Concept and General Definition of Provisional Arrest
Die provisional arrest is a legal term from German criminal procedure law and refers to the temporary detention of a person by police officers or other authorized persons when there is suspicion of a criminal offense and a judicial decision is not yet available. It is to be distinguished from formal arrest or pre-trial detention and serves the purpose of preventing a person who is strongly suspected of an offense from fleeing or tampering with evidence until a judicial decision is made.
Legal Basis and Requirements
Statutory Foundations
Provisional arrest is specifically regulated in the following provisions of the Code of Criminal Procedure (StPO):
- Section 127 StPO: Provisional arrest by anyone and police
- Section 127a StPO: Arrest using technical means
- Section 127b StPO: Subsequent oral judicial order
Key provisions also concern the Basic Law (Art. 104 GG), which guarantees the protection of personal freedom and sets requirements for deprivation of liberty.
Requirements for Provisional Arrest
Provisional arrest can take place under the following conditions:
- Urgent suspicion: There must be a concrete, demonstrable suspicion that the detained person has committed a criminal offense.
- Risk of flight or risk of tampering with evidence: There is a risk that the suspect may flee or destroy, alter, or make evidence inaccessible.
- No time for a judicial decision: A prior judicial order is not possible because of urgency.
A distinction must be made between arrest by the police (Section 127(2) StPO) and arrest by any person in the case of being caught in the act (Section 127(1) StPO).
Provisional arrest by police officers
Police officers may arrest a person when the requirements for an arrest warrant are met but there is imminent danger (Section 127(2) StPO).
Right of any person
According to Section 127(1) StPO, private individuals are also permitted to provisionally arrest a person without a judicial arrest warrant if the person is caught in the act or being pursued and there is a risk of flight.
Process and Limits of Provisional Arrest
Duration and further proceedings
Provisional arrest is strictly time-limited. Pursuant to Art. 104(2) GG and Section 128 StPO, the arrested person must be brought before a judge by no later than the day after the arrest or be released immediately, unless an arrest warrant has been issued.
Rights of the arrested person
Persons who are arrested enjoy extensive rights during provisional detention:
- Right to information/advice: They must be informed of the reason for the arrest and their rights, particularly the right to remain silent.
- Right to notify third parties: The possibility to inform relatives or a trusted person (§ 114c StPO).
- Right to legal counsel: The option to contact a defense attorney.
- Prohibition of mistreatment: Any mistreatment or unlawful impairment is prohibited. The detained person may not be held longer than necessary.
Duties and measures of the police
After the arrest, the police are obligated to immediately inform the public prosecutor’s office and record the arrest. Body searches, identification checks, and the securing of evidence may be carried out within the legal framework.
Differences between provisional arrest, arrest warrant, and pre-trial detention
Provisional arrest differs from other measures involving deprivation of liberty as follows:
- Provisional arrest: Short-term deprivation of liberty without a judicial decision in urgent cases.
- Arrest warrant: Pre-trial detention ordered by the investigating judge when the statutory requirements are met.
- Pre-trial detention: Longer-term detention to secure the criminal proceedings, after the court has issued an arrest warrant.
Legal protection and control
Judicial protection
The person detained through provisional arrest has the right to judicial review. The judge promptly examines the lawfulness of the detention and either orders further detention, release, or other measures.
Consequences of an unlawful provisional arrest
If the arrest is found to be unlawful, this may give rise to claims for damages and compensation pursuant to the Act on Compensation for Criminal Prosecution Measures (StrEG). An unlawful arrest can also have criminal or disciplinary consequences for the persons involved.
Summary and significance in criminal proceedings
Provisional arrest is an important instrument for securing effective criminal proceedings and the protection of legal interests. It allows for a prompt response to significant suspicions but is subject to strict legal requirements, maximum time limits, and effective judicial control to ensure the protection of personal freedom. Its abuse is excluded and is prevented by comprehensive legal remedies.
