Avvocati Difesa Penale

This chapter helps you do one thing: get competent help quickly if you or someone close to you is accused of a crime in Germany. Criminal defense lawyers here are called Strafverteidiger, and the most useful fact about them is that you are entitled to speak to one before you answer a single question. This chapter is written for people who are in trouble right now, so it puts the urgent parts first and the background later.

Se non leggete altro, leggete almeno questo paragrafo. Dovete fornire alla polizia i vostri dati identificativi: nome, data e luogo di nascita, stato civile, professione, indirizzo e nazionalità. Non siete obbligati a dire assolutamente nulla riguardo alle accuse che vi vengono mosse. Il vostro silenzio non potrà essere usato contro di voi. Potete chiedere un avvocato in qualsiasi momento, anche prima dell'inizio dell'interrogatorio, e la polizia è tenuta a fornirvi le informazioni necessarie per contattarne uno. Questo è tutto il consiglio di emergenza. Tutto ciò che segue spiega l'origine di ogni frase e dove si nascondono le trappole.

Le insidie ​​non sono quelle che un lettore di lingua inglese si aspetta. L'avvocato d'ufficio non è un avvocato d'ufficio gratuito, a dispetto di quanto si possa leggere altrove. Una condanna può arrivare per posta e diventare definitiva in quattordici giorni, mentre si presume che si tratti di una multa da pagare il mese successivo. E un procedimento penale contro un cittadino straniero non è mai solo un procedimento penale: ha ripercussioni anche sul permesso di soggiorno e sulla futura domanda di cittadinanza, e le conseguenze in materia di immigrazione spesso perdurano oltre la sentenza. Questo capitolo tratta di come trovare, scegliere e pagare un avvocato d'ufficio. Non insegna il diritto penale tedesco e non costituisce consulenza legale sul vostro caso.

Cosa fare quando la polizia vuole parlarti

The rule that matters is in §136(1) of the Strafprozessordnung, the Code of Criminal Procedure, usually shortened to StPO. At the beginning of any questioning, the Beschuldigter, the person formally under suspicion, must be told which act he is accused of. Before a judge or a prosecutor he must also be told which criminal provisions come into consideration. He must then be told, in the statute’s own words, that he is free under the law to comment on the accusation or not to make a statement on the matter, and that he may at any time, including already before his questioning, consult defence counsel of his own choosing. If he says he wants to consult a lawyer first, the police must provide information making it easier to contact one, and must point out any anwaltlicher Notdienst, the emergency lawyer hotline that exists in most regions.

This is not a formality and it is not limited to dramatic cases. §163a(4) StPO applies the same instruction to questioning by police officers, with one difference worth knowing: the police must tell you the alleged act, but they are not obliged to name the specific criminal provisions. So a police officer can lawfully tell you the subject is “an incident on the fourteenth” without telling you whether the file says Körperverletzung, bodily harm, or something far more serious. You are being asked to decide whether to talk without knowing what you are actually facing. That asymmetry is the reason the right to consult a lawyer first exists, and the reason to use it.

The right you are exercising when you say nothing is called the Aussageverweigerungsrecht, the right to refuse to give a statement. Here is the part that Anglo readers get wrong, and it is the single most important point in this chapter. In Germany, silence is not evidence. A court may not treat your refusal to speak as an indication of guilt, may not mention it in its reasoning, and may not weigh it in the balance. If you have lived in England or Wales, set aside what you know: there is no German equivalent of the caution warning that it may harm your defence if you fail to mention something you later rely on. There is no adverse inference. The German position is not “silence is risky but permitted”. It is that complete silence is legally invisible.

Many people from common-law countries, and many people generally, believe that cooperating early makes the problem smaller. They picture a friendly conversation that clears things up. In German criminal procedure this belief is expensive. The investigation is run by the Staatsanwaltschaft, the public prosecutor’s office, and the questioning is not a chance to explain yourself out of the file; it is evidence-gathering, and what you say enters the file permanently. You cannot see the file yet. Your lawyer can. Talking before anyone has read the evidence against you is not cooperation, it is guessing.

