Arrested on holiday in Salzburg: first steps for German suspects

An arrest is a serious interference and tied to narrow conditions. The basis is Section 170 StPO. As a rule the criminal police need a judicial order for an arrest. Without it they may only arrest if someone is caught in the act, if there is imminent danger or if an urgent suspicion coincides with a ground for detention.

An arrest is not the same as pre-trial detention. The arrest is the short-term apprehension. Whether it turns into longer pre-trial detention is decided only by the court. The arrested person must be handed over to the prosecution or delivered to the court without undue delay, at the latest within 48 hours (Section 172 StPO). The court then decides on the imposition of pre-trial detention in a detention hearing.

Typical triggers on holiday. Common situations are altercations in nightlife, allegations after a traffic accident, the suspicion of a theft or an outstanding arrest warrant that surfaces during a check. Even a misunderstanding can lead to a provisional arrest. What matters in that moment is to stay calm and to know your own rights.

Anyone who is arrested holds clearly defined rights from the start. Knowing them and calmly insisting on them is the most effective help in an exceptional situation.

The right to remain silent. You do not have to say anything on the matter (Section 164 StPO). Details on your person must be given, nothing more. No disadvantage may be drawn from your silence. Under the pressure of an arrest, silence is often the wisest choice until a defence lawyer knows the allegation.

The right to a defence lawyer. You may bring in a defence lawyer at once and speak with them before questioning. In pre-trial detention the defence is mandatory, so the court must provide for a defence if you have none of your own (Section 61 StPO).

The right to notify relatives. Under Section 171 para 4 StPO a relative or a person of trust must be notified of the arrest at your request. This lets your relatives quickly organise a defence lawyer.

Consular notification. As a German national you may request that the German embassy or the competent consulate be informed. This follows from the Vienna Convention on Consular Relations. The embassy provides no legal representation, but can pass on contacts and lists of lawyers.

Pre-trial detention is not a punishment but a precautionary measure during the proceedings. It is only permissible if an urgent suspicion and a ground for detention exist and if detention cannot be replaced by more lenient measures.

The three grounds for detention. Under Section 173 StPO three grounds come into question: risk of flight, risk of collusion and risk of further offences. For German suspects a risk of flight is often invoked, based on the place of residence abroad alone. This is open to challenge, because a settled residence and secured circumstances actually speak against flight.

Lenient measures instead of detention. Under Section 173 para 5 StPO detention must be replaced by more lenient measures if these suffice. They include bail, an undertaking to face the proceedings, the surrender of travel documents or a duty to report. From a legal perspective the well-prepared application for lenient measures is the central lever to avoid or end pre-trial detention.

Short detention deadlines. Pre-trial detention is subject to strict deadlines (Section 175 StPO). The first detention period is short, after which further detention hearings follow in which the court decides anew each time on continuation. Each of these hearings is a chance to end the detention.

For relatives, the arrest of a loved one abroad is an experience of helplessness. But there are concrete steps that really help.

Instruct a defence lawyer. Relatives can instruct a defence lawyer who then takes file access, makes contact in detention and prepares the detention hearing. This is the most effective help, because in detention the arrested person has only limited means of communication.

Clarify the whereabouts. Where a person is being held can be asked of the competent prosecution or the prison. The embassy too can assist in locating German nationals.

Gather documents for the detention hearing. Proof of a settled residence, employment and family ties helps to counter a risk of flight and supports an application for lenient measures. The earlier these documents are available, the better.