An arrest in criminal proceedings means the temporary deprivation of personal liberty by the security authorities. The legal requirements are set out in Section 170 StPO, Section 171 StPO, Section 172 StPO and Section 172a StPO. An arrest is permitted in particular if a person is caught in the act, there is a risk of flight, investigations could be influenced, or further similar offences are threatened. The provisions also regulate the procedure for an arrest, the rights of arrested persons, and possible less restrictive measures and security deposits.

Select Your Preferred Appointment Now:Free initial consultation

Arrest in criminal proceedings

An arrest is when the security authorities temporarily deprive a person of their personal liberty in criminal proceedings.

The security authorities may arrest a person only if specific statutory requirements are met. This is intended to safeguard ongoing investigations, bring suspects before the court, or prevent further offences.

For many affected persons, the initial detention alone changes the entire situation in the criminal proceedings. Important questions regarding pre-trial detention, defence and further investigative measures are often decided shortly after detention. An arrest constitutes a serious interference with fundamental rights, which is why the authorities remain strictly bound by the requirements of the Code of Criminal Procedure.

Not every police check or short-term detention automatically constitutes an arrest. What matters is whether the person concerned actually loses their freedom of movement and can no longer leave the official measure voluntarily.

Requirements for an arrest

An arrest requires that there is specific suspicion against a person and, in addition, a legally recognised ground for arrest. This includes, in particular, risk of flight, risk of tampering with evidence, or the risk of further serious offences.

Before any arrest, it must be examined whether the interference is necessary at all. As soon as less restrictive measures are sufficient, personal liberty may not be further restricted. Particularly for juveniles, special protective provisions and stricter proportionality requirements apply.

Lawfulness is always assessed on the basis of the specific circumstances of the individual case. Even small differences in a suspect’s behaviour or in the stage of the investigation can be decisive.

Select Your Preferred Appointment Now:Free initial consultation

Arrest caught in the act

An arrest caught in the act occurs when a person is detained during the commission of an offence or shortly thereafter. In such situations, the security authorities may intervene particularly quickly because there is a risk that the person concerned will leave or that evidence will be lost.

Such arrests often occur after thefts, assaults or drug offences. There must be an immediate connection between the offence and the police intervention.

Even in the case of an arrest caught in the act, the suspect’s rights remain in place. The person concerned must be informed of the reasons for the arrest and may contact a defence lawyer.

Risk of flight and going into hiding

Risk of flight exists if specific circumstances indicate that an accused person could evade the criminal proceedings. Mere assumptions are not sufficient. The police need concrete indications of an actual risk of flight.

A risk of flight may exist, for example, if a person has already gone into hiding, has no stable social ties, or faces a high expected sentence. Attempted departures abroad or false statements about identity may also be taken into account.

Not every trip abroad or change of residence automatically justifies an arrest. The decisive factor is always whether there are concrete indications of an intended evasion of the criminal proceedings.

Select Your Preferred Appointment Now:Free initial consultation

Risk of tampering with evidence in criminal proceedings

Risk of tampering with evidence is assumed if there is reason to fear that an accused person will influence the investigation or destroy evidence. This includes, in particular, attempts to pressure witnesses, destroy documents, or coordinate statements with other involved persons.

Risk of tampering with evidence requires concrete indications of possible interference with evidence or witnesses. General concerns are not sufficient. This ground is often particularly relevant in white-collar criminal cases or extensive investigations involving multiple parties.

The further criminal proceedings have progressed, the lower the risk of tampering with evidence often becomes. Courts therefore continuously review whether the requirements for continued deprivation of liberty still exist.

Risk of reoffending and repeat offences

An arrest may also be permissible if there are concrete indications that a person could commit further serious offences. The Code of Criminal Procedure refers to this as risk of reoffending.

This ground for arrest is particularly relevant in cases of repeated violent offences, dangerous threats, burglary thefts or organised crime. However, prior convictions alone are not automatically sufficient. The authorities must always assess the current situation.

The mere assumption that someone might reoffend in the future is not sufficient. What remains decisive are concrete facts indicating a serious risk of repeat offending.

Select Your Preferred Appointment Now:Free initial consultation

Arrest without a court order

An arrest without a court order is permissible only under strict conditions. In principle, the deprivation of personal liberty should be subject to judicial review. In certain situations, however, the criminal police may intervene independently if swift action is required.

Such cases often involve situations in which a person flees immediately after an offence, could destroy evidence, or intends to evade the criminal proceedings. The authorities must examine particularly carefully whether a permissible ground for arrest actually exists.

Even without a prior court order, the measure remains subject to strict statutory limits. The arrest must be proportionate and may last only as long as is necessary for the next procedural steps.

