The application for dismissal is a right of the accused, allowing them to request the judicial termination of ongoing investigative proceedings. It applies if either no criminal act has occurred or if the existing suspicion is so weak that further continuation of the proceedings no longer appears justified. At the same time, this instrument protects against excessively long investigations because the law provides for a clear maximum duration and courts must intervene in the event of delays. The application obliges the public prosecutor’s office and the court to critically examine the current state of the investigation and to make a transparent decision on whether the proceedings will be continued or terminated.

Right to judicial termination of investigative proceedings

Investigative proceedings mean uncertainty, pressure, and often significant personal burden for the accused. The law therefore grants them an active right to have the proceedings judicially reviewed.

They can file a formal application, which is ultimately decided by a court. This ensures that the progress of the proceedings is monitored not only by the public prosecutor’s office but also by an independent court.

The application does not automatically lead to a dismissal. However, it forces a clear legal review as to whether the proceedings may even be continued at all.

Typical constellations include:

• The alleged facts do not constitute a criminal offense.
• The suspicion remains too weak or contradictory.
• The proceedings have already lasted unusually long.

This instrument thus protects against unjustified prosecution and against investigations that drag on without objective reason.

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Position within the course of investigative proceedings

Investigative proceedings begin as soon as the police or public prosecutor’s office examine an initial suspicion. During this phase, the authorities collect evidence and clarify whether to bring charges or dismiss the proceedings.

The application for dismissal applies before an indictment. It operates exclusively at the investigative stage.

Timing of the application

The accused can file the application:

• during ongoing investigations
• regardless of how long the proceedings have already lasted
• also in relation to individual allegations

The application does not change the course of the proceedings but triggers judicial oversight. The investigative proceedings can end regularly with an indictment or be concluded by dismissal by the public prosecutor’s office. However, if the accused files an application, a court decides whether the proceedings may be continued. The application thus creates an additional instance of control within the investigative proceedings without replacing the jurisdiction of the public prosecutor’s office.

Time limits and maximum duration of proceedings

The law sets a clear upper limit for investigative proceedings. In principle, they may not last longer than two years before either an indictment is filed or the proceedings are terminated.

This deadline protects the accused from proceedings that continue indefinitely.

Significance of the two-year deadline

The deadline does not expire automatically. Certain periods are not counted, such as when:

• interlocutory court proceedings are ongoing
• legal assistance is being provided abroad
• the proceedings have been temporarily suspended

Furthermore, the court can extend the deadline under certain conditions. The public prosecutor’s office must provide a comprehensible justification for such a delay.

For those affected, this means:

If proceedings last remarkably long, the application for dismissal can be an effective means of acceleration or termination.

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Dismissal in the absence of criminal liability or legal inadmissibility

Criminal proceedings may only be conducted if the alleged behavior actually constitutes a criminal offense. If it is clear from the report or from the investigations to date that no criminal act has occurred, the proceedings may not continue.

According to Section 108 of the StPO, the court must dismiss the investigative proceedings if it is established that the act is not punishable by court penalty or that prosecution is inadmissible for other legal reasons. In these cases, the court relies on the existing case files and examines whether criminal prosecution is legally permissible at all.

This applies in particular to the following situations:

• The described behavior is not punishable by law.
• A recognized ground for justification exists, such as self-defense.
• Criminal prosecution is excluded for legal reasons, for example, due to procedural bars.

In these cases, the court no longer examines whether the accused committed the act. It exclusively examines whether the state is permitted to continue prosecuting them at all. If this is legally excluded, the proceedings must necessarily end. The court has no discretionary power here.

Dismissal in the event of insufficient or non-substantiatable suspicion

Investigative proceedings may only be conducted if there is a specific suspicion. This suspicion must intensify during the course of the investigation. If, on the other hand, it remains weak or cannot be substantiated despite further measures, the proceedings lack the necessary foundation.

According to Section 108 of the StPO, the court must also dismiss the proceedings if the existing suspicion, in view of its urgency and weight as well as the previous duration and scope of the investigations, no longer justifies a continuation. The decisive factor is whether further investigations can realistically lead to a noticeable strengthening of suspicion.

The court specifically considers:

• how strong the current suspicion is,
• how long the proceedings have already lasted,
• how intensively the investigation has been conducted so far,
• whether new findings can even still be expected.

If further clarification is unlikely to lead to any significant change, the proceedings must not be artificially prolonged. In this case, the court dismisses them.

The issue here is not an acquittal, but the question of whether the suspicion is still strong enough to justify further state interference with the rights of the accused. If this foundation is missing, the investigative proceedings end.

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Submission of the application by the accused and formal requirements

Only the accused themselves are entitled to file the application. In practice, this task is regularly handled by a lawyer acting as defense counsel, as precise legal argumentation can be decisive.

The application must be submitted to the public prosecutor’s office. They have two options:

• It dismisses the proceedings itself.
• It forwards the application to the competent court along with a statement.

The law sets clear deadlines for the public prosecutor’s office. In principle, they must respond within four weeks. If the application is filed within the first month of the proceedings, this period is extended to six weeks.

The application can also refer only to individual allegations. This is particularly important if several criminal offenses are being considered and not all are equally sustainable.

The law does not prescribe a specific form. However, the legal justification is decisive. The application must comprehensibly demonstrate,

• why there is no criminal liability or
• why the suspicion is no longer sufficient or
• why the proceedings are taking a disproportionately long time.

It is precisely here that it becomes clear whether the application was merely submitted or strategically constructed. A structured argument that analyzes the state of the investigation and specifically addresses the legal requirements significantly increases the chances of success.

