arrest
An arrest is the detention of persons ( personal custody ) on the basis of civil or criminal procedural provisions. In Germany, criminal procedure law only provides for temporary arrest .
The arrest encroaches on the basic rights of the individual (e.g. freedom of the person ), so that a legal reservation applies. The measure is always provisional, either until the reason for the measure no longer applies or a court order has been obtained. It can be carried out by the public prosecutor or their investigators (usually law enforcement officers ). As soon as a judge decides to continue detention, the detention becomes remand .
An arrest acts as a justification for the coercion or deprivation of liberty resulting from the arrest . Bodily harm during arrest is justified if it is related to this and proportionality is maintained.
Germany
In German criminal procedure law, arrest is designed as a sovereign right of arrest (Section 127 (2) StPO) and as the right of everyone (Section 127 (1) StPO). It is used for law enforcement .
The subject of protection is the state's claim to punishment , which, in the event of an escape or anonymity of the suspect, comes to nothing. would be made much more difficult.
Anyone Arrest
The right to arrest and detain anyone under Section 127 (1) of the Code of Criminal Procedure allows anyone (including minors ) to temporarily arrest a person.
If someone is caught in the act or persecuted in the act, if they are suspected of having escaped or if their identity cannot be established immediately, anyone is authorized to arrest them temporarily even without a judicial order.
This right of arrest is linked to the following conditions:
First of all, the perpetrator must be affected ( in flagranti ) in a fresh act . The offense is considered fresh if it is still spatially and temporally related to the current situation, i.e. the perpetrator must still be arrested at the crime scene or in its immediate vicinity. Immediate prosecution is also sufficient if the perpetrator has been found at the crime scene. According to the prevailing doctrine, the crime must actually have been committed. An urgent suspicion of a crime does not meet the requirements of legal doctrine, but it does meet the jurisprudence to affirm the conditions of arrest. An erroneous assumption of an act leads, according to legal theory, to the criminal law figure of an error in the legal status .
In addition to the suspicion of the perpetrator's flight, the reason for arrest can also be the suspect's refusal to reveal his / her identity or the other impossibility of establishing his / her identity (e.g. without ID or aggressive). So anyone who knows a criminal personally may not temporarily arrest him - unless he is suspected of evading the law enforcement authorities (for example by going into hiding).
The right to provisionally arrest persons who are recognizably culpable (for example children) is denied in the prevailing opinion, since the purpose of arrest, i.e. to enable criminal proceedings to be opened, cannot be achieved in this way.
In each individual case, it must be carefully checked whether the legal requirements for intervening are met ("Is there a criminal offense at all?", "Can the suspect identify himself?" Etc.), as the detainee would otherwise be investigative proceedings for coercion , bodily harm or deprivation of liberty, etc. risked.
The provisional arrest itself must be carried out in accordance with the principle of proportionality . For example, it must not lead to serious injuries to the perpetrator in the event of the slightest offense. The use of any means is therefore precisely not permitted by the law of arrest, even if the execution or maintenance of the arrest would otherwise not be possible. If the means used are not proportionate to the purpose of the arrest, it is inadmissible. "It is therefore regularly inadmissible to prevent a criminal from fleeing through actions that lead to serious damage to his health or to an immediate endangerment of his life." Arm and leg shackles are therefore permitted as far as this is necessary (aggressiveness, resistance , Attempted escape). The removal of the suspect's belongings is legal within the framework of proportionality in order to prevent the escape (e.g. bicycle, keys). If the person cannot be handed over to the police (e.g. no telephone and deserted area), the arrested person can also be taken to the nearest police station.
As soon as the arrested person refuses to be arrested simply by fleeing, but attacks the arresting person, the use of force is also permitted. However, this is no longer justified by the right of arrest under Section 127 (1) of the Code of Criminal Procedure, but by self-defense in accordance with Section 227 of the Civil Code , Section 32 of the Criminal Code , since in this case the offender's defense represents a current unlawful attack . The detainee does not act in self-defense if he defends himself against the detainee, insofar as the detention is covered by § 127 StPO. If the arrestee exceeds the limits of the arrest authority, because he z. B. uses force even though the arrested person is "only" trying to escape, or is acting outside of the arrest authority because the perpetrator B. was not caught in the act, the arrested person would be in a self-defense situation in which he for his part may fend off the illegal attack against himself, in this case the excessive arrest, even with force.
So there is a strict distinction between the right of arrest and the right to self-defense. As long as the arrested person does not defend himself against the arrest, only the milder powers of intervention of the arrest law apply. Is it about the arrest of a criminal i. S. d. Section 127 (1) StPO and the latter not only defends himself by trying to flee, but also attacks the detainee, more aggressive means are justified for the detainee due to the self-defense situation.
