Detention test
The right to a review is considered to be one of the earliest human rights recognized historically . It was enshrined in law for the first time with the English Habeas Corpus Act of 1679 . Today it is laid down in Article 5, Paragraphs 3 and 4 of the European Convention on Human Rights .
Situation in Germany
In German criminal procedural law , the detention check is legally defined as the judicial check as to whether the arrest warrant is to be revoked or its execution is to be suspended according to Section 116 ( Section 117 (1) StPO ). It is carried out by the responsible investigating judge, so it has no devolution effect , and takes place at the request of the person concerned (or his defense lawyer). Until December 31, 2009 and the amendments to the law to amend the law on remand custody of July 29, 2009, which came into force on the following day , Section 117 (5) StPO (old version) provided for an ex officio detention review after three months for accused persons who did not have a defense counsel had. However, due to the new regulation of Section 140, Paragraph 1, No. 4 of the Code of Criminal Procedure, which was introduced at the same time and now provides for the necessary cooperation of a defense attorney in the event of an enforced pre-trial detention, the requirement for the existence of this protective provision no longer applies. However , if the pre-trial detention lasts longer than six months and no judgment has yet been issued, the competent OLG decides ex officio whether the pre-trial detention should be continued ( Section 121 of the Code of Criminal Procedure ).
At the special request of the accused (or his defense counsel) or at the discretion of the court, a decision on the detention test will be made after an oral hearing ( Section 118 (1) StPO - so-called oral detention test). It can make sense for a defense attorney to make such a request so that the investigating judge can get his own impression of the detainee. In addition, the planned oral hearing provides the possibility of withdrawing the application for a detention review if the court has a negative tendency to decide. This avoids the legal consequences of Section 118 (3) StPO, which, if pre-trial detention is maintained after an oral hearing, only provides for a further oral hearing if the pre-trial detention has lasted at least three months and two months have passed since the last oral hearing. Another advantage over the appeal is that, due to the lack of devolving effect of the application for a review , there is no negative prejudicial effect.
The decision with which the detention review ends can in turn be challenged with the detention complaint .
Situation in Austria
In Austria, a first arrest hearing must take place no later than 14 days after arrest and the start of pre- trial detention , or the arrested person must be released. In contrast to Germany, this takes place officially and not just at the request of the detainee. During this detention trial it is checked whether the conditions for detention are still met. The detainee must be represented by a lawyer. A second detention trial takes place one month after the first, and others every two months.
Individual evidence
- ↑ § 117 Paragraph 5 StPO old version
- ↑ Pretrial detention at help.gv.at - Retrieved September 29, 2015
