When are you considered an accused? Rights in proceedings
A call from the police, a subpoena or a search regularly triggers the same question: When are you considered an accused? The answer determines what rights exist and how one should behave. Anyone who testifies too early as a witness, although the suspicion is actually directed against him, can burden himself unnecessarily. In criminal proceedings, it is therefore crucial to classify one’s own procedural role early and realistically.
When do you qualify as an accused in criminal proceedings?
A person is considered to be an accused person if he or she is suspected of committing a criminal offence and if the law enforcement authorities clearly direct proceedings against his or her possible perpetrators. This can be done by the public prosecutor, the police or - in certain constellations - also by investigations by other authorities.
It does not necessarily need a letter with the heading “Accused hearing”. What matters is not just the name on a form, but the actual situation. If a specific person is investigated for a specific allegation and the authorities take measures to clarify this suspicion, there is a regular accusation.
The term suspect is often used the same in everyday life, but legally it is less precise. A suspect is someone against whom an actual suspicion is directed. An accused person is the person against whom an investigation is conducted or who is prosecuted in the proceedings as a possible perpetrator. This status entails special procedural rights.
The timing depends on the investigation
The law does not mention a single, always the same trigger. Whether someone is accused depends on the course of the investigation. A mere assumption, an anonymous notification or the general questioning of a large group of people is not sufficient in every case. However, if the findings are concentrated against a particular person, the police may not simply continue to treat them as witnesses in order to obtain a statement without instruction.
Typical situations in which the accusation arises
An accused is often when the police call for an interview or the public prosecutor's office initiates an investigation against a person known by name. Equally clear is the situation in the event of a search, a provisional arrest, an identification service or the seizure of a mobile phone on a specific charge.
A questioning, which is initially announced as a witness examination, can also legally be an accused interview. This applies in particular if the questions are no longer only for the general clarification of the facts, but are intended to specifically prove a possible participation of the person interviewed. At this moment, the investigating authorities must inform the person about their rights.
On the other hand, not every contact with the police makes someone an accused. Anyone who has observed an incident as a neighbour or is supposed to provide information about work processes as a colleague remains a witness first. If the focus of the investigation changes during the interview, the interrogation as a witness must be interrupted and the new role clearly communicated.
No accusation by a complaint alone
A criminal complaint may be filed against unknown persons or against a named person. Even if a name is mentioned, this does not automatically mean that the accusation is true. Police and prosecutors must first check whether there is an initial suspicion. Nevertheless, the notification can already lead to initial investigations against the person concerned.
For those affected, therefore, restraint makes sense. Anyone who learns of an advertisement should not try to "clarify" the facts spontaneously to the police, to the person reporting or in social networks. An unthinking statement can later become part of the investigation file and can be difficult to classify or correct.
What rights does an accused have?
The most important rule is: An accused person does not have to incriminate himself. He must remain silent. This right of secrecy applies to a hearing by the police as well as to the public prosecutor and court. Silence is not an admission of guilt and must not be treated as such.
Before the first interrogation, an accused person must be informed about the accusation and his essential rights. This includes, in particular, the right to consult a defendant. In weighty or legally difficult proceedings, there may be a necessary defense, so that A defence lawyer is appointed. This does not mean that the person is considered guilty, but serves to ensure a fair trial.
A defender can usually request access to the file. Only the investigation file shows what the allegation is specifically based on: statements, chat histories, reports, pictures, earlier information or police evaluations. Complete access to the file may be temporarily limited during ongoing investigations in individual cases where the purpose of the investigation would be jeopardised. That is precisely why the defence strategy should not be based on assumptions.
Defendants also have the right to submit requests for evidence and exculpatory information. Whether it makes sense to give an opinion early depends, however, on the individual case. A carefully prepared statement can be useful if exonerating facts are immediately verifiable. Frequently, however, it is wiser to remain silent at first and to make specific statements after inspection of the file.
Subpoena as accused: Do you have to appear?
In the case of a Police subpoena as an accused person, there is in principle no obligation to appear before the police or to provide information on the matter. The situation may be different when summoned by the public prosecutor or by a court. Then there may be a duty to appear, even if the right of refusal of statement still applies.
The wording of a subpoena should be carefully examined. The decisive factor is who has loaded, in which role the charge takes place and which accusation is called. A police invitation “on behalf of the public prosecutor’s office” can be legally different to an ordinary police subpoena. A rash rejection, an unconsidered appearance or a telephone statement are therefore not a good basis for a decision.
From accused to accused
The accused is mainly in the investigation procedure. If the prosecutor’s office issues a charge, the person concerned becomes the accused. If the court subsequently opens the main proceedings, the term defendant is used. In the case of a criminal order or other procedural methods, special features may arise.
The terms mark different stages, but do not change the core of the rights of defence. Already in the investigation process, the course is often set: through statements, seizures, witness interviews, digital traces and Decisions on detention or searches. Those who wait for an accusation may react too late.
What Affected People Should Do Now
If there is a criminal charge in the room, it depends on prudent action. Four steps are regularly useful:
- Do not provide any information on the substance before the allegation and the file have been examined.
- All documents, summonses and search warrants shall be kept.
- Do not delete or modify messages, files or other possible evidence.
- Early contact a lawyer specialized in criminal defense.
Conversations with co-accused persons, witnesses or the allegedly injured person can also be problematic. They can be misunderstood or justify the suspicion of influence. A defence, on the other hand, can check in a structured manner which information is useful, whether investigative measures were lawful and which exculpatory evidence should be secured.
Who is unsure whether he is already accused, should not rely on the word choice of the police. The decisive factor is the specific accusation and the direction of the investigation. Especially at this early stage, competent criminal advice creates clarity, protects procedural rights and enables a considered decision instead of a statement under pressure.