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By Dr. Katharina Wild (https://wild.legal/anwaeltin/)

A dismissal of charges under Section 153a of the German Code of Criminal Procedure (StPO) allows criminal proceedings to be terminated upon fulfillment of certain conditions or instructions – without a judgment and without a criminal conviction. The individual concerned will subsequently not have a criminal record. However, a dismissal is not an acquittal.

I. Requirements for a Dismissal

A dismissal under Section 153a StPO is only possible if:

1. The subject of the proceedings is a misdemeanor.

Section 153a StPO is not applicable to a felony, i.e., an offense with a statutory minimum sentence of one year's imprisonment.

2. There is sufficient suspicion of an offense to warrant prosecution.

If the evidence is insufficient for prosecution, the proceedings must generally be dismissed pursuant to Section 170 Paragraph 2 StPO. Section 153a of the German Code of Criminal Procedure (StPO) is not intended to replace a dismissal of charges for lack of suspicion.

3. The severity of the potential guilt does not preclude dismissal.

Unlike Section 153 StPO, Section 153a StPO does not require "minor guilt." Therefore, the provision can also be applied in cases involving a serious charge. However, dismissal may be precluded in cases of particularly serious offenses, substantial damages, high criminal intent, or relevant prior convictions.

4. The conditions imposed are suitable for eliminating the public interest in prosecution.

The public interest need not be absent from the outset. Rather, it should be eliminated by fulfilling the conditions.

5. The accused consents.

Dismissal under Section 153a StPO is not possible without the accused's voluntary consent. No one can be forced to accept such a dismissal.

The public prosecutor's office and, regularly, the court must also consent.

Who must decide and consent depends on the stage of the proceedings.

There is no legal entitlement to a dismissal of charges. The decision rests at the discretion of the public prosecutor's office or the court. There is no fixed statutory threshold for damages or tax evasion. A comprehensive assessment of the individual case is decisive. The prerequisites and possible conditions are set out directly in Section 153a of the German Code of Criminal Procedure (StPO).

II. What conditions can be imposed?

The law specifically mentions:

• Restitution,

• Payment of a sum of money to a charitable organization or the state treasury,

• Community service,

• Fulfillment of maintenance obligations,

• Victim-offender mediation,

• Participation in a social skills training course,

• Participation in a driver improvement course,

• Therapeutic support or treatment.

This list is not exhaustive. However, the condition must be relevant to the proceedings, proportionate, and achievable for the accused.

A monetary condition is not a fine. Therefore, it is not calculated in daily rates and does not constitute a criminal conviction.

III. Discontinuation of proceedings during the preliminary investigation

As long as no charges have been filed, the public prosecutor's office decides.

1. Procedure

The public prosecutor's office initially only provisionally refrains from filing charges. At the same time, it sets the conditions and a deadline for their fulfillment.

The following are generally required:

• the consent of the accused and
• the consent of the court responsible for initiating the main proceedings.

Exceptionally, judicial consent is not required if the offense is a minor misdemeanor without an increased minimum sentence, the consequences of the offense are minor, and one of the conditions listed in Section 153a Paragraph 1 Sentence 2 Numbers 1 to 6 of the German Code of Criminal Procedure (StPO) is imposed.

The statutory deadlines for compliance are a maximum of six months or one year, depending on the condition. They may be extended once by three months. Amendments or additional conditions are only possible with the consent of the accused.

2. After Fulfillment of the Condition

If the condition is fully and promptly fulfilled, the proceedings are definitively concluded. The offense can no longer be prosecuted as a misdemeanor. This so-called limited preclusion of prosecution covers the entire procedural act, not merely the originally assumed criminal provision.

However, the legal wording contains an exception: If it later turns out that the same act is legally to be classified as a felony, Section 153a of the German Code of Criminal Procedure (StPO) does not necessarily preclude further prosecution.

3. In Case of Non-Compliance

If the condition is not fulfilled or not fully complied with:

• the preliminary investigation can be continued,
• charges can be filed, or
• a penal order can be applied for.

Payments or other services already rendered will not be refunded. Furthermore, the statute of limitations for criminal prosecution is suspended during the period of compliance.

IV. Dismissal of Proceedings After Charges Have Been Filed

If charges have already been filed, the decision is no longer made solely by the public prosecutor's office, but by the court. Section 153a, paragraph 2 of the German Code of Criminal Procedure (StPO) applies to both preliminary and main proceedings.

The following are required:

• the consent of the court,
• the consent of the public prosecutor's office, and
• the consent of the accused or defendant.

The court initially suspends the proceedings provisionally by order and sets the conditions. This order is not subject to appeal.

If the conditions are met, the court confirms compliance and terminates the proceedings definitively. This order is also not subject to appeal. If the conditions are not met, the proceedings continue – possibly with further taking of evidence and subsequent judgment.

