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Pre-Trial Detention: Procedure and Advice

Within the framework of preliminary proceedings, the public prosecutor’s office can apply to the investigating judge responsible for these proceedings for an arrest warrant to take a suspect into custody (pre-trial detention). A mandatory prerequisite for issuing a pre-trial detention order is the existence of a reason for detention. According to § 112 (2) German Criminal Procedure Code, a reason for detention exists if the suspect

  • is a fugitive or is in hiding
  • there is a risk of flight, or
  • danger of collusion

The existence of such a reason for detention is only dispensable in exceptional cases in which the seriousness of the offence in itself already justifies detention pending trial (absolute reason for detention). This is regularly assumed in the case of serious capital offences listed in § 112 (3) German Criminal Procedure Code, e.g. in the case of an accusation of manslaughter or murder. In other cases, the danger of repeated offences may also be sufficient to assume a reason for detention.

Consult with expert legal assistance in the event of pre-trial detention.

At Schlun & Elseven Rechtsanwälte you can expect comprehensive legal service.

 

How does a Pre-Trial Detention Occur?

According to § 112, (1), German Criminal Procedure Code, pre-trial detention may be ordered if there is an urgent suspicion of a crime and a reason for detention. Grounds for detention may be actual flight, risk of flight or risk of collusion, cf. § 112 (2) StPO. In some instances, the risk of repeated offences may also constitute grounds for detention, cf. § 112a (1) StPO.

An urgent suspicion exists if there is a high probability that the accused has committed the offence based on the investigations to date. Thus, if a criminal offence has been committed and, according to the investigating authorities, there is an urgent suspicion of a criminal offence against a person, the public prosecutor’s office applies to the competent investigating judge to issue an arrest warrant. If the judge agrees with the suspicion, they can give the arrest warrant and have the accused person arrested.

After the arrest, the accused is brought before the competent magistrate without delay or on the next day at the latest. This is only the judge who issued the arrest warrant. Only in exceptional cases can the arrested person be brought before another judge if it is not possible to bring the person before the competent judge within the scheduled period. However, this can often be the case. This judge, therefore, only announces the arrest warrant and must ensure that the person concerned is brought to the competent magistrate and questioned by them.

Within the framework of this personal interrogation, the accused is to be informed of the reasons for their arrest on the one hand, and on the other hand, they are allowed to state the facts and their objections. Based on this hearing, the judge must then decide whether the arrest warrant is to be maintained (§ 115 (4) German Criminal Procedure Code), revoked (§ 120 German Criminal Procedure Code) or whether its execution is to be suspended (§ 116 German Criminal Procedure Code).

If the arrest warrant is cancelled or its execution is suspended, the person is released. However, the termination of pre-trial detention does not mean the end of the pre-trial proceedings but only the end of the detention. Accordingly, during the continuing investigations, there is still the possibility that a new pre-trial detention order will be issued. This can happen, for example, if new facts become known that justify the assumption of a reason for detention or if conditions attached to the suspension of the arrest warrant are not followed.

If, on the other hand, the competent judge decides that the arrest warrant is to be maintained, the next step is the commencement of pre-trial detention; this means the placement of the accused in a special (ward of a) correctional institution. Every pre-trial detainee has the right to constant, personal and confidential contact with a lawyer during detention, which may only be controlled in particularly serious cases (§ 148 German Criminal Procedure Code).


Public Defender in Pre-trial Detention

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

§ 141 (1) StPO states that a public defender must be appointed for the accused without delay if they have expressly requested this after being informed and the accusation has been made. This should regularly cover the situation of police questioning. A public defender of rights is also appointed to the accused, without an explicit request, as soon as they are to be brought before a court for a decision on detention or temporary placement, (§ 141 (2) StPO). This means the bringing of the accused before the magistrate who has to decide on the issuance or maintenance of an already existing pre-trial detention order.

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

In many cases, an accused person does not know how to act and what to expect. Therefore, a defence lawyer should provide the necessary support. In contrast to the previous legal situation, however, the detained accused no longer has to wait three months until a public defender is assigned to them; rather, as already mentioned, this has to happen immediately.

The costs of the public defender are initially borne by the state treasury. In the event of an acquittal, all necessary costs, including the lawyer’s fees, are also reimbursed by the court. If, on the other hand, the defendant is convicted, he or she must pay the costs back to the court cashier, in instalments if necessary.

For reasons of fairness, the accused also has the option of appointing their own counsel of choice. This is to ensure that the accused has the opportunity to work with a lawyer of his or her choice. In principle, a coexistence of public defender and counsel of choice is conceivable, but only in cases where the counsel of choice joins the proceedings after the public defender has been assigned. If a public defender already exists, the court will no longer appoint a public defender. If you need a defence lawyer to advise and represent you in all matters, contact the lawyers at Schlun & Elseven. Contact us at any time – we will be happy to assist you.


How Long can Pre-trial Detention Last?

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

Furthermore, the maximum limit of six months may not be exhausted without cause. 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 who is not yet considered guilty according to the presumption of innocence. Therefore, these criminal proceedings must be pursued with the greatest possible acceleration. For only in this way can the principle of proportionality, which is also of considerable importance in connection with the duration of pre-trial detention, be upheld (cf. BVerfG, Order of 01.12.2020 – 2 BvR 1853/20, para. 26). Thus, the duration must not be disproportionate to the expected punishment.  The longer the pre-trial detention lasts, the stricter the requirements are to be placed on the speed of the necessary investigative work and the reason for detention.

