Putting Someone on Speaker Phone without telling them?

In their piece about Speakerphone Etiquette, The Huffington Post recommends:

“Always ask the person on the other end of the line if he or she minds being put on the speakerphone. Some people find them annoying and invasive.”

This is excellent advice, especially if you speak to Germans on the phone. Why so? Because a German might not only be annoyed to find out that somehas has secretly listened in on the phone conversation. Instead, he or she might even press criminal charges, because under German law, putting someone on speaker phone (without telling them first and getting their consent) may consitute a criminal offence. Section 201 German Criminal Code protects the privacy of the non-publicly spoken word. Taping a phone call without the other party’s consent (which can easily be done with any modern smart phone nowadays) is even worse.

But even if such eavesdropping is not found to be a crime under certain circumstances, both putting someone on speakerphone without telling them first and listening in on such a phone conversation does constitute a violation of German civil laws (tort) and data protection regulations. As a consequence, someone who has secretly listened in on a phone conversation, is not allowed to appear as a witness on what he or she has heard in a German court of law. civil lawsuit. Thus, the (bad) habit of having a co-worker or one’s spouse covertly listen in on a phoen call to “have a witness for what the other party has said” is not only rude, but also dangerous and useless in regards to creating evidence. Furthermore, you can end up with a costly cease and desist order.

There are exceptional circumstances when putting someone on speaker without disclosing this fact to the other party is allowed under German law, for example when there is reason to believe that the other party may insult or threaten the caller, speak about a crime etc. Or when the other party knows from previous calls that speaker phones are typically used and the caller has never objected to this in the past.

For more information about German law, in particular civil litigation in Germany see these posts:

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The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of GP Chambers is well equipped to advise and represent clients from the UK and other English speaking countries. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please call +49 941 463 7070 in order to contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.

Arrested for Cannabis Possession in Germany?

In principle in Germany, the possession of even the smallest amount of illegal drugs is a criminal offence and will be prosecuted. In practice, however, German police and prosecutors use a pragmatic approach: for Cannabis (Marijuana) there is an unofficial threshold of (depending on where you were caught) anywhere between 5 grams (in very strict and conservative German states like Bavaria) and 10 grams (in more permissive states like Berlin). The weight specification refers to pure THC (tetrahydrocannabinol), i.e. the active ingredient. This usually equals 30 to 50 grams of actual cannabis plant harvest material, depending on the quality. For more information on this small drug amount policy of German law enforcement see here.

If what the authorities find on the person is below that amount, there is a chance of convincing the German prosecutor to discontinue the investigation on payment of a small fine or even – depending on the circumstances – without a fine. If the amount is larger or if the offender has a criminal drug record, then there is a much more serious problem. The same is true if the prosecutor charges you for dealing drugs, even if only very small amounts. Continue reading

How to obtain German Documentary Evidence for a Criminal Case in England

We are sometimes approached by English criminal defense lawyers asking us to provide them with official extracts from the German Commercial Register, the German Land Registry or other German Registry (e.g. birth or death certificates, marriage certificates, car ownership registry, wills register etc). The former usually does not create any difficulties, since the Commercial Register is meant to provide publicly accesible information (see the posting: How to read a German Commercial Register Extract).

Obtaining information about the registered keeper of a German vehicle is already a bit more difficult, since a legitimate interest must be established, but a German lawyer will in most cases be able to get that information without having to go through a court.

The real problems begin when it comes to the German Land Registry (Grundbuch). We have explained here that in Germany property related information is in principle considered to be confidential. Thus, information about who owns property is only granted if and to the extent the enquirer can show legitimate interest to be informed.

This is also true for many other aspects of life. To a German it is, for instance, unthinkable that anybody should be able to ask for a copy of the Will of any deceased person. The fact that this is possible in the UK simply by way of probate record search, i.e. without having to show legitimate interest whatsoever, comes as a shock to German lawyers who learn about this for the first time.

The German notion is: “Das ist Privatsache!” (This is private business). In some cases not even close relatives have a right to be shown the will of their relative if they are not heirs (for details see: Basics of German Inheritance Law).

