Arrest

An arrest is the detention of persons (custody of persons) on the basis of civil or criminal procedural law provisions. In Germany, criminal procedural law only provides for provisional arrest.

The arrest interferes with the fundamental rights of the individual (e.g. freedom of the person), so that a reservation of the law applies. The measure always applies provisionally, either until the reason for the measure has ceased to exist or a court order has been obtained. It can be carried out by the public prosecutor's office or its investigators (usually police officers). As soon as a judge decides that the detention is to continue, the detention becomes pre-trial detention.

An arrest acts as a justification for the coercion or deprivation of liberty constituted by the arrest. Bodily injury in the course of an arrest is justified if it is connected with the arrest and proportionality is maintained.

Germany

In German criminal procedure law, the right of arrest is structured as a sovereign right of arrest (Section 127 (2) of the Code of Criminal Procedure) and as a right of every person (Section 127 (1) of the Code of Criminal Procedure). It serves the purpose of criminal prosecution.

The object of protection is the state's claim to punishment, which would be rendered futile or considerably more difficult if the suspect were to flee or remain anonymous.

Everyman Detention

The Everyman's Right to Arrest and Detain under Section 127(1) of the Code of Criminal Procedure allows anyone (including minors) to temporarily detain a person.

This right of arrest is subject to the following conditions:

First of all, the offender must be involved in a fresh offence (in flagrante delicto). The act is considered fresh if it is still in a spatial and temporal connection with the current situation, i.e. the offender must still be apprehended at the scene of the crime or in its immediate vicinity. However, immediate prosecution is also sufficient if the offender has been found at the scene of the crime. According to the prevailing doctrine, the offence must actually have been committed. An urgent suspicion of the crime does not satisfy the requirements of legal doctrine, however, it is sufficient according to case law to affirm the prerequisites for arrest. According to legal doctrine, an erroneous assumption of an offence leads to the criminal-law figure of the error in the definition of a permissible offence.

In addition to suspicion of flight with regard to the offender, grounds for arrest may also be the refusal of the suspect to reveal his identity or the other impossibility of establishing his identity (for example, without identification or aggressive). Thus, anyone who knows an offender personally may not arrest him provisionally - unless he is suspected of evading law enforcement authorities (for example, by going into hiding).

The prevailing opinion denies the right of provisional arrest of persons who are recognisably incapable of guilt (for example, children), since the purpose of the arrest, i.e. to enable the opening of criminal proceedings, cannot be achieved in this way.

In each individual case, it must be carefully checked whether the legal requirements for intervention are met ("Is there a crime at all?", "Can the suspect identify himself?", etc.), as otherwise the arresting officer risks investigation proceedings for coercion, assault or deprivation of liberty, etc.

The provisional arrest itself must be carried out in compliance with the principle of proportionality. It may not, for example, lead to significant injuries to the offender in the case of the slightest offence. The use of any means is thus precisely not permitted by the right of arrest, even if the execution or maintenance of the arrest would otherwise not be possible. Thus, if the means used is not reasonably related to the purpose of the arrest, it is impermissible. "It is therefore regularly impermissible to prevent the escape of an offender by acts which result in serious damage to his health or imminent danger to his life." Restraints on arms and legs are thus permissible, as far as this is necessary (aggressiveness, resistance, escape attempt). The removal of the suspect's belongings is permissible within the bounds of proportionality in order to prevent escape (e.g. bicycle, keys). If the person cannot be handed over to the police (e.g. no telephone and deserted area), the arrested person can also be taken to the nearest police station.

As soon as the arrested person does not merely resist the arrest by fleeing, but attacks the arresting person, the use of force is also permissible. However, this is then no longer justified by the right of arrest under § 127 (1) of the Code of Criminal Procedure, but by self-defence under § 227 of the Civil Code, § 32 of the Criminal Code, since in this case the offender's resistance constitutes a present unlawful attack. The arrested person does not act in self-defence if he resists the arresting person, as far as the arrest is covered by § 127 StPO. If the arresting officer exceeds the limits of the power of arrest because, for example, he uses force although the arrested person is "only" trying to flee, or if he even acts outside the power of arrest because, for example, the perpetrator was not caught in the act, this would result in a situation of self-defence for the arrested person, in which he, for his part, may also use force to ward off the unlawful attack against him, in this case the excessive arrest.

