Pre-trial detention: custody, detention and release

Not every day at the station is called pre-trial detention

Pretrial detention is a collective term for deprivation of liberty before a possible conviction. Within this, detention for investigation, detention and pre-trial detention each have their own rules. A judge decides on custody, detention or imprisonment. The earlier phases surrounding the arrest must be distinguished from this.

Ask your lawyer which phase applies, which document it is based on and when the next assessment will take place. Family can help by keeping letters organized and passing on practical information. Without process information, your own sum of individual terms does not provide sufficient information about when someone should be released.

From detention to a decision of the council chamber

The examining magistrate decides on detention at the request of the Public Prosecution Service, for a maximum of fourteen days. If the Public Prosecution Service wants longer detention afterwards, it must ask the court for detention. The council chamber will assess that claim. A detention order can last a maximum of ninety days in this phase.

That is not a general maximum duration for the entire criminal case. If necessary, the case must be dealt with at a hearing within that period, where the remainder of the detention will also be discussed. It may be a pro forma hearing without a full substantive discussion. Ask what exactly will be decided at the upcoming hearing and what preparation is required for this.

The seriousness of the accusation is not the only question

Legal conditions apply to pre-trial detention. The judge looks, among other things, at the suspicion, whether the type of fact allows pre-trial detention and at an applicable ground, such as risk of flight, risk of recurrence or interest in research. Which grounds are put forward must be apparent from the decision and the file.

Discuss not only that you dispute the accusation, but also why the Public Prosecution Service believes detention is necessary. The defense can then respond in a targeted manner. A permanent address, specific day program or treatment option may be relevant to a request, but does not cancel the legal assessment. The relationship to an expected punishment must also be taken into account.

A summary remedy against a detention decision

It is possible to appeal against certain decisions regarding detention, detention or extension. Case law mentions a period of three days after the decision for that route. This is a different procedure than an appeal against the later criminal judgment. Have us immediately assess which option is available in your phase.

On the day of the decision, agree who will receive the order and who will monitor the deadline. The next scheduled meeting may be too late. Moreover, a wish to be released is not automatically a valid appeal. Ask what formal action is required and whether a request for cancellation or suspension would also be useful.

Termination and suspension have a different starting point

A request for termination is aimed at terminating pre-trial detention. For example, because the conditions or grounds are no longer present. In the event of suspension, the order remains in force, but execution is interrupted. The judge can then set conditions. A suspension does not mean that the criminal case is over.

The question of which route is suitable depends on the legal reasons and your personal circumstances. Substantiate this in a targeted manner: a treatment location, acute care situation or executable supervision plan requires concrete data. A request can be made during pre-trial detention; the judge decides. Mere filing does not ensure release.

Make a proposal for suspension enforceable

A well-prepared plan describes where you will stay, how you can be reached and how agreements made can be kept. Ask what information a treatment provider, probation service or other involved agency can provide. An option that is only being explored should be stated as such and not presented as a confirmed placement.

Read a suspension decision carefully. Conditions regarding contact, residence, treatment or reporting can directly affect your daily life. Discuss ambiguities before accepting exceptions yourself. If your situation changes, report this via your lawyer or the designated authority. Failure to comply with conditions can lead to you being stuck again.

Practical help and legal assistance side by side

For family, housing, work, care and accessibility are often the first concerns. Make a brief overview of this for the lawyer. Agree on one contact person if that helps to organize information. Respect any restrictions on contact; don't try to circumvent the rules through other people.

A lawyer can be added to pre-trial detention. Ask what arrangement applies and whether cost recovery can be discussed later. A self-selected private lawyer and legal assistance are different financial arrangements. The page about pro deo legal assistance helps you prepare questions, but does not replace the assessment of your scheme.

The criminal case continues alongside the detention decisions

Release does not automatically mean that the investigation or prosecution ends. Conversely, continued detention is not a final conviction. Therefore, keep charging decisions and freedom decisions separately. This makes it clear which arguments and deadlines belong to which step.

After a verdict, appeal or cassation, rules regarding the continuation of pre-trial detention apply again. During each transition, ask which order applies and who is authorized to process a request. The general process route provides context, but the actual documents determine your situation.

• Record current command, date and phase applied.
• Discuss the grounds and possible appeal deadline immediately.
• Assess cancellation and suspension as separate options.
• Substantiate personal circumstances with concrete documents.
• After release, all conditions and follow-up calls will continue to be followed.