An arrest and subsequent execution of pretrial detention are not uncommon in criminal law. In most cases, pretrial detention catches the affected individual completely unprepared. This applies even if they are aware that an investigation is pending against them.
For some time now, the number of arrest warrants has been increasing. Looking at the large number of unlawful arrest warrants, it seems that even completely arbitrary reasons are decisive for pretrial detention: primarily, the confession pressure on the accused.
Why is it urgent to take action against pretrial detention?
Under the immense psychological pressure of a sudden arrest and the looming severe consequences of pretrial detention, many people are unfortunately willing to waive their right to remain silent. It is not uncommon for the police, prosecutors, or judges to imply before or at the issuance of an arrest warrant that a suspension of the arrest warrant could be considered in exchange for a full confession. Ultimately, out of fear of detention and due to the element of surprise caused by the usually unexpected arrest, many affected individuals initially attempt to “cooperate” with the justice system.
This is understandable because the psychological pressure of being suddenly locked away in sometimes inhumane cells is reason enough to use all procedural means to end pretrial detention. Not only is the affected individual torn from all private and social connections, but their future life plans are also severely jeopardized, if not destroyed. They face the loss of their job and economic livelihood; estrangement, confusion, and loss of reputation among friends, acquaintances, neighbors, colleagues, and business partners. In family life, the absence of a partner, caregiver, parent, or child creates significant burdens. Additionally, the suicide rate among detainees in the first period of incarceration is dramatically high—up to 12 times higher than in freedom.
As pretrial detention continues, intellectual performance typically declines, and the affected individual becomes increasingly willing, contrary to their right to remain silent, to tell investigators what they want to hear just to end the detention. Contact with a defense attorney is also more difficult during pretrial detention—not to mention contact with family and friends.
What many do not know: The longer pretrial detention lasts, the lower the chances of appearing as a free person at trial, which can significantly impact the court’s perception—keyword: probation. Additionally, lengthy pretrial detention almost always leads to a correspondingly harsh sentence, legitimizing the original detention decision retroactively.
However, if an arrest warrant is lifted, even the prosecution often concludes after filing charges that imprisonment is no longer necessary, significantly reducing the likelihood of a custodial sentence. Acquittal or case dismissal then becomes more likely.
How can a lawyer help?
The legal requirements for issuing an arrest warrant are extremely high, as it represents one of the most severe infringements on a person’s rights, especially given that the presumption of innocence still applies.
Nevertheless, law enforcement agencies interpret the strict requirements for pretrial detention very broadly in their favor. Legal and constitutional errors are frequently made, or these strict requirements are simply not taken seriously. Ultimately, arrests and pretrial detention are effective tools to make suspects “talk” and often extract confessions.
Such practices are contrary to the rule of law and should not be tolerated. Errors in the application and issuance of arrest warrants must lead to the revocation or suspension of the warrant.
Fighting pretrial detention can be worthwhile, as statistics show: Nearly 50% of all legal appeals against an arrest warrant are successful, resulting in the warrant being either revoked or suspended.
It is therefore strongly recommended that, in the event of an arrest, one should IMMEDIATELY engage a SPECIALIZED LAWYER, make NO STATEMENTS, and challenge the detention measure with all available legal remedies.
It is irrelevant whether another lawyer has already been engaged or—what courts often prefer—a court-appointed public defender has already been assigned. In criminal proceedings, up to three attorneys can be engaged simultaneously, in addition to the public defender!
The most common errors that lead to an arrest warrant being revoked or suspended:
Every arrest warrant must be formally correct; there must be a strong suspicion of a crime; there must be a reason for detention (e.g., risk of reoffending, obstruction of justice, or flight risk); and finally, the imposition of pretrial detention must be proportionate.
The two most common errors in issuing an arrest warrant are the mistaken assumption of a supposed flight risk and the lack of proportionality of pretrial detention.
Additionally, formal errors are frequently encountered in practice, particularly in cases involving multiple charges (especially in economic crimes, tax offenses, and sexual offenses), where the prosecution fails to precisely specify the acts in terms of time, location, method of execution, the identity of the victim, and other circumstances.
Furthermore, strong suspicion (a mandatory prerequisite for an arrest warrant) can quickly dissipate if exonerating evidence is presented, such as a client’s statement or new physical evidence, witnesses, or expert opinions.