A suspension can, in principle, also be agreed upon during an ongoing main hearing. Strategically, it must be weighed whether a secure termination of the proceedings is preferable or whether, given the evidence, an acquittal appears attainable.

V. Does the person concerned have a criminal record under Section 153a of the German Code of Criminal Procedure (StPO)?

No.

A dismissal of charges under Section 153a StPO is:

• no conviction,
• no sentence,
• no conviction, and
• no criminal record.

Therefore, it is not entered in the Federal Central Register or in a simple or extended certificate of good conduct as a conviction. The Federal Central Register generally records the decisions specified in Sections 3 and 4 of the Federal Central Register Act (BZRG), in particular criminal convictions. A dismissal under Section 153a StPO is not included.

The dismissal itself is also not entered in the Trade Register. Only the administrative decisions, fines, and certain criminal convictions exhaustively listed in Section 149 of the Trade Regulation Act (GewO) are recorded there.

The person concerned may therefore generally answer "No" to the general question of whether they have a criminal record.

VI. Entry in the Public Prosecutor's Office Procedural Register

The Central Public Prosecutor's Office Procedural Register – ZStV must be distinguished from the Federal Central Register and the Certificate of Good Conduct.

The following information is recorded there, among other things:

• the initiation of the investigation,
• the alleged offense,
• the case number, and
• the manner in which the proceedings were concluded.

This also includes the recording of a discontinuation of proceedings pursuant to Section 153a of the Code of Criminal Procedure (StPO) in the ZStV. However, this register is not a public criminal record. It primarily serves law enforcement agencies. The data may generally only be used for criminal proceedings; special statutory access rights exist, among others, for weapons authorities, aviation security authorities, and security clearance agencies. Further details are regulated in § 492 StPO.

After a case is definitively closed, the data must generally be deleted two years after the conclusion of the proceedings. If further criminal proceedings are initiated within this period, the deletion may be delayed until all entries are ready for deletion.

Therefore, while the accused does not have a criminal record, the earlier proceedings may remain known to law enforcement authorities for a certain period. This can make a renewed dismissal under Section 153a of the German Code of Criminal Procedure (StPO) practically more difficult. However, the earlier proceedings may not simply be treated as a proven crime or a legally binding prior conviction.

VII. Does the presumption of innocence still apply?

Yes.

Consent to a dismissal under Section 153a of the German Code of Criminal Procedure (StPO) is generally:

• not a confession,
• not an admission of guilt, and
• not a waiver of the presumption of innocence.

The Federal Constitutional Court expressly distinguishes between a continuing suspicion of a crime and a finding of guilt. A finding of guilt may not be made without a legally binding conviction. The acceptance of a dismissal of charges pursuant to Section 153a of the German Code of Criminal Procedure (StPO) does not mean that the accused has committed the offense or admitted guilt.

However, a dismissal is also not an acquittal. It does not mean that the suspicion of guilt has been dispelled. Rather, the proceedings are terminated for reasons of procedural efficiency and legal certainty without a final determination of guilt.

VIII. What further consequences are possible?

Even without a conviction, indirect consequences may remain:

1. Defendant's own defense costs:

After a final dismissal of charges pursuant to Section 153a of the German Code of Criminal Procedure (StPO), the defendant's necessary expenses, in particular their defense costs, are generally not covered by the state treasury; this follows from Section 467 Paragraph 5 StPO.

2. Civil claims:

Claims for damages, restitution, or injunctive relief are generally not extinguished by the dismissal. However, a restitution order may be credited against such a claim.

3. Tax consequences:

In the case of a dismissal for tax evasion, tax assessments, interest on evaded taxes, late payment surcharges, and tax liability claims generally remain unaffected.

4. Professional and Disciplinary Law:

Professional supervisory or disciplinary proceedings may remain possible despite the discontinuation of criminal proceedings, depending on the professional group and applicable special law.

5. Trade and Licensing Law:

Authorities may independently review the underlying facts under the respective legal requirements. However, the discontinuation of proceedings alone does not prove unreliability.

6. Notifications to Authorities:

In cases regulated by law, the proceedings or their outcome may be communicated to professional supervisory authorities, service authorities, immigration authorities, or other competent authorities following an order regarding notifications in criminal matters.

7. Police Data:

Data may be temporarily stored in police information systems in accordance with the respective police and data protection laws. This also does not constitute a criminal record.

IX. Conclusion

Discontinuation pursuant to Section 153a of the German Code of Criminal Procedure (StPO) often offers the decisive advantage of ending criminal proceedings without a verdict, sentence, or criminal record. She is presumed innocent, but this is not an acquittal. In particular, indirect consequences may remain, especially regarding professional licenses, tax implications, potential notifications to authorities, and the entry in the public prosecutor's case register.

Whether or not to agree to the discontinuation of proceedings therefore depends not only on the amount of the conditions imposed. The decisive factor is the comparison between the certainty of a final resolution of the proceedings and the opportunities and risks of continuing the case.

Contact us if you have any questions.