The arrested person must also be informed of the reason (the use of German is sufficient, an interpreter does not need to be called in).
So-called private security services (e.g. employees of security services for local public transport, employees of Deutsche Bahn security, security services who monitor their company buildings and private buildings for their clients, from companies or Private individuals employed "security guards", "bouncers", "bodyguards" or "private investigators") or employees of authorities without police authority or employees of police authorities outside their area of responsibility (e.g. customs / customs investigation or tax office / tax investigation in the case of criminal offenses professionally outside of the Customs code / tax code or Federal Police outside of ports, airports, train stations).
Sovereign arrest
This type of arrest is only reserved for certain public officials , who must be competent and authorized to do so in a factual and local manner .
Police and public prosecutors as well as investigators from the public prosecutor's office
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Prosecutors and officials of the police service must according to § 127 para. 2 StPO arrest people if the conditions of an arrest warrant or a temporary accommodation available and additionally imminent danger exists. By order of the public prosecutor's office, their investigators are also entitled to arrest on the basis of Section 152 (1) GVG. The arrested person must be brought before the judge at the competent district court immediately, at the latest by the end of the following day .
For this legal measure ranging strong suspicion of. The prerequisites for interference are therefore considerably lower than the arrest of paragraph 1. It may therefore be that this crime was committed years ago and that the person's name is known. In the case of complaint offenses (e.g. damage to property ), arrest is possible even if no criminal complaint has been submitted ( Section 127 (3) StPO). With the arrest, the arrested person is a suspect . If the suspicion of the act and perpetration is confirmed, the status of the person changes from suspect to accused (the change may take place within seconds). For the purpose of arresting fugitive suspects, apartments, buildings, vehicles, etc. may also be entered without restriction of night time.
As a rule, the person is taken away without direct coercion , for which arrest techniques up to and including the use of firearms (for arrest ) can also be used. In anticipation, a storm may be necessary, which the access follows. If massive resistance is to be expected or the person is dangerous, special units such as special task forces are usually involved in carrying out the measure.
According to Section 163b of the Code of Criminal Procedure, persons may also be detained for the purpose of establishing their identity if their identity cannot be established otherwise or only with considerable difficulty.
The arrested person must be informed of the reason immediately. Furthermore, he is to be instructed about the rights and obligations as a suspect . In the event of communication difficulties, an interpreter must be called in within a reasonable time (in practice during the first written interview).
Art. 5 of the European Convention on Human Rights supplements the regulations of the StPO with regard to sovereign arrest. In the signatory states, it is considered to be a binding, supplementary rule.
special cases
- According to Section 164 StPO, persons who disrupt an official act can be arrested by authorized officials until the official act is completed , at the latest until the end of the following day . Conceivable disturbances can be constant shouts, crossing barriers or physical handicaps.
- According to Section 121 of the Maritime Labor Act, a captain of a seagoing ship or a commissioned officer can temporarily arrest a person on board in order to avert danger . Anyone who refuses to be arrested commits coercion (possibly attempted) (Germany) as a single offense with a criminal offense under Section 146 of the Maritime Labor Act or an administrative offense under Section 145 of the Maritime Labor Act.
- Airline captains have authority on board, an air police sovereignty according to § 12 Aviation Security Act in connection with the Tokyo Agreement . The pilot in command may take all measures that are necessary to ensure safety and order on board, e.g. B. Imprison or tie up rioters.
- German law applies on board vehicles flying a German national flag , as it is on an equal footing with German state territory (e.g. aircraft of the Air Force , ships of the Bundeswehr, ships of the coast guard ). According to this, provisional arrests in accordance with Section 127 (1) of the Code of Criminal Procedure can also be carried out there, provided that military law does not apply.
- Anyone who is urgently suspected of a criminal offense against the Bundeswehr can, according to Section 6, Paragraph 1 UZwGBw ( law on the application of direct coercion and the exercise of special powers by soldiers of the Bundeswehr and allied armed forces and civil security guards ) in imminent danger from the guard superior or from Head of the department or his agent are provisionally arrested if the conditions for an arrest warrant or an order for placement under the Code of Criminal Procedure are met.
- According to Section 21, Paragraph 1, WDO (Defense Disciplinary Code), disciplinary superiors in the Bundeswehr have the right to provisionally arrest soldiers who are subject to their disciplinary authority for an official offense, if the maintenance of discipline requires it.
civil right
Self help
The making of an arrest can also be justified under civil law via the provisions on self-help according to § 229 , § 230 and § 231 BGB. According to Section 230 (3) BGB, there must at least be a suspicion of fleeing. In addition, the prerequisites for securing enforcement by civil procedure should be in place.
