Pretrial Detention
Pretrial Detention
Criminal Defense Lawyer Munich
Attorney for Criminal Law Munich
Pretrial detention | Arrest warrant
Specialized in detention law – 50% chance of success
Arrest and thus deprivation of liberty – usually without warning, from one moment to the next – is by far the most most drastic and burdensome measure known to criminal law. However, around half of all arrest warrants are incorrect!
For example, the risk of flight, repetition or obstruction of justice is often assumed, although there is no evidence or evidence of this. Many arrest warrants are also disproportionate, or milder measures such as suspension of pre-trial detention on bail, reporting requirements, etc. are possible!
Statistically speaking, every second legal remedy against pre-trial detention is successful.
However, a promising approach against an arrest warrant requires specialized expertise and many years of experience. That is why we have specialized in the revocation and suspension of arrest warrants and regularly achieve above-average results.
Arrest warrant / pre-trial detention – what to do?
Arrest and subsequent execution of pre-trial detention are not uncommon in criminal law. As a rule, pre-trial detention catches those affected 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 pressure this creates for the person concerned to confess.
Why is it so urgent?
Unfortunately, under the immense psychological pressure of a surprise arrest with the looming drastic consequences of pre-trial detention, many people are 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 the arrest warrant is issued that they could also imagine suspending the execution of the arrest warrant 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 the pre-trial detention using all criminal procedural means. Not only is the person concerned torn away from all private and social relationships, but their future life plans are also permanently endangered, if not destroyed: There is a risk of losing their job and their economic livelihood; distancing, irritation and loss of reputation among friends, acquaintances, neighbors, work colleagues and business partners; in the family sphere, the absence of a partner, educator, parent or child leads to considerable stress; not to mention the large number of suicides and suicide attempts, especially in the first period 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 charges have been brought, and a prison sentence is then much rarer. An acquittal or discontinuance of proceedings is then also more likely.
How should you behave?
In the event of an arrest or remand, a specialist lawyer should be hired immediately. 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 actually 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 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 wants to consult with a lawyer before being questioned, the questioning should be interrupted immediately and the defense attorney should be waited for! The accused must also not be threatened with any disadvantages in the event that a defense attorney of his choice is called in.
However, you should not let unnecessary time pass when it comes to quickly appointing a suitable defense attorney. 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 hire 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?
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 because 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, but this 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. The statistics already show this:
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 on the basis of concrete facts! However, this only happens in very few arrest warrants! Arrest warrants that either do not establish any facts at all indicating a risk of flight or do not weigh up the reasons for and against a risk of flight are therefore not valid. The following circumstances in particular speak against the 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 and expectation of a positive outcome of the proceedings
- old age and poor health
- Suspicion of an offence eligible for 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, for example, the living conditions of the accused, 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 grounds for mitigating the sentence 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 takes a position on the question of proportionality and of these, only 19% of them are adequately justified.
In addition, formal errors are also repeatedly found in practice, e.g. when a large number of offenses are involved (especially economic crimes, tax and sexual offenses) and the public prosecutor’s office is unable to describe the crime precisely in terms of place, time, type of commission, identity of the victim and other circumstances.
The so-called strong suspicion of guilt (a mandatory requirement for an arrest warrant) can also quickly be eliminated if exculpatory evidence is presented, e.g. through a statement by the client or new physical evidence, witnesses or experts.
Furthermore, pre-trial detention is only permissible if the investigation of the crime and the speedy conduct of the proceedings cannot be ensured in any other way than by the detention of 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?
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, great caution is required here, because depending on the legal remedy chosen, 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 a detention review, an application for cancellation or suspension, (detention) complaint and further complaint.
Especially when taking action against the arrest warrant for the first time, the tactical approach 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 how the case is 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 thus shake the strong suspicion of a crime, an oral detention review is a good option so that this new evidence can also be presented and, if necessary, informants can be heard by the judge.
Even if the issue concerns the client’s personality, e.g. the question of suspension of execution, it will always be better to give the judge a personal impression.
However, if the issue is purely legal, especially because the arrest warrant is considered unlawful, it makes little sense to present it 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
Help in selecting and appointing a suitable defense attorney is particularly important and useful for detained suspects. Because in pre-trial detention, you are simply left alone to choose and decide on the right lawyer. There is also no possibility to search the Internet for specialised lawyers with a corresponding focus or to have preliminary telephone discussions to provide a better basis for decision-making.
Almost always, a so-called public defender is appointed for the accused immediately after the arrest, who is usually selected by the responsible judge. However, this is no reason to also hire another specialized 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 being particularly committed to their clients, do not shy away from the promising conflict with the justice system and are therefore rarely selected by judges as public defenders. Experience shows that the authorities are not very interested in recommending a good lawyer or even a specialist to an accused.
Often, the newly arrested person is simply given the Yellow Pages from the past decade or is recommended lawyers with whom the police or the justice system like to “work together”. 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 hired will receive a “visiting permit” from the public prosecutor’s office in order to then appear before the accused and have an unsupervised first conversation with him in custody. The accused can then decide for himself whether he wants to officially authorize the appointed lawyer as his defense attorney or not.
An experienced defense attorney will exhaust all options to achieve the quickest possible release from prison.