Unlawfulness of the arrest warrant due to assumption of flight risk
Over 80% of arrest warrants are based on flight risk, meaning that the court assumes the accused will evade prosecution.
However, the presiding judge must determine specific facts that justify a prognosis regarding the accused’s behavior. They must consider the personality of the accused, their living conditions, and their behavior before and after the alleged offense.
Additionally, the judge must assess the degree of flight risk by considering the accused’s personal stance and expectation of the trial outcome. Someone who is convinced the trial will end in their favor cannot logically be presumed to be planning to flee.
Most importantly, the accused’s past life, their personal, familial, and economic circumstances, their social environment, and their relationships must be thoroughly examined.
If an arrest warrant merely states that a high expected sentence in the event of conviction justifies flight risk, this alone cannot serve as a justification. It is particularly impermissible to assume that flight risk exists simply because a potential sentence exceeds one year.
Arrest warrants that rely solely on high expected sentences are unlawful!
If the arrest warrant states, as often happens, that the high expected sentence in the event of a conviction is the reason for the risk of flight, this can by no means be the sole justification criterion. In particular, the schematic assumption that a risk of flight exists if a certain sentence length is expected, for example, from one year upwards, is inadmissible.
The mere existence of an alleged motivation to flee is also not sufficient to assume a risk of flight. What is crucial is whether the accused, in view of the overall circumstances, is making specific preparations to flee and whether there are objectively verifiable circumstances indicating an intention to flee.
All circumstances that serve as indicators for or against the existence of grounds for detention must be taken into account. The factors for and against the risk of flight must always be weighed and explicitly set out.
A risk of flight requires more than just the mere possibility that the accused will flee: There must be a high probability!
The constitutional principle requires a restrictive interpretation of the grounds for detention.
INVALID are arrest warrants that either do not establish any facts justifying a risk of flight or fail to balance the factors for and against the risk of flight. The following circumstances, in particular, argue AGAINST a risk of flight:
- The accused has no prior criminal record;
- He possesses German citizenship and/or has been firmly rooted in Germany for years through family and friendships;
- He has no ties abroad and has only traveled abroad for vacation purposes;
- He has a stable family environment (e.g., close relationships with parents or siblings);
- He is responsible for supporting young, school-aged, or otherwise dependent children;
- His entire circle of friends is in Germany (no foreign friendships or contacts that could facilitate a flight);
- He has a steady job or stable professional ties;
- He maintains a balanced financial situation;
- His income and assets are secure;
- He owns no real estate or other assets abroad;
- He has maintained an uninterrupted police registration of his residence for years;
- He has a fixed residence with either a rental apartment or homeownership;
- He has a strong sense of local attachment or roots;
- The allegations against him are disputed, and he expects a favorable legal outcome;
- He is of advanced age and/or in poor health;
- The alleged offense is probation-eligible, meaning that a suspended sentence would be possible in the event of a conviction.
Many arrest warrants assume that the accused would find it more attractive to evade further proceedings rather than face trial.
This assumption overlooks the fact that the overall assessment is not limited to the simple alternative of “incarceration or freedom.”
Fleeing from prosecution does not just grant temporary freedom—due to modern investigative techniques, this is usually short-lived anyway. The accused must also be willing to abandon their entire civil existence, sever all past connections, including family ties, and relinquish their identity and financial assets.
They would no longer be able to work, live, travel, open a bank account, or use identification documents under their true identity.
They would be unable to book flights, rent vehicles, obtain a mobile phone contract, or conduct cashless transactions—whether for rent, electricity, or water bills.
In almost no place in the world can they be assured that the authorities will not eventually catch up with them.
In short: Nothing disrupts a person’s life more than fleeing prosecution, especially when they have no concrete prospects of refuge abroad.
The social consequences are often far more severe than pre-trial detention or serving a sentence.
Even if external conditions favor flight, this alone is insufficient to justify assuming a risk of flight. What matters is whether the accused is likely to take advantage of these conditions.
All these aspects must be duly considered when evaluating the likelihood of flight.
A flight must be highly probable in the specific individual case. Mere assumptions, concerns, or unsubstantiated conclusions are not sufficient, nor is the frequently cited risk of flight due to supposedly weak social or familial ties.
