Definition and significance of arrest
Arrest in German law refers to the detention of a person by state authorities for the purpose of carrying out criminal procedural measures. Historically and currently, it constitutes a fundamental interference with personal liberty. Arrest may only take place under specific, legally defined conditions and encompasses both temporary detention as well as the execution of court warrants. Arrest is closely linked to the fundamental rights guaranteed by the Basic Law and the provisions of the Code of Criminal Procedure (StPO).
Legal basis for arrest
Constitutional Foundations
According to Article 2 Sec. 2 sentence 2 and Article 104 of the Basic Law (GG), personal liberty is guaranteed. These provisions stipulate that any restriction or deprivation of liberty is permissible only on a legal basis and by observing particular procedures. Each arrest constitutes a severe intrusion into this fundamental right and is subject to strict legal requirements.
Simple statutory provisions
Key provisions regarding arrest are found in the Code of Criminal Procedure (StPO). Additional supplementary rules are contained in police laws, the Civil Code (e.g., for self-help), the Youth Courts Act (JGG), and special laws (e.g., the Residence Act).
Types of arrest
Temporary detention (§ 127 StPO)
Police, and under certain circumstances also private individuals, may temporarily detain a person if they are caught in the act or pursued while committing a crime, if there is a risk of flight, or if their identity cannot be immediately established. The goal is to secure the person until the investigating authorities decide on further measures.
Arrest on the basis of a warrant (§§ 112 ff. StPO)
The classic instance of arrest is based on a judicial warrant. This requires an urgent suspicion of an offense as well as grounds for arrest (e.g., risk of flight, risk of collusion, or risk of reoffending). A warrant is also issued for compulsory admission to a hospital or psychiatric institution (§§ 126a, 127b StPO).
Requirements for an arrest warrant
- Urgent suspicion of an offense
- Grounds for arrest (risk of flight, risk of collusion, risk of reoffending)
- Proportionality of the measure
Arrest under police law
Arrest is also possible outside criminal proceedings, for example to avert dangers under the respective police laws of the federal states. Examples include taking persons into custody to prevent imminent danger.
Civil law arrest
In rare exceptional cases, compulsory appearance enforced by the enforcement court may be permissible in civil law proceedings (§§ 888, 901 ZPO).
Process and execution of arrest
Formal and material requirements
An arrest must be carried out in accordance with legal requirements. The arresting authority is obliged to inform the person concerned of the reason for the arrest and, upon request, to present the court order. Proportionality must always be respected; measures must not go beyond what is necessary.
Rights of the arrested person
- Advisement regarding the offense and the reason for detention
- Right to assistance (e.g., attorney)
- Right to notify relatives
- Deprivation of liberty with respect for human dignity
Further procedural steps
After a temporary detention or formal arrest, the person must be brought before the investigating judge without delay, who will decide on further deprivation of liberty (§ 128 StPO). If confirmation of the warrant is lacking, immediate release must be ordered.
Legal protection against unlawful arrest
The state provides effective legal protection. An appeal and judicial review of detention can be requested against a warrant (§§ 117, 304 StPO). In addition, in cases of unlawful deprivation of liberty, there is a claim for compensation under the Act on Compensation for Measures of Criminal Prosecution (StrEG). Criminal consequences for officials acting unlawfully are also possible.
International aspects and limits of arrest
International agreements, such as the European Convention on Human Rights (ECHR), Art. 5, and the International Covenants on Civil and Political Rights, also protect individual liberty and contain requirements for the admissibility of arrests. Extraditions and international arrest warrants are also subject to their own rules (e.g., European Arrest Warrant).
Distinction from other measures
Arrest must be distinguished from other forms of state restriction on liberty, such as temporary police verification of identity, searches, or bans on residence. Arrest always means deprivation of liberty for a certain duration.
Consequences and significance in practice
Arrest has significant consequences for those affected and requires careful examination of all legal requirements. It ensures that investigations and criminal proceedings can be properly conducted, but must always be regarded within the tension between effective criminal prosecution and protection of individual freedom.
Literature and further references
- Code of Criminal Procedure (StPO)
- Basic Law (GG)
- Act on Compensation for Measures of Criminal Prosecution (StrEG)
- Police laws of the federal states
- European Convention on Human Rights (ECHR)
Note: This article is intended as general information on the legal term “arrest” and does not claim to be exhaustive. In individual cases, the currently applicable legal provisions and court rulings apply.