There is one crucial refinement, and skipping it would make the advice above dangerous. The protection covers complete silence. It does not cover talking a little. The Bundesgerichtshof, the Federal Court of Justice, held in a judgment of 3 May 2000 that where a defendant makes a Teileinlassung, a partial statement about an alleged act, his silence on individual questions within that same act may be used against him. The same decision protects you in the other direction: commenting on one alleged act does not allow a court to draw conclusions from your silence about a different one. The practical consequence is simple and absolute. Do not answer some questions and decline others. Do not offer a short explanation and stop when it gets uncomfortable. Either say nothing at all about the matter, or say what your lawyer has advised you to say after reading the file. The half-way position is the worst of the three.

Two boundaries complete the picture. The first is identity. Under §163b StPO the police may take the measures necessary to establish who you are, and may detain you if your identity cannot otherwise be established. Under §111 of the Ordnungswidrigkeitengesetz, the Act on Regulatory Offences, refusing to state or falsifying your name, date and place of birth, marital status, occupation, place of residence, address or nationality to a competent authority is itself a regulatory offence, punishable with a fine of up to one thousand euros. So the identity details are not optional. Nothing beyond them is compulsory. The second boundary is on the officers: §136a StPO forbids interrogation methods that impair your free will, including mistreatment, exhaustion, deception, and the threat of a measure the law does not allow or the promise of an advantage the law does not provide. Statements obtained in breach of §136a may not be used, and under §136a(3) that is true even if you later agree to their use.

One more practical point that saves people a great deal of trouble. Under §163a(3) StPO you are obliged to appear when the Staatsanwaltschaft summons you. The StPO contains no equivalent duty to appear on a police summons as a Beschuldigter. A letter inviting you to a Vernehmung, a formal questioning, at a police station is therefore not always a command, though it should never be ignored or thrown away. Give it to a lawyer. And even where you must appear, appearing and speaking are separate things: the duty is to turn up, never to discuss the substance.

Cosa fanno gli avvocati penalisti che tu non puoi fare da solo

§137(1) StPO gives the Beschuldigter the right to the assistance of defence counsel at any stage of the proceedings. You may have up to three chosen defence lawyers at once, though almost nobody needs more than one. “Any stage” means what it says: you do not have to wait to be charged, and you do not have to wait for a court date. The moment you learn there is an investigation, whether from a summons, a search, a phone call or a letter, you may instruct a Strafverteidiger.

The concrete reason to do so early has nothing to do with courtroom performance. It is access to the file. German criminal procedure builds Akteneinsicht, inspection of the investigation file, around the defence lawyer. Your lawyer applies under §147 StPO and reads what the Staatsanwaltschaft actually has: the statements, the reports, the expert opinions, the whole basis of the suspicion. A Beschuldigter without counsel has only the narrower access §147(4) allows. This is the entire game. Until someone has read the file, no one, including you, knows whether the case is serious, weak, mistaken or about to be dropped. Every decision worth making, including whether to say anything at all, comes after that reading. A defence lawyer who tells you to stay silent at the start is not being obstructive; they are refusing to advise you about a file they have not seen.

A lawyer also does things you structurally cannot. They can apply under §163a(2) StPO for exonerating evidence to be taken. They can challenge the way evidence was obtained. In detention matters they can apply for a Haftprüfung, a review of the detention. And if the case ever reaches a Verständigung, an understanding about the outcome under §257c StPO, they are essential, because that procedure is nothing like what Anglo-American television has taught you. A Verständigung is proposed and supervised by the court, not negotiated with the prosecutor. It can only concern the legal consequences, never the Schuldspruch, the finding of guilt itself, which the statute expressly puts beyond reach. The court’s duty to investigate the truth of its own motion survives it. And under §257c(4) the court’s commitment falls away if significant circumstances were overlooked or newly arise, in which case any confession made as part of it may not be used. It is a narrow, formal, court-run mechanism, and there is no German plea bargain in the American sense.

While we are correcting imports: Germany has no jury. Nobody selects one. In more serious cases the bench includes Schöffen, lay judges, but they sit alongside the professional judges, hear the same evidence, and vote with them on both guilt and sentence. There is no separate body of citizens to persuade, and therefore no advocacy aimed at one. The audience is a bench of judges reading a file, which is exactly why what is in that file, and what you added to it in a police station at two in the morning, decides so much.

