criminal-law germany
If under investigation for a minor incident, how do I answer immigration questions about my criminal history?
<p>My friend caused a hit-and-run involving slight damage to another vehicle (allegedly and without her knowledge) and received a letter from police for investigation.</p>

<p>She consulted a lawyer and carried over the case to him. The lawyer is looking at the case and says it will be close to three months before the case is completely closed.</p>

<p>My friend also wants to go overseas for some time, during that period. She is confused whether to mark <em>yes</em> or <em>no</em> in the section that says “criminal history in the past 5 years”. What should she fill, if asked "convicted in a criminal case?”</p>

<p>An investigation letter is not a conviction. It isn't even an arrest. There is no criminal history at this point.</p>

<p>The case is currently under investigation. Until your friend is convicted and she has accepted the verdict or there is no option for appeal left, <strong>then</strong> she is convicted. Until then she can fill the option "no" when asked whether she is convicted in a criminal case.</p>

<p>Also, when the lawyer says "close the case" he doesn't necessarily mean conviction. This can mean any of the following:</p>

<ul>
<li>A conviction either a ruling by a criminal court or by a <em>Strafbefehl</em>, which is a written convition which your friend can accept to avoid any further proceedings by a criminal court. In this case she is convicted of a crime, although she might not be obliged to admit that (see below).</li>
<li>Termination of the proceedings according to § 170 II StPO (German Criminal Procedures Code), which means not enough evidence could be produced to support further proceedings of a criminal court. This also includes the case of being proven innocent. In this case she is (of course) <strong>not</strong> convicted.</li>
<li>Termination of the proceedings according to § 153 StPO. This happens when the prosecutors office finds that while she has broken a criminal law, her involvement constitues a petty crime that does not warrant further procedings in a criminal court. She is <strong>not</strong> convicted in this case.</li>
<li>Termination of the proceedings according to § 153a StPO. That is similar to § 153 StPO, except that her level involvement is considered higher and she has to accept to pay a fine to avoid further proceedings of a criminal court. She is <strong>not</strong> convicted in this case, even though she has to pay a fine.</li>
</ul>

<p>If she is actually convicted (the first case) and the punishement is a prison sentence (probationary or not) of <em>less than</em> 90 days or a fine equivalent to <em>less than</em> 90 days of average income and she has no further convictions (above, below or equalling 90 days) in her record, this entry in the record is considered non-public. That means that, while the prosecutors offices and any criminal courts involved in future proceedings can see her entry, it is not included in her <em>public</em> record. That means the transcript of her record that she can request from the authorities (called <em>Führungszeugnis</em>) will read <em>"no entries"</em>. If - for example - her (prospective) employer asks her if she is convicted of a crime, she can legally say "no".</p>

<p>As I said, until there is a verdict, she can always say no. The question gets interesting when she <em>is</em> convicted, but to a punishment less than 90 days. While she can legally claim to be without a criminal record in practically all relevant situations in Germany, I can not say what point of view the overseas authorities have on this issue. Unless they can request her non-public record from the German authorities (which I doubt), they will have a hard time proving her criminal record, since even the official transcript would be empty.</p>
