Pre-Trial Detention (Pre-Trial Detention) – When Is It Ordered and What Can You Do?

Pre-Trial Detention (Pre-Trial Detention) – The Most Severe Measure Before a Verdict

Pre-trial detention (Pre-Trial Detention, commonly abbreviated as “U-Haft”) is the most severe coercive measure available under German criminal procedure law. It deprives the accused of their liberty even though no final conviction has been rendered. For precisely this reason, pre-trial detention is subject to strict constitutional and statutory requirements. The presumption of innocence (Art. 6(2) ECHR) applies until a final verdict – pre-trial detention must therefore never serve as an anticipated punishment.

Requirements for Pre-Trial Detention

Three requirements must be met simultaneously for pre-trial detention to be ordered (§ 112 StPO – German Code of Criminal Procedure):

1. Strong Suspicion of Having Committed a Crime (Dringender Tatverdacht)

Definition: Strong suspicion exists when, based on the current state of the investigation, there is a high probability that the accused committed the offence in question. This threshold is higher than the “initial suspicion” (Anfangsverdacht) required to open an investigation and also higher than “sufficient suspicion” (hinreichender Tatverdacht) required for an indictment. The court must review the existing evidence and assess whether a conviction is highly probable.

2. Ground for Detention (Haftgrund)

In addition to strong suspicion, at least one statutory ground for detention must exist:

• Risk of flight (Fluchtgefahr, § 112(2) No. 2 StPO): The accused is likely to evade the criminal proceedings, for example by fleeing abroad or going into hiding. Factors considered include the severity of the expected sentence, personal ties, employment, and family situation.
• Risk of evidence tampering (Verdunkelungsgefahr, § 112(2) No. 3 StPO): There is a concrete risk that the accused will destroy evidence, influence witnesses, or otherwise obstruct the investigation.
• Severity of the offence (§ 112(3) StPO): For particularly serious offences such as murder, manslaughter, or offences under the International Criminal Code, pre-trial detention may be ordered even without a specific risk of flight or evidence tampering.

For certain catalogue offences (e.g. serious theft, drug offences), pre-trial detention may also be ordered on the basis of risk of re-offending (Wiederholungsgefahr), where there is a danger that the accused will commit further serious offences of the same type before conviction.

3. Proportionality (Verhältnismäßigkeit)

Pre-trial detention must be proportionate (§ 112(1) sentence 2 StPO). It must not be ordered if it is disproportionate to the significance of the case and the expected sentence. For minor offences or where only a fine is expected, pre-trial detention is generally not permissible.

Procedure

Arrest Warrant (Haftbefehl)

Pre-trial detention is ordered by means of an arrest warrant, which may only be issued by a judge (§ 114 StPO). The arrest warrant must contain: personal details of the accused, the offence (time, place, statutory elements), the ground for detention, and the facts establishing both the strong suspicion and the ground for detention.

Judicial Hearing (Vorführung)

After arrest, the accused must be brought before a judge without delay, and no later than the end of the following day (Art. 104(3) of the German Basic Law). During this hearing, the judge reviews the arrest warrant, hears the accused, and decides whether to uphold pre-trial detention. This is a critical moment: the accused has the right to comment on the charges and – ideally with the assistance of a defense lawyer – to argue against detention.

Review of Detention (Haftprüfung, § 117 StPO)

At any time during pre-trial detention, the accused may apply for judicial review. The court then examines whether the requirements for detention are still met. This can be done in writing or by way of an oral hearing. A complaint (Beschwerde) to the higher regional court is also possible. However, the complaint has no suspensive effect.

Six-Month Review (§ 121 StPO)

If pre-trial detention lasts longer than six months, the Higher Regional Court (Oberlandesgericht) must review whether continued detention is justified. Detention may only continue if the particular difficulty or scope of the investigation, or another important reason, has not yet permitted a verdict, and continued detention remains proportionate.

Suspension of the Arrest Warrant (Haftverschonung, § 116 StPO)

Instead of enforcing the arrest warrant, the court may suspend its execution and order less intrusive measures:

• Reporting obligations: Regular check-ins with the police
• Bail (Kaution): Deposit of a financial security
• Residence requirements: Prohibition on leaving one’s place of residence
• Surrender of passport: Handing over travel documents
• Contact restrictions: No contact with co-accused or witnesses

For expats and foreign nationals in Germany, the risk of flight is often presumed more readily by courts due to ties abroad. However, this presumption can be effectively countered with the right arguments – for example, by demonstrating stable employment, family, or accommodation in Germany.

Rights of the Accused in Pre-Trial Detention

Even in custody, the accused retains fundamental rights:

• Right to a defense lawyer: In cases of pre-trial detention, a mandatory defense (notwendige Verteidigung) applies under § 140(1) No. 4 StPO. The accused is entitled to a defense lawyer – either privately retained or court-appointed.
• Right to confidential communication: Conversations and correspondence between the accused and their defense lawyer are protected and may not be monitored.
• Right to receive visits: Subject to certain restrictions, the accused may receive visits from family members and other persons.
• Right to medical care: Access to medical treatment must be ensured.

Why Early Legal Representation Matters

Pre-trial detention is an extreme intervention in personal liberty. The first hours and days after arrest are decisive: during the judicial hearing, the course is often set for weeks or even months. A defense lawyer who is present from the very beginning can argue for release or suspension of the arrest warrant, gather evidence to rebut the grounds for detention, and protect the rights of the accused throughout the proceedings.

At BAFTEH Criminal Defense, Attorney Bafteh is available around the clock for cases of arrest and pre-trial detention. Whether at the police station, before the custodial judge, or during ongoing detention – we provide immediate and determined defense. If you or a family member has been arrested, contact us without delay.

Written by attorney Philip Bafteh, criminal defense attorney in Bonn. Philip Bafteh publishes regularly on criminal and commercial law and defends accused persons in investigative and trial proceedings.

More about the attorney →

Last updated: June 2026