Frequently asked questions
Who is authorized to carry out an arrest?
The authority to carry out an arrest generally lies with the competent state law enforcement agencies, in particular the police and the public prosecutor’s office. In special exceptional cases, such as in a so-called ‘citizen’s arrest’ under § 127 paragraph 1 StPO (Code of Criminal Procedure), private individuals are also authorized to temporarily detain someone if they are caught in the act and there is a risk of flight or the identity cannot be immediately established. The exercise of official custody by police officers, however, always takes place on the basis of legal provisions, such as a judicial arrest warrant under § 112 StPO or in exceptional situations where there are ‘urgent grounds for suspicion’ and reasons for detention (e.g., risk of flight, risk of collusion). Unlawful or illegal arrests may fulfill the criminal offense of unlawful detention pursuant to § 239 StGB.
What conditions must be met for an arrest to be lawful?
A lawful arrest requires several conditions to be met. In the context of criminal procedure, the most important prerequisite is the existence of an urgent suspicion against the person to be arrested. In addition, at least one so-called ground for arrest must exist. Typical grounds include, in particular, risk of flight and risk of collusion, as well as the risk of repeat or serious crimes. Arrest may only be ordered by a judge unless there are emergencies where a judicial decision cannot be awaited (§ 127 StPO). Furthermore, both the suspect’s fundamental rights and the proportionality of the measure must be observed. If a person is unlawfully detained without these prerequisites, the persons acting may face both criminal and civil consequences.
How must an arrest be carried out in order to be lawful?
A lawful arrest requires compliance with formal and substantive requirements. The arresting authority must immediately inform the detained person of the reason for the arrest (“Why am I being arrested?”) as well as the underlying offense. In addition, the detained person must be informed, without delay, that they have the right to consult a lawyer and the right to remain silent when dealing with authorities (§ 136 StPO). The arrest must be carried out as gently as possible; unnecessary use of force or restrictions on liberty are to be avoided, unless the situation requires direct coercion. After the arrest, if the person is not released, they must be brought before a judge no later than the day following the arrest (§ 128 StPO).
What rights does an arrested person have?
An arrested person is entitled to various rights protected by law and basic rights. The most important include the right to legal counsel (lawyer), the right to remain silent, the right to be informed about the reason for the arrest, and the right to inform family members or a trusted person (§ 114c StPO). There is also a right to be brought promptly before a judge and not to be deprived of a judicial decision for longer than necessary. The detained person has the right to medical care and humane treatment. Disregard of these rights may render the entire measure unlawful and subsequently give rise to claims for damages.
What happens after the arrest?
After an arrest, the detained person is initially questioned by the police or the competent authority and informed of their rights. If immediate release is not possible or required, the person must be brought before an investigating judge by the day following arrest (§ 128 StPO). The judge reviews the lawfulness of the arrest, focusing on whether urgent suspicion and grounds for detention exist. If confirmed, the judge orders pre-trial detention; otherwise, immediate release must be ordered. During pre-trial detention, the person continues to have extensive rights, particularly with regard to defense, communication, and medical care.
Are there differences between arrest and temporary detention?
Yes, there are legal differences: ‘Temporary detention’ is a short-term deprivation of liberty that may be carried out particularly by police officers or also by private persons (in a citizen’s arrest) when there is imminent danger and a judge’s order cannot be obtained in time. The actual ‘arrest’ generally requires a judicial arrest warrant and serves to place a person in pre-trial detention. Both measures are regulated in the Code of Criminal Procedure and differ regarding their prerequisites, powers, and legal consequences.
What are the consequences of an unlawful arrest?
An unlawful arrest carries far-reaching consequences. On one hand, it may result in deprivation of liberty, which is only permissible under Article 104 GG on a statutory basis and with judicial decision. If this requirement is not met, the measure may have criminal consequences for those responsible (e.g., unlawful detention under § 239 StGB). Moreover, the wrongly arrested person is entitled to compensation under the Act on Compensation for Measures of Criminal Prosecution (StrEG). In addition, an unlawful arrest may have procedural consequences, such as the prohibition on the use of evidence obtained under coercion.
