The short answer
You can apply for a new passport at the German mission abroad even while you are under investigation in Germany. It will not be issued in every case, however. The authority must refuse it if specific facts justify the assumption that you intend to evade criminal prosecution or the enforcement of a sentence pending against you in Germany (Section 7(1) no. 2 of the Passport Act [Passgesetz, PassG]).
Pending proceedings alone are not enough for this (Higher Administrative Court [Oberverwaltungsgericht, OVG] of Berlin-Brandenburg, judgment of October 2, 2014 – OVG 5 B 9.13). What matters is whether you are staying abroad precisely because of them. If there is an arrest warrant, the Administrative Court (Verwaltungsgericht, VG) of Berlin, which has jurisdiction over actions against German missions abroad, already regards that as a weighty indication of this, because you would face immediate detention on your return (order of November 7, 2019 – 23 L 612.19).
Who decides on the passport
Abroad, the passport authority is the German mission designated by the Federal Foreign Office, that is, the embassy or a consulate. The competent mission is the one in whose district you are habitually resident (Section 19(2) and (3) PassG). Another mission may issue a passport only with the authorization of the competent one; for a document to enter Germany, it does not need this authorization (Section 19(4) PassG).
When the passport must be refused
Section 7(1) no. 2 PassG covers any criminal prosecution and any enforcement of a sentence pending against you in Germany: the investigation as well as a sentence that is still to be enforced. If the requirements are met, the authority has no discretion; the passport “is to be refused.” It must, however, examine whether refusal is proportionate (Section 7(2) PassG, see below).
The hurdle lies in the words “specific facts” and “intends to evade.” According to the Federal Administrative Court (Bundesverwaltungsgericht, BVerwG), the decision to remain abroad must be based decisively on the motive of evading the proceedings. For this, the authority assesses all circumstances of the individual case, above all your conduct abroad and the sentence you face (Federal Administrative Court, order of February 10, 2015 – 6 B 3.15). Plans to travel on to a third country can also be taken as an indication of an intention to evade the proceedings (Administrative Court of Berlin, judgment of October 16, 2012 – 23 K 246.11).
Having lived abroad before the proceedings began does not protect you. It is enough that you continue your stay because of the proceedings (Administrative Court of Berlin, 23 K 246.11 and 23 L 612.19). According to the Administrative Court of Berlin, a willingness to cooperate with the authorities from abroad does not change this either; what matters is whether you are willing to face the proceedings in Germany.
Whether the criminal charge is justified is not examined by the passport authority or the administrative court. That is left to the criminal proceedings, unless the prosecution is obviously being pursued without justification (Administrative Court of Berlin, 23 K 246.11).
A restriction must be examined first
Refusal is the most severe measure. The authority must refrain from it if it is disproportionate, in particular if it is sufficient to restrict the territorial validity or the period of validity of the passport; the restriction is noted in the passport, and once the reasons for it no longer apply, you receive a new passport without restriction on application (Section 7(2) PassG). If you live abroad, however, this gains you little: the Federal Administrative Court and the Administrative Court of Berlin have regarded a restriction as insufficient where it would have allowed the person concerned to remain abroad (Federal Administrative Court, 6 B 3.15; Administrative Court of Berlin, 23 K 246.11).
Even a valid passport is not safe
Under the same conditions, the authority can also withdraw a passport you still hold; according to the Federal Administrative Court, the ground for refusal as a rule also justifies withdrawal (Section 8 PassG; Federal Administrative Court, 6 B 3.15). Even before that, it can seize the passport if facts justify the assumption that there is a ground for refusal (Section 13(1) no. 2 PassG). A court action does not stop the withdrawal or seizure (Section 14 PassG).
According to the Federal Administrative Court, refusal and withdrawal are also meant to induce accused persons abroad to return. If the German mission informs the state in which you live of its decision, that does not affect the lawfulness of the passport decision; the Passport Act does not prohibit such a communication (Federal Administrative Court, 6 B 3.15). How the state of residence reacts depends on its law. In the case decided by the Federal Administrative Court, the Thai authorities took the person concerned into detention pending deportation after the passport was withdrawn and handed him over to German officials; in Germany, he was placed in pre-trial detention.
What may not be refused
The authority may not refuse a passport or substitute passport for entry into Germany (Section 7(4) PassG). It serves your return. If there is an arrest warrant in pending proceedings, it can be clarified before you travel whether it will be set aside or its execution suspended, or whether the court grants safe conduct; that determines whether an arrest on entry can be avoided. In the case of a final sentence, by contrast, the question is when and how you begin serving it. More on this on the page Return with an Outstanding Arrest Warrant.
Where the lever is
The refusal depends on the criminal proceedings. Once the proceedings are concluded and nothing remains to be enforced, the ground for refusal falls away. If the arrest warrant is set aside or its execution suspended, the proceedings do continue, but the authority lacks a weighty argument, and a new application is then based on changed circumstances. That is why I start with the criminal proceedings: I apply for access to the file (Section 147 of the Code of Criminal Procedure [Strafprozessordnung, StPO]), clarify whether an arrest warrant exists and what it is based on, and look for a way, together with the public prosecutor's office and the court, to conclude the proceedings or have the arrest warrant set aside or its execution suspended. Depending on the charge, proceedings can also be concluded without you returning.
The decision of the German mission itself can be challenged before the administrative courts; the competent court is the Administrative Court of Berlin (Section 52 no. 2 sentence 5 of the Code of Administrative Court Procedure [Verwaltungsgerichtsordnung, VwGO]).
How I proceed
I am a criminal defense lawyer and represent you in the German proceedings, even if you live abroad. I apply for access to the file, review the arrest warrant, talk to the public prosecutor's office and the court and, if you want to return, prepare your entry. The first assessment is free of charge and without obligation.