Initial Suspicion (Anfangsverdacht) – German Criminal and Tax Proceedings

Definition of Initial Suspicion

The term initial suspicion (Anfangsverdacht) is not explicitly defined in the German Code of Criminal Procedure (StPO). Instead, Section 152 (2) StPO refers to the existence of “sufficient factual indications” as a prerequisite. Its purpose is to protect citizens against arbitrary state interference. Once an initial suspicion exists, a person may face coercive measures and will be treated as a suspect, including a formal instruction of rights under Section 136 StPO. It also prevents investigative authorities from collecting data without a clear connection to a potential offence.

Requirements for Initial Suspicion

An initial suspicion exists if criminal experience indicates that a prosecutable offence may have been committed, which implies the possibility of conviction. Four elements are required:

• The commission of an offence.
• Classification of the act under a statutory criminal offence.
• Proof of the act with procedurally admissible evidence.
• Absence of procedural obstacles.

The threshold is lower than for bringing charges (sufficient suspicion) or for detention (urgent suspicion). Initial suspicion merely allows investigations to begin, even if the probability of conviction is below 50%.

Role of the Prosecution

The public prosecutor’s office must base its assessment on concrete facts, which may be supported by previous investigations. Inconsistencies, third-party reports, or tips may contribute but cannot replace verifiable facts. Allegations used tactically in civil disputes should be treated with caution.

Initial Suspicion and Compliance

In corporate law and compliance, the management is obliged to investigate indications of misconduct. The key question is the threshold: which facts trigger a duty to investigate? Courts and literature remain divided. Some argue that minimal indications suffice, while others require coherent and substantial evidence of compliance violations.

For legal certainty, reference can be made to the definition in Section 152 (2) StPO: suspicion must be based on concrete facts pointing to a criminal offence. Speculation is not enough. For companies, suspicion must meet three criteria:

• Based on a concrete factual core.
• Indicating a possible breach of law.
• Relevant to compliance obligations.

Initial Suspicion and Internal Investigations

An internal investigation generally begins with initial suspicion. Company management is then obliged to investigate. Such suspicion may arise from regulatory searches, whistleblower reports, or audit findings. Reliable employee reports or documented audit results usually suffice. Anonymous tips require careful plausibility checks. Mere rumours are insufficient.

Serious potential consequences for the company (e.g. fines, reputational risks) further justify immediate investigations. Proper documentation of suspicion is essential for compliance and for subsequent legal proceedings.

Initial Suspicion in Tax Criminal Proceedings

As in all criminal proceedings, tax crime cases (§ 386 AO) require initial suspicion. This means “sufficient factual indications” for a tax offence – mere possibilities are not enough.

Often, the tax authority obtains relevant knowledge during regular tax assessments, which may trigger a tax criminal investigation. Initial suspicion can also arise from tax arrangements suggesting concealment, such as unusual cash transactions, invoice splitting, or atypical securities dealings. The Federal Constitutional Court has recognised such circumstances as sufficient to justify suspicion.

FAQ – Initial Suspicion

What does initial suspicion mean?
It is the threshold for starting an investigation when sufficient factual indications of a crime exist (§ 152 (2) StPO).

How does it differ from sufficient and urgent suspicion?

• Initial suspicion: low threshold, allows investigation.
• Sufficient suspicion: probability of conviction, leads to indictment.
• Urgent suspicion: highest level, required for detention or arrest warrants.

What are the requirements in tax criminal law?
Concrete facts pointing to a possible tax crime, e.g. invoice splitting or atypical transactions. Speculation alone is insufficient.

Who assesses the suspicion?
The public prosecutor or tax authorities, based on records, audits, tips (including from whistleblowers), or compliance reviews.

Are rumours or anonymous tips enough?
No. They must be authentic and coherent. Anonymous reports require verification; rumours alone cannot justify suspicion.

What measures are possible once suspicion exists?
Searches, seizures, questioning, expert reports, and precautionary measures. Suspects must be informed of their rights.

What role does suspicion play for companies?
It triggers the duty to conduct internal investigations. Proper documentation of suspicion and compliance measures is crucial.

Contact us – Your Specialist Lawyers for Criminal Law in Frankfurt am Main and throughout Germany

• Attorney Dr. Caroline Jacob, Specialist Lawyer for Criminal Law
• Attorney Frank M. Peter, Specialist Lawyer for Criminal Law
• Attorney Dr. Sven Henseler, Diplom-Finanzwirt (FH)
• Of Counsel: Prof. Dr. Frank Peter Schuster
• Cooperation Partner: Tax Advisor and former Tax Investigator Frank Wehrheim

Our law firm Buchert Jacob Peter has been working in Frankfurt am Main for over 25 years with experienced defence lawyers in criminal law. We represent our clients nationwide.

📞 Phone: +49 69 710 33 330
✉️ E-Mail: kanzlei@dr-buchert.de

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