A strict distinction must therefore be made between the right of arrest and the right of self-defence. As long as the arrested person does not defend himself against the arrest, only the milder powers of intervention of the right of arrest apply. If it is a case of the arrest of a criminal within the meaning of § 127 (1) of the Code of Criminal Procedure and the latter not only defends himself by attempting to flee, but in turn attacks the arresting person, then more aggressive means are justified on the basis of the self-defence situation for the arresting person.

The arrested person must also be informed of the reason (however, the use of the German language is sufficient here, an interpreter does not need to be called in).

Most frequently, so-called private security services (e.g. employees of public transport security services, security guards of the German Railways, security guards who monitor company buildings and private buildings on behalf of their clients) invoke the Everyman's Right of Arrest: Employees of security services of public transport, employees of the security of the Deutsche Bahn, security services, which monitor their company buildings and private buildings for their clients, "security guards", "bouncers", "bodyguards" or "private investigators" hired by companies or private individuals) or employees of authorities without police authority or employees of police authorities outside their jurisdiction (e.g..: Customs/customs investigation or tax office/tax investigation in the case of criminal offences technically outside the customs code/tax code or federal police spatially outside ports, airports, railway stations).

Sovereign arrest

This type of arrest is reserved only for certain officials, who must be competent and authorised to do so.

Police forces and public prosecutors as well as investigators of the public prosecutor's office

Pursuant to section 127 (2) of the Code of Criminal Procedure, public prosecutors and the officers of the police service may arrest persons if the requirements of an arrest warrant or those of a temporary placement are met and, in addition, there is imminent danger. By order of the public prosecutor's office, its investigators are also entitled to arrest persons on the basis of section 152 (1) GVG. The arrested person must be brought before the magistrate at the competent local court without delay, at the latest by the end of the following day.

Urgent suspicion is sufficient for this legal measure. The prerequisites for intervention are thus considerably lower than the arrest of para. 1. It may therefore be that this offence was committed years ago and the person is known by name. In the case of offences for which a complaint has been filed (e.g. damage to property), an arrest is possible even if no criminal complaint has been filed (section 127 (3) of the Code of Criminal Procedure). With the arrest, the arrested person is a suspect. If the suspicion of the crime and the perpetrator is substantiated, the status of the person changes from suspect to accused (the change can take place within seconds if necessary). For the purpose of arresting fugitive suspects, apartments, buildings, vehicles, etc. may also be entered without restriction of night time.

As a rule, the person is taken away without immediate coercion, to which also arrest techniques up to the use of firearms (for stopping) are applicable. In anticipation, a storming may be necessary, which is followed by the seizure. If massive resistance is to be expected or the person is dangerous, special units such as special task forces are usually involved in carrying out the measure.

According to Section 163b of the Code of Criminal Procedure, persons may also be detained for the purpose of establishing their identity if their identity cannot otherwise be established or can only be established with considerable difficulty.

The arrested person shall be informed of the reason without delay. Furthermore, he must be informed of his rights and obligations as an accused person. In case of communication difficulties, an interpreter is to be called in within a reasonable time (in practice during the first written interrogation).

Article 5 of the European Convention on Human Rights supplements the regulations of the Code of Criminal Procedure with regard to arrest by public authority. In the signatory states, it is regarded as a binding provision supplementing the powers of the police.

