Your first appearance before the examining magistrate

First understand what decision is on the table

The word arraignment means that you are brought before a judge, but it does not tell you exactly what that judge will decide. In the early investigation phase it concerns the examining magistrate. He has a different role than the judge who later decides on the accusation and any possible sentence. The interrogation before the examining magistrate is therefore not an abbreviated criminal hearing at which the entire case is finally settled. Statements and decisions can be recorded that are of significance for the future.

Our editorial analysis therefore starts with a decision map. Write at the top which claim the public prosecutor has before you. State below which decision on the previous detention is being reviewed and whether the lawyer is also requesting cancellation or suspension. For each question, note the legal conditions, the facts on which the Public Prosecution Service relies and the defense's response. This prevents an important objection from being replaced by just the understandable statement that you would like to go home.

The test of the previous detention

The rules regarding arraignment after arrest are contained in Article 59a of the Criminal Code. If the detention continues, the suspect must be brought before the examining magistrate no later than three days and eighteen hours after the arrest. The judge assesses the legality of the detention. Keep the time of arrest, the start of the detention for investigation and the detention order separate. They are not interchangeable starting points for one calculation. (article 59a Code of Criminal Procedure)

A lawyer can check, among other things, the warrant, the applicable suspicion, the interest in the investigation and the precise timeline. An incorrect time in your own memory does not prove that a deadline has been exceeded. Therefore, collect documents and name what a piece shows and what you remember. Even if an error is identified, the appropriate legal consequences must be assessed separately. The detention guide discusses why a defect in an earlier phase does not automatically provide the answer to every subsequent custodial decision. (custody)

judicial pre-trial detention (Bewaring) is a new custodial decision

If the public prosecutor wants to detain someone longer, he can request judicial pre-trial detention (bewaring). The examining magistrate will then assess whether the conditions for pre-trial detention have been met. This includes suspicion, serious objections, legally permitted cases and grounds for pre-trial detention. The Judiciary's explanation of pre-trial detention describes the successive phases. An order for judicial pre-trial detention (bewaring) can last a maximum of fourteen days; a later detention requires a subsequent judicial decision. (explanation of Judiciary on pre-trial detention)

Preparing requires more than reading the title of the suspected offense. Ask what specific information the Public Prosecution Service uses for serious objections and what circumstances support the grounds put forward. A discussion about the reliability of a recognition is a different discussion than an appeal to the risk of repetition. The lawyer can argue both, but should not allow them to coincide. A custodial decision is based on a preliminary file and is not a determination that the charged offense has already been legally and convincingly proven.

What information is available and what is missing?

The defense cannot have a complete investigation file before a first arraignment. Research can continue and certain pieces may still be missing. This makes it important to indicate which information does support the claim and what conclusion is based on it. Simply saying that the record is incomplete does not answer the question of why a specific conclusion has insufficient support. Conversely, an unknown document may not be treated as an established incriminating fact.

Create three sections for the consultation: documents received, documents still requested and personal information that may be relevant. Enter the origin in the last section. A work schedule is different from a family member remembering an approximate time. Send material to the lawyer via an agreed secure channel. Do not independently contact other parties involved to straighten out their story. A careless attempt to create clarity can itself raise questions about influence.

Confidential consultation takes precedence over a rehearsed answer

Discuss with your lawyer what the suspicion entails, what questions to expect and what you do or do not know from your own observation. As a suspect you have the right to remain silent. Also during the arraignment, a choice to explain requires an understanding of the concrete procedural position. A general text on the internet cannot determine which statement in your file is sensible. Also mention language problems, medication, exhaustion or health complaints that prevent you from following the discussion.

Confidential consultation is not training in coming up with a more convincing story. It is the place to honestly discuss uncertainties, incriminating information and possible research directions. Anyone who does not know a date should not convert that uncertainty into a precise date because the procedure seems to require it. Ask how you can indicate that you do not understand a question or want to discuss it again. If necessary, arrange for a suitable interpreter to be available before discussing essential decisions.