Imminent danger

Imminent danger exists if delaying the official measure would jeopardise the success of the criminal proceedings. In such situations, the security authorities may act immediately without first obtaining a judicial decision.

Typical cases involve fleeing suspects, impending destruction of evidence, or situations with an immediate risk of repeat offending. The decisive factor is always that waiting would significantly impair the investigation.

Not every time constraint automatically constitutes imminent danger. The authorities must be able to explain plausibly why immediate action was necessary.

Powers of the criminal police

In investigative proceedings, the criminal police may carry out arrests independently if the statutory requirements are met. They operate under the direction of the public prosecutor’s office and undertake numerous immediate investigative measures.

Their powers include, in particular, detaining suspects, securing evidence, and taking initial steps to clarify the offence. In addition, the police may establish identity and seize items.

The criminal police, too, may act only within clear statutory limits. Every measure must be based on a specific legal basis and must not go beyond what is necessary.

Ordering an arrest

In many cases, an arrest is ordered by the public prosecutor’s office or the court. It is examined whether there is sufficient suspicion and a permissible ground for arrest.

The order regularly contains information about the person concerned, the alleged offence, and the reasons for the deprivation of liberty. The security authorities are bound by these specifications and may not arbitrarily extend the measure.

After the arrest, the person concerned must be informed of their rights as quickly as possible and brought before a court. This is intended to prevent suspects from fleeing or committing further offences.

Select Your Preferred Appointment Now:Free initial consultation

Carrying out the arrest

The carrying out of an arrest follows clear statutory requirements. The security authorities must inform the person concerned of the reasons for the arrest and, at the same time, point out key rights. These include, in particular, the right to a defence lawyer and the right to have relatives notified.

How an arrest is carried out depends heavily on the specific situation. Some arrests are calm and cooperative; others take place under considerable time pressure or in response to aggressive behaviour by the suspect. Even so, the authorities may take only those measures that are actually necessary.

After detention, further criminal police processing usually begins immediately. This includes initial questioning, identity checks, documentation, and securing possible evidence.

Use of force and proportionality

In certain circumstances, the security authorities may also use force when making an arrest. This applies in particular where a person resists, flees, or endangers others.

However, any use of force is subject to the principle of proportionality. The authorities may use only those means that are necessary to carry out the official measure. Unnecessary violence or degrading treatment remains impermissible.

Whether the force used was lawful always depends on the specific circumstances. Factors include the person’s behaviour, possible danger situations, and the intensity of resistance.

Select Your Preferred Appointment Now:Free initial consultation

Search and seizure of items

In connection with an arrest, the security authorities may often also search items and seize them. The aim is to remove dangerous objects, secure evidence, or establish the identity of the person concerned.

This is particularly relevant for mobile phones, data storage devices, documents, weapons, or narcotics. However, the authorities must always examine whether the respective measure is actually necessary and covered by law.

Not every search automatically permits unrestricted access to personal data. Particularly for digital devices, multiple requirements and special protective provisions apply.

Duration of detention until a judicial decision

An arrested person may not be detained indefinitely. The authorities must examine as quickly as possible whether the requirements for continued deprivation of liberty are actually met.

A judicial decision must be made no later than within the statutory time limits. The court reviews, in particular, the suspicion, the grounds for arrest, and the proportionality of continued detention.

If the arrest proves to be impermissible or the requirements cease to apply, the person concerned must be released immediately. Otherwise, the court may order pre-trial detention or impose less restrictive measures.

Rights of arrested persons

Even after an arrest, the fundamental rights of the person concerned remain protected. The security authorities must inform arrested persons of their rights and may not carry out investigative measures arbitrarily.

The most important rights include, in particular, the right to be informed of the reasons for the arrest, contact with a defence lawyer, notification of close persons, and the right to medical care and translation.

Those who know their rights can respond early to procedural errors and better assess important decisions. Particularly immediately after an arrest, situations often arise involving considerable psychological pressure.

Right to be informed of the reasons for the arrest

Arrested persons must be informed as quickly as possible why the arrest has been made. The authorities must explain the essential suspicion and the reasons for the deprivation of liberty in an understandable manner.

A mere general statement is not sufficient. Those affected must be able to recognise what allegation is being made and why the authorities consider an arrest necessary.

Especially in extensive investigations, this information plays an important role so that suspects can prepare their defence and effectively exercise their rights.

Special areas

Thanks to the size of our firm, we optimally cover a wide range of legal areas:

No family law. No divorces. No custody. No right of asylum. No claim for amounts under € 5,000.00. The exception to this is the mere enforcement of German judgments in Austria; we take on this regardless of the value in dispute.
 

Right to contact a defence lawyer

After an arrest, contact with a defence lawyer may be made at any time. Particularly in the first hours, important decisions are often made regarding statements, pre-trial detention, or further investigative measures.

