Pre-Trial Detention Procedure and Advice

First of all, there must be a high probability that the accused is actually the perpetrator of or a participant in the offence in question (strong suspicion). Furthermore, the order for pre-trial detention must be issued by a judge in Germany, Section 114 (1) of the German Code of Criminal Procedure (StPO). If the urgent suspicion ceases to exist during the investigation, the pre-trial detention must be cancelled in accordance with Section 120 StPO.

The reason for detention must be specifically stated in the pre-trial detention order in Germany. According to Section 112 (2) StPO, a reason for detention exists if the suspect

• is a fugitive or is in hiding,
• there is a risk of flight or
• there is a danger of suppression of evidence.

In Germany he existence of such a reason for detention is only dispensable in exceptional cases in which the seriousness of the offence justifies pre-trial detention (absolute reason for detention). This can regularly be assumed in the case of serious capital offences listed in Section 112 (3) StPO, such as an allegation of homicide or offences against international law. In other cases, the risk of repetition may also be sufficient for the assumption of grounds for detention, Section 112a StPO. Depending on the individual case, a reason for detention can be refuted with the help of a criminal defence lawyer so that pre-trial detention can still be prevented. Arguments such as strong family ties and localised professional activities can be used here, particularly regarding the risk of flight.

After the arrest, the person is brought before the competent magistrate in Germany, but no later than the next day. This is usually the judge who issued the arrest warrant. Only if it is not possible to bring the arrested person before the competent judge within the scheduled timeframe can they be brought before another judge as an exception. This judge therefore only announces the arrest warrant and must ensure that the person concerned is brought before the competent judge and questioned by them. During this personal hearing, the accused must be informed of the reasons for their arrest and given the opportunity to present the facts and objections that exonerate them. Based on this hearing, the judge must then decide whether the arrest warrant is to be upheld (Section 115 (4) StPO), cancelled (Section 120 StPO) or whether its execution is to be suspended (Section 116 StPO).

If the arrest warrant is cancelled or its execution suspended, the person will be released. However, the end of pre-trial detention does not mean the end of the investigation proceedings, but only the end of the detention. It is therefore possible for a new pre-trial detention order to be issued while the investigation continues. This may be the case, for example, if new facts come to light that justify the assumption of grounds for detention or if conditions that were attached to the warrant of arrest are not complied with.

If, on the other hand, the competent judge decides that the arrest warrant should be upheld, the next step is to remand the accused in custody. This means that the accused is placed in a special (ward of a) correctional centre. Every pre-trial detainee has the right to constant, personal and confidential contact with a lawyer during their detention, which may only be monitored in particularly severe cases (Section 148 StPO). Even while you are in pre-trial detention, our criminal defence lawyers will carefully prepare the criminal proceedings for you and work with you to develop the best possible defence strategy for your case.

Pre-trial detention is not an anticipated punishment, but merely safeguards criminal proceedings. On the one hand, this is intended to prevent the accused from negatively influencing the investigation and, on the other, to ensure that they cannot evade the subsequent proceedings. For this reason, their duration is strictly limited. In principle, the maximum duration of pre-trial detention is six months, in accordance with Section 121 (1) StPO. A longer period of detention may only be ordered if the particular difficulty, the special scope of the investigation or another important reason can justify it. However, if the pre-trial detention is based on the risk of repeated offences, its duration may not exceed twelve months, in accordance with Section 122a StPO.

Furthermore, the maximum limit of six months may not be utilised without good reason. Finally, it must be considered that the accused has not yet been convicted at the time of pre-trial detention. It is merely a matter of a person suspected of a crime not yet considered guilty according to the presumption of innocence. These criminal proceedings must therefore be conducted as quickly as possible. This is the only way to uphold the principle of proportionality, which is also of considerable importance in connection with the duration of pre-trial detention (see BVerfG, order of 1 December 2020 – 2 BvR 1853/20, para. 26). The duration must not be disproportionate to the expected sentence. The longer the pre-trial detention lasts, the stricter the requirements for the speed of the necessary investigative work and the grounds for detention must be.

Furthermore, pre-trial detention is to be terminated immediately as soon as the reason for detention or the urgent suspicion of an offence ceases to exist. For example, due to a new witness statement in favour of the accused. Both circumstances must continually be reviewed ex officio during the ongoing investigations.

The imposition of pre-trial detention may initially appear disproportionate. However, the duration of pre-trial detention is generally offset against a subsequent fine or prison sentence in accordance with Section 51 (1) of the German Criminal Code (StGB). If the person concerned is later convicted in criminal proceedings, the period of pre-trial detention is considered when sentencing. Only in certain exceptional cases can this not be considered in accordance with Section 51 (1) sentence 2 StGB, namely if it does not appear justified in view of the convicted person’s behaviour after the offence.

However, this is a deduction, not a reason for mitigation in the classic sense. Nevertheless, pre-trial detention can also be a reason for mitigation if it was associated with unusual hardships that went far beyond the usual extent or if there were special circumstances, such as an excessive length of proceedings. In these cases, pre-trial detention can not only be considered, but can also lead to an additional mitigation of the sentence. This can be particularly important in the case of imprisonment served abroad, as prison conditions there are often worse, which are considered an additional and unusual hardship and can lead to an additional mitigation of the sentence.