Termination and suspension require different arguments

If the legal conditions are missing, the discussion about freedom is part of those missing conditions. In the event of suspension, a different question arises: can pre-trial detention be interrupted under certain conditions? Jurisprudence distinguishes between cancellation and suspension. A request for suspension does not presuppose that you admit guilt. It is a separate request about the way in which freedom is handled during the ongoing investigation. (Jurisprudence distinguishes between cancellation and suspension)

A concrete alternative matches the risk stated. If there are concerns about contact with a data subject, an exact contact ban and enforceable agreements are more relevant than just an employer letter. If treatment is necessary, a confirmed intake, availability and supervision are important. No package obliges the judge to suspend. However, a verifiable proposal makes the weighing of interests more open to discussion. The separate in-depth section on a suspension plan helps to elaborate this practical preparation. (Suspension of pre-trial detention: making an executable plan)

Fictional example: one arraignment, three questions

Suppose Amir is still in custody after an arrest. His lawyer notes a lack of clarity about the time at which the detention order was given. At the same time, the Public Prosecution Service is requesting judicial pre-trial detention (bewaring) due to a serious suspicion and alleged risk of recurrence. Amir lives with his sister and has a concrete option to resume treatment. This is a made-up example to reveal the structure of the discussion, not a description of a real case or prediction of an outcome.

The defense first makes the timeline verifiable with the available documents. She then discusses whether the claim for judicial pre-trial detention (bewaring) is sufficiently substantiated in terms of content. For any suspension request, it will be investigated separately whether Amir can actually stay with his sister, when treatment can start and which conditions can be enforced. A question about the timeline does not prove that the treatment is available. A confirmed treatment location also does not prove that the serious objections are absent. Each statement has its own source and legal meaning.

Personal circumstances should answer a question

Work, child care, housing and health can be important. However, a pile of statements without explanation does not automatically make it clear which interest is affected. An employer letter helps if it states what the work entails, what presence is required and what the employer can actually confirm. A general letter of praise provides less guidance if you have a question about supervision or availability. Let the author not formulate a judgment of guilt or punishment that is beyond his own knowledge.

Medical information also requires selection. Discuss what data are needed to substantiate a specific healthcare problem or treatment perspective. Do not automatically share a complete medical record. Ask the lawyer how sensitive documents are provided and who can view them. A judicial assessment can take circumstances into account without these circumstances always outweighing the legal interests behind the detention. That is precisely why precision is more useful than the most dramatic description possible.

After the arraignment: ask for the exact decision

Afterwards, make a note of what has been decided, what term has been stated and what conditions apply. Ask the lawyer to discuss the order or decision with you. The announcement that someone is being released does not always indicate whether pre-trial detention has been lifted, suspended or not ordered. That distinction determines which obligations continue and what a subsequent decision may change. The moment at which a suspension takes effect must also be clear from the decision.

If the retention continues, the next question is who will decide again when and which research points require attention before that moment. Also ask whether a legal remedy is available against the decision taken and within what specific period. Not every freedom decision has the same appeal route. A family member can help with documents and agreements, but cannot replace the lawyer during this assessment. Practically record accessibility, the next consultation moment and the receipt of mail.

A decision card for the first consultation

Use the card as your own preparation and actually fill in unknown parts as unknown. It is not an official form and does not guarantee release. The most important advantage is that your lawyer can see more quickly where a fact, document or agreement is missing. Update the map as soon as a new order or claim becomes available. A timeline that is only in a head is more difficult to control than an overview with additional pieces.

• What decisions are requested during this arraignment and by whom?
• What are the fixed moments of arrest, detention and arraignment?
• Which documents support the serious objections and the grounds for detention put forward?
• What concrete information does the defense dispute and which source is that?
• Is the lifting, rejection of judicial pre-trial detention (bewaring) or suspension an issue, and on what individual arguments?
• Which residence, treatment or supervision appointment has actually been confirmed?
• What exactly has been decided, when does it take effect and what is the next inspection moment?