Self-disclosure
Self-disclosure
Criminal Defense Lawyer Munich
Attorney for Criminal Law Munich
Self-disclosure
Opportunities and risks of a voluntary disclosure
If you have committed a crime that is not (yet) known to the police or other law enforcement authorities, you have the option of “turning yourself in”.
Although no one is obliged to incriminate themselves with the accusation of a crime, there may be good reasons for making a voluntary disclosure, e.g. to prevent incriminating intervention measures by the police and public prosecutor (search, arrest, etc.) or because a crime is about to be discovered soon anyway or because you have a guilty conscience, and of course to avoid a possible punishment or to significantly reduce it (discontinuation of proceedings, waiver of punishment, probation instead of a prison sentence, etc.).
But be careful: a voluntary disclosure should never be made without prior legal advice. A failed voluntary disclosure can have far-reaching consequences and in individual cases can even make the situation worse, from unforeseeable effects on one’s job and future travel opportunities (entry in the certificate of good conduct, denial of reliability) to long prison sentences.
The decisive factors for this step to make a voluntary disclosure or to help clarify the matter are often personal, emotional motives: a depressing guilty conscience and the constant fear of being discovered can sometimes weigh more heavily than the expected punishment itself.
But rational and legal considerations should not go unmentioned either: apart from numerous laws from commercial criminal law that guarantee immunity from prosecution if one makes a voluntary disclosure, a repentant, confessing offender with a serious desire to clarify the matter and, if necessary, make amends can expect a very significant reduction in sentence for all other crimes, in some cases even to the point of no punishment or the termination of proceedings due to minor guilt.
In other cases, a public trial can be avoided and instead a conviction in a written penal order procedure with a fine or suspended sentence can be achieved.
In particular, early self-incrimination and comprehensive cooperation with the investigating authorities can often successfully avert very unpleasant criminal procedural intervention measures, such as house and apartment searches, searches of business premises, confiscation of all mobile phones and computers and finally the threat of pre-trial detention.
The consideration of whether and when to make a voluntary disclosure is then based on a comparison of the consequences of a voluntary disclosure on the one hand and of the investigating authorities becoming aware of the matter through a third party on the other. The predicted probability of discovery, the chances of conviction and the impending punishment all play a role here.
When is a voluntary disclosure an option?
In principle, you can turn yourself in to the investigative authorities for any crime, from the well-known tax evasion to sexual and homicide offenses.
However, the requirements and legal consequences of a voluntary disclosure that is as favorable as possible for the person concerned vary greatly depending on the type of offense and the individual case.
For example, the legislator distinguishes between voluntary disclosure and assistance in clarifying the facts. Only in the case of voluntary disclosure, which is standardized in the law, is there the possibility of statutory immunity from prosecution for a few criminal offenses. In the vast majority of cases, the question of the legal consequences of a “voluntary disclosure” (or rather assistance in clarifying the facts) depends on the offense and, above all, on the discretion of the investigating authorities and courts.
In some areas of criminal law, immunity from prosecution can be granted in the case of voluntary disclosure as a result of a special legal regulation – especially in the case of economic offenses such as tax evasion, money laundering, subsidy fraud or the evasion of social security contributions.
In addition, there are numerous laws that already provide that the court can refrain from prosecution under certain circumstances, e.g. in the case of the so-called witness protection regulations for serious crimes and drug law (Section 46b of the Criminal Code, Section 31 of the Narcotics Act).
Notwithstanding this, in appropriate cases, within the framework of general sentencing, there is also the possibility of de facto immunity from prosecution (discontinuation of proceedings, waiver of punishment, reservation of sentence, etc.) for all other crimes (i.e. including those that do not contain an explicit regulation for voluntary disclosure or assistance in the investigation).
However, the actual and formal hurdles for immunity from prosecution are high – particularly with regard to the extent of voluntary disclosure (completeness) and the timing of the disclosure (before proceedings are initiated).
In the vast majority of cases, however, the question of possible immunity from prosecution or a lenient sentence depends on sentencing considerations by the public prosecutor or the court based on the general criminal law – and thus fundamentally on the discretion of the prosecution authorities.
Here in particular, the factual questions to be clarified in advance and the legal questions to be assessed could not be more different and are sometimes extremely complex, so that for this reason alone, sound legal assistance is required.
What is often overlooked and, in our experience, receives little legal attention: In the case of a comprehensive voluntary disclosure / assistance in providing information, several statutory grounds for mitigating the sentence can regularly coincide, so that the statutory penalty range can be significantly reduced, up to and including complete immunity from punishment. For example, both the so-called “leniency witness regulation” and the comprehensive compensation within the framework of an “offender-victim reconciliation” each allow a waiver of punishment under certain conditions, even if the court would normally impose prison sentences in such cases.
In other words: the issue is not as simple as the handling and consequences of a voluntary disclosure are often presented; the exact opposite is the case. And that is precisely why it is so important to seek detailed and, above all, expert advice in advance, weighing up all the advantages and disadvantages, all the pros and cons, all the negative and positive consequences.
Never without a lawyer and prior advice!
As experienced criminal defense lawyers, we have advised numerous clients over the past few years on the difficult question of the pros and cons of self-reporting and have accompanied the criminal proceedings associated with it, regularly with significantly above-average results.
Our task is first to work out the facts together and then to explain the possible legal consequences and the associated opportunities and risks. We also discuss the goal of the voluntary disclosure being considered. In many cases, the first step is not so much about the actual punishment that is imminent but about the acute threat of intervention by the law enforcement authorities, such as searches of the home and workplace or even the issuing of an arrest warrant. Such measures, which can sometimes destroy one’s livelihood, can usually be averted quite successfully by making a voluntary disclosure.
The preliminary considerations also include specific criminal and long-term professional and personal consequences that a voluntary disclosure can entail, particularly when weighing up the risk of discovery and the impending consequences if the crime(s) are discovered elsewhere. The person concerned is free, for example, to only cooperate with the investigating authorities after the crime(s) have been discovered elsewhere and, due to the still early possibility of cooperation, to still benefit from significant benefits.
Overall, the aim of thorough legal advice is to provide you with a solid basis for making a final decision for or against voluntary disclosure. Due to the comprehensive lawyer-patient confidentiality, all options discussed and any crimes that may have been disclosed remain strictly confidential.
If a voluntary disclosure then appears to make sense in the specific case, we will take over all communication with the investigating authorities, the public prosecutor’s office and the court for you. If necessary, we will accompany you to questioning by the police or public prosecutor’s office and ensure that your rights are protected.
At the same time, we take preventive action to prevent any intervention measures by the investigative authorities, such as search and identification measures, as well as provisional arrests or even the application for pre-trial detention, and we will also enter into negotiations with the public prosecutor’s office at an early stage.
If subsequent legal proceedings cannot be avoided, we will defend you in court using all available criminal procedural means, if necessary also in a confrontational and conflict-ridden manner through all appeal instances.
We advise and support you decisively, with a willingness to engage in conflict and competently and regularly achieve above-average results – especially when it comes to voluntary disclosure.
Because many of those affected and also lawyers fail to recognize that voluntary disclosure does not require cowardly or accommodating behavior, but – just as with other criminal proceedings – legal assertiveness. If necessary, confrontation should not be avoided. In particular, dedicated specialist knowledge of the little-known field of sentencing for assistance in the investigation and the so-called witness protection regulations is of vital importance. We have been working in both areas for well over ten years now and have achieved remarkable results.
