It is not uncommon for people to find themselves in pre-trial detention even though they never committed the crime they are accused of. As a result, pre-trial detention in Germany is ordered unlawfully in many cases—usually with serious consequences for the detainee.
In most cases, the accused is suddenly torn from their life, with no opportunity to prepare for imprisonment. As a result, they are confronted not only with the emotional strain arising from being confined and separated from their family, but sometimes also with the worry of losing their job or their home due to the detention. Even when accused persons are released from pre-trial detention, in most cases they can never forget the imprisonment, are stigmatized, and often traumatized.
Pre-trial detention constitutes a serious interference with the accused person’s constitutionally protected right to liberty—who, until a final judgment, is presumed innocent under the presumption of innocence.
Precisely because imprisonment can lead to considerable strain and serious consequences, the court must examine the requirements for this coercive measure to secure the proceedings with particular care, and pre-trial detention may be ordered only as ultima ratio.
The purpose of pre-trial detention is to secure the accused person’s presence at trial, ensure the establishment of the facts, and ensure the possible later enforcement of a sentence.
Pursuant to Section 112(1) of the German Code of Criminal Procedure (StPO), there must be a strong suspicion that the person committed a criminal offence, there must be a ground for detention (flight, risk of flight, risk of tampering with evidence, risk of reoffending), and ordering pre-trial detention must be proportionate.
A strong suspicion exists when, based on the investigations conducted so far, specific facts indicate that, with a high degree of probability, the perpetrator unlawfully and culpably committed a criminal offence or was involved in the commission of a criminal offence.
In most cases, the order for pre-trial detention is based on the ground of risk of flight. But what exactly is such a risk of flight, and what requirements must be met for it to be assumed?
A risk of flight is generally assumed when, upon assessment of all circumstances of the individual case, it appears more likely that the accused will evade the proceedings than that they will remain available to them.
In this context, the assumption of a risk of flight must not be based on conjecture, but must arise from specific facts. The mere fact that a risk of flight is “conceivable”—for example because the accused is a foreign national and might therefore have connections abroad—is just as insufficient as the assumption that the accused lives in precarious financial circumstances.
What is required is an overall assessment of all factors indicating for and against an impending flight. The decisive circumstances include, in particular, the nature of the offence alleged against the accused, the accused’s personality, their living circumstances, their prior history, and their conduct before and after the offence. In particular, any significant incentive to flee arising from the expected sentence must also be taken into account.
Often, detainees can regain their freedom only through an attorney who fights for their release. Possible legal remedies to challenge an arrest warrant include detention review ( Section 117(1) in conjunction with Section 118 StPO ) and a detention appeal (Section 304 StPO).
In the context of both legal remedies, it is particularly important to present the arguments that speak against maintaining the arrest warrant or in favour of suspending its enforcement.
If the unlawfulness of the order of pre-trial detention is established, those detained unlawfully may claim financial compensation under the Act on Compensation for Criminal Prosecution Measures (StrEG). Compensation for one day of detention is currently 75 euros—a small consolation for those who were unlawfully held in pre-trial detention.
If you have any further questions or are an accused person in criminal proceedings or tax proceedings (tax criminal proceedings), please feel free to contact us.