Presentation before the Investigating Judge – Procedure, Legal Basis and Defence Options
Purpose and Legal Foundation
The presentation before the investigating judge (Haftrichter) is a constitutional safeguard ensuring immediate judicial review of any deprivation of liberty. It determines whether pre-trial detention is imposed, replaced by conditions or lifted entirely. The hearing reviews the legality, necessity and proportionality of police or prosecutorial arrest measures.
Key Legal Provisions (German Code of Criminal Procedure – StPO)
- • Section 114 StPO – Arrest warrant: content and prerequisites
- • Section 114b StPO – Rights upon arrest: information and defence access
- • Section 115 StPO – Presentation after arrest warrant issuance
- • Section 115a StPO – Presentation after provisional arrest
- • Section 128 StPO – Time limit: without delay, at latest the day after arrest
- Sections 117–118 StPO – Detention review and oral hearing
- Section 121 StPO – Six-month review of continued detention
- Section 304 StPO – Complaint against detention decisions
Prerequisites for detention: urgent suspicion (§§ 112, 112a StPO), at least one ground for detention (flight or collusion risk, etc.) and proportionality.
Timing and Organisation of the Hearing
The suspect must be brought before the competent judge immediately – at the latest the day after arrest. Sundays and public holidays do not suspend this deadline. The competent judge is usually the investigating judge of the district where the arrest occurred. Because this is a case of mandatory defence, a lawyer must be appointed without delay (Sections 140–141 StPO).
Course of the Hearing
The hearing typically includes:
- Formalities & Identification: verifying personal details and lawfulness of arrest.
- Information & Defence Rights: the judge explains the right to silence and to legal counsel; a defence lawyer must already be present.
- Case Summary & Statement: prosecution presents allegations; the accused is heard; the defence may comment.
- Judicial Review: assessment of suspicion, grounds for detention and proportionality; consideration of alternatives under Section 116 StPO (e.g. bail, reporting duties, passport surrender).
- Decision: issue or lift of detention order, replacement by conditions or immediate release.
Defence Strategies and Remedies
Following the hearing, several remedies are available:
- Detention Review (§§ 117–118 StPO): a formal request for reassessment, usually with oral hearing.
- Complaint against Detention (§ 304 StPO): written appeal against the judge’s order.
- Six-Month Review (§ 121 StPO): mandatory oversight by the Higher Regional Court if detention exceeds six months.
Practical Considerations
- File Access: the defence is entitled to essential information to ensure effective representation.
- Evidence Quality: mere suspicion is insufficient; allegations must rest on verifiable facts.
- Less Intrusive Means: custody is a last resort; the court must justify why bail or reporting duties are inadequate.
- Documentation: the judge must record all reasons in writing – vital for appeals.
FAQ – Presentation before the Investigating Judge
How quickly must the hearing take place?
Without delay, and at the latest the day after arrest (Section 128 StPO).
What conditions justify pre-trial detention?
Urgent suspicion, a recognised ground for detention (e.g. flight or collusion risk) and proportionality under Sections 112 ff. StPO.
What is conditional release?
A substitute for detention under Section 116 StPO – such as bail, reporting obligations or surrendering travel documents.
What legal remedies exist?
Detention review (§§ 117–118 StPO) and complaint (§ 304 StPO); prolonged detention requires review after six months (§ 121 StPO).
Contact Our Defence Lawyers in Frankfurt and Nationwide
- • Frank M. Peter – Specialist Lawyer for Criminal Law
- • Dr Caroline Jacob – Specialist Lawyer for Criminal Law
- • Dr Sven Henseler – Diplom-Finanzwirt (FH)
- • Of Counsel: Prof. Dr Frank Peter Schuster
- • Cooperation Partner: Frank Wehrheim – Tax Advisor and former Tax Investigator
📞 Telephone: +49 69 710 33 330
✉️ Email: kanzlei@dr-buchert.de
Further reading: Pre-Trial Detention | Criminal Defence | White-Collar Crime | Our Attorneys
Do you need legal advice?
We advise and represent private individuals and companies in investigative and criminal proceedings nationwide and before all courts. Benefit from our many years of experience and our expertise in criminal defense.