Pretrial detention (Germany)

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Pre- trial detention - often referred to as pre- trial detention for short - is, according to German criminal procedure law, an investigative measure that safeguards the proceedings within the framework of the investigation of a criminal offense . Remand detention may only be ordered by a judge by means of an arrest warrant and a request for admission to the execution of remand detention. It is usually preceded by an arrest by the police or the public prosecutor's office . The accused must be brought before a judge.

The arrangement of remand detention is regulated in Sections 112 ff. Of the Code of Criminal Procedure (StPO). The time in pre-trial detention is usually offset against any imprisonment that may be imposed later .

For the time in pre-trial detention, the accused are subject to stricter conditions despite the presumption of innocence . As a rule, pre-trial detention may last a maximum of six months.

Purpose of the action

In principle, pre-trial detention only serves to safeguard criminal proceedings. A possible negative influence on the process by the accused is to be countered. The law names potential dangers in Section 112 (2) StPO in the form of three reasons for detention:

  1. Escape or hide,
  2. Escape risk and
  3. Risk of blackout .

In addition, Section 112a of the Code of Criminal Procedure defines the risk of repetition as the fourth reason for detention . This reason for detention is preventive and police in nature and therefore, when strictly viewed, represents a foreign body in the repressive-legal StPO.

requirements

There must first be an urgent suspicion against the accused ( Section 112 (1) sentence 1 of the Code of Criminal Procedure). There is an urgent suspicion of a crime if, on the basis of the facts currently determined, there is a high probability that the accused will be convicted as a perpetrator or participant in a crime.

The second prerequisite is a reason for detention , which is checked during a presentation by the judge ( investigating judge ) on the basis of “certain facts” (Section 112, Paragraph 2 of the Code of Criminal Procedure). The most common reason for arrest is the risk of escape . It is not necessary that the accused is already in hiding or is on the run. Even if the possible punishment already provides an incentive to flee and there are no family or personal ties, there is a risk of escape. It is not allowed to state the non-existence of a permanent place of residence as a reason for flight, as it is a formulaic expression. Instead, the reasons for detention must be explained in detail. Nevertheless, in practice there are sometimes serious disadvantages for people without a permanent address, especially among young people.

Another reason for detention is the risk of blackout . The accused should be prevented from destroying or changing evidence, but also from influencing witnesses. If the evidence has already been sufficiently secured and the witnesses heard by a judge, there is no risk of obscuration. The act of obscuration must relate to the offense / s listed in the arrest warrant.

In the area of ​​serious crime (including the formation of terrorist organizations , murder , manslaughter ), lower requirements apply to the presentation of a reason for detention. According to the formulation of Section 112, Paragraph 3 of the Code of Criminal Procedure, no reason for detention is expressly required. According to a decision by the Federal Constitutional Court , however, this regulation violates the principle of proportionality ; if interpreted in accordance with the constitution, the relief therefore only means that the judge may consider a well-founded suspicion to be sufficient when examining the grounds for detention.

The fourth alternative, the risk of repetition , no longer serves to safeguard the procedure. It actually represents a preventive measure, especially in the case of acts against sexual self-determination and serial offenses of medium and serious crime . According to the decision of the Federal Constitutional Court, the risk of repetition as a reason for detention is constitutionally unobjectionable. However, this reason for arrest applies only in a subsidiary manner, namely if the accused is at liberty because either there is no reason for arrest pursuant to Section 112 (2) StPO or the arrest warrant pursuant to Section 116 StPO has been suspended and the accused thus has the option to continue the offense.

Finally, pre-trial detention must also be proportionate . The pre-trial detention must not, for example, exceed the duration of the expected sentence ( Section 112 (1) sentence 2 of the Code of Criminal Procedure). In the case of minor offenses, remand detention is only permitted to a limited extent ( Section 113 of the Code of Criminal Procedure). If the purpose of pre-trial detention is also achieved through other measures (e.g. regular reporting obligations to the police; security deposit , i.e. " bail "), remand detention is dispensable according to Section 116 of the Code of Criminal Procedure, or remand detention is ordered, but this is subject to appropriate conditions suspended.

