Pretrial Detention

An arrest and the subsequent pretrial detention immediately disrupt daily life. For the accused, this means a loss of freedom of movement, restricted contact with others, and decisions based on the preliminary findings of the investigation. Family members often know very little at first—yet they must first determine whether this is merely a preliminary arrest or whether a court has already issued an arrest warrant and ordered its execution.

Pretrial detention is not a punishment. Pursuant to Section 112 of the Code of Criminal Procedure (StPO), it may be ordered only if there is strong suspicion of a crime, a statutory ground for detention, and proportionality; the requirement for judicial authorization stems from Article 104(2) of the Basic Law (GG). Because Article 2(2), second sentence, of the Basic Law protects personal liberty, the ordering and continuation of pretrial detention must be independently justified and continuously reviewed—each of these requirements individually.

My review is therefore not limited to the alleged offense. I examine separately whether the evidence supports a strong suspicion of guilt, whether the alleged grounds for detention are substantiated by concrete facts, and whether less restrictive measures would be sufficient. In addition, I consider the grounds for the arrest warrant, the status of the investigation, possible delays, and the question of which legal remedy is appropriate in the given situation.

An Overview of the Topics

Suspicion of a Crime, Grounds for Detention, and Proportionality

Section 112(1) of the Code of Criminal Procedure first requires strong suspicion of a crime: Based on the current status of the investigation, there must be a high probability that the accused is the perpetrator or an accomplice. This is supported by witness statements, communication data, evidence found during searches, expert opinions, video recordings, or statements from co-defendants. What is decisive here is not the number of pieces of evidence, but their probative value and how they fit together—a point that is often merely asserted in arrest warrants.

There must also be grounds for detention. Section 112(2) of the Code of Criminal Procedure (StPO) lists flight, risk of flight, and risk of tampering with evidence; Section 112a of the StPO addresses the risk of recidivism for certain categories of offenses. For certain particularly serious charges, § 112(3) of the Code of Criminal Procedure (StPO) contains a special provision—but even in such cases, it remains constitutionally required to examine whether the factual circumstances justify detention.

Finally, detention must not be disproportionate to the significance of the matter and the expected legal consequences. For less serious offenses, Section 113 of the Code of Criminal Procedure (StPO) sets additional limits: If the offense is punishable by no more than six months’ imprisonment or 180 daily fines, pretrial detention is ruled out on the grounds of the risk of tampering with evidence, and the risk of flight is sufficient only under the strict conditions set forth in § 113(2) of the Code of Criminal Procedure.

Arrest Warrant and Appearance — Content, Hearing, and Decision

Pursuant to Section 114 of the Code of Criminal Procedure (StPO), pretrial detention is ordered by a written judicial detention warrant. It must specify the accused person, the alleged offense, the applicable criminal provisions, the grounds for detention, and the facts giving rise to the suspicion of the offense and the grounds for detention. In addition, the warrant must explain why the detention is not disproportionate and why less severe measures would not suffice. A mere recitation of the statute does not substitute for this justification—and this is precisely where the defense often focuses its arguments.

Upon arrest, a copy of the arrest warrant must generally be provided; if the person concerned does not have a sufficient command of German, § 114a of the Code of Criminal Procedure (StPO) provides for a translation. If the copy cannot be provided immediately, the reasons for the arrest and the charges must in any case be communicated in a manner that is easily understood.

Under Section 115 of the Code of Criminal Procedure (StPO), a person who has been arrested must be brought before the competent court without delay, which must hear the person immediately after the appearance, or no later than the following day. The person has the right to remain silent; at the same time, they have the opportunity to refute the grounds for suspicion and detention and to present exculpatory evidence. The court then decides whether to revoke the arrest warrant, suspend its execution, or continue to enforce it. This hearing is the first—and often the most decisive—turning point in the proceedings.

Grounds for Detention — Risk of Flight, Risk of Obstruction of Justice, and Risk of Recidivism

According to Section 112(2)(2) of the Code of Criminal Procedure (StPO), a risk of flight exists if, upon weighing all the circumstances, there is a risk that the accused will evade the proceedings. The prospect of a severe sentence may constitute an incentive to flee, but does not, by itself, constitute grounds for detention. Factors to be considered include family and professional ties, living arrangements, available financial resources, contacts abroad, past conduct, and the status of the proceedings. Even foreign citizenship or residence abroad do not, in and of themselves, constitute a risk of flight—although they are regularly cited as such in arrest warrants.

The risk of tampering with evidence under Section 112(2)(3) of the Code of Criminal Procedure (StPO) requires facts that indicate improper influence on evidence, co-defendants, witnesses, or expert witnesses; the mere theoretical possibility is not sufficient. In addition, it must be determined whether the evidence can still be influenced at all. Verified data, completed searches, and witnesses who have been examined by a judge may render the grounds for detention moot—a factor that gains significance as the proceedings progress.

The risk of recidivism under Section 112a of the Code of Criminal Procedure (StPO) applies only to the offenses specified therein and requires the fulfillment of additional statutory conditions. The provision was most recently amended on April 2, 2026, by the Act Implementing Directive (EU) 2017/541 on Combating Terrorism; and its scope of application was expanded in connection with the criminal offenses that were amended at the same time. For earlier cases, the previous version applies.

