I. Introduction
This essay is intended to give the non-legally trained reader a first insight into the meaning and structure of pre-trial detention. The legal basis for pre-trial detention – one of the most powerful interventions by the state in the personal freedom of a citizen – is the Code of Criminal Procedure. In addition, the Guidelines for Criminal Procedure (RiStBV Rd. 46-60) contain individual regulations.
The sole purpose of pre-trial detention is to enforce the state community's right to a full investigation of the offense and swift punishment of the offender. (Federal Constitutional Court NJW 1966, 243) It may only be ordered in limited exceptional cases. In doing so, the interest of the state must always be weighed against the right to liberty of the accused, who is still to be considered innocent.
II. Judicial appearance
If the police, after their own examination or after consulting with the public prosecutor, detain a suspect (see also § 127 StPO), and come to the conclusion that the suspect should not be released again, the suspect will be brought before the detention / investigative judge. This presentation must take place immediately, at the latest on the day after the arrest, in accordance with § 128 StPO. In this context, especially in the stage of initial investigative attempts by the police, which at this point only have mostly vague investigative results, the right of the accused to refuse to give evidence must be pointed out. Law enforcement officers often try to undermine this right, which is derived from the German Basic Law, by means of an informational interrogation. In this case, for example, the police determine the nature of the individual's involvement without informing the persons present. If criminal behavior is assumed, then these findings can also be used.
For example, an original note from a police investigation file regarding a drunk driving from May 26, 2000:
(...) at 2:30 p.m., the BMW was found in a hikers' parking lot (...). (...) About 75 meters away, PC L. and I noticed a heavyset man (...). His breath smelled distinctly of alcohol. (...) As a matter of information (note: i.e. without instruction), I asked him whether he had serious problems and therefore got drunk. He replied (...) that driving the BMW would have been stupid (...).
The tactical reasons for refusing to give evidence will be discussed at a later point. However, even a legal layperson can see from this example that the evidence of drunk driving was made possible, or at least significantly easier, by the hasty and senseless statement of the accused.
After completing these investigations, the judge examines the conditions for a possible arrest warrant on the basis of the investigation results (witness statements, etc.) and by interrogating the accused about the alleged offense.
III. Arrest warrant
An arrest warrant can be issued against the accused if he is strongly suspected of the offense and there is a reason for detention (Section 112 I StPO). An accused is to be regarded as strongly suspected if there is a high probability that the accused is the perpetrator or participant of a criminal offense. According to another view, strong suspicion means that an act must appear to be almost proven according to the state of the preliminary investigation (Kleinknecht/Meyer-Goßner § 112 margin no. 5).
The law provides for the following grounds for detention – summarized here in detail:
The reason for detention of flight according to § 112 II No. 1 StPO is to be assumed if the accused flees or hides. Explanations for this are unnecessary.
Risk of absconding § 112 II No. 2 StPO exists if the assessment of the circumstances of the case makes it more likely that the accused will evade the criminal proceedings than that he will make himself available for them. To do this, all the circumstances of the case must be addressed; in particular, the nature of the offense, the personality of the accused, his living conditions and his past life. The assumption of this most common reason for detention is justified very differently from region to region. In general, the expectation of punishment alone cannot justify the risk of absconding. The risk of absconding must be substantiated on the basis of certain facts. Conjecture or speculation should not be sufficient. In this context, however, the alleged rule of thumb that the tendency to flee is greater the higher the expected penalty is assessed plays a not insignificant but dubious role. In practice, this leads to a kind of accessory nature of the reason for detention according to the formula:
Strong suspicion of an offense carrying a significant prison sentence = presumption of a tendency to flee = flight risk.
Risk of suppression of evidence (Section 112 II No. 3) is assumed if the behavior of the accused gives rise to the strong suspicion that certain actions will affect factual or personal evidence, thereby making the determination of the truth more difficult. In the individual case, reference must be made to the literature and the case law of the higher regional courts, as the interpretation of the standard varies from region to region and is case-oriented.
The reason for detention is the risk of repetition, which is of a preventive-police nature. This is the case when the accused is suspected of having committed one of the cataloged offenses of § 112 a I No. 1 and 2 StPO (e.g. rape), and certain facts give rise to the danger that further significant crimes of the same kind will be committed. The reason for detention based on the danger of repetition must also be substantiated on the basis of specific facts. Due to the preventive nature of the police, the standard no longer has anything to do with ensuring the truth is established. However, in many cases, the danger of repetition can be dispelled with considerations from a criminological point of view.
