At the beginning of March 2019, in proceedings conducted by our law firm, the Aachen Regional Court quashed an arrest warrant for an EU citizen who has his residence and centre of life in the United Kingdom. In doing so, it challenged a previous order of the Aachen Local Court.

Requirements for the issuance of a pre-trial detention order

Pre-trial detention can only be ordered in Germany if the requirements of section 112 of the Code of Criminal Procedure are met. Paragraph 1 states:

“Remand detention may be ordered against the accused if he is strongly suspected of having committed the offence and if there is a ground for arrest.”

Thus, on the one hand, there must be an urgent suspicion against the accused, which can always be assumed if there is a high probability that the accused has committed the offence. On the other hand, there must also be a reason for detention, which is determined according to section 112, paragraph 2 of the Code of Criminal Procedure. Grounds for arrest are:

  • Flight and risk of flight
  • Danger of collusion
  • Danger of repetition: in the case of urgent suspicion of the (repeated) commission of offences under sections 112 a (1) no. 1, 2 StPO.
  • Serious crime offences: in the case of urgent suspicion about the violations of section 112 (3) of the Code of Criminal Procedure and suspicion of flight, risk of flight or risk of collusion that cannot be ruled out.

Finally, the pre-trial detention order must also be proportionate. Consequently, it may not be made if the deprivation of liberty is disproportionate to the importance of the case and the expected punishment.

The Aachen District Court had rejected the appeal filed against the arrest warrant because the accused had a considerable incentive to flee. This could be partly attributed to the extent of the damage caused by the offence – it is a case of tax evasion amounting to millions. However, the decisive factor was that no family, social or other circumstances prevented flight. The accused did not have any relations in the Federal Republic of Germany but lived in Great Britain and had ties to Romania. Therefore, the District Court did not assume that the accused would face the criminal proceedings in the future and travel to Germany to do so.

On the other hand, the Regional Court did not share this assessment. Still, considering the arguments put forward by the defence, it ordered that the arrest warrant be revoked subject to conditions.

Accordingly, the grounds for flight arrest and risk of flight do not exist because the accused has his residence or centre of life in another EU country.

Grounds for detention: Flight and risk of flight

From a legal point of view, what is covered by the concepts of flight and risk of flight?

Flight: the accused is a fugitive or is in hiding so that he or she is beyond the reach of the investigating authorities, courts and law enforcement agencies.

Risk of flight: it is predominantly likely that the accused will elude the investigating authorities, courts and law enforcement agencies.

Flight: Flight is assumed if the accused is a fugitive or is in hiding so that he is beyond the reach of the investigating authorities, the courts and the law enforcement authorities. A person is classified as a fugitive if they leave their previous residence. However, anyone who goes abroad without connection to the offence is not classified as a fugitive. The OLG Brandenburg and the OLG Bremen have already concluded (OLG Brandenburg, the decision of 17.01.2996 – 2 Ws 183/9; OLG Bremen, the decision of 12.06.1997 – Ws 42/97 (BL 62/97).

The defendant on our case, a Romanian national, had already moved to Great Britain before the criminal investigation began. He had started a family there and had built up a professional existence over the years. Therefore, he had a permanent residence and a summonable address and did not conceal himself.

Risk of flight: A risk of flight exists if it is predominantly likely that the accused will escape the grasp of the investigating authorities, the courts and the law enforcement authorities. The mere fact that a foreigner has his residence abroad and therefore has no sustainable social ties in Germany does not constitute a risk of flight (OLG Oldenburg, order of June 25 2009 – 1 Ws 349/03). A person who goes abroad without intending to flee is only suspected of fleeing if he declares that he will not face the proceedings in Germany.

At no time did our client make such a declaration or hint. Thus, in this case, neither a flight nor a risk of flight could be legally assumed according to German legal understanding.

European law provisions

Furthermore, the opposing view taken by the district court is not in line with European law provisions. Specifically, it violates Article 18 TFEU and Article 21 TFEU.

Article 18 (1) TFEU states: “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on the grounds of nationality shall be prohibited.”

This provision thus prohibits any discrimination on the grounds of nationality within this scope of application. Accordingly, within an EU member state, nationals and EU foreigners should, in principle, be treated equally. According to the established case law of the European Court of Justice, Article 18 TFEU also covers indirect discrimination that is not directly linked to nationality but residence, origin or language. However, to affirm a risk of flight in the case of an EU citizen only because they – unlike German citizens – usually resides abroad would mean systematically discriminating against EU foreigners compared to Germans and thus constitutes a violation of Article 18 TFEU.

Article 21 (1) TFEU states that “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

As a specific expression of the general prohibition of discrimination, this provision grants the right to freedom of movement, i.e., the right to move and reside freely throughout the Community area and be treated as a national at the place of chosen residence. The affirmation of a risk of absconding thus also results in unjustified unequal treatment and, therefore, violates this provision.

Furthermore, the possibility of obtaining a European arrest warrant in an emergency also speaks against the assumption of a risk of absconding.

European Arrest Warrant

The European Arrest Warrant allows for the EU-wide enforcement of a national arrest warrant. In principle, the country requested for extradition may not check the legality of the federal arrest warrant of the issuing member state before extradition, which considerably simplifies the extradition of suspects and criminals.

Extradition of a foreigner residing in another EU country can thus be enforced without any problems, provided that no obstacles to extradition are apparent. Accordingly, there is no need to ensure the mandatory presence of the accused in Germany.

The decision of the Aachen Regional Court is to be welcomed. On the one hand, it considers European law provisions appropriately. On the other hand, it considers that the mobility and flexibility created within the EU are aimed at an increasing internationalisation of the labour market and modern society. Where changes of residence within the Union are becoming more and more common and stays abroad in the EU are becoming the norm, establishing a place of residence in another EU country should not be a sufficient indication of a risk of absconding in criminal activity proceedings.