What I am examining is whether the facts cited support the specific grounds for detention that have been asserted, or whether they merely express general concerns. The final determination rests with the detention court; in an appeal proceeding, it rests with the appellate court.

Suspension of Sentence — Conditions Instead of Incarceration

An arrest warrant may remain in effect without being executed. Section 116 of the Code of Criminal Procedure (StPO) requires the court, in the case of an arrest warrant based solely on the risk of flight, to suspend its execution if less severe measures sufficiently ensure the purpose of detention—such as reporting requirements, geographical restrictions, supervision by a specific person, and the posting of appropriate security. Bail is therefore neither a prerequisite nor a guarantee of release, even if it appears to be so in the public perception.

If there is a risk of tampering with evidence, restrictions on contact with co-defendants, witnesses, or expert witnesses are particularly relevant. An arrest warrant based on the risk of reoffending may also be suspended under the conditions set forth in § 116(3) of the Code of Criminal Procedure. The decisive factor in each case is whether the specific orders actually serve the purpose of detention—and whether they can be effectively monitored.

A suspension of execution must be distinguished from a revocation: The arrest warrant remains in effect. If the accused person grossly violates the conditions, attempts to flee, or if it becomes apparent that the measures are insufficient, the court may order enforcement to resume. Conversely, the conditions must be lifted if the arrest warrant is rescinded.

Defense and Access to Case Files — Rights in Detention Proceedings

Under Section 136(1) of the Code of Criminal Procedure (StPO), the accused has the right to remain silent regarding the matter at hand and to consult a defense attorney even before questioning begins; Section 137 StPO guarantees the right to have counsel represent the accused at every stage of the proceedings. If a person who has not yet retained counsel is brought before a court for a decision on detention or provisional custody, a public defender must generally be appointed ex officio pursuant to Section 141(2), sentence 1, no. 1 of the Code of Criminal Procedure (StPO).

The briefing required under Section 114b of the Code of Criminal Procedure (StPO) includes, among other things, the right to remain silent, the right to contact a defense attorney, and the available legal remedies; it must be provided immediately and in understandable language. Section 114c of the Code of Criminal Procedure (StPO) provides the opportunity to notify a family member or a trusted person, provided that this does not significantly jeopardize the purpose of the investigation—if detention is ordered following the preliminary hearing, the court shall order that such notification be made.

Access to the case file is the key factor in a decision on detention. Under Section 147(2) of the Code of Criminal Procedure (StPO), in cases of pretrial detention, the defense attorney must be provided with the information essential for assessing the legality of the deprivation of liberty; this is typically done through access to the case file. Without this access, it is impossible to verify either the strong suspicion of a crime or the grounds for detention—a motion to review detention filed without any basis serves no one’s interests.

Detention Review and Appeal Against Detention — Judicial Review

As long as pretrial detention is in effect, the accused may, pursuant to Section 117(1) of the Code of Criminal Procedure (StPO), apply for a review of the detention at any time. The competent court will then determine whether the arrest warrant should be revoked or suspended pursuant to Section 116 of the StPO. While an application for a review of detention is pending, a complaint regarding detention is inadmissible—however, an appeal against the decision on the application remains possible.

Upon request, a detention review hearing is generally conducted orally. The hearing must be held without delay and, unless the accused consents, may not be scheduled later than two weeks after receipt of the request. If detention is upheld following an oral hearing, the accused is entitled to another hearing only if the detention has lasted at least three months and at least two months have passed since the last hearing.

The appeal against detention is directed against the judicial decision and is filed, pursuant to Sections 304 and 306 of the Code of Criminal Procedure (StPO), with the court that issued it; if that court does not grant the appeal, the appellate court will decide. The two routes differ in terms of the decision-making process, procedural structure, and the possibility of an oral hearing—which one is appropriate depends on the circumstances of the case and the timing.

Length of Detention and Incarceration — Expedited Proceedings, Visits, Restrictions

Pursuant to Section 121(1) of the Code of Criminal Procedure (StPO), pretrial detention for the same offense may generally be imposed for no more than six months prior to a verdict. Continued detention requires that the particular difficulty or scope of the investigation, or another compelling reason, has prevented a verdict from being rendered. Pursuant to Sections 121 and 122 of the Code of Criminal Procedure (StPO), this matter is generally decided by the Higher Regional Court, and the review must subsequently be repeated at least every three months. The six-month limit is therefore not a maximum duration, but rather a review date.

Custodial cases are subject to a special requirement for expedited processing. In its decision of July 20, 2023, StB 43/23, the Federal Court of Justice once again emphasized that as the duration of detention increases, so do the requirements for expedited processing and for the continued validity of the grounds for detention. At the same time, the right to liberty takes on greater weight relative to the interest in criminal prosecution—therefore, delays in the proceedings constitute a separate ground for challenge.

During incarceration, restrictions related to the grounds for detention may be ordered pursuant to § 119 of the Code of Criminal Procedure (StPO): regarding visits, telecommunications, correspondence, or contact with specific individuals. Such measures must be based on a risk of flight, obstruction of justice, or recidivism; without such a basis, they are invalid. Under Section 119a of the Code of Criminal Procedure (StPO), a court order may be sought to challenge administrative measures imposed during incarceration.