If one of your family members or business partners or a friend or acquaintance of yours has been arrested by the police and taken to the police station or detention center, you should hire a criminal law attorney as soon as possible for effective legal representation and criminal defense.
All you need to do is Call a lawyer in criminal law and to instruct him verbally on the telephone on behalf of the third party or to meet the lawyer in person at his office in Berlin or in front of the entrance to the standby court at Tempelhofer Damm or the police station.
Their action is a legally legitimate means, and in view of the development of the ongoing criminal proceedings, the involvement of a lawyer even represents necessary defensive behavior. This is because German criminal procedure law requires the state to ensure that the accused has the assistance of a defense lawyer at every stage of the proceedings (preliminary proceedings, interim proceedings, main proceedings and enforcement proceedings) (Section 137 (1) StPO):
This obviously applies above all to the question of possible and imminent pre-trial detention, as the investigations are still ongoing at this stage of the proceedings and legal work has an influence on the proceedings at a very early stage. Because the ordering of detention is always a state deprivation of liberty and this intensive encroachment on fundamental rights requires the prompt appointment of a defense lawyer in the preliminary proceedings, action should be taken as soon as possible.
After the lawyer has been mandated in criminal law, he will immediately contact the police in person, announce his presence there and travel immediately to the detention center or police station. After a brief description of the incident by the police/public prosecutor's office, it will be checked what the client is legally and factually charged with, i.e. what can be proven and is tenable in any subsequent criminal proceedings, and whether and how the client can now be quickly released from custody.
By law, the lawyer has several options for this:
- Preventing an application for a warrant of arrest from the public prosecutor by counter-speech and correcting the facts
- Preventing an application for a warrant of arrest if the police/the State Criminal Police Office plans to question the accused client and his silence is not sufficient for an urgent suspicion required by law (§ 112 StPO) for the warrant of arrest (no detention for lack of evidence)
- Preventing the court from issuing a pre-trial detention order (Section 120 (1), (3) of the Code of Criminal Procedure) through the lawyer's assessment of the facts of the case being investigated by the state and counter-arguments regarding the risk of absconding and the client's social, especially family and professional circumstances
- in the alternative, exemption from pre-trial detention in return for a suitable condition (Section 116 StPO).
To this end, an arrest warrant can be suspended even though it is upheld.
This is the case if a suitable measure in the criminal proceedings is better (in legalese: proportionate or conducive to the purpose). This is because the main proceedings can also be secured if, for example, the accused has a registered address in Berlin, lives with his family, business partner or friend or reports to an institution at fixed times or hands in his passport to the authorities, cf. section 116 of the Code of Criminal Procedure. In such a case, pre-trial detention would no longer be necessary.
If an investigating judge orders pre-trial detention against the client despite an active defense as mentioned above, the defense attorney has further legal options:
- Application for the scheduling of a detention review to be carried out in due time in accordance with Section 117 of the Code of Criminal Procedure with the client's right to be present before the judge, this after the files have been inspected
- Written appeal against the decision of the detention judge ordering pre-trial detention to the next higher court. Content: Attorney's assessment of the accusation with a focus on evidence and its origin, prognostic assessment of a trial based on the experience of previous judgments ("no escape-inciting punishment")
- Presentation of the client's social, i.e. family and professional situation, attack on the proportionality between the offense and the detention order as affirmed by the court. Objective: Revocation of the arrest warrant, alternatively sparing the client's life by naming suitable condition(s) in accordance with Section 116.
In the event of its rejection, an appeal is lodged:
- Appeal against continued detention to the Court of Appeal (in territorial states: to the Higher Regional Court).
In the event of its unlawful rejection:
- Legal recourse to the Berlin Constitutional Court is opened.
All of this requires communication on the part of the lawyer and a resolute approach to the public prosecutor's office as well as negotiating skills and assertiveness with the judge in the interests of the client. For the state to issue an arrest warrant against a client and order pre-trial detention, the client must be urgently suspected of a criminal offense. Furthermore, one of the grounds for detention listed in sections 112 et seq. of the German Code of Criminal Procedure (StPO) must apply and the client must (later) face a high sentence expectation, e.g. due to the risk of absconding, the most common ground for detention. Furthermore, the order for (pre-trial) detention must not be disproportionate to the seriousness of the offense, Section 112 (1) StPO.
If only one of these requirements is missing, an arrest warrant may not be issued against the client.
As a lawyer, I see my task as limiting the judiciary's monopoly on power and acting as a corrective on behalf of my clients to stop the state's zeal for persecution. After all, law thrives on conflict and conflict is known to limit power. Nowhere else is this conflict more evident than in criminal law and criminal defense.
With the order, the criminal lawyer will therefore rush to the prisoner collection point (in Berlin at Tempelhofer Damm 12, 12101 Berlin) and will be let in by the police to talk to the accused in person about the case and then go through the possibilities of his release from custody with him.
This is done in preparation, i.e. before the client and the lawyer have to go to the so-called detention hearing, i.e. the hearing on the accusation before the investigating judge. In general criminal cases, the seat of the investigating judge is also at Tempelhofer Damm, so that the client will be brought before the judge promptly and the lawyer will have an influence on the outcome of the proceedings.
Only in cases of murder and manslaughter (so-called capital offenses; see § 76 GVG) will the client be brought before the magistrate at the seat of the Tiergarten Local Court (Moabit Criminal Court). Therefore, the client would be taken to the detention center at the headquarters of the homicide unit of the LKA Berlin (Keithstraße in Berlin-Charlottenburg).