Reason for detention
In addition to the urgent suspicion and proportionality , a reason for detention is the most important prerequisite for ordering pre- trial detention .
The judge may only affirm a reason for detention if there are certain objective facts or indications. Mere general assumptions or alleged empirical statements are not enough.
The reasons for detention are standardized in Section 112 and Section 112a of the Code of Criminal Procedure (StPO).
"Classic" reasons for detention
German criminal procedural law knows three “classic” reasons for detention. What they have in common is that the main purpose of pre-trial detention is to protect the ongoing investigative proceedings or the subsequent criminal proceedings and the execution of sentences.
Escape (Section 112 (2) No. 1 StPO)
This reason for arrest exists if the accused is volatile or hides himself so that he is out of the reach of the investigative authorities, courts and law enforcement authorities.
Anyone who sets himself apart from his previous center of life is fleeting . This is usually accepted if you go abroad, but also if you give up your previous apartment and you do not register again with the residents' registration office. To be considered fugitive, the reason for the absence must be that the accused wants to evade the trial. In order to be considered volatile, however, it is sufficient if the accused accepts that he will thereby prevent access by the law enforcement authorities; there is no need for such an intention. If, for example, a foreigner returns to his home country, one cannot speak of flight from the outset if there are other reasons for his return.
Anyone who lives unannounced in an unknown location or under false personal details is hidden in order to permanently evade the access of the law enforcement authorities. If the accused hides for other reasons (for example to prevent deportation or in the context of a custody dispute or to hide from his creditors), there is no escape.
Often times, it can only be finally clarified whether the person has actually escaped once the person sought has been found. Therefore, the requirements for affirming this reason for detention are low and it is sufficient if it is probable that the accused cannot be found because he is volatile and it is rather unlikely that there is another reason for his disappearance.
If the accused is caught on the basis of the arrest warrant , there is no longer any escape and the reason for arrest no longer applies. However, due to the previous escape, the reason for detention will usually be that there is a risk of escape from this point in time.
Risk of flight (Section 112 (2) No. 2 StPO)
This reason for detention exists if there is a risk that the accused will want to evade the access of the investigative authorities, courts and law enforcement authorities.
For the assumption of a risk of flight, it must be weighed in each individual case whether it is more likely that the accused will evade criminal prosecution than that he will make himself available for prosecution. When weighing up, the circumstances of the individual case are decisive. The amount of the threatened punishment, the severity of the guilt and whether a suspended suspended sentence is at risk are indications that could justify a risk of flight, but it must also be determined from the behavior, the living conditions or the personality of the accused, whether he is more likely will flee than to face criminal proceedings. In the case of a particularly high punishment expectation for capital crimes, the public prosecutor's office assumes from the outset that there is a risk of escape and only examines circumstances that could conflict with a risk of escape in a specific case. For example, good relationships abroad, easily dissolvable living conditions or a lack of social or family ties speak for a risk of flight. It can also be affirmed if it is to be feared that the accused will evade criminal prosecution through drug or alcohol abuse by placing himself in a state incapable of negotiating. Old age or stable family or professional ties can speak against the assumption of a risk of flight. The assumption that there is a risk of flight is also not precluded by the fact that the accused is already in custody. Such a constellation exists in the case of excessive custody , which is intended to safeguard the proceedings if an existing other arrest warrant is revoked.
Risk of blackout (Section 112 (2) No. 3 StPO)
This reason for detention exists when it is very likely that the accused will act on evidence so that there is a risk that the determination of the truth will be made more difficult.
There is therefore a risk of obscuration if the accused arouses suspicion through his behavior that he himself will destroy, change, forge or dispose of evidence or induce others to do so. His goal must be to change the evidence in his favor. In addition, the possible influence of the accused must also make the evidence more difficult. The reason for detention is unproblematic, for example, if the accused tries to bribe, threaten or deceive witnesses or if he destroys documents relevant to evidence. However, if the evidence has already been secured, the reason for detention of the risk of blackout can no longer exist. Likewise, the accused has the right to look for witnesses and, if necessary, to question them.
Further reasons for detention
Penalties for serious crime (Section 112 (3) StPO)
If the accused is urgently suspected of having committed certain offenses in the area of serious crime, according to the wording of Section 112 (3) StPO, a reason for detention is not required. However, the provision violates the principle of proportionality and is therefore obviously unconstitutional. The Federal Constitutional Court has therefore decided that the provision unconstitutional must be interpreted and that an arrest warrant may be issued only for this reason, when in addition to in § 112 para. 3 StPO this catalog deeds circumstances that justify that without an arrest of the accused, the Act cannot or cannot be clarified immediately.
In practice, this means that the strict requirements of Section 112, Paragraph 2 of the Code of Criminal Procedure are relaxed in the area of cataloged offenses in such a way that even the non-excludable suspicion of escape, risk of flight or risk of blackout is sufficient to justify an arrest warrant in the case of urgent suspicions.
Section 112, Paragraph 3 of the Code of Criminal Procedure does not apply in the event of suspicion of intoxication under Section 323a of the Criminal Code , even if the offense that could not be punished for is a catalog offense under Section 112, Paragraph 3 of the Code of Criminal Procedure .
Risk of repetition (§ 112a StPO)
In Section 112a of the Code of Criminal Procedure, the reason for the repetition risk is standardized for a number of more serious offenses. Since March 31, 2007, reenactment has also been one of these criminal offenses ( Section 112a (1) No. 1 StPO ).
The reason for detention with the risk of repetition is to prevent future criminal offenses and is a preventive measure of preventive detention to protect the general public. It is an exception to the principle that the aim of criminal procedural law is only to prosecute crimes that have already been committed. The norm thus has less of a criminal law structure than a preventive police structure.
The prerequisites are that the accused is urgently suspected of having committed a serious sexual offense listed in Section 112a Paragraph 1 No. 1 StPO (a single commission is sufficient) or one listed in Section 112a Paragraph 1 No. 2 StPO , the legal system serious to have repeatedly or continuously committed an impairing criminal offense and that certain facts justify the risk that he will commit further significant criminal offenses of the same type or continue the offense before a final judgment, as well as that detention is necessary to avert the impending danger and in the cases of § 112a para. 1 no. 2 StPO , a prison sentence of more than one year can also be expected.
Proportionality is only maintained here if the pre-trial detention is not disproportionate to the expected punishment.
An arrest warrant for which there is already a reason for arrest according to § 112 StPO cannot be justified with the existence of a risk of repetition ( subsidiarity ).
