Your rights if you are investigated or charged in Germany: silence, free interpreter, court-appointed defence, detention and bail, the penalty order that becomes final while you are abroad, and the sentencing thresholds that put your residence permit at risk.

Criminal Defense Lawyer in Germany: Your Rights and the Real Risks

📅 Last updated 10 August 2026 • ✏ Henrik Momberger, Attorney at Law (Rechtsanwalt) • ⏱ Reading time: 11 min

The first hour matters most

German criminal procedure gives you strong rights, but they are only worth what you make of them in the first contact with the police. § 136 Abs. 1 StPO requires that before questioning you are told the allegation and the applicable provisions, that you may remain silent, and that you may consult a lawyer at any time – expressly including before the questioning begins. The police must give you the means to contact one.

You are obliged to identify yourself. You are not obliged to say anything about what happened, and you should not. The reason is not tactical stubbornness: at that stage neither you nor any lawyer has seen the investigation file, so any account you give is uninformed. Requesting access to the file under § 147 StPO is the first thing a defence lawyer does. An unrepresented accused has an own but narrower right under § 147 Abs. 4 StPO; full access is the defence lawyer's. This is the concrete reason why instructing counsel early changes outcomes.

If you are arrested

§ 114b StPO requires that a person taken into custody be informed of their rights without delay and in writing, in a language they understand. The list in § 114b Abs. 2 StPO covers being brought before a judge no later than the day after arrest, the right to silence, contact with defence counsel, the right to apply for appointed counsel, the choice of a doctor, notification of a relative, access to the file and review of the detention. Two provisions matter especially for foreign nationals: § 114b Abs. 2 Satz 3 StPO (notice of the free interpreter for the whole proceedings) and § 114b Abs. 2 Satz 4 StPO (notice of the right to consular notification).

Pre-trial detention and release

Detention requires strong suspicion plus a statutory ground under § 112 Abs. 2 StPO – flight, risk of flight, or risk of interference with evidence – and it must be proportionate to the significance of the case and the expected sentence (§ 112 Abs. 1 Satz 2 StPO). That proportionality requirement is an underused defence point.

Where a warrant rests only on risk of flight, § 116 Abs. 1 StPO directs the judge to suspend its execution if lesser measures will do. The available measures are listed in § 116 Abs. 1 Satz 2 StPO: reporting obligations, residence restrictions, supervision, and the provision of appropriate security. Security under § 116a Abs. 1 StPO may take the form of cash, securities, a pledge or a guarantee by a suitable person – and it may be provided by someone other than the accused. The amount is set by the judge at their discretion under § 116a Abs. 2 StPO, measured by what would actually deter this person from absconding.

For people without a German address, a related provision often bites even without a warrant: § 132 StPO allows the authorities to require a security for the expected fine and costs and the appointment of an agent for service – and under § 132 Abs. 3 StPO, means of transport and other items carried may be seized if the requirement is not met. This is the rule behind the vehicle being impounded at a roadside stop.

Consular notification

Art. 36 Abs. 1 lit. b Satz 3 of the Vienna Convention on Consular Relations gives you the right to have your consulate informed. The Federal Court of Justice confirmed on 25 September 2007 (5 StR 116/01) that police officers must give this information immediately upon arrest. The same decision settles what happens when they do not: there is no exclusionary rule, but the breach can be compensated by crediting a portion of the sentence as served. English-language sources sometimes state the opposite – they are wrong.

Court-appointed defence: what it is and is not

§ 140 Abs. 1 StPO lists the cases of mandatory defence. The ones that most often apply to foreign defendants are Nr. 4 (being brought before a judge on custody under §§ 115, 115a, 128, 129 StPO) and Nr. 5 (being held in an institution by judicial order) – that is, essentially every detention case. Nr. 1 covers the main hearing at first instance before the Oberlandesgericht, the Landgericht or the Schöffengericht; Nr. 2 covers all felonies.

