Being accused of having committed a crime can lead to wide reaching legal consequences. In fact, in most cases, the very basis of your own existence and far reaching damage to your private and occupational reputation is at stake. Consequently, in such a case it is absolutely essential to proceed correctly and to be aware of the various steps one should take. Most important of all is to insist on your legal right to remain silent. You should use this right to remain silent in every situation. As a consequence of spontaneous or ill-considered answers you could create difficulties for yourself in the course of a further investigation. So, engaging the services of a criminal lawyer should be the first step after being accused of a criminal offence, undergoing a house search, an arrest, or the confiscation of personal property.

As an accused person in the course of an investigation your existence is at stake. Therefore, it is essential to contact a competent and experienced criminal lawyer.

Lawyer Kilian Deery has both a comprehensive theoretical knowledge and practical experience. Only a lawyer who is familiar with and well-versed in the material and above all is intensively immersed in criminal law can optimally help you. Kilian Deery is a strong forceful legal partner who will fight for your rights. He has the possibility to gain access to your investigation file and based on this knowledge, in cooperation with you, he will devise the best and most effective defensive strategy in dealing with the police and public prosecutor. The priority here lies in avoiding formal court proceedings and getting the actual charge dropped. Should that not be possible in your particular case, you will, of course, be represented in court in an engaged and committed manner, ensuring that an optimal result will be achieved and this countrywide throughout the whole of Germany.

My areas of expertise are:

– General Criminal Law
– “White Collar Crime”
– Drug Offenses
– Criminal Traffic Law
– Criminal Youth Law
– Execution of Sentences.

As reported in the media, internationally cooperating police investigative teams in several European countries have infiltrated the encrypted messenger service Encrochat, bringing down the anonymity and security of the network. Encrochat is a highly encrypted communication platform that allows communication between specialised Encrochat phones that leave hardly any technical traces. In Germany, too, IT specialists from the federal and state criminal investigation offices have cracked the supposed security of the communication system by means of a so-called Trojan, although the concrete technical procedure is currently being kept under wraps for investigative tactical reasons. However, the monitoring of communications for several weeks and the simultaneous storage of data has dramatic consequences for a large number of those now accused.

Concerns about the use of Encrochat data in terms of data protection and criminal proceedings were soon rejected by German higher courts such as the Higher Regional Court of Hamburg and Bremen. In particular, the fact that data obtained by French authorities according to their criminal procedure law with lower threshold requirements may also be used in the context of German preliminary proceedings was subject to heavy criticism. In the situation at the time, a court order for the purpose of technical surveillance and search would not have been possible in Germany. Nevertheless, it was considered permissible to use these “fruits” also against accused persons in this country. Thus, the Higher Regional Court of Bremen argued in its decision of 18.12.2020 (1 Ws 166/20) that the essential cross-border guidelines and investigation orders in criminal matters (RL-EEA) between France and Germany had been complied with. According to the Higher Regional Court of Hamburg (29.01.2021 – 1 Ws 2/21), even the simple use of an encrochat is sufficient for an initial suspicion. Such a (qualified) initial suspicion regarding a specific criminal offence is required in this country in order to be able to carry out any interception measures (§§ 100a, 100b StPO). The Rostock Higher Regional Court considers even the possession of a so-called cryptophone from Encrochat sufficient to legitimise corresponding surveillance measures (23.03.2021 – 20 Ws 70/21).

However, a decision from the Berlin Regional Court of 01.07.2021 (525 KLs 10/20) gives cause for hope. It held that the use of the Encrochat data in the case it had to decide was inadmissible because it had failed to check whether the measures abroad would also have been permissible under German law. The Regional Court is of the opinion that the suspicion of a crime was not concrete enough, i.e. there was no sufficiently qualified initial suspicion at the time of the technical measure. However, since the public prosecutor’s office has appealed, the decision of Berlin’s highest court – the Kammergericht – remains to be seen.

The police stations and public prosecutors’ offices will probably be busy for years evaluating the sheer mass of data, so that some of those affected may fear that police summonses will land in their mailboxes or, not infrequently, that they will be arrested on a warrant for an urgent suspicion of dealing in narcotics, for example. In view of the data believed to be safe, it is already apparent in the currently pending criminal proceedings that the parties involved communicated unusually freely, so that the public prosecutor’s office has few inhibitions, at least when writing an indictment.

It is therefore all the more important to consult a specialist criminal lawyer as soon as you have received a police summons or fear one. He or she will then set the course for an optimal and effective defence at an early stage.