Data protection is a big issue in Germany and Germans are very sensitive about who shall have access to their personal data.

Now, what if the counsel for the defense needs to obtain such confidential data in criminal proceedings? Whenever the German defense lawyer is unable to obtain such information directly from the registry of other competent authority the standard approach in criminal proceedings under German law is this: The counsel for the defense will petition to the court for the judge to issue a “Beweisbeschluss”, i.e. an order to take evidence. Then the land registry file would be sent to the court (not the counsel for the defense).

The proceedings in England are very different. An English solicitor usually expects the authorities to provide such information when they ask for it by simple letter. Very often this does not work in Germany because German authorities will request to be sent a court order before they are allowed to disclose the documents. This can lead to significant frustration on the part of criminal defense solicitors.

And even if the English court would issue something comparable to a German Beweisbeschluss, the court order and all the documents would have to be translated. Furthermore, some documents are very technical and the content (e.g. the content of the land registry extract) would have to be explained by a German lawyer, because a simple translation will not help to understand the meaning. For example, this is what an extract from the German land register looks like (please scroll down). As with the Commercial Register, red underlining does not mean “very important” but does instead mean “outdated / no longer valid”.

Therefore, the pragmatic approach is sometimes not to go for the actual documentary evidence itself but to ask a German lawyer or notary to provide you with an official legal opinion instead. In other cases the authorities can be convinced to disclose the document when a German lawyers explains the legitimate interest.

Basic information on law enforcement and criminal prosecution in Germany: The German Criminal Code (in English language) and the Code of Criminal Procedure are available here. German judge Joachimski here compares the practical aspects of US and German criminal procedure and here is a very informative essay on the German criminal procedure produced by the NZ Law Commision (download here: GERMAN CRIMINAL PROCEDURE – german_criminal_procedure)

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Since its formation in 2003, the law firm Graf & Partners (Germany) specialises in British-German and US-German legal matters. Do not hesitate to contact us by calling German business and litigation lawyer Bernhard Schmeilzl on +49 941 463 7070 or send an email to: mail [at] grafpartner.com If you need to see an English lawyer in Germany, you can arrange for a personal appointment with English solicitor Elissa Jelowicki in Munich or we can arrange for a secure video or telephone conference if you are located elsewhere.

Real German Lawyer or Fraudster?

Sadly, internet fraud and email scams are rather common nowadays (for “popular” schemes se here). In some cases one of the fraudsters claims to be a German Rechtsanwalt, i.e. a German lawyer. In case you have doubts whether this German solicitor really exists and what his registered professional office address and phone numbers are, there is a very simple and quick way to verify: Simply visit the official website of the German Federal Bar Association (which is also available in an English version) and enter this persons name to serach the entire database of all German advocates admitted to the bar. If a fraudster uses the name of an existing lawyer they usually state a different phone number and/adress. So you can easily verify by calling or writing to the respective lawyer at his official address given on the Federal Bar website.

The law firm Graf & Partners (Germany) assists entrepreneurs, businesses and private clients. Do not hesitate to contact us by calling solicitor Bernhard Schmeilzl at +49 941 785 3053 or send an email to: mail [at] grafpartner.com

Limitation under German Law

Limitation periods (in German: Verjährungsfristen) impose time limits within which a party must bring a claim, or give notice of a claim to the other party. They are imposed by statute, primarily sections 194 to 218 German Civil Code (Bürgerliches Gesetzbuch, BGB). The standard limitation period is three years (section 195 BGB), thus significantly shorter than limitation according to English law. For many constellations there are – of course – exceptions to this standard limitation period: German law knows limitation periods ranging from two weeks up to 30 years. For an overview see German Wikipedia.

If the limitation period has already expired, the claim will be “statute barred” (Anspruch ist verjährt) and the defendant will be able to plead the defence of limitation (Einrede der Verjährung).

When does the clock begin to tick?

According to section 199 BGB,  “unless another commencement of limitation is determined, the standard limitation period commences at the end of the year in which: (i) the claim arose and (ii) the obligee obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if he had not shown gross negligence”.

