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.