LawyerMarkus Schmuck, Legal advisor in Koblenz
Magazine
Our information service for you
Mittwoch, 10.07.2024

Pre-trial detention and "procedural security"

Risk of repetition is not a means of securing proceedings



from
Markus Schmuck
Lawyer
Specialist in criminal law

Give me a call: 0261 - 404 99 25
E-Mail:

The risk of repetition is not a means of securing proceedings. This is actually well known. It is also known that certain facts must be presented to justify the risk of repetition. In its decision of January 26, 2023, Az. 4 Qs 6/23 - 30 Gs 9692/22, the Regional Court of Koblenz, quite rightly, reiterated the legal situation, which is actually well known.

"1.
According to the current state of the investigation, there is strong suspicion that the defendant committed the acts mentioned in the contested arrest warrant of October 25, 2022 in the version of January 17, 2023. The complainant does not object to the assumption of this strong suspicion either.

2.
However, there is no necessary reason for detention. There are no grounds for detention under § 112 of the German Code of Criminal Procedure. There is no recognizable risk of the accused absconding due to their permanent residence and family relationships. After the termination without notice of her employment relationship by (…) any risk of collusion has in any case ceased to exist.

The reason for detention due to the risk of repetition within the meaning of § 112a para. 1 sentence 1 no. 2 StPO is also not present.

Although the accused is strongly suspected of having repeatedly committed the offense of fraud pursuant to Section 263 of the German Penal Code (StGB), namely in 78 cases, 2 StPO, the offense of fraud under § 263 StGB, a large number of these acts seriously impair the legal order due to the damage caused by them in each case in the amount of several thousand euros (see for serious pecuniary damage in the case of fraud: OLG Hamburg, Beschl. v. 20.7.2017 – 2 Ws 110/17, BeckRS 2017, 118720 para. 11, beck-online; OLG Naumburg, decision of July 26, 2011 – 1 Ws 615/11, NStZ-RR 2013, 49; BeckOK StPO/Krauß, 46th ed. January 1, 2023, StPO § 112a para. 8 with further references).

In view of the large number of cases and the respective amounts of damage, and due to the fact that the defendant already has a relevant criminal record, as well as due to the range of sentences under § 263 para. 3 sentence 1 of the German Criminal Code (StGB) of imprisonment from six months to ten years, a prison sentence totalling more than one year can be expected. In this respect, it is not necessary for each of the multiple offenses to have a penalty expectation of at least one year; rather, it is sufficient that the expected total custodial sentence exceeds the one-year limit (BeckOK StPO/Krause, 46th ed. 1.1.2023, StPO § 112a Rn. 11).

However, there is a lack of certain facts that establish the risk that the accused will commit further significant crimes of the same kind before a final judgment is handed down.

The pre-trial detention ordered due to the danger of repetition (Section 112 a StPO) does not constitute a means of securing the proceedings, but is a preventive measure to protect the legal community from further significant criminal offenses and is thus of a preventive-police nature. For constitutional reasons, strict requirements must therefore be applied to the ground for detention of the risk of repetition (OLG Karlsruhe, decision of January 21, 2020 – 2 Ws 1/20, BeckRS 2020, 1561 para. 13, beck-online; OLG Cologne, decision of 10.10.2018 – 2 Ws 571/18, BeckRS 2018, 41408 para. 9, beck-online).

Section 112a of the Code of Criminal Procedure requires the danger, supported by certain facts, that the accused will commit further significant crimes of the same kind or continue the crime before the final judgment of the act of which he is strongly suspected. The basis for the risk of repetition must be certain facts that reveal such a strong inner tendency on the part of the accused to commit relevant acts that there is reason to fear that he will continue the series of similar acts even before he is convicted of the initial offense (BeckOK StPO/Krausz, 46th ed. 1.1.2023, StPO § 112a Rn. 13). The risk prognosis requires a high probability that the criminal behavior will continue (OLG Cologne, decision of October 10, 2018 – 2 Ws 571/18, BeckRS 2018, 41408, beck-online). The general fear that similar acts may occur at some unspecified point in the future is not sufficient (BeckOK StPO/Krausz, 46th Ed. 1.1.2023, StPO Section 112a para. 13).

In the opinion of the Chamber, the present case does not go beyond such a general fear.

Although previous acts must also be taken into account in the prognosis, through which a solidified criminal pattern of action can become apparent (BeckOK StPO/Krausz, 46th Ed. 1.1.2023, StPO § 112a Rn. 13) and the Chamber does not fail to recognize that the defendant was convicted by order of the District Court of St. Goar on February 5, 2016, legally binding since March 15, 2016, (Case No. 2010 Js 62088/15) of forgery of documentsfraud in eight cases to the detriment of her former employer, and was thus convicted of some of the offenses in question here while on probation. Furthermore, the chamber does not ignore the fact that the accused in the present proceedings is strongly suspected of having committed fraud to the detriment of two of her employers.

Nevertheless, it should be noted that the company (…), where the accused was last employed, terminated the employment relationship with the accused without notice by letter dated October 26, 2022 (p. 514 of the file). It is therefore no longer possible for the accused to commit comparable crimes to the detriment of (…). 

The commission of similar acts would therefore require the existence of a new employment relationship in which the accused would again be entrusted with financial accounting. The accused would first have to find and take up such an employment relationship. It should also be noted that the accused was employed by both companies (...) for a considerable period of time before the fraudulent acts were carried out. This suggests that the defendant required a corresponding preparation and familiarization period in the employer's processes and could not easily carry out comparable acts immediately prior to a possible conviction with new potential employers.

Even though the multiple commission of offenses may be a strong indication of the risk of committing further similar offenses, it must be noted in the context of the overall consideration that the accused is strongly suspected of having committed commercialcommitted fraud against her employers in 78 cases. However, the accused repeatedly used a specific approach at her employers to deceive other employees and induce them to release payments. At some point, she had developed a "well-rehearsed" system. In view of the preliminary proceedings against her and the expectation of a penalty of more than a year in the event of a conviction, the inhibition threshold for developing such a system for another employer and committing further fraud at the expense of another employer would be considerably higher.

In addition, the defendant lives in an orderly family relationship with her husband, who is employed as a (…) and their (..)-year-old son. The accused has now spent more than two months in custody, which has probably impressed her, as she had not previously experienced prison, and raised the threshold for committing further offenses.

 

General fears are not sufficient.
Such a "fear" could be assumed or asserted in all proceedings involving the same or similar actions. As a rule, the district court then "draws" the danger of repetition if one only considers other grounds for detention to be given under - one's own - deferred concerns. From the reasoning, it then emerges between the lines that two half-baked grounds for detention, each of which is not really present, should be sufficient for pre-trial detention. This must always be vigorously opposed by the defense.

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.