Due to the “end of the year-rule” the standard limitation period can – in fact – be almost four years. If, for example, you slap some German in the face on 1 January 2013, that person can wait until 31 December 2016 to sue you, because the limitation commences at the end of 2013 and runs for three years.

How to stop the clock?

To avoid the claim become statute barred the claimant must either initiate court proceedings (see details here) or he must get written confirmation by the other party that the other party will not plead the defence of limitation (so called “Verzicht auf Verjährungseinrede”). If claimant has missed this there is still a chance to argue that the parties had already started to negotiate the claim (see section 203 BGB), but this is thin ice, especially if there is no correspondence to prove such serious negotiations.

Limitation periods may be varied or excluded by agreement. However, contractual terms which impose shorter limitation periods are subject to consumer protection laws and reasonableness tests, especially if used in standard terms and conditions (see sections 305 to 310 BGB).

Limitation Periods in German Criminal Law

The periods of limitation on presecution are found in section 78 Strafgesetzbuch (German Criminal Code). When and how these periods can be interrupted is stipulated in section 78c Strafgesetzbuch. More on German criminal law in this article here.

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If you search for German litigation experts who are fluent in English, visit the website of GP Chambers: www.GermanBarristers.com. GP Chambers, with its international expertise, is well equipped to advise and represent clients from the UK, the USA and other English speaking countries.

More information on civil litigation and evidence rules in German Courts of law and before German arbitration tribunals:

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Solicitor_SchmeilzlThe law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German business and corporate matters, including the representation of clients in M&A transactions, medical malpractice litigation, contentious probate matters or labour law disputes throughout Germany.

If you wish us to provide advice on German law or represent you in court or arbitration proceedings in Germany, please call German lawyer Bernhard Schmeilzl, LL.M. (Leicester) or Munich based English solicitor Elissa Jelowicki on +49 941 463 7070.

Arrested in Germany? Accused of a Crime?

In case you run into trouble with German police or customs authorities the basic rule is – as everywhere – do not speak to them without getting proper legal counsel first. Much less sign anything they put in front of you. Police will put any statement you make into an official interrogation protocol. And, quite often, the wording of such protocol is given a spin that is helping the authorities make their case.

Also, you may give information that you consider harmless but may be of extreme relevance. For example: A top manager of an international bank flys into Munich from Hongkong. In his luggage he has an expensive watch that he will give to a German friend as birthday present. The manager himself is a British citizen, so – forgetting about the watch in his bag – he walks through the “EU citizens – nothing to declare” gate. German customs stop him and – after finding the watch, which was brand new and still in its original box  – question him because of importation vat evasion. During this questioning he makes a number of mistakes. The costliest being this: When they ask him about his income the manager, apparently proud of his salary and trying to make the point that a 8,000 pound watch is something that a person in his position may well have forgotten – tells the customs agent that he makes two million plus annual bonus. Now, one can imagine that this is not something that makes a customs official feel sorry for the person. But, more importantly, the bank manager was obviously not aware that criminal fines in Germany are based on a persons income. The manager was fined an equivalent of 18 days in jail. And the actual amount of each daily rate is calculated: annual income divided by 365, in this case (calculating “only” the fixed salary of 2 million) a daily rate of approx. 5,480 Euros. So, the manager has to pay a fine of 98,640 Euros. For evaded inport duty of less than 2,000 Euros. Had he given a much lower number, lets say 200,000 (or not have said anything), nobody would have checked this information and the fine would have been in the range of 5,000 to 10,000 Euros.

While this may be an extreme case regarding the actual numbers the fact that too much talking can cost you does apply very often. So, if your are accused of a crime you should always demand to speak to an English speaking German lawyer. In the south of Germany you may contact attorney Bernhard Schmeilzl of the law firm Graf & Partners (++49 175 480 2209). For other parts of Germany we can recommend qualified criminal defence attorneys.

Basic information on law enforcement and criminal prosecution in Germany: The German Criminal Code (in English language) and the Code of Criminal Procedure are available here. German judge Joachimski here compares the practical aspects of US and German criminal procedure and here is a very informative essay on the German criminal procedure produced by the NZ Law Commision (download here: GERMAN CRIMINAL PROCEDURE – german_criminal_procedure)