Criminal proceedings often end with a judgment which is deemed to be unjust by the convicted person and against which he/she wishes to take further legal action. It is then to be examined whether this judgment has been made on the basis of legal errors which can be attacked with the legal means of an appeal. An appeal cannot be made on the basis of new facts but instead only on the basis of the violation of procedural or substantive law. The examination of the judgment with regard to legal errors relevant for the appeal and the explanation of these errors in the appeals pleading are legally challenging and require a high degree of analytical thinking and skill. Defense with regard to an appeal always prerequisites hereby a preliminary examination of the chances of success of the appeal which can also bring about the unpleasant result that a judgment, although wrong, is not capable of being attacked in terms of law in an appeal.

The general balance sheet law comprises the sum total of legal provisions which regulate the preparation and content of the annual balance sheets, in particular, accounting and the preparation of (group) balance sheets. The difficult questions of accounting and evaluation are, therefore, also pivotal in balance sheet criminal law investigation proceedings which are no longer only still directed against the responsible individuals of the company but to an increasing degree also against auditors. Criminal and administrative offenses for violations of accounting provisions are set forth in the German Penal Code (StGB), the Commercial Code (HGB) and the Stock Corporation Act (AktG) and additional auxiliary laws. In addition, the official statements of the German Accounting Standards Committee (Deutsches Rechnungslegungs Standards Committees, DRSC), the IAS/IFRS and the continuous changes of the evaluation approach are to be observed.

The banking and credit business, money transfers and the actions of bank employees, executive boards, managers and supervisory boards of the banks take center stage within the commercial criminal law sub-area of banking criminal law. The evaluation of bank-specific factual situations requires, therefore, knowledge of bank-specific norms such as the German Act Regulating Banking and Credit Business (Kreditwesengesetz) and the Stock Corporation Act (Aktiengesetz) (e.g. due to insider trading.). In particular, if there is a suspicion of an illegal banking transaction, in addition to the criminal law enforcement authorities, the matter must be dealt with also at the level of the tax supervisory authorities (German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, BaFin)).

Elements of the crime of capital market criminal law are set forth, in addition to the German Penal Code (StGB) (in particular, capital investment fraud pursuant to § 264 a StGB) in a large number of laws: the German Securities Trading Act (Wertpapierhandelsgesetz), Stock Exchange Act (Börsengesetz), Banking Act (Kreditwesengesetz), Stock Corporation Act (Aktiengesetz), Commercial Code (Handelsgesetz, HGB) and numerous administrative offenses elements (e.g. in the Securities Acquisition and Takeover Act (Wertpapiererwerbs-und Übernahmegesetz, WpÜG), the Securities Deposit Act (Depotgesetz, DepotG), Investment Company Act (Gesetz über Kapitalanlagengesellschaften, KAGG), the Money Laundering Act (Geldwäschegesetz, GwG) can constitute the statutory basis for criminal law investigation proceedings. In addition, the EU Directives for the Regulation of the Financial Instruments Market are to be taken into account. Defendants are charged, e.g. with manipulation of prices, insider trading or breaches of accounting obligations and often they are subjected to the public spotlight. At the same time – because the investigatory authorities in this field have not been active long – case law exists only to a limited extent and many legal issues are still unclarified. These establish opportunities but also difficulties for the defense lawyer.

Homicides are designated as capital offenses. In principle, these are heard before the criminal chamber of the District Court. The defense of capital offenses is marked by the seriousness of the crime charged and the respective magnitude of the expected penalty. The taking of evidence often has a prominent significance and prerequisites, as a rule, an intensive involvement with the scientific areas of psychiatry, psychology and criminal forensics. The defense lawyer is often also confronted with the difficult situation of the presence of relatives of the person killed. In addition, responsible dealings with the press present in the proceeding must be found.

Controlled substances criminal law is a special areas in the controlled substances law (Betäubungsmittelgesetz, BtMG). It requires exact knowledge of the comprehensive case histories and case law as well as knowledge regarding the type and effect of the controlled substances. As a general rule , BtMG proceedings are marked by complicated procedural questions because the litigation is often preceded by tedious investigations with the implementation of all conceivable investigation methods (investigation by special departments for combating organized crime, phone tapping, stakeouts, undercover agents and informants and cross-border investigations, state witness and witness protection). Extreme penalties are threatened and the area of criminal conduct is broadly extended and includes actions which would, within the framework of other offense elements, be evaluated to be merely an attempt or a non-criminally penalized preparation of a crime. In addition to the classic defense work, clients often require additional support when imprisoned pending trial for whom, if applicable, a strategy for addiction control must be developed.

The German Act on Combating Corruption (Gesetz zur Bekämpfung der Korruption) brought about more rigorous definitions of a criminal offense in 1997, took over the offense of “bribery/capability of bribery in commercial transactions” from the competition law in the penal code (§ 299 StGB) and created its own offense element for agreements in restriction of competition (§ 298 StGB). Which type of conducts falls hereunder is not strictly defined: corporate recognized conduct and conduct relevant for criminal law lie particularly close to each other; the case law is also not clear. Investigations are undertaken with large expenditures, often substantial cash amounts are concerned and not only the social and professional failure of the accused is threatened but also the companies’ existences are often threatened on the basis of the measures skimming off profits and company fines. Therefore, companies also require a representative to provide legal counsel, if applicable, already preventively with these issues and, in this way, can preclude a possible criminal liability from the outset.