Beyond the list, § 140 Abs. 2 StPO allows appointment where the offence is serious, the consequences are severe, the law or facts are difficult, or the accused evidently cannot defend themselves. Substantial language barriers and unfamiliarity with German procedure are regularly treated as falling within the last limb.

On timing, § 141 Abs. 1 StPO requires appointment without delay on an express application after the caution, and the decision must be taken before any questioning or confrontation. Under § 141 Abs. 2 Satz 1 Nr. 1 StPO appointment occurs of the court's own motion as soon as the accused is to be brought before a judge on custody – so counsel should be in place before the custody hearing, not after it.

The penalty order – the most common way people are convicted without noticing

Most German convictions for less serious offences never involve a hearing. Under § 407 Abs. 1 StPO, on the prosecutor's written application, the court issues a Strafbefehl – and the application itself constitutes the bringing of public charges. Permissible sanctions under § 407 Abs. 2 StPO include a fine, a caution with sentence reserved, a driving ban, withdrawal of the driving licence with a bar of up to two years, and confiscation. Imprisonment of up to one year is possible only if you have a defence lawyer and the sentence is suspended (§ 407 Abs. 2 Satz 2 StPO). Under § 407 Abs. 3 StPO the court does not have to hear you beforehand.

The objection period is two weeks from service, in writing or on the record at the issuing court (§ 410 Abs. 1 Satz 1 StPO). It may be limited to specific points, for instance only the daily rate of a fine (§ 410 Abs. 2 StPO). Without a timely objection, the order has the effect of a final judgment (§ 410 Abs. 3 StPO). Note that § 187 Abs. 2 Satz 1 GVG expressly lists the penalty order among the documents that must as a rule be translated in writing.

For people outside Germany the danger lies in service on an agent for service appointed under § 132 StPO or § 116a Abs. 3 StPO – often a court official. The two-week period runs from service on that agent. The Court of Justice of the European Union held on 22 March 2017 (C-124/16 and joined cases, Tranca and others) that this practice is compatible with EU law – but only on condition that the accused in fact has the full two weeks available from the moment he learns of the order. In German law that condition is met through restoration of the previous status. That corrective is time-critical: under § 45 Abs. 1 Satz 1 StPO you have one week from the removal of the obstacle – in practice, from learning of the order – to apply, and under § 45 Abs. 2 StPO you must file the objection itself within that same week.

Immigration consequences: the thresholds to know

Sentence	Effect	Provision
From 3 months (specific offences committed with a weapon or dangerous instrument; the “not suspended” requirement applies only to juvenile sentences)	Serious interest in expulsion	§ 54 Abs. 2 Nr. 2b AufenthG
From 6 months custodial – including suspended	Serious interest in expulsion	§ 54 Abs. 2 Nr. 1 AufenthG
From 6 months (violent, sexual or property offences with a weapon)	Particularly serious interest	§ 54 Abs. 1 Nr. 1d AufenthG
From 1 year (offences against life, bodily integrity, sexual self-determination; benefit fraud; narcotics; smuggling)	Particularly serious interest	§ 54 Abs. 1 Nr. 1a–1c AufenthG
From 2 years for any intentional offence	Particularly serious interest	§ 54 Abs. 1 Nr. 1 AufenthG

These thresholds do not trigger expulsion automatically. They feed into the balancing exercise under § 53 Abs. 1, 2 AufenthG, weighed against your interest in remaining under § 55 AufenthG – length of residence, family, economic and personal ties here and in your country of origin, consequences for family members. Enhanced protection applies to holders of an EU long-term residence permit and Turkish nationals with association rights (§ 53 Abs. 3 AufenthG) and to recognised refugees (§ 53 Abs. 3a AufenthG).

The practical point is simple. In a case where the realistic outcome sits anywhere near one of these lines, criminal defence and immigration strategy have to be run together. A sentence negotiated at five months rather than six, or a fine rather than a suspended term, may be worth more than any argument about guilt.

