Appeal complaint
The arrest complaint is a legal remedy against the arrest warrant .
In the context of the appeal according to § 304 StPO is judged whether the requirements for maintaining pre-trial detention acc. Section 112 StPO actually exist or whether the accused can be released from custody. It can be submitted at any time and is not bound by deadlines. Repeated filing is also permitted. The legal remedy against the negative decision in response to the complaint is the further complaint . Charge is then usually the higher regional court gem. Section 310 StPO.
The complaint can be filed against pre-trial detention , main trial detention and detention due to the execution of a sentence (also in the case of over- detention ). The assessment of the urgent suspicion that the court carries out during the main hearing is, however, only subject to a limited extent to the review by the appellate court in the appeal proceedings. Because only the court before which the taking of evidence takes place is in a position to determine and assess the results from its own perspective and to assess on this basis whether the urgent suspicion still persists after the state of the proceedings has reached or this is not the case.
It is disputed whether the adhesive complaint against Erzwingungshaft (according to prevailing opinion, possible) or (replacement) administrative detention (probably not possible according to prevailing opinion) may direct. Its constitutional basis is Art. 104 GG in conjunction with Art. 19 Para. 4 GG.
A detention complaint is not admissible in addition to the application for a detention review, but against the decision made on the basis of the detention review. The admissibility of the complaint is generally regulated in § 304 StPO. It is permissible against the respective arrest warrant - even if it has not yet been executed or suspended. The detention complaint can also be directed against any decision ordering changes or continuation. However, it is only ever to be directed towards the last decision and may not be subject to any condition.
Only the suspect concerned, his defense counsel and the legal representative are entitled to lodge a complaint . There is no deadline for filing a complaint because it is a simple complaint. The complaint does not have to be justified. The reasoning can also be made up for after the court has set a deadline because of Article 103, Paragraph 1 of the Basic Law, insofar as it has been announced.
According to Section 306 of the Code of Criminal Procedure (StPO), the complaint must be submitted in writing (or for the record of the office) to the court that made the decision (or issued the warrant of arrest) ( Iudex a quo ). The court then decides in the redress procedure and submits the complaint to the next higher court if it does not want to redress the complaint.
The arrest complaint does not hinder the execution of the arrest warrant, since it is not a suspensory legal remedy. However, in individual cases, according to Section 307, Paragraph 2 of the Code of Criminal Procedure, enforcement can be suspended - also upon application with a complaint. If the request is not followed, the legal remedy of a simple complaint is available again ( § 304 , § 310 StPO).
The decision itself is usually based on the files. An oral hearing is not required, but evidence may be required ( Section 308 (2) of the Code of Criminal Procedure).
Web links
- Detlef Burhoff : Investigation procedure: Pretrial detention of the accused practice tax criminal law - Edition 12/2002, p. 272
- Detlef Burhoff : case law. Detention issues website accessed August 1, 2019
Individual evidence
- ↑ Jörg Becker: Detention Review and Appeal: Legal Remedies for Pretrial Detention Website accessed on August 1, 2019
- ↑ cf. Thomas Magenheim-Hörmann: Diesel affair: Former Audi boss Stadler is free Frankfurter Rundschau , October 30, 2018
- ↑ cf. Next arrest complaint unsuccessful: Ex-boxing world champion Sturm still in custody ran.de , May 23, 2019
- ↑ cf. Further appeal dismissed Website de OLG Karlsruhe, July 18, 2011
- ↑ BGH, decision of June 13, 2019 - StB 13/19
- ↑ The assessment of the urgent suspicion during the main hearing - and the complaint Rechtslupe.de, July 25, 2019
