Arrest Warrant
Criminal Defense Lawyer Munich
Attorney for Criminal Law Munich

Arrest warrant / pre-trial detention – what to do?

TOP 

Arrest and subsequent execution of pre-trial detention are not uncommon in criminal law. As a rule, pre-trial detention catches the person concerned completely unprepared. This applies even if he knows that an investigation is pending against him.

The number of arrest warrants has been increasing for some time. If you look at the large number of illegal arrest warrants , completely apocryphal reasons also seem to be the decisive factor for pre-trial detention: Above all, the resulting pressure  on the person concerned to confess.

Why is it so urgent? Under the immense psychological pressure of a surprise arrest with the looming, drastic consequences of pre-trial detention, many people are unfortunately prepared to give up their right to remain silent. It is not uncommon for the police, public prosecutor or judge to indicate before or when issuing the arrest warrant that they could imagine the arrest warrant being suspended if a full confession is made. Ultimately, out of fear of imprisonment, but also because of the surprise effect of the usually surprise arrest, many of those affected initially try to cooperate with the justice system.

This is understandable, because the psychological pressure of suddenly being locked away, in cells that are sometimes inhumane, is reason enough to end pre-trial detention using all criminal procedural means. Not only is the affected person torn from all private and social relationships, but their future life plans are permanently endangered, if not destroyed: there is a risk of loss of job and economic livelihood; distancing, irritation and loss of reputation among friends, acquaintances, neighbours, work colleagues and business partners; in the family sphere, the absence of a partner, educator, parent or child leads to considerable strain; not to mention the high number of suicides and suicide attempts, particularly in the early days of imprisonment – ​​the suicide rate in prisons is up to 12 times higher than in freedom.

Experience shows that as the length of pre-trial detention increases, not only do intellectual performances decline, but the person concerned will also be increasingly willing to cooperate with the investigative authorities, despite his right to remain silent, just to finally end the pre-trial detention. The possibilities for contact between the detainee and his defense attorney are also more difficult during pre-trial detention, not to mention relatives and friends.

What many people also don’t know is that the longer the pre-trial detention is, the lower the likelihood of appearing at the court hearing as a free man, which can make the decisive impression in court – keyword probation. In addition, a long period of pre-trial detention unfortunately almost always leads to a correspondingly high sentence in order to subsequently legitimize the pre-trial detention decision.

If, on the other hand, an arrest warrant is lifted, the public prosecutor’s office often comes to no other conclusion after the charges have been brought, and a prison sentence is then much rarer. An acquittal or discontinuance of proceedings is also then more likely.

How should you behave? In the event of an arrest or remand, a specialized lawyer should be hired immediately. Furthermore, the person concerned should ideally not provide any information!

Relatives, partners or good friends should definitely help the arrested person to choose a lawyer! After an arrest, there is practically no way of obtaining serious and comprehensive information about choosing a suitable defense attorney. Neither the courts nor the police are particularly helpful in this regard; on the contrary, one can often even observe certain efforts to keep the accused away from an experienced defense attorney for as long as possible – for example by appointing a public defender who is dependent on the goodwill of the judiciary.

If the accused wishes to consult a lawyer before being questioned, the questioning must be interrupted immediately and the defense attorney must wait for the arrival of the defense attorney! The accused must also not be threatened with any disadvantages in the event that a defense attorney of his choice is called in.

When quickly appointing a suitable defense attorney, you should not let any unnecessary time pass. It is also initially completely irrelevant whether another lawyer has already been appointed or whether a public defender who is well disposed towards the court has already been appointed. In criminal proceedings, you can appoint up to 3 lawyers in parallel (in addition to the public defender), and you can also change your chosen defense attorney at any time.

What are the chances that an arrest warrant will be lifted or suspended?

TOP 

The legal requirements for issuing an arrest warrant are extremely high; after all, there is no more severe infringement on a person’s rights, especially since the legal presumption of innocence  still applies. Nevertheless, the law enforcement authorities interpret the strict conditions of pre-trial detention very broadly in their favor, which often leads to illegality and thus to the revocation or suspension of the arrest warrant – regardless of whether there is any truth to the allegations or not. This is already shown by the statistics:

Almost 50% of all legal appeals against an arrest warrant are successful and lead to the release of the accused.

The two most common mistakes when issuing an arrest warrant are the false assumption of a supposed risk of flight and the lack of proportionality of pre-trial detention.

The risk of flight assumed in around 80% of all arrest warrants requires more than the mere possibility that the accused will flee: There must be a high probability, which the judge must establish in the arrest warrant based on concrete facts! However, this happens in very few arrest warrants! Arrest warrants that either do not establish any facts indicating a risk of flight or do not weigh up the reasons for and against a risk of flight are therefore invalid. The following circumstances in particular speak against a risk of flight:

• no (relevant) previous convictions;
• firmly rooted in Germany through family and friendship:
• no connections abroad (at most stayed there for vacation purposes);
• stable family environment (e.g. close relationships with parents / siblings);
• parent of young children or at least children of school age or otherwise in training;
• permanent job or permanent professional commitment
• secure income and assets
• permanent residence with rented accommodation or home ownership
• denial of the allegations in question and expectation of a positive outcome outcome of the proceedings
• old age and poor health
• suspicion of an offence that is amenable to probation, i.e. probation would still be conceivable in the event of a conviction

If the arrest warrant states – as is often the case – that the high expected sentence in the event of a conviction is the reason for the risk of flight, this cannot under any circumstances be the sole justification criterion. Even the existence of an alleged motivation for flight is not sufficient.