Once again: Arrest warrants that are solely based on a high expected sentence are unlawful!
Illegality of the Arrest Warrant Due to Disproportionality
Every arrest warrant, regardless of its grounds, must also be proportionate.
This means that the judge must always weigh whether the disadvantages and risks of pre-trial detention for the accused, who is still presumed innocent, are proportional to the significance of the alleged offense and the expected penalties.
Crucial factors include:
- The specific allegations against the accused,
- The legally defined sentencing framework,
- The likely sentence in the specific case,
- The type of offense committed,
- Alternative legal interpretations of the case,
- The personality of the accused,
- The circumstances of the crime,
- The accused’s personal and family situation,
- The impact on family and dependents,
- Potential loss of employment,
- Impact on the accused’s business and employees,
- Reputational damage,
- The damage caused by the offense,
- Possible restitution,
- The interests of the victims,
- The progress of the case and potential delays.
All these points are rarely found in arrest warrants, making most of them legally challengeable.
Furthermore, pre-trial detention is only permissible if the thorough investigation of the case and the swift completion of the trial, including sentencing and enforcement, cannot be ensured otherwise.
The judge must also consider less restrictive measures to secure the proceedings, such as:
- Depositing passports and ID cards,
- Depositing a driver’s license,
- Posting bail,
- Third-party bail from family or friends,
- Regular check-ins with authorities,
- Residence restrictions,
- Freezing bank accounts,
- Electronic monitoring (ankle bracelet).
In cases where a fine or suspended sentence is likely, pre-trial detention is generally disproportionate.
The violation of the principle of proportionality means that even if there is a strong suspicion and grounds for detention, an arrest warrant must not be issued or must at least be suspended.
What Legal Remedies Are Available to Challenge an Arrest Warrant?
Since pre-trial detention ultimately amounts to the deprivation of liberty of an innocent person (as the presumption of innocence applies), there are numerous ways to challenge an arrest warrant.
However, great caution is required when choosing the legal remedy, as it can have significant advantages or disadvantages for the accused. For this reason alone, it is essential to have a lawyer who is well-versed in detention law and its legal remedies.
The most important legal remedies are detention review, detention appeal, and further appeals.
When challenging an arrest warrant for the first time, the strategic approach is crucial. A lawyer must always weigh the chances of success against the potential consequences of failure.
The latter is not merely the continued detention of the client. A negative decision, for example, by a higher regional court, can also have negative consequences for future detention rulings and the main trial itself (keyword: precedent).
Conversely, certain legal remedies are more promising than others, depending on the case. If new facts are to be presented through witnesses, material evidence, or expert opinions to challenge the strong suspicion, an oral detention review is advisable to present these new pieces of evidence and have them considered by the judge.
Similarly, if the case concerns the personal circumstances of the client, such as the possibility of suspension of detention, it is always better for the judge to have a personal impression of the accused.
If, on the other hand, the matter concerns purely legal issues—especially if the arrest warrant is deemed unlawful—it makes little sense to argue orally before the judge who originally issued the warrant. In such cases, filing a complaint with the next higher court to obtain a new, objective ruling is advisable.
Summary
The chances of having an arrest warrant revoked or suspended are relatively high. This is because a large number of arrest warrants are simply unlawful, whether due to insufficient fact-finding, inadequate weighing of factors, or frequent violations of the principle of proportionality and failure to consider milder measures.
Nevertheless, dealing with detention law requires a specialized lawyer. Good results require expertise and experience. Both can only be acquired by focusing primarily or exclusively on a specific legal field.
Our law firm is committed to leveraging all legal options in criminal proceedings and developing effective defense strategies, particularly targeting the systemic weaknesses of the justice system.
No other area of law offers so many discretionary margins, considering the wide range of legal consequences in criminal proceedings: from case dismissal (with or without fines) to penal orders, to non-initiation of proceedings, acquittals, warnings, exemptions from punishment, or prison sentences ranging from a few months to several years—with or without probation.
The outcome in criminal law largely depends on the choice of the right lawyer.
Just as with a doctor, the most crucial factor in hiring a lawyer is the confidence that you are in the best possible hands. You are welcome to contact us in advance to get a personal impression of our experience and expertise.
