Pre-trial detention – what to do if you have an arrest warrant?

Has an arrest warrant been issued against you or a relative? Quick and deliberate action is now crucial. Do not provide any information to the investigating authorities. You have the right to remain silent and to insist on legal representation.

As a Hamburg-based criminal law firm with experienced criminal defense attorneys, we understand how stressful this situation can be—and how important it is to act quickly. Use your rights; your criminal lawyers at TWP Criminal Law Firm are happy to represent you in the event of pretrial detention.

What is pre-trial detention? – Requirements and legal framework

Pretrial detention is a serious violation of personal liberty. According to Sections 112 et seq. of the Code of Criminal Procedure (StPO), it may only be ordered if certain legal requirements are met:

1. Strong suspicion

An arrest warrant requires that the accused has most likely committed a crime. Mere initial suspicion is not sufficient.

2. Grounds for detention

In addition to strong suspicion of a crime, there must be a legally recognized reason for detention, e.g.:

Escape: The person has already left or gone into hiding.
Risk of escape: There is a well-founded concern that the accused will evade the proceedings.
Danger of blackout: There is suspicion that evidence is being destroyed or witnesses are being influenced.

Higher Regional Court of Brandenburg, decision of 15 January 2025 (case no. 1 Ws 1/25) on the discontinuance of the requirements for an arrest warrant due to the risk of obstruction of justice:

The Brandenburg Higher Regional Court was called upon to decide on an appeal against his detention on January 15, 2025. The defendant had already been in pretrial detention continuously since March 27, 2024. On November 13, 2024, the defendant was sentenced to three years and eight months in prison. However, the sentence did not become final because the defendant filed an appeal. The court subsequently decided, pursuant to Section 268b of the Code of Criminal Procedure, to uphold the arrest warrant and continue the execution of his pretrial detention.
The Brandenburg Higher Regional Court has ruled that an arrest warrant based solely on the risk of obstruction of justice must be lifted at the conclusion of the final court hearing if the defendant has made a confession confirmed by the taking of evidence. Despite the continued existence of strong suspicion of guilt pursuant to Section 112 Paragraph 1 of the Code of Criminal Procedure, there is no risk of obstruction of justice if the facts of the case have been fully clarified by a comprehensive confession by the defendant and/or secured (physical) evidence. A risk of obstruction of justice can only be assumed if the defendant impairs the determination of the relevant criminal facts by improperly influencing material and personal evidence. Even if the defendant retracts the confession or downplays it, the findings can be confirmed by professional judges acting as interrogators or through physical evidence.

Risk of recurrence: In the case of certain serious crimes, this may also constitute grounds for detention.

3. Proportionality

Pre-trial detention must be appropriate. It may only be ordered if more lenient measures—such as reporting requirements, posting bail, or surrendering a passport—are insufficient. Furthermore, the presumption of innocence applies: Pre-trial detention is not a substitute for a later sentence, but merely a safeguarding measure.

Higher Regional Court of Düsseldorf, decision of 3 July 2025 (case no. 2 Ws 306/25) on the disproportionate nature of pre-trial detention due to procedural delays:

The Düsseldorf Higher Regional Court has ruled that the defendant's pre-trial detention is no longer proportionate, despite a conviction to a substantial total prison sentence of 13 years, which is not yet final. While there remains strong suspicion of guilt and a risk of flight, this constitutes a gross violation of the principle of speed. Due to the late completion of the main hearing transcript, the proceedings were significantly delayed by over six months, which could not be justified and also constituted an unacceptable interference with the defendant's right to liberty. Therefore, the decision to continue detention and the underlying arrest warrants were overturned due to a violation of the principle of proportionality.

OLG Hamm, decision of 18 February 2025 (case no. 2 Ws 306/25) on the disproportionate nature of pre-trial detention in relation to the expected prison sentence:

The Higher Regional Court of Hamm ruled on the proportionality of both a national and a European arrest warrant. The court found that procedural delays in the appeal process do not necessarily make the arrest order disproportionate. Assessing proportionality requires a balancing of interests that takes into account not only the state's interest in prosecuting the offense, but also the accused's right to effective legal protection under Article 19, Paragraph 4 of the Basic Law and his fundamental right to freedom under Article 2, Paragraph 2 of the Basic Law. The accused has already been detained in Italy for six months pending extradition. This is proportionate to the expected prison sentence, which is outside the range of probationary periods.
Nevertheless, the court stated that continued execution of pre-trial detention is generally disproportionate if the duration of pre-trial detention either fully reaches the length of the expected prison sentence or is at least so long that the remaining term of the sentence after deduction of pre-trial detention constitutes only a fraction of the total prison sentence. In principle, the pre-trial detention to be taken into account also includes detention pending extradition abroad on the basis of a national arrest warrant.

