According to the Code of Criminal Procedure, the presumption of innocence applies. This means that every accused person is to be treated as innocent until a legally binding conviction.
Nevertheless, to ensure the effective administration of criminal justice, pre-trial detention is permitted. The latter is occasionally ordered prematurely by law enforcement officers during an ongoing investigation. As a custodial measure, pre-trial detention is one of the most intrusive legal interventions by the state.
It is not uncommon for arrest warrants to be executed by the police completely unexpectedly, 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 for which he or she is charged (strong suspicion) and there is a reason for detention. It may not be ordered if it is disproportionate to the significance of the case and the expected penalty or measure of correction and protection.
A reason for detention exists if the offender is a fugitive or is in hiding, if there is a risk that the accused will evade the criminal proceedings (risk of absconding), or if there is a risk of collusion, i.e. there are indications that he will destroy, alter, dispose of or suppress evidence. Furthermore, there is the reason for detention of the risk of repetition for certain catalog crimes. The lawyer can argue against an alleged risk of flight that the client has firm social ties and a permanent place of residence. The proportionality of pre-trial detention must be rejected if the defendant is only accused of a minor offense and the severity of the interference with the accused's life and the significance of the criminal case are disproportionate. Lawyers also check whether there are less severe measures than pre-trial detention. For example, the suspect may be required to report to the police at regular intervals, not to contact certain witnesses or others who are being prosecuted, or to pay a reasonable amount of money as bail.
After his arrest, the accused must be brought before the competent judge immediately, at the latest on the following day. The new regulation of § 140 para. 1 no. 4 StPO states that every defendant is entitled to a public defender if pre-trial detention is imposed against him. If the detainee is not satisfied with the lawyer appointed to him by the investigating judge and if he has not been asked about a lawyer he trusts, a change of lawyer for the subsequent trial is conceivable, or the private assignment of a different lawyer.
Law enforcement officers often speculate that detainees will make ill-considered statements to the magistrate regarding the charge, in order to be released from prison more quickly. However, making a rash statement can lead to significant disadvantages that are difficult to rectify later. Furthermore, a detainee will not necessarily be released if they have admitted to the crime. In custody matters, the help of an experienced criminal defense lawyer should therefore be sought. A statement on the matter should not be made before a Lawyer is hired. He first applies for access to the files and discusses these with his client at his leisure. The statement on the charge is then made by the lawyer.
In general, in the case of pre-trial detention orders, there is the option of applying for an oral detention review against the continuation of detention or to file a detention complaint if the court has wrongly affirmed an urgent suspicion of guilt or grounds for detention.
In addition to the detainee being able to visit you in prison immediately, we guarantee that we will quickly organize a visitor's permit for relatives or friends through the public prosecutor's office if requested. In principle, the detainee may be visited no more than twice a month. Special visitor permits are conceivable for the purpose of dealing with 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.