Acquittal instead of heavy fine!

The title of our article already anticipates the "result". Our client, who had been fined EUR 3,600.00, was acquitted with our help.

For us, the question is how it could have come so far in the first place.

I. What had happened? 

At the request of the Düsseldorf public prosecutor's office, the Düsseldorf Local Court issued a penalty order on 13 November 2023, imposing a fine of EUR 3,600.00 on the defendant.

The background to this is that the public prosecutor's office accused the defendant of making false statements on the occasion of an application for citizenship from the year 2022.

The charge was "fraudulent attempt to obtain citizenship" under Section 42 of the German Citizenship Act (StAG).

Section 42 StAG states:

A custodial sentence not exceeding five years or a monetary penalty shall be imposed on anyone who provides or uses incorrect or incomplete information on essential requirements for citizenship in order to obtain citizenship for themselves or another person.

The defendant appealed against this penalty order - initially independently - in due form and time. Einspruch ein.

The defendant then contacted our Düsseldorf law firm and mandated us with his defence.

II. Access to the investigation files

After inspecting the investigation files, the following emerged:

The application for naturalisation at issue contains an instruction on the last page of the application regarding criminal liability pursuant to Section 42 StAG.

Below this instruction is a text field, according to which the naturalisation applicant must confirm the accuracy of the information provided by signing their name and stating the place and date.

Furthermore, the signature field contains the following note, which is emphasised in the design:

„(Please sign only when submitting the application)“

As can be seen from the photograph, this text field remained completely blank in the case of our client. completely empty.

III. Legal significance of the missing signature

From a legal point of view, the missing signature has considerable relevance in many respects.

1. providing or using incorrect information?

With regard to the objective facts of Section 42 StAG, it is doubtful whether it is even possible to speak of "providing or using information" if the naturalisation applicant does not sign the disputed application document.

If a legal layperson reads the above-mentioned note on the signature field, he or she must reasonably assume that an application can be assumed to have been submitted at the earliest when the naturalisation application has been signed.

This follows from the reverse conclusion of the notice, according to which the application must only be signed when it is "submitted". If the application is not signed, it is deemed - from the perspective of a reasonable naturalisation applicant - not to have been submitted.

2. no intention to conceal

Assuming that an applicant for naturalisation provides incorrect information in an application for naturalisation without confirming the accuracy of the information provided with his or her own signature, there can be no question of intent to defraud in legal terms.

An applicant for citizenship who does not declare the accuracy of his or her information to the outside world cannot be assumed to have intended to "cheat" during the naturalisation process.

3. lack of guilt

Regardless of whether the requirements of Section 42 StAG are met, the criminal liability of a potential applicant for citizenship must fail due to personal reproachability (guilt).

According to Section 17 of the German Criminal Code (Verbotsirrtum), an offender acts without guilt if he lacks the insight to do wrong when committing the offence.

In simple terms, this means that an offender cannot be punished if he lacks the awareness of wrongdoing.

An average applicant for citizenship can hardly be assumed to have been aware of the criminal provision of Section 42 StAG. Section 42 StAG is a specialised matter that is unknown even to many lawyers.

By signing the form, applicants for citizenship confirm that they have taken note of the information on criminal liability.

If such a signature is missing, an applicant for citizenship cannot be accused of being demonstrably aware of the criminal provision of Section 42 StAG.

4. no criminal liability for negligence

In the present case, a negligent offence under Section 42 StAG cannot be considered. The criminal provision of Section 42 StAG is a purely intentional offence. The legislator expressly does not criminalise the negligent provision or use of incorrect information.

5. no attempted offence

Furthermore, there is also no attempted offence. In the case of an offence, this only comes into consideration if the law expressly stipulates that the attempt is punishable (Section 23 (1) HS.2 StGB).

However, the StAG does not make such an order at any point.

IV. What makes a good criminal defence lawyer?

In the present case, our client was acquitted at the hearing on 22 April 2024 after we pointed this out to the public prosecutor's office and the judge responsible.

The responsible clerk at the Düsseldorf public prosecutor's office and the judge who issued the penalty order were so "operationally blind" that they did not realise this fact.

We can only advise every accused or defendant to seek legal advice and representation, even if the situation seems hopeless from the point of view of the person concerned.

This case is an example of how a legal "quibble" can change the entire course of criminal proceedings. A seemingly "lost" criminal case can end in an acquittal.

As a rule, a defence lawyer can only judge whether there is a "chance" or not once he has inspected the investigation files.

V. Conclusion

Our Düsseldorf law firm Topuz Law offers first-class legal advice in the field of criminal law. Our previous successes in the area of criminal defence confirm us time and again in our judgement.

Regardless of the stage of the criminal proceedings, we examine the prospects of success of legal representation in individual cases and - if necessary - accompany you through all instances.

You can send us a message at any time using our contact form. Alternatively, you can also send us an e-mail to: info@topuz-law.de or call our office on +49 211 43637831. Our secretary will answer your call within our opening hours. You will usually receive a response from us within 24 hours.

Tolga Topuz
Lawyer

Topuz Law – Law firm from Düsseldorf –