Pre-trial detention in Germany: what family can do

The law provides for several notifications. The arrested accused must be given the opportunity without delay to inform a relative or a person of trust, unless this would seriously endanger the purpose of the investigation (§ 114c Abs. 1 StPO). If detention is enforced after the person has been brought before the court, the court must order that a relative or a person of trust be informed without delay, and the same duty applies to every further decision on the continuation of the detention (§ 114c Abs. 2 StPO). Art. 104 Abs. 4 GG requires the same.

Relatives, however, have no right of their own to Akteneinsicht. Information about what is being alleged goes through the defence. As long as the conclusion of the investigation has not been recorded in the file, inspection may be refused in so far as it could endanger the purpose of the investigation. Where the accused is in Untersuchungshaft, however, the information essential for assessing the lawfulness of the deprivation of liberty must be made accessible to the defence; as a rule, Akteneinsicht is to be granted to that extent (§ 147 Abs. 2 Satz 2 StPO).

Untersuchungshaft may be ordered only where there is strong suspicion that the person committed the offence and where a ground for detention exists, and it may not be ordered where it is out of proportion to the significance of the case and to the penalty to be expected (§ 112 Abs. 1 StPO). As grounds for detention the law names flight or going into hiding, risk of flight (Fluchtgefahr) and risk of interference with the evidence (Verdunkelungsgefahr) (§ 112 Abs. 2 StPO). Verdunkelungsgefahr requires that the conduct of the accused gives rise to the strong suspicion that they will interfere with evidence or exert influence on co-accused persons, witnesses or experts. Alongside these stands the ground of risk of repetition in the case of certain offences listed in the law (§ 112a StPO).

The Haftbefehl must state the accused, the offence, the ground for detention and the facts from which the strong suspicion and the ground for detention follow (§ 114 Abs. 2 StPO). That reasoning is the point at which the defence against the detention begins.

The law provides three routes, and they are connected.

Suspension of enforcement (§ 116 StPO). Where the Haftbefehl rests on risk of flight alone, the judge suspends its enforcement if less intrusive measures can achieve the purpose of the detention as well. The law names in particular reporting requirements, restrictions on where the person may be, supervision when leaving their home, and the provision of appropriate security (§ 116 Abs. 1 Satz 2 StPO). Where there is Verdunkelungsgefahr, the judge may suspend enforcement if less intrusive measures substantially reduce the risk (§ 116 Abs. 2 StPO). Whether suspension comes into consideration is for the court alone to decide. It cannot be planned for.

Haftprüfung (a court review of the detention, §§ 117, 118 StPO). For as long as the accused is in Untersuchungshaft, they may apply at any time for a court review of whether the Haftbefehl is to be set aside or its enforcement suspended. While an application for Haftprüfung is pending, a Beschwerde is not admissible (§ 117 Abs. 2 Satz 1 StPO). The right to lodge a Beschwerde against the decision made on the application remains unaffected by this (§ 117 Abs. 2 Satz 2 StPO). On application, the decision is taken after an oral hearing (§ 118 Abs. 1 StPO); without the consent of the accused, that hearing may not be scheduled later than two weeks after the application is received (§ 118 Abs. 5 StPO). Where the detention has been upheld after an oral hearing, there is a right to a further oral hearing only if the detention has lasted at least three months and at least two months have passed since the last oral hearing (§ 118 Abs. 3 StPO).

Haftbeschwerde (an appeal against the detention order, § 304 StPO). A Beschwerde may be lodged against the Haftbefehl. It leads to a decision by the higher court.

The choice between Haftprüfung and Beschwerde is not a formality: under § 117 Abs. 2 Satz 1 StPO the two routes are not open at the same time. That does not use up the Beschwerde, because under Satz 2 it remains available against the decision on the application for Haftprüfung. Which route is the right one depends on the content of the file, on the stage of the proceedings and on the objective. That decision belongs in the hands of the defence.

What makes sense in detention proceedings only emerges from the case file. You will find an overview of the investigation stage on our page on general criminal law. How to reach us outside office hours is set out under Contact.