In addition, the judge must weigh up in the arrest warrant whether the disadvantages and risks of pre-trial detention for the accused (who is still considered innocent) are proportionate to the expected sanctions. Here, too, mistakes often occur because the accused’s living conditions, the impact on his family, job or business, the actual damage or any possible compensation were not sufficiently taken into account in the arrest warrant. The same applies to the prognosis of the expected sentence, which can be significantly lower and thus make pre-trial detention disproportionate because there are mitigating circumstances or another legal assessment appears possible.

All of these points are only taken into account in very few arrest warrants, regardless of whether they are based on real or perceived risk of escape, repetition or obfuscation. Only one in five arrest warrants even addresses the question of proportionality, and of these, only 19% are adequately justified.

In practice, formal errors are also often found, for example when a large number of crimes are involved (especially economic crimes, tax and sexual crimes) and the public prosecutor’s office cannot describe the crime in detail in terms of place, time, type of crime, identity of the victim and other circumstances.

The so-called strong suspicion (a mandatory requirement for an arrest warrant) can also quickly be eliminated if exculpatory evidence is presented, e.g. through a statement from the client or new physical evidence, witnesses or experts.

In any case, pre-trial detention is only permissible if the clarification of the crime and the speedy conduct of the proceedings cannot be ensured in any other way than by detaining the accused. It is a strictly limited exceptional case!

The judge must therefore always consider milder means to ensure that the proceedings are carried out – which will almost always be possible by imposing suitable conditions:

• Deposit of passport / identity card / driving license
• Security (by deposit / bank guarantee / mortgage / relatives or friends)
• Reporting requirements
• Electronic ankle bracelet (so-called electronic presence control)

What can you do against the arrest warrant / pre-trial detention?

TOP 

Since unlawful pre-trial detention ultimately represents the deprivation of liberty of an innocent person (the presumption of innocence applies!), there are a number of different ways to have the legality of pre-trial detention examined and to take action against an arrest warrant.

However, the greatest caution is required here, because depending on the choice of legal remedy, this can have decisive advantages as well as disadvantages for the person concerned. For this reason alone, it is essential to have a lawyer at your side who is very familiar with the legal options in detention law.

The most important legal remedies are detention review, application for cancellation or suspension of execution, (detention) complaint  and further complaint.

Especially when taking action against the arrest warrant for the first time, the tactical objective is crucial: the lawyer must always weigh up the prospects of success on the one hand, but also the consequences if the appeal fails on the other.

The latter is by no means “just” the client remaining in custody. A negative decision, for example by a higher regional court, can also have negative effects on later detention decisions and, in the worst case, on the subsequent main proceedings (keyword: precedent).

Conversely, depending on the case being examined, certain legal remedies are more promising than others: If, for example, you want to present new facts through witnesses, physical evidence or experts and thereby undermine the strong suspicion of a crime, an oral detention review is recommended so that this new evidence can also be presented and, if necessary, informants can be heard by the judge.

Even if the client’s personality is at stake, e.g. when it comes to the question of suspension of execution, it will always be better to give the judge a personal impression.

If, on the other hand, it is a matter of purely legal questions, especially because you consider the arrest warrant to be unlawful, it makes little sense to present the case orally, especially to the judge who originally issued the arrest warrant. In this case, it is advisable to complain to the next higher court in order to obtain a new, as independent as possible, decision.

Visits and appointments by relatives

TOP 

Especially for incarcerated suspects, help in selecting and appointing a suitable defense attorney is important and useful. Because in pre-trial detention you are simply left alone to choose and decide on the right lawyer. You also do not have the opportunity to search on the Internet for specialised lawyers with a corresponding area of ​​expertise or to have preliminary telephone discussions to provide a better basis for making a decision.

Almost always, a so-called public defender is appointed for the accused immediately after his arrest, who is usually selected by the responsible judge. But that is no reason not to also appoint another specialised and committed lawyer.

Unfortunately, judges often appoint lawyers who are particularly “close to the justice system” as public defenders, with whom they “get along well”. Experienced criminal defense lawyers in particular, who are known for going out of their way to help their clients, do not shy away from the potential for conflict with the justice system and are therefore rarely selected by judges as public defenders. Experience shows that the authorities have little interest in recommending a good lawyer or even a specialist to an accused person.

Often, the newly arrested person is simply given the Yellow Pages from the past decade or is recommended lawyers with whom the police or justice system likes to “work”. Relatives and friends can and should help here, because when choosing a doctor, you would not go to just anyone but to a specialist – especially when it comes to really serious problems.

As a relative, friend or acquaintance, you can hire a lawyer for the accused at any time. If you give a lawyer a so-called “visiting order”, the defense attorney you have appointed will receive a “visiting permit” from the public prosecutor’s office in order to then appear before the accused and have an first, unsupervised conversation with him in custody. The accused can then decide for himself whether he wants to officially authorize the appointed attorney as his defense attorney or not.

An experienced defense attorney will exhaust all options to achieve the quickest possible release from prison.