Come trovare avvocati penalisti che lavorano in inglese

The credential to look for is Fachanwalt für Strafrecht, specialist lawyer for criminal law. It is not a self-description. It is a protected title awarded by the Rechtsanwaltskammer, the regional bar, and it requires documented case experience, a preparatory course and mandatory annual continuing education. Our chapter on servizi legali per espatriati explains how the Fachanwalt system works, how the Rechtsanwaltsvergütungsgesetz sets lawyers’ fees, and how to check that someone is actually admitted, so this chapter will not repeat it. What is worth adding here is that German criminal procedure itself treats this title as the mark of quality: under §142(6) StPO, when a court has to appoint a defence lawyer and you have not named one, it should choose either a Fachanwalt für Strafrecht or another lawyer who has told the bar they are willing and suitable to take such cases.

To find one, start with the official sources rather than a search engine. The Bundesweites Amtliches Anwaltsverzeichnis is the official register kept by the bars and is the authoritative way to confirm somebody is genuinely admitted to practise. The Elenco del Deutscher Anwaltverein lets you search by specialism, location and working language, which matters if you need to be defended in English. The Strafverteidigervereinigungen, the criminal-defence lawyers’ own associations, are a further non-commercial route to somebody who does this work daily rather than occasionally.

Choose for fit as well as credential. Ask directly whether they will conduct your case in English or whether an interpreter will be needed, ask whether they have handled cases where the client’s residence permit was also at stake, and ask what they charge and in what form. A lawyer who will not answer the fee question clearly at the first contact is telling you something. If it is the middle of the night, or a weekend, or you are standing in a police station, do not conduct this research: ask for the anwaltlicher Notdienst, which the police are required to point out to you, and let a specialist choose itself later.

Pflichtverteidiger is not free legal aid

Almost every expat guide in circulation describes the Pflichtverteidiger as Germany’s free lawyer for people who cannot afford one. The live version of this very chapter said so. It is wrong on both halves, and the error costs people real money, so it is worth being precise.

Start with what triggers it. §140 StPO defines notwendige Verteidigung, mandatory defence, and the trigger is the seriousness and circumstances of the case, not your bank balance. Your means are irrelevant to whether §140 applies. The listed cases include: where the trial will be heard at first instance before an Oberlandesgericht, a Landgericht or a Schöffengericht; where you are accused of a Verbrechen, meaning an offence carrying a minimum of one year’s imprisonment; where the proceedings could lead to a ban on practising your profession; where you are to be brought before a judge for a decision on detention or provisional committal; where you are held in an institution on judicial order; where committal for a psychiatric opinion is in question; where a Sicherungsverfahren is expected; where your previous counsel has been excluded; where a lawyer has been assigned to the victim; where counsel’s participation at a judicial questioning appears necessary because of that questioning’s importance; and where a sight-, hearing- or speech-impaired accused applies. §140(2) adds a general clause: mandatory defence also applies where counsel appears necessary because of the gravity of the offence, the gravity of the expected penalty or the difficulty of the factual or legal position, or where it is evident that you cannot defend yourself. Nowhere in any of that does money appear.

The appointment mechanism is in §141 StPO and it is faster than people assume. Once the accusation has been disclosed to you and you have no counsel, a Pflichtverteidiger is appointed without delay if you expressly ask for one after being instructed, and the application must be decided before any questioning or confrontation takes place. In some situations no application is needed at all: appointment follows automatically as soon as you are to be brought before a court on detention, or once it is known you are held in an institution, or where it is evident during the investigation that you cannot defend yourself, or once you are called on to comment on the Anklageschrift, the indictment.

You also have more control than most people realise. Under §142(5) StPO, before a Pflichtverteidiger is appointed you must be given the chance, within a set time limit, to name a lawyer yourself. If you name one within that limit, that lawyer is to be appointed unless an important reason stands against it, such as the lawyer not being available or not available in time. So “court-appointed” does not have to mean “a stranger the court picked”. If you know a Strafverteidiger you want, name them. If you miss the deadline, §142(6) applies and the court chooses for you.

Now the money, which is where the myth does damage. A Pflichtverteidiger is paid by the Staatskasse, the state treasury, in the first instance. That is not the same as being free. Under §464a(1) StPO the costs of the proceedings are the fees and Auslagen, the outlays, of the Staatskasse, and the fees the treasury pays to your appointed lawyer are exactly such outlays, levied in full under the court costs schedule. Under §465(1) StPO a convicted defendant bears the costs of the proceedings for the offence of which he is convicted. Put those together and the result is plain: if you are convicted, the state can and generally does reclaim the Pflichtverteidiger’s fees from you. A Verwarnung mit Strafvorbehalt, a warning with sentence reserved, and even a decision to refrain from punishment count as convictions for this purpose under §465(1) Satz 2.