In the case of serious allegations or juveniles, a defence is in some cases even mandatory.

Select Your Preferred Appointment Now:Free initial consultation

Notification of relatives

Arrested persons may generally request that relatives or other close persons be informed of the arrest. This is intended to prevent those affected from being detained without contact with the outside world.

Particularly for juveniles, there are notification obligations towards legal guardians and youth court assistance. As a rule, the security authorities must carry out such notifications without undue delay.

Only in certain exceptional cases may notifications be restricted for a short time, for example if there are specific risks to ongoing investigations.

Right to translation and information on rights

Suspects must be able to understand their rights and the allegation against them. Therefore, persons who do not have sufficient command of German are entitled to translation and language assistance.

The authorities must phrase instructions so that those affected can actually understand their rights. This includes, for example, information about the right to remain silent, contact with a defence lawyer, and the reasons for the arrest.

Incorrect or incomplete instructions can have significant effects on the admissibility of statements and on the further proceedings.

Select Your Preferred Appointment Now:Free initial consultation

Right to medical care

Arrested persons are entitled to necessary medical care. This applies in particular to health complaints, injuries, or situations involving psychological stress.

Strict protective provisions apply to juveniles. At the request of the juvenile, the defence lawyer, or legal representatives, a medical examination may be carried out to determine the state of health.

Medical examinations can also be important for the later assessment of an arrest, for example if allegations of disproportionate use of force or health impairments are raised.

Difference between arrest and pre-trial detention

There are significant legal differences between an arrest and pre-trial detention. An arrest initially serves the short-term detention of a suspect in order to secure investigations or prepare a judicial decision.

Pre-trial detention begins only after a court decision. The court examines whether there is still strong suspicion and a statutory ground for detention. Continued deprivation of liberty must also be proportionate.

Not every arrest automatically leads to pre-trial detention. Many persons are released again after initial investigations or after a judicial hearing. What remains decisive is always the specific risk to the criminal proceedings.

Select Your Preferred Appointment Now:Free initial consultation

Less restrictive measures instead of pre-trial detention

Before pre-trial detention is ordered, courts must examine whether so-called less restrictive measures are sufficient. The aim is to safeguard the course of the criminal proceedings without restricting personal liberty more than necessary.

Less restrictive measures are particularly relevant where the risk of flight, risk of tampering with evidence, or risk of reoffending can be sufficiently controlled without detention. Such measures are of particular importance for juveniles.

The specific design depends heavily on the individual case. Courts may combine different conditions and adapt them to the suspect’s personal circumstances.

Reporting obligations and court orders

Among the most common less restrictive measures are reporting obligations and court orders. Suspects must report regularly to a police station or comply with certain behavioural requirements.

Such orders may include, for example, no-contact orders, residence restrictions, or the obligation to reside at a specific address. This is intended to prevent the person concerned from evading the criminal proceedings or committing further offences.

If a suspect breaches these conditions, the court may revoke the less restrictive measures and order pre-trial detention.

Surrender of documents and keys

As part of less restrictive measures, courts may also order the surrender of certain documents or items. This most commonly concerns passports, driving licences, or keys to vehicles and apartments.

Such measures are intended, in particular, to prevent a suspect from fleeing abroad or using certain items to commit further offences.

The principle of proportionality also applies to these measures. The restrictions must not go beyond what is necessary to secure the purpose of the criminal proceedings.

Security deposit

Under certain conditions, the court may order a security deposit instead of pre-trial detention. The suspect deposits a sum of money or other security to safeguard the criminal proceedings.

The security deposit is intended, in particular, to prevent suspects from evading the proceedings. At the same time, it can avoid deprivation of liberty if the purpose of the criminal proceedings can still be sufficiently secured.

Whether a security deposit is sufficient always depends on the individual case. Courts take into account, for example, the seriousness of the allegation, personal circumstances, and the risk of flight.

Select Your Preferred Appointment Now:Free initial consultation

Special rules for juveniles

In criminal proceedings, special protective provisions apply to juveniles. The Juvenile Court Act takes into account that young suspects often react differently to investigative measures and are still in personal development.

Arrests and pre-trial detention may therefore be imposed on juveniles only under particularly strict conditions. Courts and investigative authorities must examine what impact the measure could have on development, education, and the social environment.

Juvenile criminal law overall pursues a stronger protective approach. Deprivations of liberty should be avoided wherever other measures are sufficient.

Proportionality under Section 35 JGG

Under Section 35 JGG, arrest and pre-trial detention against juveniles may be ordered only if the associated disadvantages are not disproportionate to the significance of the offence. Courts must therefore examine particularly carefully whether deprivation of liberty is actually necessary.

In particular, the juvenile’s age, level of maturity, family situation, and school or work environment are taken into account. Possible effects on education and social development also play an important role.