Working with us from abroad

We act for defendants who are in Germany and for those who have already left. Much of the early work – obtaining and analysing the file under § 147 StPO, filing a written statement, applying for restoration against a penalty order, negotiating a discontinuance – is done without your presence. Where a hearing is unavoidable, we advise in advance on whether attendance is required and what the realistic outcomes are. We work in German and English; for other languages we arrange interpretation, which in criminal proceedings is provided at the state's expense.

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Frequently asked questions

What are my rights if the police want to question me?

Under § 136 Abs. 1 StPO, at the beginning of any questioning you must be told what offence is alleged and which criminal provisions are in play, that you are free to remain silent, and that you may consult a defence lawyer at any time, including before questioning. The police must also give you information on how to contact a lawyer and on emergency legal services. Silence must not be held against you. The single most important practical rule in German criminal procedure is this: say nothing about the facts until your lawyer has seen the file. Nobody has ever improved their position by explaining themselves to the police first.

Do I get an interpreter, and who pays?

You do, and you do not pay. § 187 Abs. 1 GVG requires the court to provide an interpreter or translator for a defendant who does not speak German, so far as necessary to exercise procedural rights, and you must be informed in a language you understand that this is free of charge for the entire criminal proceedings. § 187 Abs. 2 GVG provides that written translation is as a rule required for custodial orders, indictments, penalty orders and non-final judgments. And contrary to a common misconception, even a convicted defendant does not bear the interpreter's costs: Nr. 9005 Abs. 4 of the schedule of costs to the GKG excludes them from the costs charged to the defendant. This follows from Art. 6 Abs. 3 lit. e ECHR and the European Court of Human Rights decision in Luedicke, Belkacem and Koç v. Germany of 28 November 1978.

Will I get a court-appointed lawyer?

In a defined set of cases, yes. § 140 Abs. 1 StPO lists eleven situations of mandatory defence – including proceedings before the Landgericht or the Schöffengericht, felonies, and, importantly for anyone detained, being brought before a judge for a decision on custody and being held in an institution by judicial order. Beyond that, § 140 Abs. 2 StPO allows appointment where the case is serious, the law or facts are difficult, or it is apparent that the accused cannot defend themselves – a criterion under which substantial language barriers and unfamiliarity with the German system are regularly recognised in practice. Under § 141 Abs. 2 Satz 1 Nr. 1 StPO, appointment happens before the custody hearing, without any application.

Is a court-appointed defence lawyer free?

No – and this is the most consequential misunderstanding for anyone expecting a US-style public defender. The state advances the appointed lawyer's fees at statutory RVG rates. If you are convicted, § 465 Abs. 1 Satz 1 StPO makes you liable for the costs of the proceedings, and under § 464a Abs. 1 Satz 1 StPO those costs include the appointed defence lawyer's remuneration. If you are acquitted or the case is discontinued, § 467 Abs. 1 StPO puts both the state's expenses and your own necessary expenses on the state. Interpreter costs remain excluded in either case, unless the court has exceptionally imposed them under § 464c StPO or § 467 Abs. 2 Satz 1 StPO.

I do not live in Germany. Will I be remanded in custody?

Not automatically, but the risk is real and you should not be told otherwise. Detention under § 112 StPO requires strong suspicion plus a ground for detention, most often risk of flight under § 112 Abs. 2 Nr. 2 StPO, and it must be proportionate (§ 112 Abs. 1 Satz 2 StPO). The Kammergericht held in its decision of 21 August 2014 (1 Ws 61/14) that residence abroad alone does not establish a risk of flight, though it may be taken into account in the overall assessment. In practice, the combination of no German address, no local ties and a substantial expected sentence frequently does lead to detention. A fixed residence in another EU member state increasingly counts against a finding of flight risk.

Can I be released on bail?

Yes, but German bail works differently from the US model. Where the warrant rests only on risk of flight, § 116 Abs. 1 Satz 1 StPO provides that the judge shall suspend execution if less intrusive measures suffice – reporting requirements, residence conditions, or the provision of appropriate security under § 116 Abs. 1 Satz 2 Nr. 4 StPO, which may be furnished by a third party such as your family or employer. Under § 116a Abs. 2 StPO the judge sets the amount and form at their discretion; there is no bail schedule and no bail bond industry. If you live outside Germany and apply for release against security, § 116a Abs. 3 StPO obliges you to appoint someone resident in the court's district to receive service of documents.