You need not take this chapter’s word for it, because the StPO says so itself in the one place a person under suspicion will actually hear it. §136(1) requires that when you are told you may apply for a Pflichtverteidiger, you must in the same breath be warned of the cost consequence of §465. The statute builds the warning into the caution. A system that thought it was handing out free lawyers would not do that.

Esiste un secondo livello di costi che sorprende le persone. L'articolo 52(1) della legge sulla tutela dei diritti civili (Rechtsanwaltsvergütungsgesetz) consente all'avvocato nominato dal tribunale di richiedere il pagamento delle spese legali di un avvocato difensore scelto dal tribunale, che sono superiori alle tariffe di nomina, al netto di quanto già anticipato dallo Stato. Esistono dei limiti concreti: non possono richiedere un anticipo e, ai sensi dell'articolo 52(2), la richiesta può essere avanzata solo se si ha diritto a un rimborso da parte dello Stato, oppure se il tribunale accerta che si è in grado di pagare, anche a rate, senza compromettere il mantenimento necessario per sé e per la propria famiglia. Attenzione però all'articolo 52(3): se il tribunale chiede di dichiarare la propria situazione e non si risponde entro i termini, si presume che si sia in grado di pagare. Il silenzio protegge durante l'interrogatorio. Non protegge in questo caso.

The mirror image is the good news, and it is genuinely good. Under §467(1) StPO, if you are acquitted, if the opening of the main proceedings against you is refused, or if the proceedings are discontinued, the treasury bears both its own outlays and your necessary expenses. In that case the defence really was free, including a chosen lawyer’s statutory fees. Two carve-outs are worth knowing: costs you caused through culpable default fall on you under §467(2), and under §467(5) your expenses are not placed on the treasury where the case was finally discontinued after a provisional discontinuance under §153a, the very common route where proceedings end against payment of a sum of money.

One route is closed to you here, and it is the one people reach for first. Beratungshilfe, the state-subsidised legal advice scheme for people with low income, covers advice only in criminal and regulatory matters. It does not pay for representation or a defence. Our chapter on assistenza legale e servizi pro bono sets out how to apply and who qualifies, and legal aid in Germany does not depend on your nationality. Use it for the first conversation if money is short. The defence itself runs through the Pflichtverteidiger route described above, on entirely different conditions.

If you are arrested: what §114b StPO gives you

§114b StPO governs what must happen when a Beschuldigter is arrested, and it is unusually generous on paper. The instruction, the Beschuldigtenbelehrung, must be given without delay and in writing, in a language you understand. If a written instruction is evidently not sufficient, you must also be instructed orally. If a written instruction is not possible, it must be given orally and made up in writing afterwards where that can reasonably be done. Your receipt of it must be confirmed by you in writing or documented by the prosecution.

The list in §114b(2) is worth knowing before you need it. You must be told that you are to be brought before a court without delay and at the latest on the day after your seizure, and that the court must question you and decide on your further detention. You must be told you may comment or not make a statement on the matter. You must be told you may apply for individual exonerating evidence to be taken. You must be told you may consult chosen defence counsel at any time, including before your questioning, that information making contact easier is to be provided, and that emergency lawyer services are to be pointed out. You must be told you may apply for a Pflichtverteidiger in §140 cases, and the possible cost consequence of §465 must be pointed out here too. You must be told you have the right to demand examination by a doctor of your own choosing. You must be told, under Nummer 6, that you may notify a relative or a person of your trust, so far as the purpose of the investigation is not thereby significantly endangered. You must be told you may apply to inspect the file under §147(4) so far as you have no counsel. And you must be told about your remedies against continued detention, including a Beschwerde against the arrest warrant and an application for a Haftprüfung.