Special cases

• According to section 164 of the Code of Criminal Procedure, persons who disturb an official act can be arrested by authorised officers until the end of the official act, at the latest until the end of the following day. Conceivable disturbances can be constant shouting, crossing of barriers up to physical obstructions.
• A master of a seagoing vessel or a commissioned officer may, in accordance with § 121 of the Maritime Labour Act, temporarily detain a person on board in order to avert danger. Anyone who resists arrest commits coercion (Germany) (possibly attempted) in combination with a criminal offence under section 146 of the Maritime Labour Act or an administrative offence under section 145 of the Maritime Labour Act.
• Flight captains have boarding authority, an air police sovereignty according to § 12 LuftSiG in connection with the Tokyo Agreement. The pilot in command may take all measures necessary to ensure safety and order on board, e.g. lock up or restrain rioters.
• German law applies on board vehicles flying a German sovereign flag, as it is equivalent to German state territory (e.g. aircraft of the air force, ships of the Federal Armed Forces, ships of the coast guard). Accordingly, provisional arrests pursuant to section 127, paragraph 1 of the Code of Criminal Procedure may also be carried out there, provided that military law does not apply.
• Anyone who is urgently suspected of committing a criminal offence against the Bundeswehr may, in accordance with Section 6, Paragraph 1 UZwGBw (Law on the Use of Direct Force and the Exercise of Special Powers by Soldiers of the Bundeswehr and Allied Armed Forces and Civilian Guards), be temporarily arrested in cases of imminent danger by the guard's superior or by the head of the service or his representative, if the requirements of an arrest warrant or a placement order in accordance with the Code of Criminal Procedure are met.
• Disciplinary superiors in the Bundeswehr have the right, according to § 21, Para. 1, WDO (Wehrdisziplinarordnung), to temporarily arrest soldiers who are subject to his disciplinary authority for a service offence, if the maintenance of discipline so requires.

Civil law

Self Help

The making of an arrest can also be justified under civil law via the provisions of self-help according to § 229, § 230 and § 231 BGB. According to section 230, subsection 3 of the Civil Code, there must at least be a suspicion of flight. In addition to this, the prerequisites of the civil procedural safeguarding of compulsory execution are to be present.

Personal security detention

In order to secure compulsory enforcement on account of a pecuniary claim, the debtor may be placed under personal arrest. Pursuant to section 918 of the Code of Civil Procedure, this arrest is only permitted if it is actually necessary to secure the execution at risk. The claim and the ground for arrest must be made credible.

Delimitations

Contrary to popular understanding, the following actions do not constitute an arrest:

• arrest for the purpose of taking custody or for the purpose of being brought before a court, for measures of correction or before a district court physician,
• detention by the police for the purpose of preventing danger (e.g. protection of minors or recapture of escaped prisoners) and for the purpose of law enforcement assistance,
• detention for the purpose of ascertaining personal details in accordance with § 163b of the Code of Criminal Procedure.

Implementation aid

In particular, the following can be considered as enforcement assistance by arrest: Bringing a conscript by the police to the nearest Feldjägerdienst command who fails to comply with his conscription without excuse (Section 44, Paragraph 3 of the Conscription Act).

Berlin police officers during the arrest of a demonstrator


Hamburg officers during an arrest

Austria

Code of Criminal Procedure

police custody

Section 170 (1) of the Code of Criminal Procedure standardizes the admissibility of the arrest of a person:

In principle, the arrest is to be ordered by the public prosecutor's office on the basis of a court authorisation and carried out by the criminal investigation department (this is to be understood as the police as such, which is charged with the investigation of criminal offences, not a specific organisational unit). To a large extent, however, the criminal investigation department may also carry out these arrests on its own initiative for the reasons stated.

Hitchhiking

Section 80 (2) of the Code of Criminal Procedure standardises the "right of private individuals to hitchhike", which corresponds mutatis mutandis to the right of arrest under German law described above.

Administrative Criminal Law

The organs of the public security service may arrest persons entered in the act for the purpose of bringing them before the authority if

• the person entered is unknown to the institution (lack of identity), or
• there is a suspicion that he or she is attempting to evade prosecution (well-founded suspicion of flight), or
• the person entered persists in continuing the offence (risk of continuation or repetition).

Every arrested person shall immediately be handed over to the next competent authority or - if the reason for the arrest has already ceased to exist - released. The authority shall interrogate the arrested person immediately, but at the latest within 24 hours after taking over the person. Beyond this period, detention for the purposes of administrative criminal proceedings is inadmissible.