What are the options for the detainee?
Since pre-trial detention is an extremely serious interference with the rights of the accused and is therefore tied to enormous conditions (When will I be in custody?), the decisive question often arises for him: what can I do against the pre-trial detention? What rights do I have?
The accused has two legal remedies available to take action against the arrest warrant: first, the detention review, and second, the appeal.
If the accused is in pre-trial detention, after consulting his lawyer, he will have to ask himself whether it is advisable to file an application for a detention review at this time. In this way, the judicial review is requested as to whether the arrest warrant should be revoked or its execution suspended, especially since new findings (e.g. witnesses) can result in the conditions for pre-trial detention no longer being met.
Although the public prosecutor's office and the judge (even without the accused's application) have to check ex officio in every situation of the procedure whether the arrest warrant should be revoked or put out of execution, this is not a formal procedure. If the accused or his defense counsel makes an application A formal detention procedure is initiated, which must end with an express decision. The competent judge decides on the application and, after the indictment has been filed, the court dealing with the matter.
Due to the extensive scope of the examination, the court has several decision options: the court can maintain the arrest warrant, annul it, put it out of execution or change the content. It should also be noted that the decision must be made by a reasoned decision and can be attacked by the accused by means of the complaint according to § 304 ff. StPO.
It should also be noted that a further application for detention examination according to Section 118 (3) of the Code of Criminal Procedure can only be brought if the remand has existed for three months and two months have passed since the last oral detention examination. In this respect, it is extremely advisable to submit the application for a detention review at the right time.
In addition, the accused has the opportunity to appeal against an arrest warrant according to §§ 304 ff. StPO. In contrast to the detention examination, it is not necessary for the accused to be in pre-trial detention as part of the detention. It can also be used to attack an arrest warrant that has not been enforced, especially since it can be enforced again at any time.
In addition, it should be noted that the complaint has a "devolutive effect": if the judge does not remedy the complaint, it leads to the complaint being submitted to the next higher instance for decision.
If you also have questions about criminal law, do not hesitate to contact us. Our Lawyer Alexander Greithaner specializes in the field of criminal law and will also help you.