Die EMRK gewährt dem Beschuldigten aber auch Verfahrensgarantien, die notfalls durch Beschwerde zum EGMR durchzusetzen sind.
Das Auslieferungsrecht betrifft ausländische Angeklagte in Deutschland, die nach Verurteilung mit der gravierenden Folge der Ausweisung in ihre Heimat rechnen müssen. Die entsprechenden Verwaltungsgesetze müssen bei der Verteidigung im Blick behalten werden. Auslieferungsrecht betrifft aber auch Deutsche, die im Ausland verurteilt wurden (z.B. USA) und eine Überstellung nach Deutschland anstreben.

Criminal labor law serves to assure and maintain a socially well-ordered working and professional life. In addition to the norms of the German Penal Code (Strafgesetzbuch, StGB) and the German Administrative Offenses Act (Gesetz über Ordnungswidrigkeiten, OWiG), there are numerous provisions in ancillary criminal law areas which must be complied with and which regulate the fields such as illicit employment or withholding payment of contributions and income tax evasion. Additional problem areas relevant for criminal law exist within the framework of the supply of temporary workers or posting of workers, with the employment of workers from abroad, with regard to the relationship between works councils and company management as well as regarding work protection rights and participation in competition. Criminal labor law reveals a number of connections to other legal areas thereby and is – in particular, for the employer – difficult to comprehend.

The increased number of insolvency proceedings in Germany has caused an intensification of investigation proceedings in this connection. This is based, above all, on the fact that, due to the order regarding the notifications in civil matters (Mitteilungen in Zivilsachen, MiZi), the insolvency court notifies the locally responsible state attorney’s office with regard to the opening of the insolvency proceeding; the state attorney’s office can then, at its discretion, demand transfer of the insolvency files and examine these with regard to criminal violations. In this context, in particular, the so-called bankruptcy actions (§§ 283 et seq. StGB) but also accessory crimes such as delay of insolvency, violation of the accounting obligations, supplier credit fraud, disloyalty, document forgery, payment evasion of employee contributions and tax evasion come under consideration.

The joining together of the European countries is further pursued also with criminal law: with the coming into force of the Schengen Agreement, a basis for the cooperation of justice and safety authorities has been created by which the cross-border criminal prosecution has been made more effective. With the assistance of the European arrest warrant, an order for an arrest and surrender of a person can be made in all Member States; German citizens must be extradited to other EU countries on this basis.

The European Convention on Human Rights (ECHR) grants the accused, however, also a procedural guarantee which is to be enforced, if necessary, by filing a protest to the ECHR. The extradition law concerns foreign defendants in Germany who, after their sentencing, must count on serious consequences of deportation in their respective home country. With the defense, the respective administrative laws must be kept in mind. Extradition law concerns, however, also Germans who are adjudged guilty in a foreign country (e.g. USA) and who are striving for a transfer to Germany.

Support of the imprisoned client with regard to the execution of sentences and enforcement of sentences is included as one of the fundamental tasks of a defense lawyer and raises a number of factual and legal challenges for the defense lawyer. On the one hand, there is the assistance and support of the imprisoned client and his/her family, in particular, if the client is imprisoned for the first time. From a legal viewpoint, the possibilities of the suspension or the interruption of the sentence are to be regularly examined as well as the supervision of the respective imprisonment conditions and, if applicable, working toward an early release from imprisonment. With all these factors, it must always be required to keep in mind the basic rights of the prisoner because the degree between measures which are within the framework of the restrictions of basic constitutional rights permitted by law and violations of the basic rights of the prisoner is narrow.

The myth of the infallible doctor has also faltered in the last years due to the fact that a number of investigatory proceedings have been conducted against doctors. The field of medical malpractice law is not clearly defined; it includes extremely different factual situations which occur in the field of the medical profession: medical malpractice for the evaluation of which regularly experts must be called upon, the complicated and regulated invoicing practice vis-a-vis the compulsory health insurance physician association, sponsoring, advertising and the sale of medicine can fall within the focus of criminal law investigations. In this context, the risks for the affected persons are high. In addition to the criminal law sanctions and loss of reputation, there is a clear threat of revocation of the license to practice medicine and the compulsory health insurance physician license and, therewith, the potential end of one’s professional life.

White collar crime comprises all criminal offenses which have a direct reference to (national and international) business life. No central law to regulate white collar crime exists; rather, also various laws and ordinances of white collar crime outside and ancillary to criminal law are relevant (cf. tax criminal law, labor criminal law, banking criminal law, etc.). The core offense of white collar crime in the German Penal Code, disloyalty (§ 266 StGB) is, above all, of growing significance; the requirements of the offense of disloyalty continue to be, however, strongly disputed. The criminal law enforcement authorities have increased their efforts with prosecution of white collar crime in the last years and have established, for this purpose, specialization state attorneys’ offices and special units of the State Criminal Offices. In particular, with the failure of commercial enterprises, as a rule, it can be counted on that criminal law investigations shall occur.