Montag, 01.07.2013
Last change: Donnerstag, 12.03.2026
Legal representation in the event of pre-trial detention in criminal law
from
Dr. jur. Ingo E. FrommLawyer
Specialist in criminal law
Specialist in traffic law
Give me a call: 0261 - 404 99 25
E-Mail:
According to the Code of Criminal Procedure, the presumption of innocence applies. This means that every defendant must be treated as innocent until a final conviction has been handed down.
Nevertheless, pre-trial detention is permissible in order to ensure effective criminal justice. The latter is occasionally ordered prematurely by law enforcement agencies during ongoing investigations. As a measure designed to promote rehabilitation, pre-trial detention is one of the most drastic legal interventions by the state.
It is not uncommon for arrest warrants to be executed completely unexpectedly by the police, often in the early hours of the morning. The arrested person is thus removed from their living environment from one moment to the next. Pre-trial detention may only be ordered if the accused is highly suspected of the crime with which they are charged (strong suspicion) and there are grounds for detention. It may not be ordered if it is disproportionate to the significance of the case and the expected punishment or corrective and preventive measures.
Grounds for detention exist if the perpetrator is on the run or in hiding, if there is a risk that the accused will evade criminal proceedings (risk of absconding), or if there is a risk of collusion, i.e., if there are indications that he will destroy, alter, remove, or suppress evidence. Furthermore, there is grounds for detention due to the risk of repetition for certain catalogued offenses. The lawyer can argue against an alleged risk of absconding by pointing out that the client has strong social ties and a fixed place of residence. The proportionality of pre-trial detention must be rejected if the client is only accused of a minor offense and the severity of the interference in the accused's private life and the significance of the criminal case are not proportionate to each other. The lawyer also examines whether there are less severe alternatives to pretrial detention. For example, the suspect may be required to report to the police at regular intervals, refrain from contacting certain witnesses or other persons under investigation, or deposit an appropriate amount of money as bail.
After their arrest, the accused must be brought before the competent judge immediately, or at the latest the next day. The provision of Section 140 (1) No. 4 of the Code of Criminal Procedure states that every accused person has the right to a public defender if they are remanded in custody. If the detainee is not satisfied with the Lawyer appointed by the investigating judge and has not been asked about a Lawyer of his choice, it is possible to change Lawyers for the subsequent trial or to privately hire another Lawyer.
Law enforcement agencies often speculate that detainees will make ill-considered verbal statements to the detention judge regarding the charges against them in order to be released from prison more quickly. However, an ill-considered statement can lead to considerable disadvantages that are difficult to correct later. Furthermore, the detainee will not necessarily be released if they have admitted to the offense. In custody matters, it is therefore essential to seek the help of an experienced criminal defense attorney. A statement on the matter should not be made before retaining a Lawyer. The Lawyer will first request access to the files and discuss them at length with his or her client. The statement on the allegations will then be made through the Lawyer.
In general, in the case of pre-trial detention orders, it is possible to apply for an oral review of the detention or to lodge a complaint against the detention if the court has wrongly affirmed a strong suspicion of guilt or grounds for detention.
In addition to visiting the detainee directly in the prison, we guarantee that we will quickly organize a visitor's permit for relatives or friends through the public prosecutor's office, if desired. The detainee may generally be visited up to twice a month. Special visitor's permits are possible for urgent professional matters.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.