A special form of the principle of proportionality is the principle of acceleration in detention matters. The accused's right to freedom and the state's right to prosecute must be weighed against each other. According to the established case law of the Federal Constitutional Court, the longer the pre-trial detention, the greater the demands on the state organs to work (particularly) quickly on a detention case. A reference to the seriousness of the offense and the amount of the punishment that can be expected because of the offense if there have been significant, avoidable delays in proceedings attributable to the state are not sufficient to justify a long pre-trial detention under constitutional law .

Execution

The closing of the detention took place earlier in the prisons under the provisions of the remand Regulations (UVollzO), a mere administrative regulation. A legal basis for the execution of pre- trial detention was only very inadequate in § 119 StPO and § 177 StVollzG . Nevertheless, the federal legislature could not decide on a federal regulation. After the federalism reform of 2006, the federal government remained responsible for legislating procedural questions (order of detention, legal protection, over-detention, etc.), while the individual federal states were responsible for enforcement, i.e. H. the conditions of detention, are responsible. By January 1, 2012, all federal states had their own pre-trial detention laws. Although the suspect of innocence also applies to the accused who has been placed in pre-trial detention , and detention may only encroach on the detainee's freedoms to the extent necessary to achieve the purpose of pre-trial detention, the detention conditions for the accused are generally stricter than in the regular prison system . In contrast to prisoners on remand, prisoners on remand are not required to work while they are in prison.

Concurrence of pre-trial detention and other measures involving deprivation of liberty

If someone is in pre-trial detention and at the same time detention from another procedure is to be carried out, the interruption of pre-trial detention had to be obtained in order to serve the detention. In § 116b sentence 1 StPO new version it is now regulated that in future the enforcement of pre-trial detention will only take precedence over the execution of extradition detention, provisional extradition detention, deportation detention and rejection detention. All other measures involving deprivation of liberty (e.g. criminal detention, substitute imprisonment) take precedence over the execution of pre-trial detention ( Section 116b sentence 2 StPO new version). A different order of enforcement can, however, be ordered if the purpose of pre- trial detention so requires ( Section 116b sentence 2 StPO new version). Since Section 126a (2) sentence 1 StPO new version does not refer to Section 116b StPO new version, this enforcement regulation does not apply to temporary placement.

Upper limit of pre-trial detention

As long as no judgment has been issued that reads on a custodial sentence or a custodial measure, the execution of pre-trial detention in Germany should generally not exceed six months. The Higher Regional Court can, however, extend this period "if the particular difficulty or the particular scope of the investigation or another important reason does not yet permit the judgment and justify the continuation of imprisonment" ( Section 121 StPO); one year ( § 122a StPO). The extension beyond six months is not uncommon in practice. Despite the ex officio control carried out by the competent higher regional court, there were also individual cases of excessively long pre-trial detention in Germany, which were occasionally criticized by the European Court of Human Rights (ECHR) as a violation of the European Convention on Human Rights . In the case of longer pre-trial detention, according to the ECtHR, an expected high penalty alone is not enough; on the contrary, the procedure must also have received special support from the state. According to the Federal Constitutional Court (BVerfG), overloading the court is not enough: the state must provide the courts with sufficient staff.

As a negative example, Fritz Teufel was in custody for five years, the NPD politician Ralf Wohlleben was in custody for a total of six years and eight months until July 2018.

In July 2004, Rhineland-Palatinate introduced a bill to the Federal Council to extend the maximum length of pre-trial detention; However, this was rejected by the Bundestag on February 17, 2005. The bill was triggered by a murder committed in November 2002, the perpetrator of which had already been reported for rape in March 2002 by the later murdered woman. The defendant was released from custody after six months because his trial had not yet started. Critics accused the then state government that the processing of proceedings should therefore be accelerated rather than demanding an extension of the pre-trial detention under pressure from the press.

Special form of arrest warrant (so-called missed deadline arrest)

A separate form of pre-trial detention is regulated in Section 230 (2) of the Code of Criminal Procedure: If a defendant does not appear at a main hearing despite a proper summons and does not adequately excuse his absence, the presentation (arrest on the day of the new hearing, Section 230 (1) StPO) or to issue an arrest warrant in accordance with Section 230 (2) StPO. There is a step-by-step relationship between these two means, which is why, for reasons of proportionality, the demonstration should always be arranged first.