The business with counterfeit money is still highly topical even in times of Bitcoins. And as long as cash has not actually been abolished, the danger of prosecution for “false fuffis” remains.

For some years now, most of this “trade” has been taking place on the darknet. Until a few years ago, this technology of the Darknet was only accessible to an extremely manageable circle of insiders, but in the meantime the technical departments of the Federal and State Criminal Police Offices have trained themselves accordingly. Therefore, tips from undercover investigators or citizens increasingly lead to flat searches.

What is punishable?

If the owner assumes that the note or coin is genuine, he or she is of course not liable to prosecution for putting counterfeit money into circulation or obtaining it. However, it is sufficient for a punishable “putting into circulation as genuine” according to section 146, paragraph 1, no. 3 of the Criminal Code if the perpetrator even suspects that it could be counterfeit money or has doubts about the authenticity and nevertheless uses the money for payment. However, even payment with real money would be punishable, if one assumes that it is counterfeit.

Counterfeits can be identified, for example, by the absence of the European Central Bank’s abbreviation or the trapezium a few millimetres to the left below the lettering. Another reason to be sceptical is if the note is conspicuously thin or less solid. Furthermore, the shiny stripe on the right of the note shimmers in different colours when the note is tilted, only in the case of genuine euro notes. In addition, the value numeral on the upper left front is only visible against the light, while only curved bars are visible when the note is lying flat on the table. Watermarks are incorporated underneath, which are only visible against the light, as it were, and always show a building and the value numeral.
Unfortunately, it is not possible to make an exemption from prosecution, as is the case in criminal tax law, but there will be no prosecution if the counterfeit notes are destroyed or handed over to the authorities. It is therefore crucial that the money does not enter into general circulation.

What should be done if preliminary proceedings have been initiated?

In the case of an already existing or threatened criminal prosecution due to the accusation of counterfeit money, a lawyer specialised in criminal law should be asked for advice immediately in any case.
If the investigators are already active against the accused, as already mentioned, in addition to telephone communication surveillance (TKÜ), due to the increased presence of undercover investigators in the Darknet, there may now also be more frequent searches of flats.

A good defence lawyer will (still) prevent the search or at least ensure that the “rules of the game” of the Code of Criminal Procedure are observed during the search. This is indispensable, as prosecutors may prematurely assume a so-called imminent danger in order to circumvent the fundamental right of inviolability of the home, which in principle requires a judge to conduct a search pursuant to § 105 of the Code of Criminal Procedure. Even at this early stage of the proceedings, it is important to work out the right defence strategy for the individual case in order to achieve a dismissal for lack of suspicion or an acquittal.

If one is confronted with the accusation of counterfeiting, criminal proceedings for a crime will follow. According to § 146 StGB in conjunction with § 12 StGB, a crime exists as soon as an offence has a minimum penalty of one year imprisonment. In this case, it is a legal requirement under section 140 (1) no. 2 of the Code of Criminal Procedure that one be represented by a lawyer: so-called public defender. If no lawyer has yet been appointed, the court sets a deadline for naming a lawyer who is to take over the defence. If this deadline is not met, the court appoints a defence lawyer. This entails the risk that a public defender is appointed who is perceived to be more agreeable to the court or less argumentative, who in turn is not infrequently in a certain relationship of dependency with the court in order to be taken into account in future assignments. However, a later change of public defender is only possible in absolute exceptional cases. Therefore, do not hesitate to take the reins yourself and use the services of a lawyer who is competent in criminal law.

The Gießen Regional Court sentenced the defendant to seven years’ imprisonment for making himself available to commit murder for the satisfaction of sexual urges.

According to the findings of the Regional Court, the accused developed a penchant for mock executions of bound women out of sexual sadism. After having practised this many times with prostitutes, he also sought contact with emotionally unstable women via an internet forum, whom he tried to persuade to commit suicide by hanging. In one case, a woman hanged herself at his request, which was reported in the press without the accused being known as the perpetrator.

In March 2016, the accused came into contact via an internet forum with a woman who suffered from a personality disorder and post-traumatic stress disorder and was suicidal. He harassed her in order to destabilise her and make her suicidal. He suggested to her that she could die painlessly if he hanged her. Before that, he would tie her up so that she would not be able to change her mind and he would have the power of determination over the act of killing. After researching the internet and reading the newspapers, the woman suspected that the accused was the person who had caused the suicide of a woman as described in the press. After further telecommunications, she went along with his bid to kill her. She hoped that this would also convict the accused of causing the death of the other woman. In this way she wanted to give meaning to her death. The accused knew that she was in inpatient psychiatric treatment at the time and was not able to make a decision on her own responsibility due to her illness.

