Pre-trial detention is undoubtedly a profoundly drastic measure that places an enormous emotional burden on those concerned and poses a legal challenge. Anyone suspected of a criminal offence in Germany and wanting to avoid arrest by the police or a possibly unnecessary stay in prison should, therefore, take the proper legal steps immediately. In this context, one option is to provide bail. In addition to this “security deposit, ” other conditions can justify suspending pre-trial detention. Thus, a precise assessment of the individual situation is always required to determine whether the conditions for bail in Germany are met in a specific case and whether a release can be obtained.
The Schlun & Elseven Rechtsanwälte criminal defence law team offers skilled and committed legal assistance in all matters relating to bail in Germany to ensure that our clients receive the support they need in such a situation. Our German criminal defence attorneys, including those with prosecutorial experience, utilise their extensive expertise and many years of experience dealing with criminal prosecution authorities to ensure the best possible results for our clients.
Please do not hesitate to contact us directly for specialised legal guidance.
Bail in Germany: Legal Basis and Practical Applicability
Bail in Germany is also called a “security deposit”, and its details are regulated in particular in § 116a StPO. Security bail is a measure that can be considered less intrusive (instead of detention by the police on remand). If the conditions are met, the order or maintenance of an arrest is waived, or the execution of an arrest warrant is suspended against the payment of an appropriate bail.
Understanding Bail Eligibility and Considerations in German Criminal Law
If a person is urgently suspected of a crime and there is a risk of absconding, pre-trial detention may be imposed in accordance with § 112 German Code of Criminal Procedure (StPO). This detention can significantly disrupt the accused individual’s personal and professional life, potentially lasting for several weeks or months. However, it’s important to highlight that if pre-trial detention is deemed disproportionate, the arrest warrant must be suspended. This occurs, especially when less severe measures under § 116 StPO can ensure the orderly progression of criminal proceedings and, if necessary, the execution of subsequent sentences, including the provision of appropriate bail.
Additionally, bail considerations in Germany extend to situations where the person urgently suspected of a crime lacks a fixed abode or residence in the country. Under § 127a StPO, if the only grounds for an arrest warrant are the risk of absconding and there’s no expectation of a custodial sentence or detention order, provisional arrest may be waived upon providing bail. This bail should cover anticipated fines and the costs associated with legal proceedings.
In determining eligibility for bail, German courts meticulously evaluate numerous factors. These include the severity of the alleged offence, the defendant’s criminal history, the likelihood of flight, and the potential danger posed to society if the defendant is released. Furthermore, courts consider the defendant’s ties to the community, employment status, family responsibilities, and financial resources. The overarching goal is to determine whether granting bail would uphold the principles of justice, ensure the defendant’s appearance at trial, and safeguard public safety.
Various factors influence the court’s decision on whether to grant bail. These encompass the circumstances of the case and the defendant’s characteristics. The court evaluates the strength of the evidence, the nature of the alleged offence, and any mitigating or aggravating factors. Additionally, the defendant’s cooperation with law enforcement, willingness to adhere to bail conditions, and the risk of flight are crucial considerations. Moreover, the court may assess the likelihood of the defendant interfering with witnesses or tampering with evidence if released on bail.
Bail in Germany may be denied in certain circumstances, particularly if releasing the defendant poses significant risks. This includes serious offences involving violence, terrorism, or organised crime, as well as instances where the defendant has a history of fleeing from justice or committing additional offences while on bail. Furthermore, bail may be denied if there’s substantial evidence indicating that the defendant poses a threat to witnesses, victims, or the community at large. The court carefully weighs these factors to ensure that bail decisions align with the principles of justice, public safety, and the protection of individual rights.
What Actions Need to be Taken?
If you find yourself in such a situation and are accused of an offence, you should exercise your right to have recourse to a German criminal defence lawyer. They will know what steps to take to help you get out of your situation in the best possible way. The first step is to check whether the conditions for arrest or detention are met. In the case of pre-trial detention, a detention review, i.e., a judicial review as to whether the arrest warrant should be revoked or its execution suspended, can be applied for (§ 117 StPO).
In particular, it is to be examined whether less drastic measures are to be considered instead of arrest by the police or pre-trial detention so that the person concerned can be spared a possible unnecessary detention in prison. Such milder means include, for example, the obligation to report regularly to a competent authority or restrictions on the residence. Bail may be considered if this does not help in a specific case.
Indeed, the arresting judge can also decide on the suspension of the execution of an arrest warrant against the payment of bail ex officio (Krauß, in BeckOK StPO, § 116a Rn. 4 (37. Ed. 01.07.2020); Böhm, in: MüKO StPO, 1st edition 2014, § 116a Rn. 12.) However, if the defendant wishes to have a security set, they should make a request themselves.
