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 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, it always requires a precise assessment of the individual situation to determine whether the conditions for bail are met in a specific case and whether a release can be obtained.

To ensure that our clients receive the support they need in such a situation, the German law firm Schlun & Elseven offers competent and committed legal assistance. Our German criminal law team brings together experienced criminal defence lawyers, including those with prosecutorial experience. Thanks to our excellent expertise and many years of experience dealing with criminal prosecution authorities, we ensure the best possible results for our clients.

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The Bail: Definition

Bail is also called a security deposit in Germany. Details on this are regulated in particular in Section 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.

In what Cases can Bail be ordered?

If you are urgently suspected of a crime, and there is a reason for detention, e.g., the danger of absconding (fleeing), the prerequisites for pre-trial detention in Germany are met according to § 112 StPO. Pre-trial detention causes the accused considerable burdens and impairments both in their private and professional life. It can last for several weeks or months. However, it is essential to note that the arrest warrant must be suspended if pre-trial detention does not correspond to proportionality. This is particularly the case if there are less drastic measures per § 116 StPO (Code of Criminal Procedure) which can guarantee orderly criminal proceedings and, if necessary, subsequent execution of the sentence. This includes the payment of an appropriate bail.

Bail can also be considered per § 127a StPO (German Code of Criminal Procedure) if the person urgently suspected of a crime has no fixed abode or residence in Germany. The conditions for an arrest warrant are only fulfilled due to the risk of absconding. In this case, the order or maintenance of provisional arrest may be waived if a custodial sentence and a detention order are not to be expected. The bail should cover the expected fine and the costs of the proceedings.

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 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. If this does not help in a specific case, bail may be considered.

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 above-mentioned requirements 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.

When Must a Judge Suspend a Warrant on Bail?

The judge must suspend a warrant on bail if the warrant 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 ground 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 remand in custody duration 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.

What can a Security Deposit look like?

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).

What Else Must be Considered for Bail in Germany?

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).

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.