The younger the accused person is, the higher the proportionality requirements. Deprivations of liberty should be used only as a last resort.

Priority of less restrictive measures for juveniles

The Juvenile Court Act provides a clear priority for less restrictive measures. Before pre-trial detention is ordered, courts must examine whether family-law measures, orders, or other conditions are sufficient.

Reporting obligations, no-contact orders, supervised living arrangements, or the involvement of social services are particularly common. The aim remains to safeguard the criminal proceedings while avoiding serious interference with the juvenile’s development.

Youth court assistance can also develop proposals for suitable measures and support the court in its decision.

Select Your Preferred Appointment Now:Free initial consultation

Notification of legal guardians and youth court assistance

If a juvenile is arrested, legal guardians and youth court assistance must generally be notified without undue delay. This is intended to ensure that juveniles are not confronted with criminal proceedings in isolation.

In addition, probation officers or child and youth welfare providers may also be involved. These bodies support courts and investigative authorities, in particular on questions relating to the juvenile’s personal situation.

Only in special exceptional cases may notification be omitted, for example if it would endanger the child’s welfare or if there are serious reasons against it.

Special rights of juvenile suspects

Juvenile suspects have additional procedural rights that go beyond the general protective rights. The authorities must explain information in an age-appropriate manner and take the juvenile’s level of development into account.

These include, for example, special duties to provide information on rights, rights to be accompanied by legal representatives, and restrictions on deprivations of liberty. There are special requirements for interrogations and for the treatment of juvenile suspects in detention.

Criminal proceedings against juveniles should generally be conducted with particular speed in order to keep long-term burdens as low as possible.

Select Your Preferred Appointment Now:Free initial consultation

Defence and trusted persons for juveniles

In many situations, juveniles are entitled to mandatory defence. Particularly in the case of arrests, line-ups, or serious allegations, a defence lawyer must be appointed.

Juveniles may often involve a trusted person. This may include, for example, legal guardians, relatives, or representatives of social institutions.

These special protective mechanisms are intended to prevent juveniles from failing to adequately exercise their rights due to uncertainty or being overwhelmed.

Arrest and pre-trial detention for juveniles

Arrest and pre-trial detention interfere particularly strongly with a juvenile’s personal development. The Juvenile Court Act therefore provides stricter requirements and shorter detention limits.

Juveniles should also, as far as possible, be detained separately from adult prisoners. There are also special requirements for care, accommodation, and medical provision during detention.

Courts must continuously examine whether the requirements for deprivation of liberty still exist or whether release or less restrictive measures would be sufficient.

Claims in the event of an unlawful arrest

An unlawful arrest can cause significant personal, professional, and financial consequences. Various options therefore exist to defend oneself against impermissible deprivations of liberty and to assert compensation for damage suffered.

Whether an arrest was unlawful always depends on the specific circumstances of the individual case. The decisive factors are, in particular, the suspicion, the statutory grounds for arrest, and the proportionality of the measure.

Procedural errors can also play an important role. These include, for example, missing instructions on rights, disproportionate use of force, or breaches of the prescribed time limits and control mechanisms.

Select Your Preferred Appointment Now:Free initial consultation

Appeal against the arrest

Those affected may file an appeal against the arrest if they consider the deprivation of liberty to be impermissible. Courts examine, in particular, whether there was sufficient suspicion and a statutory ground for arrest.

The court reviews whether the authorities acted proportionately and sufficiently respected the rights of the person concerned. The duration of detention and the manner in which the arrest was carried out may also be reviewed.

A successful appeal can be of significant importance for later compensation claims or further procedural steps.

Compensation for unlawful deprivation of liberty

Under certain conditions, there are claims for compensation if an arrest or pre-trial detention proves to be unlawful. Such claims are intended to at least partially offset the consequences of impermissible deprivations of liberty.

This may include financial losses, professional disadvantages, or serious personal burdens. The specific amount of compensation depends heavily on the individual case and the duration of the deprivation of liberty.

Especially in the case of longer deprivations of liberty or public investigative measures, early legal review of possible claims and deadlines is advisable.

Select Your Preferred Appointment Now:Free initial consultation

Your Benefits with Legal Assistance

Arrests often lead within a short time to far-reaching decisions on whether to make a statement, pre-trial detention, and further investigative measures. Early legal support helps to consistently exercise procedural rights and to have impermissible measures reviewed promptly.

A defence lawyer can apply for access to the file, contact the investigative authorities, and examine whether the arrest, detention, or coercive measures were lawful. Especially in the early phase of criminal proceedings, legal errors can have significant effects on the further course of the case.

FAQ – Frequently Asked Questions

Select Your Preferred Appointment Now:Free initial consultation