Grounds for Detention
Definition and Importance of Grounds for Detention
Grounds for detention are legally defined circumstances that justify the provisional detention of a person by state authorities. They are the central prerequisite for ordering and maintaining pre-trial detention or other forms of provisional deprivation of liberty. The determination and application of grounds for detention serve to protect against arbitrary interference with the right to liberty in accordance with the rule of law, ensuring that deprivation of liberty occurs only on a statutory basis and when specific circumstances are present.
Legal Basis for Grounds for Detention
In German criminal procedure law, grounds for detention are regulated by the Code of Criminal Procedure (StPO), in particular in Sections 112 et seq. StPO. These provisions determine under which conditions pre-trial detention or the issuance of an arrest warrant is permissible. Corresponding provisions can also be found in juvenile criminal law (§ 72 Juvenile Courts Act – JGG) as well as in extradition and deportation detention.
Key Provisions at a Glance
- Section 112 StPO: Basic facts of pre-trial detention and general grounds for detention
- Section 112a StPO: Detention for risk of repetition
- Section 113 StPO: Arrest warrant in enforcement proceedings
- Section 126 StPO: Preventive detention in measures of correction and prevention proceedings
- Other Provisions: Sections 127 StPO (preliminary arrest), Section 72 JGG (juvenile criminal law), state police acts (preventive detention)
General Prerequisites for Pre-Trial Detention
The ordering of pre-trial detention requires the following conditions to be cumulatively met:
- Strong suspicion of a criminal offense: There must be sufficient factual indications that highly likely point to a specific criminal act (Section 112 (1) StPO).
- Ground for detention: At least one of the statutory grounds for detention must be present.
- Proportionality: The order for detention must not be disproportionate to the intended purpose; less severe alternatives must be prioritized.
The individual grounds for detention in detail
Escape (Section 112 (2) No. 1 StPO)
A ground for detention exists if the accused has fled or is in hiding. Escape means leaving one’s place of residence to evade criminal proceedings. Hiding includes deliberately making oneself untraceable to law enforcement authorities.
Risk of absconding (Section 112 (2) No. 2 StPO)
The most common practical basis for pre-trial detention is the so-called risk of absconding. This exists when, due to certain facts, it is feared that the accused will evade the proceedings. Relevant are individual circumstances such as the lack of social ties, the seriousness of the allegation, the expected sentence, as well as the conduct during the investigation.
Risk of tampering with evidence (Section 112 (2) No. 3 StPO)
This ground for detention exists when the behaviour of the accused gives rise to a strong suspicion that they will destroy, alter, remove, conceal, forge, or otherwise dispose of evidence, or influence co-accused or witnesses in order to hinder the ascertainment of the truth.
Risk of repetition (Section 112a StPO)
Another ground for detention is the risk of repetition. This is mainly relevant in the case of serious and repeatedly committed criminal offenses. It requires that certain offenses (such as theft, robbery, grievous bodily harm) were committed with the intent to repeat, and that a prison sentence of at least one year is threatened.
Serious Criminal Offenses (Section 112 (3) StPO)
In cases of particularly serious offenses, such as murder or manslaughter, pre-trial detention may be ordered due to the exceptional gravity of the offense and the existence of strong suspicion, even if there is no classic ground for detention. This exception is intended to provide increased protection for society and to safeguard the criminal proceedings.
Special forms of grounds for detention
Detention in juvenile criminal proceedings
Special regulations apply in juvenile criminal law (Section 72 JGG). A particularly careful weighing of grounds for detention and proportionality is required, as detention must be the last resort for juveniles.
Preventive and disciplinary detention
In addition to the grounds for detention under criminal procedure law, there are other forms of detention in other areas of law, such as preventive detention under police law for averting danger (Section 28 PolG NRW), or disciplinary detention, for example to enforce court measures in civil proceedings.
Extradition and deportation detention
In extradition law (Sections 15 et seq. IRG) and immigration law (Section 62 AufenthG), there are separate grounds for detention, which serve the enforcement of deportation or extradition and have a preventive or securing function.
Procedure for ordering detention
An arrest warrant may only be issued by a court and generally requires a substantiated application by the public prosecutor’s office. The examination of all grounds for detention and compliance with the principle of proportionality are mandatory. As part of the judicial review, the court must regularly check whether the requirements for detention continue to exist (Section 117 StPO).
Remedies and legal protection
There are various legal remedies against the ordering and continuation of detention, including detention complaints and applications for judicial review of detention (Sections 117, 118 StPO). This provides those affected with effective judicial protection against possible unjustified imprisonment.
Importance of grounds for detention in criminal proceedings
Grounds for detention have a significant impact on the acceleration and structuring of proceedings. Ensuring the accused’s presence, guaranteeing the ascertainment of the truth, and protecting the general public from serious crimes are central legitimate purposes. At the same time, the statutory grounds for detention represent an important limitation on state powers of intervention and guarantee oversight by independent courts.
Further reading
- Löwe-Rosenberg, Commentary on the Code of Criminal Procedure (StPO)
- Meyer-Goßner/Schmitt, Code of Criminal Procedure
- Fischer, Criminal Code: StGB with Supplementary Laws
Further links:
- Code of Criminal Procedure (StPO) – current version
- Juvenile Courts Act (JGG)
- <a href="https://recht.nrw.de/lmi/owa/brtextanzeigen?v_id=10000000000000000220″>General Police Act NRW
This article provides a comprehensive overview of grounds for detention in the German legal system and serves as a quick and well-founded source of information on all key legal aspects of this term.
