If you are unlucky enough to find yourself accused of a crime in Germany as a foreigner, it is good to know how the criminal justice system works here. Germany boasts of having a modern criminal justice system that ensures that all individuals, including foreigners and expatriates working in the country, get a fair trial. The legal system includes both civil law and human standards explained in the Basic Law of the Federal Republic of Germany (Grundgesetz). The country is also party to international treaties that spell the rights of the accused. In this article, we shall explain your defence rights in Germany as a foreigner and how they affect your trial.
Core Articles that Guarantee Your Defence Rights
Three articles provide the legal basis for ensuring fair treatment during trials. They include Article 1 of the constitution, which emphasizes that the country upholds human dignity for everyone, including foreigners and this right is inviolable. Article 3 states that everyone in the country is equal in the eyes of the law. This means that foreigners have the same rights as native citizens in the legal system. Finally, Article 20 states that Germany is a democratic state that follows the rule of law. This means that the justice system is followed during any trial, including one that involves foreigners.
With this in mind, here are the basic defence rights available to foreigners in the country.
Right to Fair Trial
German law and international treaties to which the country is a party guarantee a fair trial for all defendants. The law further guarantees that the trials would be impartial and that the accused will have the opportunity to present their evidence during trial.
Unless the matters in the case require witness protection, trials are generally held in public to ensure transparency. As a defendant, you have the right to cross-examine both your witnesses and those of the prosecution. After the verdict of the court, you have the right to appeal within the stipulated timelines. A higher court reviews the legal basis that formed the original verdict during an appeal.
Right to Legal Representation
Legal representation increases the chances of successfully defending yourself in court as they can interpret the law and see gaps in the prosecution case. Every individual accused of a crime, whether a foreigner or citizen, is entitled to legal representation (Verteidiger) in all stages of trial and appeals.
This right has three elements. First, it guarantees mandatory legal representation if the offense for which you are accused carries an imprisonment of over one year. If you do not have the financial ability to hire a lawyer, the court will appoint one for you.
Second, you have the right to change your legal counsel at any point during the trial. You can rely on the court-appointed lawyer or hire another one for the case. Third, you have the right to access your lawyer at any time during the trial. This applies even when you are remanded or detained. The right guarantees private conversations with the lawyer that are not overheard or recorded.
Presumption of Innocence
The German law provides that you are innocent until proven guilty. This right is also solidified by Article 6 of the ECHR (European Convention on Human Rights), of which Germany is a member. The onus is on the prosecution to prove that the defendant is actually guilty beyond reasonable doubt. This right guides how you are treated as the accused and the court’s approach to evidence.
In the same breath, it is the work of the prosecution to establish guilt. Any doubt that arises regarding the criminal offence benefits the defendant. If the prosecution presents insufficient evidence, the court acquits the defendant. Additionally, the accused is protected from prejudgement by the media or any other entity until innocence or guilt is established in a fair trial.
Protection against Self-Incrimination
Every accused has a right to remain silent and protection against self-incrimination during investigations and trials. These rights are contained in the German Code of Criminal Procedure (Strafprozessordnung – StPO), which provides that as the accused, you have the right to refuse to answer questions or make statements that may be used against you in a court of law. The court cannot penalize you or any of your witnesses for refusing to speak. In addition, you cannot be compelled to make a testimony or write a statement that the prosecutor may use to bolster their case.
Right to Fair Detention and Bail
German law provides clear regulations as to when an accused is to be detained or denied bail to prevent arbitrary detention. You can only be detained before or during a trial if there is a risk that you may run away or might tamper with evidence. However, even in such cases, the court must regularly review the conditions of your detention and make rulings where matters change.
You have the right to be released on bail if the court does not find that you may flee the country or are likely to interfere with the investigation. The conditions of bail may vary depending on the case. You may be required to provide local guarantees or deposit your passport with the court. Keep in mind that you must meet all the terms of the bail before it is granted.
Things to Consider in Criminal Law Proceedings
Despite being entitled to all these rights, you may need to consider a few things so that you enjoy them fully and prepare a formidable defense. First, if you do not speak German, the court will provide an interpreter in all court sessions. However, it is good to have a lawyer who understands your language to keep your conversations private and get the nitty-gritty details of the criminal case at hand.
Second, you have the right to reach out to your home country’s consulate for assistance. The consulate can help out in various ways, including recommending a lawyer for you or securing one at home. Additionally, be sure to reach out to your lawyer as soon as you are arrested so that they can defend your rights in all stages of investigation and trial. Finally, plan for the possibility of being deported to your home country or cancellation of your visa upon conviction.
Understand your rights when accused of a crime in Germany. Use the rights to safeguard your safety and prepare your defense. This way you can navigate the legal system smoothly without lowering the chances of winning your case.
