Term and Meaning of the Detention Review Procedure
Das Detention Review Procedure is a central element of German criminal procedure law and serves the judicial review of the legality of pre-trial detention. This procedure ensures that deprivation of liberty does not exceed the legal limits and that the rights of the affected person are protected. It forms the necessary counterweight to the principle of proportionality and the protection of personal freedom pursuant to Article 2(2) sentence 2 of the Basic Law as well as the European Convention on Human Rights.
Legal Basis
Pre-trial Detention and Its Order
The order for pre-trial detention is issued in accordance with §§ 112 et seq. of the Code of Criminal Procedure (StPO). The prerequisites include the existence of strong suspicion, a legally recognized ground for detention (flight, risk of flight, risk of tampering with evidence, or risk of repetition), and compliance with the principle of proportionality.
Statutory Provisions on the Detention Review Procedure
The detention review procedure is regulated in §§ 117 et seq. StPO and differs from a detention complaint (see §§ 304 et seq. StPO), in which review is carried out by a higher court. While the detention complaint aims at correcting a detention decision retrospectively, the detention review procedure serves the ongoing review of the continuation of pre-trial detention.
Course of the Detention Review Procedure
Initiation of the Procedure
The detention review procedure can be initiated ex officio as well as upon request by the affected person or their defense counsel. An application can be filed at any time during pre-trial detention.
Oral Detention Review
According to § 118 StPO, the detention review is generally conducted orally. The competent court (usually the district court, or in certain cases the regional court) holds a hearing with the participation of the public prosecutor and the detainee(s). A personal hearing of the detainee is required unless there are compelling reasons against it.
Subject of Review
Within the framework of the detention review, the prerequisites for the continuation of pre-trial detention are comprehensively reviewed again. This includes:
- Continuing existence of strong suspicion
- Existence and weight of the grounds for detention
- Prerequisites under § 112 StPO (adherence to deadlines, proportionality)
- Possible new developments in the facts of the case
Special Detention Review after Six Months
If pre-trial detention has lasted six months, § 121 StPO requires a special detention review by the next higher court (usually the Higher Regional Court). The aim is to ensure that there are no avoidable delays in the proceedings and that detention is not maintained without compelling reasons.
Prerequisites and Procedure
- Automatic review of detention requirements every six months (§ 121, § 122 StPO)
- Obligation to provide written reasons if detention continues
- Review by the competent authorities of procedural delays and their avoidability
Differences from Other Legal Remedies
Detention Complaint
The detention complaint is aimed at reviewing an existing detention order, but is only lodged in writing and before a higher court. In contrast, the detention review procedure can be conducted orally by the court issuing the detention order itself.
Relation to Other Legal Remedies
The detention review procedure, alongside the detention complaint and other procedural motions, is an equal instrument for safeguarding the liberty rights of the accused and can be lodged in parallel with them (§ 117(2) StPO).
Legal Protection Guarantees and Proportionality Review
The detention review procedure serves the effective protection of fundamental rights. The courts must always incorporate the principle of proportionality into their decisions. Repetition of detention review procedures is possible and generally not restricted, provided that new facts or evidence are presented.
Practical Significance of the Detention Review Procedure
The procedure effectively protects those affected from unlimited pre-trial detention and serves to expedite the main proceedings. In addition to the fundamental right to liberty, the detention review procedure contributes to oversight and transparency in criminal proceedings.
Summary
The detention review procedure is a fundamental rule-of-law instrument for safeguarding personal liberty in German criminal proceedings. It guarantees that pre-trial detention always remains lawful, necessary, and proportionate. The statutory provisions and regular review by independent courts ensure comprehensive oversight of ongoing deprivation of liberty and guarantee fair treatment of those affected during investigations.
Frequently Asked Questions
When and how is the detention review procedure initiated?
The detention review procedure is initiated as soon as a person is in pre-trial detention on the basis of an arrest warrant and it must be checked whether detention may continue. The initiation can either be made by the court ex officio or upon application by the accused or their defense counsel. In German criminal procedure law, the detention review procedure is mainly regulated in §§ 117 et seq. StPO. Initiation regularly occurs after the issuance and execution of the arrest warrant, when the court sets a date for the oral detention review. This date must take place no later than two weeks after the application is filed or, at the latest, after six months of pre-trial detention ex officio. As part of this review, the continued existence of grounds for detention and proportionality of pre-trial detention are examined.
Who is present at a detention review and what is the procedure of the hearing?
A detention review hearing is usually attended by the presiding judge, the accused, their defense counsel, and a representative of the public prosecutor’s office. The oral hearing is generally mandatory, especially for review dates upon the application of the accused or after certain deadlines have passed. The court informs the accused of the reason and subject of the review, grants both sides the right to be heard, and allows for a comprehensive statement. Questions may be asked and answered concerning detention and the underlying facts. The hearing of witnesses or the taking of further evidence is not mandatory in the detention review, but may take place if necessary to clarify relevant circumstances.
What legal standards does the court apply in the detention review procedure?
In the detention review procedure, the court checks, on the one hand, whether strong suspicion against the accused persists, and on the other, whether there is a legal ground for detention under § 112 StPO, for example, risk of flight, risk of tampering with evidence, or risk of repetition. In addition, the court must weigh proportionality according to § 120 StPO. This means it must be examined whether continuing pre-trial detention is still reasonable in light of the expected sentence and the length of time served so far, or whether less severe measures (e.g., reporting requirements, bail) might suffice. The fundamental rights of the accused, particularly the right to liberty under Article 2(2) sentence 2 of the Basic Law, must also be given special consideration.
What deadlines apply in detention reviews, and how often can a review take place?
The most important deadline is the so-called six-month period from § 121 StPO: After no more than six months of pre-trial detention, a special detention review by the Higher Regional Court must take place, unless the proceedings have meanwhile concluded. Regardless of this, under § 117 StPO the accused can apply for a detention review after every decision to continue detention. If this application is rejected, a new detention review can be applied for after two months, unless the factual or legal situation has changed significantly. In addition, the court regularly checks ex officio the requirements for continued detention.
What is the role of the defense counsel in the detention review procedure?
The defense counsel plays a central role in the detention review procedure. They have the right to attend all hearings, to inspect files, and to independently apply for a detention review. During the proceedings, the defense addresses the reasons stated in the arrest warrant, presents exonerating facts, and may request alternative measures to pre-trial detention. Furthermore, the defense safeguards the rights of the accused, monitors compliance with all deadlines, and can lodge complaints against the court’s decisions.
What legal remedies are available against decisions in the detention review procedure?
Against the decision to uphold pre-trial detention in the detention review procedure, the accused has the right to lodge a complaint under § 304 StPO. This may be lodged within one week of service of the decision. The decision on the complaint is generally made by the next higher court. The public prosecutor can also lodge a complaint, for example, if an arrest warrant is lifted. Furthermore, in cases of particularly long detention, a constitutional complaint to the Federal Constitutional Court may sometimes be possible if procedural fundamental rights have been violated.