If the opening of the main proceedings is refused or if criminal proceedings are initiated but end in an acquittal, it is possible to claim compensation for losses or damage suffered. The amount and the assertion of claims for compensation for unjustified pre-trial detention are governed by the Criminal Law Compensation Act (StrEG) in Germany. This stipulates that, on the one hand, the material financial loss suffered by the person concerned as a result of pre-trial detention is compensated. This includes, for example, loss of earnings or loss of profit. It can also cover maintenance obligations that are not honoured due to pre-trial detention. In addition, compensation is also paid for non-material damage resulting from the deprivation of liberty suffered. With effect from 8 October 2020, the law in Germany sets the amount of compensation for these losses at 75 euros per day (Section 7 (3) StrEG). Previously, this lump sum was 25 euros per day.

The criminal compensation procedure in German is divided into two parts. In the basic proceedings (Sections 1-9 StrEG), it must first be determined whether a claim arises at all. This determination is made by the criminal court that would have had to decide or has decided the facts in question. If the public prosecutor’s office has discontinued the proceedings, an application to establish the claim must be submitted within one month. If, on the other hand, the judge opens the proceedings, the claims are reviewed ex officio, meaning that no timely application is required. In a second step, the amount proceedings take place, in which the amount of the compensation claim is determined (Sections 10 et seq. StrEG). This claim must be submitted to the competent public prosecutor’s office in Germany within a period of six months.

A skilled and experienced legal adviser can give you a decisive advantage in all phases of criminal proceedings regarding pre-trial detention. In particular, the legal fees required to assert the claim for compensation will also be reimbursed by the state treasury. We can help you to effectively enforce the claims to which you are entitled against the sovereign authority. If you find yourself in this situation, please do not hesitate to contact us to benefit from our legal expertise and wealth of experience.

Since a change in the German law in 2019, a public defence lawyer must be assigned by the court to a defendant in pre-trial detention. This results from Section 140 StPO, which regulates public defence cases (“necessary defence”). This provision is supplemented by Section 141 StPO.

Section 141 (1) StPO stipulates that the accused person must be appointed a public defender without delay if they have expressly requested this after being instructed and the allegation of the offence has been made. This should regularly apply to the situation of police questioning. A public defence lawyer is also appointed to the accused immediately, but also without an explicit request, as soon as they are to be brought before a court for a decision on detention or temporary placement, Section 141 (2) sentence 1 no. 1 StPO. This refers to the presentation of the accused to the magistrate who decides whether to issue or uphold an existing pre-trial detention order.

At this point, however, it may already be too late. The accused may have already incriminated themselves and made statements that cannot be corrected by an experienced lawyer. It is also possible that pre-trial detention has already been ordered. In such exceptional cases, how can the accused refute the grounds for suspicion and detention and assert the facts in their favour?

In many cases, an accused person does not know how to act and what to expect. A defence lawyer should therefore provide the necessary support. In contrast to the previous legal situation, however, the accused in custody no longer has to wait three months to be assigned a public defence lawyer.

The costs of the public defence will initially be borne by the state treasury. In the event of an acquittal, all necessary costs, including legal fees, are also reimbursed by the court. However, if the defendant is convicted, they must pay the costs back to the court, if necessary in instalments.

For reasons of fairness, the accused also has the option of appointing their own defence lawyer of choice. This is to ensure that the accused has the opportunity to work with a lawyer of their choice. In principle, it is possible to have both a public defence lawyer and a lawyer of choice, but only in cases where the lawyer of choice joins the proceedings after the public defence lawyer has been appointed. If a defence lawyer already exists, the court will no longer appoint a public defender. If you need a defence lawyer in Germany to advise and represent you in all matters, please contact the lawyers at Schlun & Elseven Rechtsanwälte.

If you are arrested and remanded in custody in Germany, you should not make a statement under any circumstances. Such a statement can have considerable negative consequences in the further course of the proceedings.

The police and public prosecutor’s office often try to create the impression that a statement would be helpful and that the matter could be resolved quickly. They regularly take advantage of the confusion and surprise of the person concerned to pressure them into making a statement. Nevertheless, you should never make a statement about the accusation without first consulting your lawyer. If the police make promises or assurances to you, these will generally be worthless, as the police are only responsible for conducting the investigation. The police have no authority or binding power of influencing the judgment or even ending the proceedings at an early stage. These competences lie solely with the court or the public prosecutor’s office in Germany.

If you make a statement that can be used against you, it will be difficult to correct this mistake later in the proceedings, even by an experienced lawyer. The German Code of Criminal Procedure provides for the possibility of being able to comment on the case until the final hearing, so nothing should be rushed at this early stage. Furthermore, exercising your right to remain silent, which is enshrined in Section 136 StPO, must not be interpreted negatively. This is another reason why you have nothing to lose if you refuse to make a statement. Limit your statement to your personal details.

The next and equally important step is to consult a skilled criminal defence lawyer as soon as possible and make use of their services. This is the only way you can effectively defend yourself against the criminal prosecution authorities in Germany. After all, only your lawyer can effectively check whether the conditions for detention are even met. In many cases, less incriminating measures are evident, meaning that the reasons given for pre-trial detention are disproportionate, as is the detention itself.

To avert pre-trial detention, it is often sufficient for the accused’s willingness to cooperate to be made clear to the magistrate. Your chances of credibly communicating this are best with the help and support of an expert lawyer. Our lawyers specialising in German criminal law will be happy to advise you in these matters and represent you in the best possible way.

IMPORTANT: If you are in acute need of legal advice regarding pre-trial detention or other criminal law issues in Germany, please do not hesitate to contact us. Our lawyers are here to help you. Please let us know briefly in your enquiry that you require urgent criminal law advice so that we can prioritise your case accordingly.