Innocent in custody?

It is not uncommon for people to find themselves in pre-trial detention even though they never committed the crime they are accused of. Thus, in many cases, pre-trial detention in Germany is unjustly ordered – usually with serious consequences for the detainee.

The accused is usually abruptly torn from his life, he has no opportunity to prepare for the detention. As a result, he not only faces the emotional burdens of being incarcerated and separated from his family, but sometimes also has to deal with the worry of losing his job or his home due to incarceration. Even then, when defendants are released from pretrial detention, in most cases they can never forget the detention, are stigmatized and often traumatized.

Pre-trial detention represents a massive encroachment on the constitutionally protected liberty rights of the accused – who is presumed innocent until a final judgment is reached on the basis of the presumption of innocence.

Precisely because detention can lead to considerable burdens and serious consequences, the prerequisites of this coercive means of safeguarding proceedings must be examined particularly carefully by the court, and pre-trial detention may only be ordered as ultima ratio.

The aim of pre-trial detention is to ensure the defendant’s presence at the trial, to ensure that the facts of the case are ascertained and to ensure that the sentence can be executed at a later date.

Pursuant to Section 112 (1) of the Code of Criminal Procedure, the perpetrator must be strongly suspected of a criminal offense, there must be grounds for detention (flight, risk of flight, intention to conceal, risk of repetition) and the order for pre-trial detention must be proportionate.

An urgent suspicion of a crime exists if, based on the investigations to date, concrete facts lead to the expectation that the perpetrator is very likely to have committed a crime unlawfully and culpably or to have participated in the commission of a crime.

In most cases, pre-trial detention is ordered on the grounds of risk of absconding. But what is such a risk of absconding and what conditions must be met for it to be assumed?

A risk of flight is predominantly assumed if the assessment of all the circumstances of the individual case makes it more likely that the accused will evade the proceedings than that he will make himself available to them.

The assumption that there is a risk of absconding must not be based on assumptions, but must result from specific facts. The fact that a risk of flight is “conceivable”, for example because the defendant is a foreigner and could therefore have connections abroad, is just as insufficient for the assumption of a risk of flight as the assumption that the defendant lives in precarious economic circumstances.

What is required is an overall weighing of all the factors that speak for and against a threat of flight. The relevant circumstances include, above all, the nature of the offense with which the defendant is charged, the defendant’s personality, his living conditions, his past life, and his behavior before and after the offense. Consideration must also be given in particular to any significant incentive to flee that may emanate from the expectation of punishment.

Often, detainees can only regain their freedom by having a lawyer fight for their release. Possible legal remedies for challenging an arrest warrant are the detention review (Section 117 (1) in conjunction with Section 118 of the Code of Criminal Procedure) and the detention appeal (Section 304 of the Code of Criminal Procedure).

In the context of both appeals, it is of particular importance to present the arguments that speak against the maintenance of the arrest warrant or in favor of the execution of the arrest warrant.

In the event that the unlawfulness of the pre-trial detention order is established, those wrongfully detained can claim financial compensation under the Law on Compensation for Criminal Prosecution Measures (StrEG). Compensation for one day of detention is currently 75 euros – little consolation for those who have been wrongfully held in pre-trial detention.