When and why am I an accused person in criminal proceedings?
The accused person in criminal proceedings is entitled to special rights. In particular, he has the right to remain silent.
But when does one become an accused?
If a criminal complaint is filed against you as the perpetrator to the police or the public prosecutor’s office and proceedings are instituted against you, you are automatically the accused.
The concept of the accused is not clear in the following situation:
A brawl has taken place. Two people are injured on the street. Several people are standing around discussing loudly with each other. All sorts of accusations and insults are made. The police come to the crowd and start to ask each of them what they saw of the fight and what they did.
1. If the police tell you about your rights
Most people are outraged when a policeman tells them that he is accused of having committed a crime. Actually, the policeman acts correctly. Because the instruction as accused serves the protection of the person concerned. For reasons of fairness, it should therefore always be given as early as possible.
In practice, it happens that civil servants are too late to instruct citizens about their rights. Thus it can happen that only at the end of an interrogation as a witness, at which the person concerned is first “lulled into false sense of security”, it is revealed that criminal proceedings are now being instituted against the person testifying. In the worst case, people were arrested immediately after a supposedly harmless testimony as “witnesses”.
Even if one is heard by the police “as a witness”, one should therefore insist in case of doubt on consulting a lawyer. The police may not deny this right to a witness. If the immediate contact with the lawyer is refused, one should let this be recorded – and simply go. The police are not allowed to stop a witness.
2. What rights do I have as an accused?
If the defendant is questioned by the police or by the public prosecutor’s office, it must be clarified before the interview that this is an interrogation of the defendant and what act he or she is accused of.
The defendant must be informed that he or she is free to speak on the matter or to remain silent. If such instruction does not take place, the statement may not be used later.
As the defendant, you also always have the right to consult a lawyer, preferably a specialist in criminal law, at any stage of the proceedings. The interrogator must inform you of this. If you wish to exercise your right, you should insist that the interrogator contact a lawyer if necessary.
3. What must I say as an accused?
The right to remain silent, to which any defendant is entitled, relates only to information on the substance of the case. However, as a rule, you must provide personal details, i.e. your first name, surname and maiden name, your birthday and place of birth, marital status, occupation, place of residence, address and nationality.
If this is unclear, or if there is a reason not to say anything about your personal circumstances, you should first consult a lawyer specialising in criminal law.
On the other hand, you do not have to answer any further questions about your personal circumstances, as these are details of the matter at hand. In particular, you do not have to provide the police with any information about your monthly income.
