Pretrial detention (Germany)
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.
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(2) StPO in the form of three reasons for detention:
There must first be an urgent suspicion against the accused ( (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 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 (2) StPO or the arrest warrant pursuant to 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 ( (1) sentence 2 of the Code of Criminal Procedure). In the case of minor offenses, remand detention is only permitted to a limited extent ( 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 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 .
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 StPO and 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. Insentence 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 ( sentence 2 StPO new version). A different order of enforcement can, however, be ordered if the purpose of trial detention so requires ( sentence 2 StPO new version). Since (2) sentence 1 StPO new version does not refer to 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" ( StPO); one year ( 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.
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(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.
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.
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