if obtaining a court order beforehand would jeopardize the success of the search, such searches can initially be carried out without a court order under certain conditions due to the assumed urgency.

If the unannounced visit is just around the corner in the early morning, you should first kindly ask to see the court order, which is generally required. The court order which legalizes the search shows whether the search is directed against an accused or against a witness, as well as whether all rooms at the relevant address or only individual rooms should be searched.

Keep calm and discipline. Make full use of your right to remain silent. Do not comment on the accusation against you to the police officers or make any other statements, no matter how banal they may seem to you. Do not agree to the confiscation of items or answer any questions about their ownership. You also do not have to and should not answer the often casual questions about possible PINs for confiscated cell phones. It is suffice to say that you do not make any declarations. It is important to avoid so-called spontaneous statements.

At the start of the search, ask for witnesses, e.g. ask your neighbour or even better your lawyer to come and act as a witness and ensure that all seized items are listed in the seizure log. If, according to the court order, the search is intended to find one specific object, the search must be ended after it has been found.

According to Section 137 of the Code of Criminal Procedure, the accused has the right to seek assistance from a defense attorney at any time. The assistance of a criminal defense lawyer is of great importance both during a search and during an arrest or preliminary arrest. After a preliminary arrest in accordance with Section 127 of the Code of Criminal Procedure, the person arrested must, unless he or she is released again, be brought before a judge at the respective district court immediately in accordance with Section 128 of the Code of Criminal Procedure, at the latest on the day after the arrest. This then decides whether to issue an arrest warrant and thus whether to order pre-trial detention.

Speech is silver, silence is golden

The question of whether the suspect should get involved in the investigation or should better exercise his right to remain silent is of great importance and cannot be answered in general.

Basically:

Pursuant to sections 136 (1) sentence 2, 163a (3) sentence 2 StPO, every accused has the right to remain silent about the accusations made against him. No disadvantageous conclusions may be drawn from his (complete) silence.

The fact that the suspect is silent in the investigation proceedings is supported in particular by the fact that to a certain extent a refusal to testify can have a certain influence on the course of the investigation process.

The enormous burden of an investigation on the accused should not be underestimated, especially in the context of an interrogation situation. A suspect who is inexperienced in interrogation questions and interrogation technique is faced with experienced and appropriately trained interrogation officers, the defense counselor according to h.M. has no right of attendance.

If the suspect is admitted, there can be arguments that otherwise the defense concept cannot be maintained. To this extent, a certain amount of influence on the course of the investigation can also be exercised with an admission. If it is safe to expect the accused to be convicted based on the overall circumstances, admission is obvious. Admission is usually mitigating.

In any case, the question of whether the suspect is involved should not be discussed until his defense lawyer has had access to the file and has had sufficient opportunity to discuss the matter.

Public defender

The assignment of a mandatory defense lawyer is regulated in the Code of Criminal Procedure in § 140 StPO. In any case, the involvement of a defense lawyer is necessary in the cases listed there. A lawyer must be appointed and assigned to the accused as a public defender.

A case of necessary defense, with the result that the defendant must be assigned a mandatory defense lawyer, can generally exist if the allegation is serious, the accused faces serious consequences in the event of a conviction, or if the accused is clearly unable to assert himself defend. It always depends on the individual case.

On December 13, 2019, both the “Law to Modernize the Criminal Procedure of December 10, 2019” and the “Law to Reorganize the Law of the Necessary Defense v. 10.12.2019 ”(BGB l I, p. 2128) came into force. This is intended to implement the EU directive 2016/1919, i.e. the so-called PKH directive.

Pursuant to Section 140 (1) No. 4 of the Code of Criminal Procedure, a mandatory defense lawyer must now be appointed in the cases of the judicial demonstration, as well as if the main hearing takes place before the lay judge.

The accused now has his own right to file an application, which he must also assert (section 141 (1) sentence 1 StPO). If the accused requests the assignment of a public defense attorney, his application in the cases of necessary defense must be granted without further ado.

Section 140 (2) of the Code of Criminal Procedure expressly includes the “severity of the expected legal consequence” as a criterion for assessing whether the involvement of a defense lawyer is required.

In addition to the amount of the penalty to be expected in the proceedings, the seriousness of the offense can also result from the accused as a result of impending or impending indirect disadvantages as a result of the conviction. This can be the case with a possible probation revocation due to an expected new sentence during the probation period of an earlier sentence. Accordingly, even if the sentence is expected to be less than a year in prison, it may be necessary to assign a defense lawyer if, as a result of this sentence, there is a risk of revocation of a suspended sentence for probation in another matter, in particular if the sum of the prison sentence to be expected in the new criminal proceedings and the of a possible revocation of the suspended sentence for probation reaches or is greater than one year.

Inability to defend oneself may be the case, in particular, for a foreign accused who is not sufficiently proficient in the German language, if the use of an interpreter is not sufficient to fully compensate for the limited defense options due to the language deficits. In any case, this applies to complex matters that can only be clarified by witness interrogations, and in particular when the credibility of the statements and the credibility of the witnesses are also important.

If a victim joins the proceedings as a co-plaintiff and uses legal assistance at his own expense, there is regularly a case of necessary defense from the point of view of equality of arms if this would otherwise create a procedural imbalance.

The economic circumstances of the accused are irrelevant. The costs of assigning a defense lawyer are part of the procedural costs. These are only payable by the state treasury in the event of an acquittal.

Victim protection

The victims of a crime often feel left alone and exercising their rights often requires an effort to overcome. Victims of a criminal offense are also entitled to criminal procedural rights, which can be used to obtain participation in criminal proceedings. Victims of a criminal offense can assert far-reaching rights and powers under the conditions of the accessory prosecution regulated in §§ 395 ff. StPO. As a accessory prosecutor, you can, under certain conditions, join the criminal proceedings when the public prosecutor's office brings charges and are then entitled to be present in court and also to file applications during the main hearing. The accessory prosecution serves to ensure victim protection. However, accessory prosecution is not permitted for all offenses and criminal offences. However, admission as a joint plaintiff is legally possible, particularly in the case of sexual offences, crimes against liberty, bodily harm and crimes against life.

Who is the best criminal defense attorney?

For those accused in an investigation conducted by a public prosecutor's office it is not uncommon and far too often a matter of their own existence. The question of the best criminal defense attorney is then often an obvious reflex. Every case is unique. Every client is individual. Specialization and experience are important. As are assertiveness and commitment. Criminal defense remains above all mental work. Choosing a specialist lawyer for criminal law is certainly the right thing to do. In addition, a lot is subjective and each person can best find out in a personal conversation. Then you decide for yourself.