What is the consulate entitled to do?

Under Art. 36 Abs. 1 lit. b Satz 3 of the Vienna Convention on Consular Relations, you must be informed without delay of your right to have your consulate notified and to communicate with it; § 114b Abs. 2 Satz 4 StPO makes that an express duty on arrest, and the Federal Court of Justice held on 25 September 2007 (5 StR 116/01) that the duty falls on the police from the moment of arrest, not only on the judge. What the consulate can do is limited: provide lists of lawyers, visit you in custody, and contact your family. It cannot represent you or intervene in the proceedings. If the notification duty is breached, the same decision holds that this does not produce a bar on using the evidence – but it can be compensated by treating part of the sentence as already served.

What is a Strafbefehl, and why is it so dangerous from abroad?

A Strafbefehl (penalty order) is a conviction without a hearing. Under § 407 StPO the court may, on the prosecutor's written application, impose a fine, a driving ban, withdrawal of the driving licence with a bar of up to two years, or – only if you have a defence lawyer and the sentence is suspended – imprisonment of up to one year. Under § 407 Abs. 3 StPO the court need not hear you first. You have two weeks from service to file an objection (§ 410 Abs. 1 Satz 1 StPO); if you miss it, § 410 Abs. 3 StPO gives the order the force of a final judgment, with all that implies for your criminal record and your immigration status. The trap for people abroad is service on an appointed agent for service under § 132 or § 116a Abs. 3 StPO: the two weeks run from service on that agent, even though you know nothing about it. The remedy is restoration of the previous status under §§ 44, 45 StPO – and you must apply within one week of learning of the order, filing the objection at the same time.

Can a conviction affect my right to stay in Germany?

Yes, and the thresholds are lower than most people assume. Since the 2016 reform there is no automatic expulsion; § 53 Abs. 1 AufenthG requires a balancing of the public interest in expulsion (§ 54 AufenthG) against your interest in remaining (§ 55 AufenthG). But the weights matter: a custodial sentence of six months or more creates a serious interest in expulsion under § 54 Abs. 2 Nr. 1 AufenthG – even if the sentence is suspended. From two years, § 54 Abs. 1 Nr. 1 AufenthG makes the interest particularly serious. For certain violent offences committed with a weapon or other dangerous instrument, the thresholds drop to six and even three months (§ 54 Abs. 1 Nr. 1d, Abs. 2 Nr. 2b AufenthG). The practical consequence: the difference between five and six months, or between a fine and a custodial sentence, can decide whether you keep your residence permit. That is an argument for instructing a lawyer early, not after the verdict.

Can I be extradited to or from Germany under a European Arrest Warrant?

The European Arrest Warrant framework (Framework Decision 2002/584/JHA) is implemented in Germany in the eighth part of the IRG (§§ 78 ff. IRG). Decisions are taken by the Oberlandesgericht and, under § 13 Abs. 1 IRG, are not subject to ordinary appeal. Surrender for prosecution requires a maximum penalty of at least twelve months in the requesting state (§ 81 Nr. 1 IRG); for enforcement, at least four months remaining (§ 81 Nr. 2 IRG). Dual criminality is not examined where the offence carries a maximum of at least three years and falls within the 32 listed categories (§ 81 Nr. 4 IRG). Bars to surrender include ne bis in idem within the EU and, subject to detailed exceptions, conviction in absence (§ 83 IRG). German nationals enjoy the additional protection of § 80 IRG and Art. 16 Abs. 2 GG.

This page provides general information on German law as of the date shown above and does not constitute legal advice for an individual case. German statutes and case law may change. Momberger Rechtsanwälte is a German law firm admitted to the Rechtsanwaltskammer Düsseldorf; we advise on German law only.