If the requirements mentioned above of § 127a StPO are met in the case of arrest, the accused can decide for themselves between the provision of security and the presentation before the judge. If they decide against bail, they must be presented to the judge by the end of the time limit for presentation, i.e., no later than the day after the arrest. (Schultheis, in Karlsruher Kommentar zur StPO, 8th edition 2019, § 127a marginal no. 7) The custodial judge then decides whether the release will be granted or an arrest warrant issued.
Bail Conditions in Germany: Legal Guidance and Monitoring for Defendants
When Must a Judge Suspend a Warrant on Bail in Germany?
The judge must suspend a warrant on bail if it is based solely on the reason for arrest, the risk of absconding, and if it can be assumed with a high degree of probability that the person concerned will not evade criminal proceedings because of the security deposit.
The reason for detention on the grounds of the risk of absconding exists if the accused’s probability of being deprived of their liberty before the criminal proceedings is higher than that of them facing the proceedings. In this context, the expectation of punishment, possible preparations for escape, social ties, other personal circumstances, and the accused’s foreign relations are considered. (König, in MAH Strafverteidigung, 2nd edition 2014, § 4 marginal no. 11) The risk of flight is, therefore, often assumed in the case of persons living abroad.
In making the prognosis as to whether the security deposit will, in all probability, deter the person concerned from fleeing, the circumstances of the specific case are weighed against each other. In particular, the personal circumstances, the expectation of punishment, the consequences of the crime, and the duration of the remand in custody are considered. Also, the previous behaviour of the person concerned is considered (Krauß, in BeckOK StPO, § 116 Rn. 6).
Whether bail is possible and advisable ultimately depends on the circumstances of the individual case. If you have any questions regarding bail in criminal proceedings or any other questions about German criminal law, please feel free to contact us at any time.
Frequently Asked Questions about Bail in Germany
Security can be provided by depositing cash, securities, a pledge, or a guarantee of suitable persons (§ 116a (1) sentence 1 StPO). The judge determines the amount and type of security at his own discretion (§ 116a (2) StPO). However, the bail must also be suitable for securing the criminal proceedings. The custodial judge must consider that the nature and amount of the security exerts a psychological constraint on the accused to participate in the proceedings and accept a possible prison sentence. Therefore, the decision is relevant for the income and financial circumstances of the accused, the weight of the offence under investigation, and the circumstances that speak for or against escape (Krauß, in BeckOK StPO, § 116a Rn. 1; Böhm, in MüKO StPO, § 7).
A third party may also provide security. This is only permissible if it can be assumed that the defendant will not harm the third party by forfeiting the security (e.g., evading the investigation). This is often the case where family members provide bail (Böhm, in MüKO StPO, § 9).
The bail will be refunded if an acquittal is granted or the proceedings are discontinued. Besides, the bail is released if the arrest warrant is revoked or the remand in custody is executed after all. Bail is also returned if the sentence or detention order is executed. If a fine is imposed, the security will be set off against it and the proceedings’ costs. Any surplus will then be repaid (Schultheis, in Karlsruher Kommentar zur StPO, 8th edition 2019, § 127a marginal no. 11).
The security which has not yet been released shall be forfeited to the treasury if the accused person evades the investigation or the commencement of the recognised custodial sentence or detention order (§ 124(1) StPO). To have the bail returned, therefore, the associated conditions must be complied with.
If the defendant does not live in the Federal Republic of Germany, they must appoint an authorised person to receive service. This is a person resident in the district of the competent court who is authorised to receive documents relating to the proceedings. This is intended to avoid difficulties connected with service abroad (Böhm, in MüKo StPO, 1st edition 2014, § 116a marginal no. 26).
If a defendant violates bail conditions in Germany, serious consequences may follow. The court may revoke the bail and issue a warrant for the defendant’s arrest. Additionally, the defendant may face new criminal charges for breaching bail conditions. Depending on the severity of the violation and the circumstances of the case, the defendant could be held in pre-trial detention until the conclusion of their criminal proceedings. It’s essential for defendants to strictly adhere to bail conditions to avoid further legal complications and ensure their continued liberty pending trial.
Yes, bail can be granted for individuals facing extradition proceedings in Germany, but it depends on various factors and the specific circumstances of each case. The decision to grant bail in extradition cases is at the discretion of the court and is influenced by considerations such as the seriousness of the alleged offence, the strength of the evidence against the individual, and the likelihood of flight. Additionally, the court may assess whether granting bail would serve the interests of justice and ensure the individual’s appearance at extradition hearings.
Practice Group: German Criminal Law
Practice Group:
German Criminal Law
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