Literature & References:
- Code of Criminal Procedure (StPO)
- Basic Law (GG)
- Act on Compensation for Criminal Prosecution Measures (StrEG)
- Commentaries on the Code of Criminal Procedure (e.g., Löwe-Rosenberg, Meyer-Goßner/Schmitt)
Frequently Asked Questions
Who is authorized to carry out a provisional arrest?
In Germany, not only police officers, but also private individuals (so-called citizen’s arrest) are authorized to carry out a provisional arrest pursuant to Section 127(1) of the Code of Criminal Procedure (StPO). Private individuals may make a provisional arrest if someone is caught in the act or being pursued and the identity of the person cannot be immediately established. Police officers are additionally authorized and, as part of their official duties, even obligated to carry out a provisional arrest when the legal requirements are met. They have a broader scope of action based on organizational and specialized legal foundations, for example for the further execution of police measures.
Under what conditions is provisional arrest permissible?
A provisional arrest is only permitted under certain conditions, strictly defined by law. According to Section 127(1) StPO, a person must either be caught in the act or pursued and arrest is only possible if immediate identification cannot be accomplished. If the arrest is made by police officers, it may also take place pursuant to an arrest warrant issued by the public prosecutor or judge (Section 127(2) StPO) or due to imminent danger. The appropriateness and necessity of the measure must always be assessed. Reasonable use of force is permitted only if it is essential and proportionate to effect the arrest.
How long may a provisional arrest last?
According to the provisions of the Code of Criminal Procedure, the duration of a provisional arrest is strictly limited. The arrested person must be brought before the competent judge without undue delay, i.e., without culpable hesitation (§ 128 StPO). At the latest, this must occur on the day following the arrest; this means the arrest may be maintained only until the end of the next day. If the person is not brought before a judge in time or no arrest warrant is issued, the person must be released at the latest then. Any delays or overruns of this deadline render the deprivation of liberty unlawful.
What rights does the detained person have during provisional arrest?
The detained person is entitled to numerous constitutionally guaranteed rights during provisional arrest. These include, in particular, the right to legal counsel, the right to inform a relative or trusted person about the arrest, the right to translation and an interpreter if they do not have sufficient command of the German language, and the right to remain silent. Furthermore, they must be informed of the reason for the arrest and their rights in a manner they can understand. The handling and detention must respect human dignity; prohibited are unlawful force and humiliations.
Can a provisional arrest be challenged legally?
Yes, legal remedies exist against a provisional arrest. If a person has, in their view, been unlawfully arrested, they have the right to lodge a complaint pursuant to Section 304 StPO, for example in cases of arrests carried out independently by private individuals or in cases of police action without a legal basis. Furthermore, subsequent judicial review of the arrest may take place, during which a judge examines the legality of the arrest, compliance with deadlines and the fulfillment of requirements. Violation of statutory provisions can result in the cancellation of the measure and potentially in claims for compensation.
What are the differences between a provisional arrest and an arrest based on an arrest warrant?
Provisional arrest serves short-term deprivation of liberty to secure criminal proceedings immediately after the act or in case of imminent danger and is usually possible without a judicial decision. In contrast, an arrest based on a warrant is ordered by the investigating judge and must meet the formal requirements of Sections 112 ff. StPO, such as urgent suspicion and a reason for detention (e.g., risk of flight or tampering with evidence). While a provisional arrest may only last until the end of the following day, pre-trial detention based on a warrant may be ordered until the main hearing, provided the legal requirements continue to be met.
What legal consequences result from an unlawful provisional arrest?
An unlawful provisional arrest can have criminal, civil, and disciplinary consequences. If the arrest was carried out by private individuals or police officers without the legal requirements being met, this may constitute unlawful deprivation of liberty under Section 239 StGB. In addition, the affected person may claim compensation or damages in civil proceedings based on the Act on Compensation for Criminal Prosecution Measures (StrEG) or pursuant to Sections 823 et seq. BGB. Disciplinary measures, such as disciplinary proceedings, may also apply in the case of culpable conduct by state actors.
