The number of suspected criminals wanted on arrest warrants in Germany is not decreasing. However, evaluating the current statistics, it should be remembered that several arrest warrants can be issued against an individual. In this context, a differentiation must be made between civil and criminal law arrest warrants. This applies to the prerequisites and the possibilities of a legal remedy for the person concerned.
The German law firm Schlun & Elseven Rechtsanwälte offers comprehensive and committed legal assistance to provide our clients with the support they need. Our lawyers have extensive expertise and many years of experience in dealing with the complex requirements of German criminal law. With us, you have an expert and reliable partner at your side who will represent your rights and interests with the necessary commitment.
Issue of an Arrest Warrant
It is not uncommon for persons against whom preliminary proceedings have been initiated on suspicion of committing a criminal offence to try to evade these proceedings by fleeing and/or destroying or altering evidence. The arrest warrant against such a person is intended to counteract this and secure the proceedings. This official order is regularly issued to place the accused in pre-trial detention.
Under What Conditions is an Arrest Warrant Issued?
The competent judge orders an arrest warrant. The accused is then handed the warrant in written form. In principle, the letter must contain precise details of the offence with which the accused is charged.
Issuing an arrest warrant against an accused person first requires an urgent suspicion of the offence (Section 112 (1) of the German Code of Criminal Procedure, StPO). Such suspicion exists if the investigation results show that it is highly probable that the accused is guilty of a criminal offence as a perpetrator or participant.
Furthermore, the arrest warrant requires that one of the following grounds for arrest exists:
- Flight/concealment of the accused (Section 112 (2) no. 1 StPO),
- risk of flight (Section 112 (2) no. 2 StPO),
- danger of obscuration (Section 112 (2) no. 3 StPO),
- serious crime (Section 112 (3) StPO),
- risk of repetition (Section 112a (1) StPO).
The reason for detention, the danger of collusion, is relevant if the accused’s conduct gives rise to the urgent suspicion that they will destroy or alter evidence or the like, exert an unfair influence on those involved in the upcoming criminal proceedings or induce third parties to engage in such conduct.
In addition to the urgent suspicion and the reason for detention, proportionality is also needed. After all, detention is a restriction of liberty. Therefore, the arrest warrant must be proportionate in that the detention and the seriousness of the offence are not out of proportion. Therefore, pre-trial detention may not be ordered for lighter offences (Section 113 StPO).
Legal Options for the Person Concerned
It is not uncommon for a person to be unjustly imprisoned. In most cases, a reason for detention is assumed, which does not exist. In some cases, there is a lack of proportionality. The German lawyers at Schlun & Elseven advise you to contact our criminal law practice group in such cases. We will explain your options for action and represent your rights and interests.
Preventive Action
If you suspect that an arrest warrant will be issued against you, we advise you to contact our criminal defence lawyers. They request access to the files at the earliest possible stage in the preliminary proceedings and check whether there is a risk of an arrest warrant being issued or if such a warrant has already been issued.
Arrest Review
If an arrest warrant has already been issued and you are in pre-trial detention, you can apply for a review of your detention at any time (Sections 117 et seq. StPO). The detention review is a procedure for reviewing pre-trial detention. It determines whether the arrest warrant is to be revoked according to Section 120 StPO or whether its execution is to be suspended under Section 116 StPO by examining in an oral, non-public hearing whether the urgent suspicion of the offence can be confirmed whether there is a reason for detention and, if applicable, whether detention can be spared. In this context, the suspension of the execution of the arrest warrant according to Section 116 StPO is subject to several conditions that must be complied with.
The detention hearing will take place quickly. The oral hearing is held two weeks after receipt of the application for a detention review (Section 118 (5) StPO). The decision on the application is usually announced at the end of the oral proceedings or the week following the hearing.
Detention Complaint
It is also possible for those affected to file a detention complaint under Sections 304 et seq. StPO. In doing so, the competent court is to examine the given facts. While the application for a detention review can be filed at any time and several times, filing a detention complaint is impossible if the former has already taken place (Section 117 (2) sentence 1 StPO). A detention appeal may lead to an oral hearing. However, this does not have to be conducted compared to the detention review.
However, a further appeal can be lodged under Section 310 StPO if the detention appeal is unsuccessful. The lawyers at Schlun & Elseven will advise you on your legal case and examine your chances of success. We will inform you of your rights and obligations and check which legal remedy and which course of action is preferable to achieve the best possible result. Of course, we will support you throughout the entire process to strengthen your legal position.
Cross-Border Arrest Warrant
In addition to issuing an arrest warrant against a person at a national level, there is also the option of issuing an arrest warrant valid throughout the European Union. To facilitate cross-border cooperation between police and judicial authorities, the European Arrest Warrant was developed for this purpose. Since it simplifies and speeds up the arrest and extradition of persons accused of committing a crime, it supports the enforcement of a national arrest warrant.
If a European arrest warrant has been issued against you or is expected to be issued, contacting our extradition lawyers is highly advisable. We will examine the facts of your case and develop a promising strategy to enforce the legal remedies available to you against the extradition proceedings. In addition, our lawyers will assist you in challenging the European Arrest Warrant. Contact us today via our online form and learn more about the cross-border arrest warrant, the extradition procedure, and your options for action.
The Civil Arrest Warrant
A civil arrest warrant, which a creditor can apply for in the context of compulsory execution, is to be distinguished from a criminal arrest warrant. This type of warrant then enforces the submission of a statement of assets. According to Section 802g paragraph 1 sentence 1 of the German Code of Civil Procedure (ZPO), the court may issue a warrant of arrest to compel the debtor who fails to appear at the hearing to provide the information mentioned above without excuse or refuses to do so without cause according to Section 802c of the ZPO. The arrest will then be made by a bailiff (Section 802g (2) ZPO). It is not necessary to serve the arrest warrant before its execution (Section 802g, paragraph 1, sentence 3 ZPO).
For the debtor, the question arises in the case of a civil arrest warrant as to how this can be averted. First, this can be prevented by submitting the required statement of assets. Even if the debtor has already been imprisoned, submitting the statement of assets leads to release (Section 802i paragraph 2 sentence 1 ZPO). In addition, the arrest warrant is inadmissible according to Section 802h paragraph 1 ZPO if two years have passed since the day on which the arrest warrant was issued. The arrest may not be executed at first if the detention poses a danger to debtors for health reasons (so-called suspension of detention).
In addition to the possibility of ending compulsory detention by submitting a statement of assets, the debtor may lodge an immediate appeal against the arrest warrant according to Sections 793, 567 et seq. ZPO. However, if the debtor wishes to act against procedural errors of the enforcement body, they may file an enforcement reminder under Section 766 (1) ZPO. However, this is not a legal remedy against the arrest warrant.
The lawyers at Schlun & Elseven Rechtsanwälte will explain what courses of action are available to you in case of a civil arrest warrant. We advise you on your rights and obligations and represent your interests with the necessary commitment – regardless of the type of proceedings involved in your case. Feel free to contact us for more information on our services today.
Practice Group: German Criminal Law
Practice Group:
German Criminal Law
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