If the judge is not convinced that an arrest warrant should be issued, he rejects the public prosecutor's application and orders the release of the suspect. Otherwise, he issues the arrest warrant, notifies the relatives or other trusted persons and arranges for the transfer of the accused to the nearest pre-trial detention center.
IV. Release from custody
The magistrate may decide to suspend the arrest warrant either at the same time as it is issued or at a later date. A suspension of the warrant may be considered if, although the issuance of an arrest warrant appears necessary, for example, due to the risk of absconding, less drastic measures than the execution of pre-trial detention appear suitable to eliminate the risk of absconding.
Such less severe measures include, among other things, the instruction to report (e.g. twice weekly to the nearest police station), the deposit of a security or the instruction not to leave one's place of residence. If a defendant who has been spared pre-trial detention violates the conditions, i.e. if he fails to comply with a condition or makes preparations to flee, the arrest warrant can be executed again at any time.
V. Review of an arrest warrant
If the remand prisoner does not have a defense counsel, an official review of the detention will take place ex officio after three months of pre-trial detention in accordance with Section 117 V StPO. This review usually takes place in a written procedure.
Regardless of whether the defendant has a lawyer, a further statutory custody review is carried out at an Higher Regional Court (Oberlandesgericht) after a maximum of six months of continuous pre-trial detention (Section 121 StPO). Here, the court ascertains whether particular difficulties of the case or a particular scope of the investigations justify the continued detention. This detention review also takes place in a written procedure.
At the request of the accused, a judicial review of detention can be requested in addition to the statutory detention reviews provided for by law in accordance with § 117 I StPO. If expressly requested, this will take place in an oral hearing. If the detention judge decides to continue the pre-trial detention at this hearing, a new application for a custody review is only admissible if the pre-trial detention has lasted at least three months and at least two months have passed since the last oral proceedings (Section 118 III StPO).
The accused can file a so-called detention appeal against the judge's decision. In this case, a chamber of the district court decides on the legality of the decision made by the detention judge. In turn, a further appeal is permitted against this decision. This is usually decided by the higher regional court.
The questions of when, in what form and how often action should and can be taken against a warrant of arrest that has been issued once belong to the tactical considerations of criminal defense. Decisions of this kind are among the more difficult legal and tactical issues in criminal defense and should be left to an experienced criminal defense attorney.
VI. Assessment
The drastic effect of an arrest should not be underestimated. The citizen who was just free now finds himself confronted with the state monopoly on the use of force. The presumption of innocence established in Article 6 II ECHR still applies to him - until a legally binding conviction is handed down - but the special sacrifice for the general public - the loss of personal freedom of movement - must be accepted for the time being. With the order of pre-trial detention, there is a risk of months, or even years in exceptional cases, of pre-trial detention with the associated fatal consequences of loss of livelihood, loss of reputation in the social environment, loss of job and often also the disruption of partnership, marriage and family life.
Dahs said in his Handbook of the Defense Attorney,
that pre-trial detention is the bleakest chapter in criminal defense. In no other area of the proceedings do the omnipotence of the state and the powerlessness of the defense emerge so clearly.
and thus expressed what goes on in the mind of every criminal defense attorney as an emotion. It should not be overlooked that in the majority of cases, pretrial detention is justified due to the risk of flight or suppression of evidence. However, in a significant number of cases, there are doubts regarding the necessity and proportionality of the deprivation of liberty.
This applies in particular when considering the quite common formulaic reasons given in judicial arrest warrants or complaints, such as: the accused faces a severe prison sentence. There is thus a reason for detention due to the risk of absconding; or: the appeal is dismissed for the applicable reasons of the contested decision; or: according to the previous result of the investigations, the accused is strongly suspected of the acts of which he is accused. This also shows that, in particular, a statement, i.e. a declaration relating to the criminal accusation about the circumstances of the offense, will generally not be suitable to effectively protect the accused against the issuance of an arrest warrant. Rather, the very fact that the accused has made a statement to law enforcement authorities (police, public prosecutor or judge) often presents an insurmountable obstacle to effective criminal defense that can hardly be corrected.
The pressure associated with pre-trial detention, which is felt both psychologically and physically, is also, according to the consistent experiences of almost all criminal defense attorneys, deliberately used by law enforcement authorities to persuade the accused to make a statement and is thus institutionalized to undermine the accused's right to remain silent.
Except for a few situations that can probably only be recognized by an experienced criminal defense attorney, the only recommendation for the accused in criminal proceedings, especially if the issue of an arrest warrant is under consideration or has already been issued, is to make use of his right to refuse to give evidence and only to make a statement on the matter after consulting with a trusted defense attorney.
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.