The injured party went on her way to the accused and on the way informed him of her journey to Gießen. After she had arrived there and was received by the accused, the police, who had been informed in the meantime, arrested him so that the execution of the crime did not take place. For this purpose, the accused had prepared tow ropes for hanging and cable ties for tying up the victim in a vehicle.

The accused appealed against the verdict of the Regional Court. In the appeal proceedings, among other things, the legal question had to be examined whether a mere declaration of the perpetrator’s willingness to commit a crime towards the victim in the run-up before the beginning of the stage of the attempted crime is also to be assessed as a case of section 30, paragraph 2 of the Criminal Code.

In its judgement of 04.07.2018 today, the 2nd Criminal Senate dismissed the defendant’s appeal. In doing so, the Senate emphasised that the wording and purpose of section 30 (2) var. 1 of the Criminal Code also include declaring oneself ready to the potential victim. Neither the systematics of the law nor the legislative history contradict this understanding of the provision.

Previous instance:

Gießen Regional Court – judgment of 3 January 2017- 5 Ks – 403 Js 16861/16.

The relevant provision reads:

§ 30 StGB

(1) 1Whoever attempts to determine another to commit or incite another to commit a crime shall be punished in accordance with the provisions on the attempt to commit the crime. 2However, the penalty shall be mitigated in accordance with section 49, paragraph 1. 3§ 23, paragraph 3 shall apply accordingly.

(2) Any person who agrees to accept the offer of another or who conspires with another to commit or incite another to commit a crime shall also be punished.

With technical progress and our increasingly transparent existence, an alternative to the generally known version of the internet has been created that, beyond Google and the like, largely leaves no traces of the user: The Darknet. This offers a suitable platform for illegal activities, especially since the investigating authorities sometimes do not yet have adequate technical tracking methods. However, public prosecutors and the police are constantly upgrading their equipment, so that criminal investigations into offences carried out via the Darknet are on the increase.

What is the Darknet?

The darknet is a network which, in contrast to the public network of the “internet”, is characterised by the fact that the participants establish the connections between each other manually (so-called peer-to-peer overlay network as opposed to the classic peer-to-peer network). It is a hidden, secret network within the network of the conventional internet, which is so elaborately encrypted that one can only gain access to this “dark” internet by inviting a user. This ensures a disproportionately higher level of security compared to the public internet.

Naturally, this platform offers an attractive opportunity for the oranisation of criminal business. Payment is made with the digital internet currency of Bitcoins, which is particularly difficult to control because transactions via this payment system are anonymised and encrypted and can therefore only be traced with great effort. Proof of ownership of Bitcoin can be stored in a personal digital wallet, the “Bitcoin Wallet”. The conversion rate of Bitcoin into other means of payment is determined by supply and demand.

The darknet can be accessed through the so-called Tor browser, a network for anonymising connection data, which can be downloaded and installed (The Onion Routing). The individual pages are listed in a “hidden wiki” and can be exchanged in chats or generated with search engines. Often, a VPN service that does not log any data is used in addition to the Tor browser.

What do dealers offer on the Darknet?

Currently, drugs, weapons and counterfeit money are mainly sold on the darknet, but also illegal pornography, pirated series, films and music as well as fake identity papers can be found here. Even stolen access data of all kinds as well as credit card data are traded.

The customer gets his goods by post and usually has no contact details for the seller. This is often the phase where the investigators strike if they become suspicious through a corresponding tip. Packing stations and abandoned mailboxes are popular.

How secure is the Darknet?

The Darknet disguises the IP address and, if applicable, the VPN services. Communication does not take place via emails, but so-called PGP-key encrypted Tormails. A more protected way to move around in the virtual net is therefore hardly conceivable at present. Fake email accounts are also popular to hide real names or email addresses. The complexity of this technology makes the work of prosecutors more difficult. For years, this darknet technology was only accessible to an extremely limited circle of insiders, but in the meantime the technical departments of the Federal and State Criminal Police Offices have upgraded accordingly. As a result, tips from undercover investigators are increasingly leading to flat searches that bring to light vast quantities of drugs, counterfeit money or forged passports, for example, because the investigating authorities have now developed tracking methods such as audio hyperlink fingerprinting that can produce unambiguous results on the Tor network.

When do I need a criminal defence lawyer?