Procedure after an arrest – what happens during pre-trial detention?

After the arrest, the accused person must be brought before a judge no later than the following day. The judge will decide whether the arrest warrant should be issued, upheld, suspended, or revoked entirely.

Appearance before the judge

During the appearance before a judge, a decision can either be made as to whether an arrest warrant will be issued at all. This is the case, for example, if the accused person has been caught in the act by the police and it is questionable whether they should be remanded in custody for this offense. Or there may already be an arrest warrant against the accused person, meaning they were already sought and subsequently arrested by the police.

The appearance usually takes place before the judge who issued the arrest warrant. If this is not possible, a standby judge will issue an arrest warrant that has already been issued.

Possible judicial decisions if an arrest warrant has already been issued:

Arrest warrant is lifted (§ 120 StPO): The person is released immediately – for example, if the suspicion of the crime or the reason for detention no longer applies.
Arrest warrant remains in place: The person is taken into custody.
Arrest warrant is suspended (§ 116 StPO): Release is usually subject to conditions (e.g. reporting obligation, bail) which, in the court’s opinion, are sufficient to counteract the respective grounds for detention.

OLG Naumburg, decision of 22 January 2025 (1 Ws 11/25) on the suspension of an arrest warrant:

The Naumburg Higher Regional Court rejected an appeal by the public prosecutor's office to reinstate the arrest warrants against the defendants. The arrest warrants had previously been suspended after 49 days of proceedings because the proceedings had been adjourned due to the long-term illness of an associate judge. While the conditions for reinstatement of the arrest warrants were generally met under Section 115, Paragraph 4, No. 3 of the Code of Criminal Procedure, in particular because there was strong suspicion of a crime and a risk of reoffending, this constituted a gross violation of the principle of speed. The principle of speed in detention cases must be observed, albeit to a limited extent, even during periods when an arrest warrant is suspended. If the court has failed to take any procedurally advantageous measures after the suspension of a main hearing—in this case for 11 months—a reinstatement of the arrest warrant under Section 116, Paragraph 4, No. 3 of the Code of Criminal Procedure is not an option, regardless of the existence of serious underlying offenses.

Duration of pre-trial detention – and when it must end

Pre-trial detention is not a punishment, but serves solely to safeguard the criminal proceedings (a "procedural safeguard measure"). It may therefore only last as long as necessary and proportionate.

Maximum duration

Normal case: Up to 6 months.
Extension possible, if special circumstances exist – e.g., complex investigations, risk of reoffending, or multiple offenses. In such cases, pre-trial detention can be extended – by a separate decision of the Higher Regional Court – to up to 12 months be extended.

OLG Hamm, decision of 13 May 2025 (case no. 2 Ws 18/25) on the continuation of detention:

By order of May 13, 2025, the 2nd Criminal Senate of the Hamm Higher Regional Court lifted an arrest warrant after six months of pretrial detention and refused to extend the detention order. Despite the possibility of strong suspicion of a crime and the risk of flight or reoffending, the Hamm Higher Regional Court held that the arrest warrant should be lifted pursuant to Section 121, Paragraph 1, and Section 122, Paragraph 2 of the Code of Criminal Procedure (StPO) because the investigations had already been largely completed when the arrest warrant was issued, and the ongoing investigations related to offenses that were not the subject of the arrest warrant.

The court clarified that in the special detention review procedure pursuant to Sections 121 and 122 of the Code of Criminal Procedure, when assessing whether there are particular difficulties or the particular scope of the investigation, or other important reasons within the meaning of Section 121 (1) of the Code of Criminal Procedure, only the offenses listed in the arrest warrant and for which pre-trial detention is being served are to be taken into account. This generally applies even if the arrest warrant submitted with the files could have been extended to include additional offenses, but was not actually extended.

Acceleration principle

Criminal proceedings must be pursued with particular vigor during ongoing pretrial detention. As soon as the strong suspicion of a crime or the grounds for detention cease to exist, pretrial detention must be terminated – regardless of the status of the investigation.

