Pre-trial detention also constitutes a serious infringement of the fundamental rights of the accused. An arrest warrant may therefore only be issued within narrow limits and under specific conditions. In reality, this is not always the case.
As experienced criminal defense attorneys, we understand the critical importance of pre-trial detention in criminal law, as well as the significant impact on the lives of the accused.
This article explains the legal foundations of pre-trial detention and outlines the rights and options available to you as an accused person in this procedure.
Are you accused? Seek criminal law support from an expert as quickly as possible. As experienced criminal defense lawyers, we have already achieved early termination of proceedings, reduced sentences, or acquittals for many clients. We are happy to assist you with an accusation and provide comprehensive advice on a possible defense strategy. Arrange an initial consultation with us at any time.
A relative has been apprehended by the police and taken into custody—as family or friends of the accused, quickly arrange for an experienced criminal defense attorney. Otherwise, a court-appointed defender will be assigned by the state. Such counsel can derail a case early on and cause significant damage.
What Is Pre-Trial Detention?
Pre-trial detention is a form of deprivation of liberty ordered in the context of criminal proceedings. It is intended to ensure that the accused does not flee during further investigations, manipulate evidence, or influence witnesses. Pre-trial detention is a preventive measure, not a punishment.
This means it serves solely to safeguard the course of the investigation and secure the proceedings. It may only be imposed under certain conditions and must be reviewed regularly.
Pre-trial detention is generally ordered by the competent judge at the local court—usually the so-called investigating judge—upon application by the public prosecutor’s office. The arrest warrant must be issued in writing and must contain the name of the accused, the offense of which he is strongly suspected, the time and place of commission, the statutory elements of the offense, and the applicable penal provisions. In addition, the grounds for detention and the facts from which the strong suspicion and grounds for detention arise (unless this would endanger state security) must be stated.
After apprehension, the accused must be brought before the competent court on the same day; if this is not possible, at the latest on the following day.
The “detention judge” = investigating judge, gives the accused the opportunity to comment on the matter and/or his personal circumstances. The detention judge then examines whether the requirements for pre-trial detention are met and whether it is proportionate.
In practice, the appearance before the detention judge usually takes place within 24 hours of the “arrest.” If the detention judge considers the pre-trial detention lawful, it is enforced. Otherwise, the accused is released.
Requirements: When Does One Enter Pre-Trial Detention?
Pre-trial detention is only ordered when there is strong suspicion of an offense and grounds for detention exist. These grounds for detention are defined in criminal procedural law. For clarity, however, they are presented in simplified form below:
Risk of Flight
If there is suspicion that the accused could leave the country to evade criminal prosecution, pre-trial detention may be ordered. The arrest warrant need not be based on an actual flight attempt, but on the possibility that the accused could flee. The potential sentence for the alleged offense plays a significant role here.
Risk of Obstruction of Justice
In cases of risk of obstruction of justice, it is presumed that the accused could destroy or manipulate evidence or influence witnesses. This risk may exist, for example, if the accused has direct contact with witnesses to the offense or is in a position to destroy evidence.
Risk of Recidivism
In cases where the accused has already committed a similar specific criminal offense and there is a high risk of recidivism, pre-trial detention may also be ordered. This is particularly relevant for especially dangerous offenses such as robbery, arson, organized drug trafficking, or offenses against sexual self-determination.
Duration of Pre-Trial Detention
Pre-trial detention should not, in the legislature’s view, continue indefinitely. It must be reviewed regularly. An investigation should last a maximum of 6 months before charges are filed. If no indictment has been filed by that time, the Higher Regional Court reviews the detention issue.
In particularly serious cases or complex investigations, detention may be extended. However, if it becomes apparent that the investigation does not yield sufficient results or the grounds for detention no longer apply, pre-trial detention is lifted.
The Arrest Warrant and Its Consequences
The arrest warrant is a serious step in criminal proceedings. It results in deprivation of liberty and has far-reaching effects on the life of the accused. It is a provisional measure that does not simultaneously constitute a conviction. A conviction for a criminal offense is issued exclusively by the competent court and not by the “detention judge.”
The issuance of an arrest warrant can stigmatize the accused and in many cases also affects personal and professional life. It is therefore crucial to seek legal advice and support early on to challenge the grounds for detention and minimize the potential consequences of pre-trial detention.
Rights of the Accused in Pre-Trial Detention
Even when the accused is in pre-trial detention, he has certain rights that are available to him in the context of criminal proceedings. These rights are:
Right to Legal Counsel
The accused has the right to consult an attorney. It is advisable to exercise this right in order to organize one’s defense and exhaust legal options. An attorney can review the investigation files and, if necessary, challenge the order of pre-trial detention if the requirements are not met or the detention is disproportionate.
Right to Placement in an Appropriate Detention Facility
The accused must be housed during detention in a facility appropriate to his respective criminal law status. Excessive hardship or inappropriate conditions are impermissible. In the event of inappropriate detention conditions, the attorney may file a motion for improvement of detention conditions.
Right to a Legal Hearing
The accused has the right to comment on the investigation. However, this can be detrimental to the defense, as the accused’s statements can be used against him. The accused is therefore entitled to exercise his right to remain silent, which is the best way to avoid self-incrimination.
Are You Facing Pre-Trial Detention? How to Conduct Yourself Properly
If you are facing pre-trial detention, it is crucial to remain calm and composed. First, you should immediately contact an experienced criminal defense attorney. If you have not already selected one in advance, it will be difficult to choose an attorney from police custody. This should then be done by friends or family on behalf of the accused.
An attorney can help you protect your rights and develop a sound defense strategy. Refrain from making statements about the allegations without legal assistance, as your statements could be used against you.
Ensure that you are informed of all relevant information in the proceedings. Your attorney will review the investigation files and, if necessary, apply for the arrest warrant to be reviewed or lifted. In many cases, suspension of the arrest warrant subject to conditions such as reporting requirements to the police, bail, etc., can be achieved.
As experienced criminal defence lawyers, we have already been able to achieve early discontinuation of proceedings, a reduction in sentence or an acquittal for many clients. We will be pleased to support you legally in the event of an allegation and provide comprehensive advice on a possible defence strategy. Arrange an initial consultation with us at any time.