As soon as you are accused of crimes in the context of the Darknet in an investigation, you should immediately consult a criminal defence lawyer. He or she can inspect the files and assess the factual and legal situation so that it can be worked out whether to remain silent or to make a statement on the matter. Furthermore, a lawyer who is experienced in this area of criminal law offers the great advantage of the currently still partly existing technically and legally superior experience and expertise compared to the police officers, some of whom are still inexperienced. In this case, it is sometimes possible to successfully argue that the data obtained cannot be used when assessing the evidence.

How can a defence lawyer help me?

A defence lawyer will shed light on the favourable or “explanatory” circumstances and carry out the corresponding trained work of persuasion in legal and factual terms in order to achieve a discontinuation of the proceedings, at best without conditions. A variety of persuasion options are conceivable here for a competent defence lawyer in order to avoid a main hearing. Should a court hearing be unavoidable, there are nevertheless possibilities to bring the proceedings to a close.

Since the legislator approved e-scooters with effect from 15 June 2019, they have been available for hire in various large cities. However, most users are not aware of the rules that must be followed when driving such an e-scooter and the consequences of using an e-scooter while under the influence of alcohol.

An e-scooter is considered a motor vehicle. Although a driving licence is not required to use an e-scooter, you are still liable for traffic violations in the same way as with a motor vehicle. This in turn means that the same alcohol limits apply as for car drivers. For novice drivers and drivers up to 21 years of age, there is an absolute ban on alcohol on the e-scooter (0.0 per mille!). Otherwise, consequences under the law on fines or even criminal law are to be expected. In addition, the probationary period is extended by two years and a remedial seminar is ordered.

A blood alcohol level of 0.5 per mille or more constitutes a misdemeanour, resulting in a fine of 500 euros, 2 points in Flensburg and a 1-month driving ban for first-time offenders. A blood alcohol level of between 0.3 and 1.1 per mille constitutes relative driving incapacity. The same legal consequences apply here as for driving with a blood alcohol level above 1.1 per mille, if there are also signs of impaired driving.

If the blood alcohol level exceeds 1.1 per mille, the driver is absolutely unfit to drive, which means that drunkenness in traffic according to § 316 StGB is committed in any case. As a rule, the legal consequences for first-time offenders are a fine, the revocation of the driving licence and the granting of a ban period before a new licence can be issued. In principle, the driving licence is confiscated immediately.

From 1.6 per mille or in the case of repeat offenders, proof of a successfully completed medical-psychological examination (MPU) will even be required when reapplying for a driving licence. There are even more serious consequences if you injure or endanger someone with your e-scooter or damage a vehicle while drunk. Even if there was only a near accident, there is the threat of criminal proceedings.

Driving an e-scooter while drunk can therefore have various unpleasant consequences. It is therefore advisable to consult an experienced criminal defence lawyer in the event of a police summons or a penalty order for drunk driving. It should be noted that an appeal against the penalty order must be lodged within two weeks, otherwise it can only be challenged to a very limited extent by presenting the circumstances of a so-called reinstatement in the previous state.

People who are remanded in custody are probably seen as guilty by most of the population. Few will think about those who are innocently deprived of their liberty. Many would estimate these to be rare individual cases in the low single digits. But the number of people wrongfully imprisoned in Hamburg in 2019 alone amounts to 64. A total of €118,000 was paid to these victims of justice. What sounds like a lot of money at first, however, is only a meagre €25 per innocent day spent in prison.

This amount, which is memorable in terms of the rule of law, has long been criticised by experts who called for it to be raised to €75. In December 2019, the Legal Affairs Committee of the Bundesrat finally decided on a corresponding increase, but now this amendment to the law still has to be passed by the Bundestag before it becomes a legal reality. Here’s hoping that this legislative project will not be put on the back burner.

Although this initiative, initiated by the federal states of Hamburg and Berlin, is very welcome, there are voices calling for an increase to €100. The long-time President of the German Bar Association, Ullrich Schellenberg, commented: “In my view, it should be worth €100 to the German justice system to have unjustly deprived a person of his freedom.”

The daily rate is set in the so-called ‘Law on Compensation for Criminal Prosecution Measures’ (StrEG) and was originally 10 DM when it was introduced in 1971. In 1988 it was increased to 20 DM. In 2002, when the euro was introduced, it was only rounded up to 11 €. In August 2009, the rate was set at 25 €, since then ten years had passed without an increase. Now the daily rate has finally been adjusted, but rounding up to 100 € seems appropriate due to the deprivation of liberty as the sharpest sword of the state. In order to prevent or at least shorten an innocent deprivation of liberty and to obtain a claim for compensation for imprisonment, an experienced and versed criminal defence lawyer should be engaged to fight for your rights as an accused person in criminal proceedings.