Personal security arrest
The debtor can be placed under personal arrest to secure the foreclosure of a monetary claim . According to Section 918 of the Code of Civil Procedure, this arrest is only permitted if it is really necessary to secure the endangered enforcement. The claim and the reason for arrest must be made credible.
Delimitations
Contrary to popular belief, the following measures do not constitute an arrest:
- the arrest for the purpose of entering into custody or for the purpose of presentation to the court , for measures to commence a measure of reform and protection or to the regional court doctor,
- the detention by the Police for the purposes of security (for. example, protection of minors or recapture of escaped convict) as well as for the purpose of implementation aid ,
- the detention for personal identification according to § 163b StPO .
Enforcement assistance
In particular, the following can be considered as enforcement aid through arrest: Delivery of a conscript by the police to the next Feldjägerdienstkommando who, without excuse, does not obey their call-up (Section 44 (3) of the Conscription Act).
Austria
Code of Criminal Procedure
Arrested by the police
Section 170 (1) of the Code of Criminal Procedure defines the permissibility of arresting a person:
(1) The arrest of a person who is suspected of committing a criminal act is permissible,
- 1. if they are entered in the act or immediately thereafter either credibly accused of commissioning the crime or are entered with objects that indicate their involvement in the crime,
- 2. if she is fleeting or hiding or if, due to certain facts, there is a risk that she will flee or keep hiding,
- 3. if it has tried to influence witnesses, experts or co-accused, to remove traces of the crime or to make the determination of the truth more difficult in any other way, or if there is a risk due to certain facts that it will try to do so
- 4. if the person is suspicious of an act threatened with imprisonment for more than six months and based on certain facts it can be assumed that he will commit an act directed against the same legal interest, or the attempted or threatened act accused of being accused ( Section 74 (1) Z 5 StGB).
The arrest is generally to be ordered by the public prosecutor's office on the basis of a court authorization and carried out by the criminal police (this includes the police charged with investigating criminal offenses, not a specific organizational unit). To a large extent, however, the criminal police are also allowed to carry out these arrests on their own initiative for the reasons mentioned.
Right to stop
Section 80 (2) of the Code of Criminal Procedure defines the “right of private individuals to stop”, which corresponds to the above-described right to arrest under German law.
Administrative criminal law
The organs of the public security service may arrest persons who are entered in the act for the purpose of demonstration before the authorities if
- the person entering is unknown to the organ (lack of identity) , or
- there is a suspicion that he is trying to evade criminal prosecution (well-founded suspicion of fleeing) , or
- the trespassed persists in continuing the criminal act ( risk of continuation or repetition) .
Every person arrested is to be handed over immediately to the nearest competent authority, or - if the reason for the arrest no longer applies - to be released. The authorities have to question the arrested person immediately, but no later than 24 hours after the takeover. Custody for the purposes of administrative criminal proceedings is not permitted beyond this period.
Switzerland
The Federal Code of Criminal Procedure has been in force since 2011. Arrest by the police is regulated in Art. 217 , by private individuals (arrest of everyone) in Art. 218 StPO . Most of the cantonal criminal procedure codes were already familiar with this principle, for example Zurich in Article 55 of the Zurich code of criminal procedure. The discharge or referral to the public prosecutor's office takes place in accordance with Article 219, Paragraph 4 in any case after 24 hours at the latest.
In military penal similar regulations exist ( Art. 54 to 55a of the military criminal trial of 23 March 1979).
See also
The equivalent in terms of the guarantee , the seizure (as a sub-case) or the attachment when rem arrest .
Web links
- Criminal Procedure Code (legal text)
- Maritime Labor Act (legal text)
- The on-board violence of the pilot in charge on www.luftrecht-online.de
- Swiss military criminal trial
- The right to arrest everyone according to § 127 StPO on www.jura-portal.eu
Individual evidence
- ↑ Markus Wagner: The general right of arrest according to Section 127 (1) sentence 1 StPO as a justification , Zeitschrift für das Juristische Studium 2011, 465 (PDF file; 187 kB); Stefan Klingbeil: The emergency and self-help rights: A dogmatic reconstruction , Tübingen: Mohr Siebeck 2017, pp. 23–56
- ↑ See Fischer et al. a.
- ↑ BGH NStZ-RR 1998, 50
- ↑ According to Section 2 of the Conscription Act, compulsory military service is limited to cases of tension or defense .