Esistono altre due frasi del §114b(2) specificamente per le persone nella tua situazione, e sono le parti meno conosciute della sezione. La terza frase prevede che a un condannato che non abbia una conoscenza sufficiente del tedesco venga comunicato, in una lingua che comprende, che può richiedere l'interpretazione e la traduzione gratuite per l'intero procedimento penale. La quarta e ultima frase è quella da ricordare: un cittadino straniero deve essere informato del fatto che può chiedere che la rappresentanza consolare del suo Stato di origine venga informata e che può inviarle comunicazioni. Ciò rispecchia l'articolo 36 della Convenzione di Vienna sulle relazioni consolari, ed è un diritto che devi richiedere. Nessuno chiamerà il tuo consolato per un semplice sospetto. Un consolato non può difenderti, non può ottenere la tua liberazione e non può pagare il tuo avvocato, ma può confermare che sei vivo e dove ti trovi, contattare la tua famiglia e spesso fornire un elenco di avvocati locali che lavorano nella tua lingua. Se vieni arrestato lontano da chiunque ti conosca, non è una cosa da poco.

Detention has one silver lining worth naming, because it removes a decision from you. If you are to be brought before a judge for a decision on detention, §140(1) makes yours a case of mandatory defence and §141(2) requires a Pflichtverteidiger to be appointed without you having to apply. You will not face a Haftrichter, a detention judge, alone. The cost rules in the previous section still apply afterwards, but at the moment it matters, counsel arrives by operation of law.

Your right to an interpreter is a right, not a favour

Court proceedings in Germany are conducted in German. That is a fact about the system, not an obstacle you have to overcome privately, and §187 of the Gerichtsverfassungsgesetz, the Courts Constitution Act, is the provision that makes the difference. Under §187(1) the court draws in a Dolmetscher, an interpreter, or a translator for a Beschuldigter who is not proficient in German, so far as this is necessary for him to exercise his rights in the criminal proceedings. The court must tell him, in a language he understands, that he may claim this free of charge for the whole of the criminal proceedings. Because §163a(5) StPO applies §187(1) to (3) GVG to the investigation as well, this attaches at the police station and the prosecutor’s office, not only at trial. Do not accept being questioned in a language you are shaky in because it seemed easier than making a fuss. Ask for an interpreter and let them fetch one.

§187(2) GVG goes further and specifies written translation. As a rule, custodial orders, indictments, Strafbefehle and non-final judgments are to be translated in writing, and the translation is to be provided to you without delay. An extract translation is enough where that safeguards your rights. Here is the nuance that guides usually smooth over, and you should know it: an oral translation or an oral summary may replace the written one where your procedural rights are still safeguarded, and the statute says this is as a rule to be assumed where you have a defence lawyer. So having counsel can reduce your written-translation entitlement, on the logic that your lawyer will explain the document to you. Under §187(3) you can waive a written translation, but only effectively after being instructed about the right and the consequences, and both the instruction and the waiver must be documented. Do not waive anything in a language you do not command.

Interpretation for talking to your own lawyer exists too, but its scope is narrower than it is often described, so here it is precisely. Directive 2010/64/EU of the European Union, which §187 implements, requires interpretation during criminal proceedings before investigative and judicial authorities, expressly including police questioning and all court hearings. For communication between an accused person and their legal counsel, Article 2(2) requires interpretation to be available where it is necessary to safeguard the fairness of the proceedings and in direct connection with any questioning or hearing, or with the lodging of an appeal or other procedural applications. That is a real entitlement in the situations that decide cases. It is not an open budget for every conversation you might want to have. Raise it with your lawyer at the outset and let them apply.

Now the point that ties this section to the money. Interpreter and translator costs are treated completely differently from lawyer costs. Under the court costs schedule, where an interpreter or translator was used for a Beschuldigter not proficient in German, in order to translate statements or documents he depends on understanding for his defence, or so far as this was necessary to exercise his procedural rights, those outlays are only charged to him if the court specifically imposes them under §464c StPO or §467(2) StPO, which cover abuse and culpable default. In plain terms: the Pflichtverteidiger’s fees can be reclaimed from you when you are convicted, and the interpreter’s cannot. Language help genuinely is free, win or lose. Do not ration a right that costs you nothing out of a fear that belongs to a different line item.

