Preliminary Arrest under Section 127 of the German Code of Criminal Procedure (StPO)
Section 127 of the German Code of Criminal Procedure (StPO) defines the conditions under which a preliminary arrest can occur before an official arrest warrant is issued. The law differentiates between two types of arrest powers:
- • General power of arrest (subsection 1 sentence 1), available to any person; and for identity verification (subsection 1 sentence 2).
- • Power of arrest held by the public prosecutor and police (subsection 2), aimed at initiating formal detention.
Additional rules such as Section 127b StPO (ordering detention for the main hearing) and Section 183 sentence 2 GVG (arrests in court) further regulate related matters. The process for preliminary arrest is determined by Sections 128 and 129 StPO. The general provisions of self-defence and necessity remain unaffected. Subsection 4 was introduced through the Act Amending Pre-Trial Detention Law on 29 July 2009 and took effect on 1 January 2010.
A. Preliminary Arrest in the Act of Committing an Offence
According to Section 127 (1) StPO, anyone has the right to make a citizen’s arrest if a person is caught in the act of committing or fleeing from an offence, and there is a risk of escape or their identity cannot be immediately verified. This provision grants a public function to individuals but imposes no obligation to act.
An arrest constitutes an interference with the personal liberty of the person concerned, protected under the German Criminal Code (StGB), including freedom of movement and self-determination. Under the lawful conditions of Section 127 (1) StPO, such interference is justified and therefore not unlawful. No self-defence situation arises.
If no emergency situation exists, the arrested person is not entitled to resist. In such cases, resistance is not protected by law.
“If a person is caught in the act of committing an offence or pursued immediately thereafter, and there is a risk of flight or the person’s identity cannot be established immediately, any person is entitled to detain them without a judicial order. The identification is then carried out by the public prosecutor or police officers under Section 163b (1) StPO.”
B. Preliminary Arrest by the Public Prosecutor and Police
In cases of imminent danger (“Gefahr im Verzug”), both the public prosecutor and police officers are authorised to order a preliminary arrest if the requirements for an arrest or detention order are fulfilled — even if they are not formally acting as investigation officers.
“Imminent danger” exists if obtaining a judicial warrant would endanger the success of the arrest. The officer must assess all circumstances carefully and conclude that a genuine emergency exists. This assessment must be plausible to ensure the measure’s legality.
An overly broad interpretation of “imminent danger” could undermine judicial control. Arbitrary assessments or serious procedural violations may render an arrest unlawful. However, if a judge has refused an arrest warrant, this does not automatically preclude a preliminary arrest for the same offence, provided that new circumstances justify it.
If a preliminary arrest is found to be unlawful, statements made by the accused may still be admissible unless the deprivation of liberty was deliberately used to compel a confession — in such cases, a prohibition on the use of evidence applies.
Legal Support and Immediate Assistance
Our English-speaking defence lawyers in Frankfurt offer immediate assistance in cases of preliminary arrest, custody orders, or criminal allegations in Germany.
- • Immediate representation after arrest or detention
- • 24/7 support by experienced criminal defence lawyers in Frankfurt
- • Expert defence in white-collar crime and tax offence cases
- • Nationwide assistance in criminal proceedings
FAQ: Preliminary Arrest in Germany
Who is authorised to carry out a preliminary arrest?
Any person may detain an offender caught in the act or fleeing if there is a risk of escape or their identity cannot be verified immediately.
Do I have to comply with a police order of preliminary arrest?
If the legal requirements of Section 127 StPO are met, the police or prosecutor may order arrest without a warrant in urgent cases. Contact an English-speaking criminal defence lawyer immediately.
Can a preliminary arrest be unlawful?
Yes. If “imminent danger” is wrongly assumed or procedures are violated, the arrest can be challenged as unlawful.
Does an unlawful arrest affect admissibility of statements?
Not automatically. Only if liberty was used to force a statement does a prohibition on evidence use apply.
Contact our Criminal Defence Lawyers in Frankfurt
Contact us – your criminal defence lawyers in Frankfurt and throughout Germany:
- • Dr. Caroline Jacob, Lawyer, Specialist in Criminal Law
- • Frank M. Peter, Lawyer, Specialist in Criminal Law
- • Of Counsel: Prof. Dr. Frank Peter Schuster
- • Cooperation Partner: Tax Consultant and Former Tax Investigator Frank Wehrheim
Buchert Jacob Peter has been based in Frankfurt am Main for over 25 years, providing experienced defence in criminal law and white-collar crime cases throughout Germany.
Phone: +49 69 710 33 330
Email: kanzlei@dr-buchert.de
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