Federal Constitutional Court, decision of 5 February 2025 (case no. 2 BvR 24/25, 2 BvR 69/25) on the appropriate procedural progress in pre-trial detention:

The Third Chamber of the Second Senate of the Federal Constitutional Court has declared several constitutional complaints based on complaints about detention, which were previously dismissed as unfounded, admissible and well-founded. Already during the proceedings, the complainants' defense attorneys alleged a violation of the principle of speedy hearings due to an insufficient number of hearings. With 27 days of hearings within 41 weeks, and thus an average hearing density of 0.66 days per week, and a hearing intensity of less than one hour on several days, there is reason to examine whether the criminal court adequately fulfilled its duty of proactively and tightly planning the main hearing in such extensive proceedings.

The Dresden Higher Regional Court initially dismissed the complaints as unfounded because the proceedings had been made more difficult by the evidence program that had already been completed, the preparation time required by the defense, and the scheduling constraints of the parties involved, despite the fact that the density and intensity of the hearings did not meet the requirements.

The Federal Constitutional Court has ruled that pre-trial detention for more than one year until the start of the main hearing or the issuance of a verdict can only be justified in very exceptional cases, even taking into account the criteria leading to a prolongation of proceedings (primarily: complexity of the legal case, large number of persons involved, conduct of the defense). The longer the pre-trial detention has already lasted, the stricter the requirements for the speedy progress of the proceedings in detention cases must be. In foreseeably extensive proceedings, a forward-looking main hearing is required that also covers longer periods of time, with more than one average main hearing day per week. The gravity of the offense and the resulting expected punishment alone cannot serve as a justification for an already lengthy pre-trial detention in the case of significant, avoidable procedural delays attributable to the state.

As a rule, any decision ordering the continuation of pre-trial detention must include current statements on the continued existence of its requirements, the balancing of the accused's fundamental right to liberty against the public interest in criminal prosecution, and the question of proportionality. Furthermore, postponing the main hearing due to scheduling difficulties for the defense attorneys—even if the right to be defended by a lawyer of one's choice has constitutional status—is not a circumstance that could justify a significant delay in the proceedings.

Legal remedies against pre-trial detention orders – what can you do?

The accused has various legal remedies available to him against the order of pre-trial detention. The aim is either immediate release or suspension of the arrest warrant subject to conditions.

1. Review of detention (Section 117 of the Code of Criminal Procedure)

A detention review is appropriate if there are factual reasons to oppose the pre-trial detention order, particularly if circumstances have changed in the accused person's favour since the date of the appearance:

A hearing before the judge will take place within two weeks of the application.
The defense can argue that the grounds for detention no longer apply or that milder measures would be sufficient.

2. Appeal against detention (Section 304 of the Code of Criminal Procedure)

For a legal review of the detention judge's decision, it is possible to file an appeal against the detention order. This will result in the next higher court reviewing the detention order.

It will be examined whether the arrest warrant was lawful and sufficiently justified.

In some cases, the procedure also leads to an agreement with the public prosecutor, for example to the revocation of the arrest warrant or suspension of its execution.

Higher Regional Court of Saarbrücken, decision of 25 February 2025 (case no. 1 Ws 26/25) on the agreement on the suspension of enforcement:

The Saarbrücken Higher Regional Court ruled on February 25, 2025, on the admissibility of an appeal against detention following an agreement pursuant to Section 257c of the Code of Criminal Procedure. The defendant was in pretrial detention. After the charges were filed, an agreement was reached between the court and the parties to the proceedings, according to which the court would provide information on the sentence in the event of a confession as charged and stated that the arrest warrant would be suspended subject to a three-times-weekly reporting requirement. Following the admission and the taking of evidence, a motion was filed to suspend the arrest warrant. Following the conviction, which became final following an appeal, the arrest warrant was suspended subject to conditions. The public prosecutor's office filed an appeal against this appeal, but the appeal was dismissed as unfounded. The Saarbrücken Higher Regional Court ruled that an appeal against detention is admissible even if the suspension of the arrest warrant was already part of an agreement between the court and the parties to the proceedings under Section 257c of the Code of Criminal Procedure. The appeal court deciding on the appeal against detention is bound by a procedural agreement under Section 257c of the Code of Criminal Procedure, which included the issue of detention.