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


Personal Burdens and Legal Remedies

Pre-trial detention suddenly and unexpectedly takes a person out of their everyday life and environment. This can result in immense disadvantages for both private and professional life. Precisely for this reason, pre-trial detention should be avoided wherever possible, for example, by complying with court orders (§ 116 StPO). Should this not succeed, the legal remedies of detention review (§§ 117 ff. StPO) and detention complaint (§§ 304 ff. StPO) offer the defence lawyer the opportunity to have the order of pre-trial detention reviewed with the aim of having it lifted or removed.

In this context, the detention review is usually the “quicker” legal remedy, since according to § 118 (5) StPO, the oral hearing must be scheduled immediately, but at the latest after two weeks. On the other hand, the detention appeal is decided by the next higher judicial instance. This, in turn, can have the (disadvantageous) consequence that the assessment of the higher court is taken into account by the deciding court in the course of the proceedings. It is possible to file a detention appeal at any time unless an application for a detention review has already been filed.

It should also be noted that after the maximum limit of six months of pre-trial detention has expired; a detention review is to be carried out automatically, i.e. ex officio, and no application by the person concerned is (any longer) required.


Effects of Pre-trial Detention on Sentencing

The imposition of pre-trial detention can seem draconian. As already mentioned, it represents a severe interference in everyday life. However, the duration of pre-trial detention is in principle credited against a later fine or custodial sentence, § 51 (1) StGB. If the person concerned is sentenced in subsequent criminal proceedings, the duration of pre-trial detention is considered in the sentencing. Only in exceptional cases can this credit be omitted under § 51 (1) StGB, namely if it does not appear justified given the convicted person’s conduct after the offence.

However, this is a credit, not a reason for mitigating imprisonment in the classical sense. Nevertheless, pre-trial detention can also constitute a reason for mitigating the sentence if it was associated with unusual hardships that went far beyond the usual measure or if special circumstances existed, such as an excessively long duration of the proceedings. In these cases, pre-trial detention can not only be considered but can also lead to additional mitigation of the sentence (MüKoStGB/Maier StGB § 46 marginal nos. 343 ff.). This can be of particular importance in the case of imprisonment served abroad since worse prison conditions often prevail there, which are considered an additional and unusual hardship and can lead to additional mitigation of the sentence.


Possible Compensation for Pre-Trial Detention

If the opening of the main proceedings is refused or if a criminal trial takes place but ends in an acquittal, it is possible to claim compensation for losses or damages suffered.

The amount and the assertion of the claim for compensation for unjustly suffered pre-trial detention are governed by the Criminal Law Compensation Act (Strafrechtsentschädigungsgesetz, StrEG). This stipulates that, on the one hand, the material pecuniary 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. This may also include maintenance obligations not met due to pre-trial detention.

In addition, non-material damages resulting from the deprivation of liberty are also compensated. With effect from 08.10.2020, the law sets the amount of the compensation claim for these losses at 75 euros per day (§ 7 (3) StrEG). Previously, this lump sum was only 25 euros per day.

The criminal compensation procedure is divided into two parts. In the basic proceedings (§§ 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 of the case in question. If the public prosecutor’s office has discontinued the proceedings, the application for determination of the claim must be filed within one month. If, on the other hand, the judge discontinues the proceedings, the claims are reviewed ex officio, so that no timely application is required. Subsequently, the amount proceedings take place in a second step, in which the amount of the compensation claim is determined (§ 10 et seq. StrEG). This claim must be made to the competent public prosecutor’s office within a period of six months.

As you can see, competent and experienced legal advice can give you a decisive advantage in all phases and concerns regarding pre-trial detention. In particular, the legal fees required to assert the claim for compensation are also reimbursed by the state treasury. We can help you to effectively enforce the claims you are entitled to against the sovereign authority.

If you find yourself in this situation, do not hesitate to let us assist you with our legal expertise and wealth of experience. Feel free to contact us today. Call us, send us an e-mail or simply use our contact form.


How to Behave Correctly During a Pre-Trial Detention

Below we give you an overview of the essential advice you should follow if pre-trial detention is imminent or you are already in custody.

Do not make a Statement!

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

The police and the public prosecutor’s office often deliberately try to create the impression that a statement would be helpful and that the matter could thus be quickly settled. 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 offence without first consulting your lawyer. Should the police make promises or promises to you, these will usually be absolutely worthless, as the police are only responsible for conducting the investigation. The police, on the other hand, have no authority or binding power to influence the verdict or even to end the proceedings early! These competencies lie solely with the court or the public prosecutor’s office.

If you make a statement that other parties can use to your disadvantage, this mistake is difficult to correct later in the proceedings, even by an experienced lawyer. The Code of Criminal Procedure provides for the possibility to make a statement on the matter until the final hearing, so nothing should be rushed at this early stage. Moreover, using your right to remain silent, which is enshrined in § 136 StPO, must not be interpreted negatively against you. This is another reason why you have nothing to lose if you refuse to testify. Limit your statement to the information about yourself.

Contact a Criminal Defence Lawyer

The next and equally important step is to consult a competent criminal defence lawyer as early as possible and use their services. This is the only way to defend yourself against the criminal prosecution authorities effectively. After all, only your lawyer can effectively check whether the conditions for detention are met at all. Often, less incriminating measures are apparent so that the stated reasons for pre-trial detention are disproportionate, and consequently, so is the detention itself.

To avert pre-trial detention, it is often sufficient to clarify to the magistrate that the accused is willing to cooperate. Your chances of credibly conveying this are best with the help and support of an expert lawyer. Our lawyers for criminal law will be happy to advise you in these matters and represent you in the best possible way.

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Practice Group: German Criminal Law

Practice Group:
German Criminal Law

Philipp Busse

Lawyer

Dr. Julius Hagen

Lawyer

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