Should anyone of your family or your business partner or a friend or acquaintance of yours have been arrested by police and taken to the police or detention center, you should hire a lawyer for criminal law as soon as possible for an effective management of your rights and criminal defense.
It is enough to call the lawyer and orally instruct assign him on the phone on behalf of third parties or in his office in Berlin or at the entrance to the Standby Court (Bereitschaftsgericht) at Tempelhofer Damm or personally at the police.
Your approach is a legally legitimate means. Looking at the development of an ongoing criminal proceeding, the involvement of an attorney is even a necessary defensive behavior, as the German criminal procedural law requires the state to allow the accused at every stage of the process (investigation, intermediate process, trial and enforcement proceedings) the use of legal assistance (§ 137 paragraph 1 StPO):
This is seen especially in regard to the issue of potential and impending trial detention, since in this stage of the procedure, the investigation is still ongoing and lawyers can have early influences on the process. As the order of detention is always state sanctioned detention and this intense encroachment on fundamental rights dictates a timely appointment of a defense counsel in the investigation, immediate action is necessary:
After mandating the lawyer for criminal law he will immediately and personally contact the police, announce his visit there and check through a short process with the police or prosecutor, which claims against the client are legally and factually, which are provable in any subsequent criminal trial and whether or how he can be walk free for now.
The lawyer has several legal ways to accomplish that:
– Preventing an arrest warrant request from the prosecutor by correcting the facts.
– Preventing an application for the arrest warrant, provided that the police or the state criminal police plans to hear the accused client and his silence would not be sufficient because of other evidence and strong suspicion (§ 112 StPO).
– Preventing the application of an arrest warrant by the court (§ 120 paragraph 1, 3 StPO) by lawyer assessment of the investigated facts and counter-arguments to a risk of flight and the social conditions of the client, especially familiar and professional conditions.
– Alternatively sparing him from the pre-trial detention under appropriate stipulations (§ 116 StPO).
For this, a warrant, although maintained, may be suspended. An appropriate measure in criminal cases may be considered if the main proceedings can be carried out if the accused has a registered address in Berlin, with his family, a business partner, a friend or shows up at fixed times at a certain institution or leaves his passport with the authorities. See also § 116 StPO. In such a case, pre-trial detention would no longer be necessary.
If an investigating judge, despite the active defense as stated above, orders remand against the client, the defender may have other legal options:
Request for more time pursuant to § 117 StPO with the judge in the presence of the client, after getting access to the criminal files.
Written appeal against the remand decision at the next higher court. Content: Legal assessment of the complaint with focus on evidence and its origin, prognostic assessment of a process with regard to previous judgments (“no incentive for flight”). Presentation of social, familiar and work situation of the client, attack on judicial affirmed proportionality between crime and order of detention. Goal: Repeal of the arrest warrant, alternatively being spared pursuant to § 116 with appropriate conditions.
In the event of its rejection, the following is applied:
Continued detention appeal at the “Kammergericht” (in large countries: the “Oberlandesgericht”).
In case of the unlawful rejection:
Legal opening at the “Berlin Verfassungsgerichtshof”.
All this requires a lawyer’s communication and negotiation skills, resolute opposition against the prosecution, and assertiveness with the judge in the interests of the client.
Because for the state to order an arrest warrant for a client, the client must be strongly suspected of an offense, present the danger of absconding or have a reason for arrest according to §§ 112 et seq StPO.
Further, the order of the arrest warrant must not be disproportionate to the gravity of the infringement, see § 112 paragraph 1 StPO.
Missing only one of those conditions, an arrest warrant may not be ordered against the client.
As a lawyer, I understand my task to limit the power monopoly of justice and as a corrective on behalf of the client to stop state persecution zeal. Because the law thrives on controversy and controversy limits power. This conflict is nowhere else so clear as in criminal law or criminal defense.
After the order the prosecutor rushes to the detention center (in Berlin at Tempelhofer Damm 12, 12 Berlin) and is personally admitted by the police to the accused to talk to him about the case in private and the possibilities of a parole.
This is all in preparation, so even before the client has to go together with the lawyer to the first hearing in front of the judge. In general criminal matters the seat of the prosecuting judge is also at Tempelhofer Damm, so a timely hearing takes place and the lawyer can influence the outcome of the proceedings.
Only in case of murder and homicide (so-called capital offenses, see § 76 GVG) the screening of the client happens at the seat of the Amtsgericht Tiergarten (Kriminalgericht Moabit). Therefore, the client would be taken to the prison at the seat of the homicide division of the LKA Berlin (Keithstraße in Berlin-Charlottenburg).
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