Pre-trial detention in further proceedings – credit and compensation

Credit towards the penalty

If the accused is later convicted, the period of pre-trial detention will be credited towards any prison sentence or fine. However, an exception is possible if the convicted person's conduct after the offense makes such crediting appear unfair.

Compensation in case of acquittal

If the defendant is acquitted or the proceedings are discontinued – in certain circumstances – there is usually a claim to compensation under the Criminal Compensation Act (StrEG):

75 euros per day in pre-trial detention (Section 7 (3) StrEG),
additional possible compensation for further disadvantages, e.g. loss of earnings.

The application is not automatic – we will do it for you if the requirements are met.

What rights do suspects in pre-trial detention have?

Even in pretrial detention, suspects retain fundamental rights. These serve to protect human dignity and ensure a fair defense during ongoing proceedings.

Contact the defense

An unrestricted and confidential exchange with the criminal defense lawyer is possible at any time and may not be monitored.

Correspondence and visits

Letters may generally be received and sent.
If there is a risk of obstruction of justice, the judiciary may carry out an inspection.
Visits are permitted, but are usually visually (and possibly acoustically) monitored if the prisoner has a corresponding detention statute.

Further information for visits to the Hamburg remand prison, Holstenglacis 3-5, can be found here: https://www.hamburg.de/resource/blob/214958/a31c3db20a1d4dc5d7cac452227622eb/uha-besucherinformationen-data.pdf

For visits to pre-trial detainees at Billwerder Prison, you can find the necessary information here: https://www.hamburg.de/resource/blob/214864/da26e9ad75ba2fa3351f51fce6ad5019/informationen-besucher-untersuchungshaftgefangene-data.pdf

Conditions of detention in pre-trial detention

An arrest warrant can be used to establish a so-called detention statute. This detention statute contains so-called ground-related restrictions (Section 119 (1) of the Code of Criminal Procedure), for example, in the case of several accused persons detained in the same case, almost as a standard Separation order and the arrangement of the Monitoring of any communicationHowever, if every telephone call, especially with relatives, is to be monitored, there are only very limited time options due to capacity constraints – someone from the State Criminal Police Office, the tax investigation office, or similar would have to listen in each time. In cases of serious crime, the ordering of "solitary confinement“, i.e. in particular no joint accommodation, no participation in moving or opening activities and only being allowed to spend time in the yard in isolation.

If you consider that the Pre-trial detention itself (only) one procedural safeguarding measuree, the additional restrictions therefore often require – at least from the perspective of criminal defense lawyers – repeal, adjustment, and thus judicial review. The Federal Constitutional Court (BVerfG) has regularly held, including in recent case law (BVerfG, decision of November 15, 2022 – 2 BvR 1139/22), that courts "must always examine whether there are concrete indications of the existence of such a danger in the individual case, and whether the mere possibility that a remand prisoner may abuse his or her liberties [...] is not sufficient to impose restrictions when interpreting Section 119 I of the Code of Criminal Procedure that takes fundamental rights into account."

The European Court of Human Rights (ECtHR) is also repeatedly concerned with the possibility of judicial review of imposed detention conditions. On June 4, 2024, the ECtHR ruled in a case against Germany that the lack of review of a detainee's detention conditions due to contradictory administrative and judicial decisions violated his right to a fair trial, as stipulated in Article 6 (1) (1) of the ECHR. According to the ECtHR, due to multiple transfers, it was impossible for the detainee in this case to determine the court responsible for reviewing the detention conditions or to formulate sufficiently specific applications. This denied him access to justice guaranteed by Article 6 (1) of the ECHR.

Obtaining judicial review of the legality of the detention conditions imposed on pre-trial detainees is sometimes part of our daily work. As experienced criminal lawyers, we are happy to assist.

Pre-trial detention in Hamburg

Accused persons brought before a judge in Hamburg and remanded in custody are usually held in the Holstenglacis remand prison (commonly known as the "Dammtor" remand prison). Men in remand are housed there and in the Billwerder correctional facility. Only the Billwerder correctional facility is available for women in remand. Juveniles are housed – currently, although the city of Hamburg is planning far-reaching changes – in the youth detention center on the Elbe island of Hanöfersand.

As established criminal lawyers in Hamburg, we regularly visit all three prisons. With our extensive experience, we support clients in defending against pre-trial detention, both during court hearings and in detention appeals, as well as in dealing with issues arising from detention in the Holstenglacis Pre-Trial Detention Center or the Billwerder Prison.