In practice, it is therefore recommended not to formulate the application in isolation, but to prepare it on the basis of comprehensive file inspection and a legal assessment.

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Review by the public prosecutor’s office and referral to the court

When the application is received by the public prosecutor’s office, they must examine it seriously. They may neither ignore it nor leave it lying around indefinitely.

The law sets clear deadlines. In principle, the public prosecutor’s office has four weeks to respond. If the application is filed within the first month of the criminal proceedings, this period is extended to six weeks.

It has two options:

• It dismisses the proceedings itself.
• It forwards the application to the court with a statement.

If the accused additionally claims that the proceedings are taking too long, the public prosecutor’s office must disclose why the investigations have not yet been completed and why an earlier decision was not possible. This marks the beginning of judicial oversight.

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Court decision and possible outcomes

When the application reaches the court, the court examines independently and substantively whether one of the legal grounds for dismissal exists.

The court can:

• dismiss the proceedings entirely,
• dismiss it only regarding individual allegations,
• or deny the application.

If the court dismisses the proceedings, the public prosecutor’s office can file a complaint against this. This complaint has a suspensive effect; the proceedings remain provisionally open.

Even if there is no immediate ground for dismissal, the court does not remain inactive. If it recognizes an unreasonable delay, it can order the public prosecutor’s office to take specific measures for acceleration.

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Enforcement of the requirement for acceleration

Every accused person is entitled to proceedings within a reasonable time. This principle is called the requirement for acceleration according to Section 9 of the StPO. It obliges the police and public prosecutor’s office to conduct investigations expeditiously and without unnecessary delay.

The court therefore examines not only the evidence, but also:

• how long the proceedings have already lasted,
• how strong the suspicion is,
• how complex the facts appear,
• whether further investigations can realistically still lead to an intensification of suspicion.

The weaker the suspicion and the longer the proceedings last, the more likely the court is to intervene. The requirement for acceleration protects the accused from proceedings that drag on excessively without objective reason.

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Extension of an excessively long investigative process

If investigative proceedings exceed the statutory maximum duration of two years, they do not end automatically. The court must actively decide how to proceed.

If there is no ground for dismissal, the court can extend the permissible duration by up to two additional years. This extension occurs exclusively through a court order.

At the same time, the court examines whether the delay is attributable to the public prosecutor’s office. It explicitly determines whether a violation of the requirement for acceleration has occurred.

The extension therefore does not mean that the investigations may continue indefinitely. Every continuation is subject to judicial oversight.

Procedure in the event of a renewed deadline violation

If the investigative proceedings cannot be completed even within the extended period, a legally regulated mechanism applies once again.

The public prosecutor’s office must then act ex officio. It may not simply continue the proceedings. It must either:

• dismiss the proceedings,
• or submit the matter to the court again.

The court again examines whether the legal requirements for continuation are met or whether the proceedings must be terminated.

In this way, the law ensures that proceedings are not conducted effectively endlessly despite a judicial extension. Any further delay is subject to a renewed judicial review.

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Inclusion and exclusion of procedural periods

The statutory maximum duration is not calculated purely on a calendar basis. Certain periods are explicitly not included.

In particular, the following are not included:

• periods of interlocutory court proceedings,
• phases in which legal assistance is provided by foreign authorities,
• periods in which the proceedings were suspended or already dismissed and later resumed.

In addition, the deadline can be triggered anew by certain procedural actions, for example, if specific measures are directed against a particular accused person.

The two-year limit is therefore not a rigid deadline. Whether it has actually been exceeded depends on the specific development of the proceedings. A precise examination of the individual time segments is often decisive for whether the proceedings may still be permissibly continued.

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Relationship to other forms of terminating investigative proceedings

Investigative proceedings can end not only through an application by the accused. The public prosecutor’s office itself may also dismiss proceedings.

Typical constellations include:

• Dismissal due to lack of suspicion,
• Dismissal for reasons of expediency, for example, in cases of minor guilt,
• Termination through diversion, i.e., an out-of-court settlement subject to conditions.

The difference lies in the trigger.

In the case of a dismissal by the public prosecutor’s office, they decide on their own initiative. In the case of an application for dismissal, however, the accused forces a judicial review.

The application is therefore particularly relevant if the public prosecutor’s office does not voluntarily terminate the proceedings, even though there are doubts about criminal liability or suspicion.

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Distinction from other legal protection instruments in investigative proceedings

In investigative proceedings, there are several ways to defend oneself against measures. However, the application for dismissal is not a general legal remedy.

It differs in particular from:

• the complaint against coercive measures,
• the objection due to violation of rights,
• applications for the taking of evidence.

While these instruments attack individual measures, the application for dismissal aims at the termination of the entire proceedings or individual allegations.

It therefore intervenes on a different level. It is not about correcting individual investigative acts, but about the question of whether the proceedings as a whole are still justified.

Your Benefits with Legal Assistance

The application for dismissal is only convincing if it is justified with legal precision. The court strictly examines whether the legal requirements are actually met.

Legal representation offers several advantages in this regard:

• Analysis of the investigation files and assessment of the evidence,
• targeted argumentation regarding the lack of criminal liability or weak suspicion,
• substantiated examination of the duration of the proceedings and possible delays,
• strategic integration of the application into the overall defense strategy.

The application is not a formal letter without effect. It can decisively influence the further course of the proceedings. A structured, objectively constructed justification increases the likelihood that the court will order the dismissal or at least exercise strict oversight.

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FAQ – Frequently Asked Questions

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