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Your Participation in Preliminary and Criminal Hearings
The Police and State Prosecutor’s Role during the Preliminary Hearing
As soon as the police or state prosecutor’s office is aware of a report, a complaint or if they suspect an offense through other investigative channels, they are obligated to determine the facts of the case. The inquiry proceeds under the state prosecutor’s direction. At this point, what is known as a preliminary hearing (»Ermittlungsverfahren«) is set in motion.
The prerequisite for a preliminary hearing is »sufficient factual evidence for an indictable offense.« On the one hand, this means that mere subjective suspicion or speculation cannot justify a state investigation; and on the other, the inquiry must be dropped if the behavior in question is not prosecutable. These are two reasons why the state prosecutor’s office, after reviewing the charges, could decide not to even begin a preliminary hearing.
However, if »sufficient factual evidence for an indictable offense« is present, it is always the state prosecutor’s office’s duty to investigate. The state prosecutor not only investigates the facts that could convict the suspect, but also the facts that could acquit them. Therefore, you cannot expect the state prosecutor to stand by your side unconditionally, like the lawyer you hired. Your witness testimony already needs to be carefully reviewed and evaluated in the preliminary hearing. Nevertheless, you can expect to be treated fairly and that your specific situation as the victim of an offense will be taken into account.
Testimony at the Police Station or State Prosecutor’s Office
Normally you will participate in the preliminary and criminal hearings as a witness. Most of the time, the questioning begins at the police station, as already explained above. You don’t have to obey the summons to a police questioning; however, keep the following in mind: as an injured party you are especially important as a witness in the criminal hearing. Even if you yourself did not directly witness the incident, you can most likely provide information about the damage done by the offenders. In other words, the police and the state prosecutor are depending on your cooperation as early as the preliminary hearing.
No matter what the circumstances, you must appear for a summons from the state prosecutor’s office. During each questioning, you are allowed to bring one trusted person with you. However, the authorities who are conducting the questioning need to agree to it. Ask beforehand to be sure. You may, of course, be accompanied by a lawyer. Bring all of the documents with you to the questioning that might play a role in the case (itemized damages, doctor’s statements, etc.).
What If the Offenders Have Filed Charges Against Me?
If you are attacked, you have the right to use violence to the extent necessary to fend off the attack (»Notwehr« — self-defense). This cannot be used to your disadvantage in court. Consequently, you do not need to be afraid of sticking to the truth during police questioning. If you still feel insecure as to whether your defense will be viewed as »appropriate,« talk to Opferperspektive or a lawyer beforehand.
If the offenders file charges against you (even if this is only to deflect the blame) and you are invited as a defendant, you generally do not have to appear for a police summons. In case this does happen, it is best to wait and see whether the state prosecutor’s office summons you or drops the charges against you. You must appear at a summons from the state prosecutor’s office. You should hire a lawyer for this matter no later than at this point.
The police always have the duty to explicitly tell you whether you are being questioned as a victim or as a suspect of a crime. If you become victim of a crime and you decide to make a statement with the police, you have the status of a witness (»victim-witness«) and you are thereby obligated to make truthful statements. As a defendant, you have the right to deny the statements. If your role during questioning is unclear, you should clarify this with the authority conducting the questioning and have this recorded.
(OPP)