This form of pre-trial detention also serves only to ensure the prompt continuation of the criminal proceedings. Therefore, as a rule, the duration of imprisonment may “at least not significantly” exceed one week. There are no further reasons for detention than the unexcused absence, but here too the proportionality (to a limited extent) must be observed. With the end of the main hearing, the arrest warrant according to § 230 StPO is done. A separate express cancellation is therefore not required at the end of the main hearing.

Enforcement

The enforcement of an arrest warrant can - without expressly revoking it - be suspended if necessary, subject to conditions. For example, reporting obligations, bail, etc. come into consideration as conditions. In the event of a breach of the conditions, the arrest warrant can be enforced again at any time.

literature

  • Reinhold Schlothauer , Hans-Joachim Weider: Pretrial detention . 4th edition, CF Müller Verlag, Heidelberg 2010, ISBN 978-3-8114-3494-3 .
  • Richard Reindl, Werner Nickolai, Günther Gehl (eds.): Pretrial detention, stepchild of justice. 176 pages, Verlag Rita Dadder, Weimar 1995, ISBN 3-926406-88-7 .
  • Michael Gebauer: The legal reality of pre-trial detention in the Federal Republic of Germany, an empirical study on the practice of detention orders and detention proceedings. 425 pages, Wilhelm Fink Verlag 1987, ISBN 3-7705-2497-7
  • Joerg Sommermeyer: Right of pre-trial detention (critical overview and tendencies). NJ 1992, 336 ff.
  • Maria Anna Kilp: Oh, how beautiful is life, Hammelsgasse 6-10, custody in Frankfurt / M 1903-1973. Frankfurt am Main University of Applied Sciences 1986, ISBN 3-923098-18-9 .
  • Peter Höflich, Wolfgang Schriever: Floor plan enforcement right. Pages 187 to 228: The right of remand, 3rd edition, Springer Verlag, Berlin Heidelberg New York 2003, ISBN 3-540-00126-3 .
  • Stefan König: Prisoners on remand get more rights. On January 1, 2010, new rules on pre-trial detention come into force. Lawyer Gazette 01/2010, 46.
  • Manfred Seebode: The execution of pre-trial detention. Berlin et al. 1985.
  • Christian Wiesneth: Pretrial detention. Verlag Kohlhammer, 1st edition, Stuttgart 2010, ISBN 978-3-17-021277-0 .
  • Christine Morgenstern: The strengthening of procedural guarantees in the law of pre-trial detention in Germany and Poland. The influence of the European Court of Human Rights. ZIS 2011, 240 ( PDF ).
  • Ullrich Schultheis: Overview of the case law in pre-trial detention cases 2009/2010 - Part 1. NStZ 11/2011, 621.
  • Pierre Hauck : bugging in custody. NStZ 2010, 17.
  • All comments on the Code of Criminal Procedure (StPO)

Individual evidence

  1. ↑ Matthias Krauß in: BeckOK StPO with RiStBV and MiStra, Graf, 37th Edition, as of July 1, 2020, § 112 Rn. 9
  2. ↑ BVerfGE 19, 342 , 350.
  3. ↑ BVerfGE 35, 185 .
  4. ↑ a b c Press Release No. 75/2009 of July 7, 2009: On the principle of acceleration in detention matters. Federal Constitutional Court - Press Office, accessed on July 8, 2009 (on the decision of the Federal Constitutional Court of May 13, 2009 - 2 BvR 388/09).
  5. ↑ ECHR, judgment of July 29, 2004 - 49746/99 - CEVIZOVIC v. GERMANY, NJW 2005, 3125, beck-online.
  6. ↑ BVerfG, decision of July 30, 2014 - 2 BvR 1457/14 Rn. 23
  7. ↑ Sabine Rückert: Off to jail in: Die Zeit . No. 22, May 24, 2006, p. 18
  8. ↑ KG, decision of July 19, 2016 - 4 Ws 104/16 - 161 AR 30/16.
  9. ↑ OLG Hamburg, decision of June 4, 2020 - 2 Ws 72/20 , 7 OBL 24/20.

Web links

Wiktionary: Pretrial detention  - explanations of meanings, word origins, synonyms, translations
Wiktionary: custody  - explanations of meanings, word origins, synonyms, translations