Frequently Asked Questions
What is the role of risk of absconding as a ground for detention in German criminal procedure law?
In German criminal procedure law, risk of absconding (Section 112 (2) No. 2 StPO) is one of the central grounds that can justify the ordering of pre-trial detention. Risk of absconding is affirmed when an assessment of the overall circumstances shows a likelihood that the accused will evade criminal proceedings. All circumstances of the individual case are considered, such as personal ties, the stability of social and economic circumstances, foreign contacts, and previous conduct during the investigation. Risk of absconding does not require an actual escape or concrete attempt to flee; rather, it is sufficient if objective criteria and reasonable assessment indicate the risk that the accused will evade proceedings by fleeing. The expected sentence, especially in the case of long prison sentences, can also support the presumption of risk of absconding. However, the arrest warrant must always be proportionate with respect to this ground, and less severe measures such as reporting requirements or bail must be considered with priority.
What is meant by risk of tampering with evidence and how is this ground for detention assessed?
Risk of tampering with evidence (Section 112 (2) No. 3 StPO) exists when certain facts give rise to a strong suspicion that the accused, through actions such as destroying, altering, or suppressing evidence or influencing co-accused, witnesses, or experts, will hinder or prevent the ascertainment of the truth. Mere possibility is not sufficient; there must be specific indications suggesting such intention or actions. Examples include attempts to influence witnesses, remove evidence, or create false alibis. The risk must be based on objective facts and not merely on speculation. The assessment is also made under the aspect of proportionality, and pre-trial detention may only be ordered if it cannot be averted by less severe measures.
What is the significance of risk of repetition as a ground for detention and when does it apply?
Risk of repetition as a particular ground for detention is regulated in Section 112a StPO. It arises when the accused is suspected of having repeatedly committed certain serious offenses, in particular from the areas of sexual offenses, especially serious property and financial crimes, or other significant offenses, and further similar crimes are to be expected. Detention due to risk of repetition is subject to strict requirements and can only be imposed for narrowly defined types of offenses. A qualified suspicion and specific danger of further significant crimes are required. The order for pre-trial detention on this basis is, in contrast to other grounds, limited to a maximum period of six months and requires a particularly careful assessment of proportionality and the accused’s fundamental rights.
How is the existence of a ground for detention determined in the arrest warrant procedure?
In the procedure for issuing an arrest warrant, the competent court examines the existence of one or more grounds for detention in accordance with the requirements of the Code of Criminal Procedure (StPO). This review is generally carried out on the application of the public prosecutor’s office and is based on a comprehensive assessment of the facts, investigation files, and, if necessary, the personal hearing of the accused. The court must be able to affirm strong suspicion against the accused, and then examine each asserted ground for detention (risk of absconding, risk of tampering with evidence, risk of repetition, or certain trigger offenses) on the basis of the specific circumstances. All exculpatory and incriminating circumstances are weighed. If the court concludes that a ground for detention exists and less severe measures are insufficient, an arrest warrant is issued. Even after issuance, a continuous review is conducted as to whether the grounds for detention persist.
To what extent does the principle of proportionality play a role in ordering pre-trial detention?
The principle of proportionality is a central guiding concept when ordering and upholding pre-trial detention. This means it must always be examined whether the purpose of the detention cannot be achieved by less severe means (e.g., reporting requirements, surrender of passport, bail, or contact prohibitions). Pre-trial detention may only be ordered and upheld if it is not disproportionate to the intended purpose, especially with regard to the expected sentence and duration of the deprivation of liberty. In particular, detention is generally not considered for minor offenses or when only a short sentence is to be expected. The judge is required to check proportionality in each individual case and to limit detention to what is necessary to safeguard the rights of the accused.
Are there offenses for which the seriousness of the crime alone constitutes a ground for detention?
No, under German criminal procedure law, the seriousness of the offense alone generally does not constitute a separate ground for detention. Instead, at least one legally recognized ground for detention is always required (e.g., risk of absconding, risk of tampering with evidence, risk of repetition). However, Section 112 (3) StPO provides a statutory presumption of flight risk in the case of particularly serious offenses, especially those punishable by life imprisonment or at least ten years of imprisonment, provided there is a high probability of conviction. This presumption rule facilitates the ordering of detention in especially serious trigger offenses, but does not relieve the court of careful consideration of all the individual circumstances and the principle of proportionality.
What legal remedies are available against the order for pre-trial detention?
The accused and their defense counsel have several legal remedies available against the order for pre-trial detention. The most important is the application for judicial review of detention pursuant to Section 117 StPO. Here, the court can re-examine comprehensively whether the requirements for continuation of detention still exist. In addition, an appeal against the order (Haftbeschwerde) pursuant to Section 304 StPO can be lodged, which will be decided by the next higher instance. During these proceedings, the existence of strong suspicion and grounds for detention, as well as proportionality, are re-examined in detail. Detention can also be suspended subject to conditions, or the continuation limited to a certain period. Throughout the procedure, the accused always has the right to legal representation.