The Strafbefehl: how a letter becomes a criminal record

This is how most minor criminal cases in Germany end, and it is how foreigners accidentally acquire convictions. A Strafbefehl is a penalty order. Under §407(1) StPO, in cases before the Strafrichter, the single judge, or within the Schöffengericht’s jurisdiction, and only for Vergehen, the less serious class of offence, the legal consequences can be fixed by a written order without any hearing at all, on the written application of the Staatsanwaltschaft. That application is itself the bringing of the public charge. Under §407(3) the court does not have to hear you first. So the first you know of the whole thing may be an envelope.

What can be imposed this way is not trivial. §407(2) allows a Geldstrafe, a fine calculated in Tagessätze or daily units; a Verwarnung mit Strafvorbehalt; a Fahrverbot, a driving ban; confiscation; publication of the conviction; and a Geldbuße against a legal person. It allows Entziehung der Fahrerlaubnis, withdrawal of your driving licence, with a bar on reapplying of up to two years, which is a life-altering outcome delivered by post and is covered further in our chapter on guidare in Germania. It allows a ban on keeping or trading in animals. And there is one striking provision: a suspended prison sentence of up to one year can be imposed by Strafbefehl, but only where the accused has defence counsel. The statute is willing to hand out a year of Freiheitsstrafe without a hearing, and its only safeguard is that a lawyer is involved. Read that as the legislature’s own assessment of how much a defence lawyer is worth at this stage.

The deadline is the trap, and it is short. §410(1) StPO gives you two weeks from Zustellung, formal service, to lodge an Einspruch, an objection, at the court that issued the order, in writing or orally on the record at the court’s Geschäftsstelle, its registry. Two weeks. Not a month, not “when I get back”. And §410(3) is unambiguous: so far as no timely Einspruch has been lodged, the Strafbefehl has the same effect as a final judgment. Nothing else has to happen. Nobody has to be persuaded. The deadline passes and you are a convicted person, with an entry in the Bundeszentralregister, the federal criminal record, and everything that follows from it for your residence permit and your citizenship application.

Service is the part that catches people. Zustellung is a formal legal act, and the clock runs from it, not from the day you happened to open the envelope. A Strafbefehl can be validly served by being placed in your letterbox, or by deposit at a post office with a notification left for you. If you were on holiday, in hospital, travelling for work, or had moved without updating your registered address, the two weeks may have started and finished without you reading a word. This is precisely how people who have done nothing seriously wrong end up with convictions on a file that an Ausländerbehörde will one day read. If a formal-looking letter from an Amtsgericht arrives, open it the day it arrives.

If a Strafbefehl has arrived, get it in front of a Strafverteidiger immediately and say that the fourteen days are running. Do not spend three of those days translating it yourself, and do not send it to a document-decoding service: you are entitled under §187(2) GVG to a written translation of a Strafbefehl at the state’s expense, and no automated tool substitutes for someone who can read the file behind it and tell you what to do. The urgent action is legal, not linguistic.

Filing an Einspruch is not automatically the right move, which is exactly why this needs a lawyer rather than a rule of thumb. §411(4) StPO says that where an Einspruch has been lodged, the court is not bound by what the Strafbefehl ordered when it comes to give judgment. The outcome can get worse. There is one narrow protected route: under §411(1), if you limit your Einspruch to the amount of the individual Tagessätze, the court can decide by written order with everyone’s consent, and it may not depart from the Strafbefehl to your disadvantage. That is why a common professional move is to lodge the Einspruch first to preserve the deadline, obtain Akteneinsicht, and then decide, since §411(3) allows the Einspruch to be withdrawn any time up to judgment at first instance. Two further warnings. §411(1) means a late or inadmissible Einspruch is simply rejected by written order without any hearing. And under §412 StPO, if you lodge an Einspruch and then fail to turn up at the hearing without sufficient excuse, it is rejected, and the Strafbefehl stands. Filing is not the end of your obligations; it is the beginning of them.

Why a German conviction is an immigration problem

For a foreign national, the criminal case and the residence case are one situation with two files, and the second one usually lasts longer. Start with how the Ausländerbehörde, the immigration office, finds out: it is not gossip and not bad luck. §87(2) of the Aufenthaltsgesetz, the Residence Act, obliges public bodies to inform the competent Ausländerbehörde without delay when, in the course of their work, they learn of a ground for expulsion, among other things. The system is designed to connect the two. Assume it will.

Ausweisung, expulsion, is the serious consequence, and it is important to state it accurately rather than frighteningly. It is not automatic on conviction. §53(1) AufenthG requires a balancing exercise: a foreigner whose presence endangers public safety and order or other significant interests is expelled where, taking account of all the circumstances of the individual case, the public interest in his departure outweighs his interest in remaining. §53(2) tells the authority what to weigh, including the duration of your stay, your personal, economic and other ties both in Germany and in your country of origin, the consequences for your family members and partner, and whether you have otherwise behaved lawfully. §55 sets out the Bleibeinteressen, the interests in remaining, which sit on your side of the scale and weigh heavily for people with settled status, long residence, or a German spouse or child. Some groups are additionally protected: §53(3) allows expulsion of a person with rights under the EEC/Turkey Association Agreement or a long-term EU residence permit only where their personal conduct presently represents a serious danger touching a fundamental interest of society and the expulsion is indispensable.

What §54 AufenthG adds is a graded set of Ausweisungsinteressen, the weights on the other side, and the sentence thresholds are lower than most people expect. An interest in expulsion weighs particularly heavily where there is a final sentence of at least two years for intentional offences, and at one year or even six months for offences against life, bodily integrity, sexual self-determination, certain property offences, resistance to or assault on enforcement officers, and certain public-order offences. It weighs heavily at six months for intentional offences generally, and at three months for those same listed groups. There is also a catch-all in §54(2) for a breach of legal provisions or official decisions that is not merely isolated or minor. Note what those numbers are not: they are not the point at which you are expelled. They are the point at which the scale starts tilting, and §53’s balancing still decides. But a suspended six-month sentence is not a small thing for a foreign national in the way it might be for a German, and this asymmetry is the whole reason to take an apparently minor charge seriously.

Citizenship is the quieter casualty and it catches far more people. §10(1) Nr. 5 of the Staatsangehörigkeitsgesetz, the Nationality Act, makes it a condition of naturalisation after five years’ lawful residence that you have not been convicted of an unlawful act. Taken alone that would be brutal, so §12a StAG supplies tolerance thresholds, and they are worth knowing exactly. Disregarded are educational measures or disciplinary means under juvenile criminal law; convictions to a fine of up to ninety Tagessätze; and convictions to a prison sentence of up to three months which was suspended and remitted after the probation period expired. Where several such penalties exist they are added together, unless a lower aggregate sentence was formed, and one Tagessatz counts as one day where fines and prison sentences meet. Where the total slightly exceeds the frame, the authority decides case by case. One carve-out: this tolerance does not apply at all where the conviction was for an antisemitic, racist or otherwise contemptuous act and such a motive was established in the judgment.

Two provisions of §12a StAG deserve to be read twice. §12a(2) means foreign convictions count, where the act would be punishable in Germany, the conviction came in a proceeding meeting rule-of-law standards and the sentence is proportionate; and §12a(4) means you must declare foreign convictions and pending foreign proceedings in the naturalisation application. And §12a(3) is the one almost nobody knows: where a naturalisation applicant is under investigation on suspicion of a criminal offence, the decision on naturalisation must be suspended until the proceedings end, and where there is a conviction, until the judgment becomes final. You do not need to be convicted for a criminal file to stop your citizenship application. You only need to be investigated. That is another reason not to let a Strafbefehl quietly become final while you are busy: ninety Tagessätze is the line, and a fine of one hundred is a different life.

The practical instruction that follows is simple. Tell your Strafverteidiger, at the first meeting, that you are not German, and tell them what status you hold. It changes what a good outcome looks like. A deal that a German client would take gladly, a fine slightly above ninety Tagessätze in exchange for the case ending this month, may be the wrong deal for you, and your lawyer cannot know that unless you say so. If your residence status is already in motion, our chapter on assistenza in materia di immigrazione e visti covers the Ausländerbehörde routes, the objection procedure and how suspensive effect works under §84 AufenthG, and there are cases where a criminal defence lawyer and an immigration lawyer need to talk to each other.

Pagare un avvocato penalista

Criminal defence is priced differently from the civil work most people meet first. In civil matters the Rechtsanwaltsvergütungsgesetz, the statute that sets lawyers’ fees, calculates from the Gegenstandswert, the value in dispute. In criminal matters it uses framework fees per stage of the proceedings instead, because there is no sum in dispute. Our chapter on servizi legali per espatriati explains the RVG system, the statutory caps on advice, and how a Vergütungsvereinbarung, a fee agreement, has to be made. What matters here is the consequence: the statutory framework fees for criminal work are modest relative to the effort a real defence takes, so an experienced Strafverteidiger will very often propose a fee agreement above them. That is normal and lawful. Ask for it in writing, ask what it covers, and ask what happens if the case goes further than expected.

Rechtsschutzversicherung, legal expenses insurance, is where expectations break. These policies are not standardised by statute; each insurer writes its own Allgemeine Bedingungen für die Rechtsschutzversicherung, or ARB, mostly following an industry model, so your policy is the only authority on your cover. But the model is consistent enough to state its shape. Straf-Rechtsschutz, criminal legal protection, does not cover Verbrechen at all, meaning any offence with a minimum penalty of one year’s imprisonment. For Vergehen the cover exists, including against an accusation of an intentional offence, but with a condition that people do not read until it is too late: if a court finally establishes that you committed the offence intentionally, you must reimburse the insurer for the costs it has paid. Cover for intentional crime is therefore advanced, not granted. Acquittal or a negligence finding, and it stays paid. A final finding of intent, and the bill comes back to you on top of everything else.

Two more clauses decide real cases. Insurers typically reimburse at most the statutory RVG fee, which means the gap between the statutory fee and a specialist’s agreed fee is yours even where you are fully covered. And cover attaches to the alleged act, not to the day the letter arrived: the model conditions date the insured event, in cases like these, from the moment the breach was committed or is alleged to have been committed. Buying a policy after the incident does not cover the incident. Legal expenses insurance is protection you arrange before anything happens, which is the general theme of our chapter on Elementi essenziali dell'assicurazione in Germania. Check now whether your policy includes Straf-Rechtsschutz and read that section while nothing is wrong.

Notice the bitter symmetry this produces. Exactly where private insurance withdraws, in Verbrechen cases, §140 StPO makes defence mandatory and the state appoints someone. And exactly there, §465 hands you the bill if you are convicted. The most serious cases are the ones you are least likely to be insured for and most likely to pay the state back for. That is not an argument for despair; it is an argument for two things. First, for taking the small case seriously while it is still small, since a Strafbefehl handled properly at week one is cheap and a conviction reversed later is not. Second, for asking about money openly at the first meeting. Strafverteidiger have this conversation daily, instalment arrangements are ordinary, and no competent one will be offended.

Cosa fare dopo

If you are being questioned right now, or a friend is: give your identity details, say nothing whatsoever about the matter, ask for a lawyer, and ask for the anwaltlicher Notdienst if you do not have one. Do not explain a little. Do not clear up a misunderstanding. If you are not proficient in German, say so and ask for an interpreter, and remember it costs you nothing even if the case ends badly. If you have been arrested, ask for the written instruction in a language you understand, ask to notify a relative or someone you trust, and ask for your consulate to be informed.

If a letter has arrived, look first for what kind it is. If it is a Strafbefehl, the fourteen-day clock started at service, not at reading, and a Strafverteidiger needs to see it today. If it is a summons, check who signed it: a summons from the Staatsanwaltschaft obliges you to attend, a police invitation as a Beschuldigter does not carry the same duty, and in neither case do you have to discuss the substance. Either way, do not reply on your own, and do not put it in a drawer.

Then do the three things that actually change outcomes. Instruct a Fachanwalt für Strafrecht through the registro ufficiale oppure Elenco del Deutscher Anwaltverein, and confirm at the first contact that they will work in a language you speak. Tell them you are a foreign national and what residence status you hold, because it changes what a good outcome looks like. And let them get Akteneinsicht before anybody decides anything, including you. If money is the obstacle, ask about Beratungshilfe for the first advice, ask whether §140 makes yours a case of mandatory defence, and ask plainly about a fee agreement and instalments.

One last thing, for the version of you reading this before anything has happened, which is the best possible time. Check whether your legal expenses policy includes Straf-Rechtsschutz, and know that no policy covers a Verbrechen and none covers an act committed before you bought it. Keep your registered address current, so that formal service reaches you rather than an old letterbox. And save one number: the emergency lawyer service in your city. The whole of this chapter compresses into a single sentence you can remember at three in the morning, and it is worth memorising in that form. Say who you are, say nothing else, ask for a lawyer.