Rights in case of arrest in Germany

An arrest hits most people unprepared. It is precisely then that mistakes are made that are difficult to correct later in the investigation procedure. Those who know their rights when arrested in Germany can react more calmly, avoid unnecessary statements and take the right steps early.

What an Arrest Legally Means

Not every check, not every identification and not every take to the office is automatically an arrest. In everyday life, these terms are often mixed. Legally, the situation must be considered more closely: The decisive factor is whether you are deprived of liberty and on what basis this happens.

An arrest is considered in particular if there is an arrest warrant or if a so-called provisional arrest takes place. The latter can be allowed, for example, if someone is affected or persecuted in the act and there is a risk of flight or the identity can not be clarified immediately. For those affected, the difference is not merely theoretical. It influences how long the measure can last and when a judge must be involved.

From the outset, therefore, the important question is: Am I arrested, provisionally arrested or am I merely obliged to establish my identity? Exactly this distinction is often significant later on.

Rights in case of arrest Germany – which applies immediately

Even in a tense situation, your procedural rights remain. The police must not put you under pressure because the situation is dynamic or emotionally charged. In particular, anyone who is arrested has the right to be informed of the reason for the measure.

So you need to know why you are being treated. This does not have to happen every minute in legally formulated sentences, but the core of the accusation and the basis of the detention must not remain unclear. If an arrest warrant exists, it must in principle be opened.

Also central is the right of secrecy. You do not have to comment on the substance. This applies immediately and not only after a formal hearing. Many of those affected believe that they have to "clarify" the situation through explanations. In practice, this often leads to incriminating information, contradictions or misunderstandings, which are later used against them.

As a rule, you must provide information about yourself, such as name, date of birth, address and nationality. In addition, you are not obliged to declare the accusation, comment on allegations or answer questions about what happened.

The right to remain silent is often the most important right

Silence seems unnatural to many people. Who says nothing, fears quickly to appear more suspicious. The criminal law is different. Silence must not be interpreted as an admission of guilt to your detriment.

Especially in the first hours after an arrest, those affected often lack knowledge of files, overview and inner peace. They do not know what evidence is available, what other parties have said or whether telephone conversations, chats or video recordings have been evaluated. A spontaneous admission is therefore almost always in blind flight.

This does not mean that silence at every stage is the only meaningful strategy. But it means that a statement should only be considered if the defense the file knows and can assess the risks. Before that, restraint is regularly the better way.

One factual sentence is sufficient: I do not provide any information on the matter and would like to talk to a criminal lawyer.

Right of defence and notification

If you are arrested, you have the right to contact a defender. This right is not a mere formalism. Especially in the case of deprivation of liberty, early counselling can be decisive, for example in the examination of the legality of the measure, in questions about presentation before the judge or in communication with relatives.

In certain constellations, a Necessary defence given. Then a defender must be assigned to you if the legal requirements are met. Whether this is effective at an early stage depends on the individual case, in particular on the severity of the accusation and the procedural situation.

In addition, there is the right to have a trusted person notified. This can be a relative, in some cases also the employer or another person, if practical consequences of the arrest have to be cushioned. This right is not unlimited. The investigating authorities may control the time or type of notification under certain conditions. Nevertheless, the contact is not an act of mercy, but part of a rule of law procedure.

For foreign nationals, the right to inform the competent consulate may also be important. Especially for international clients, this is a point that is often overlooked in the stressful situation.

Search, cell phone, fingerprints - what is allowed?

Arrests are often accompanied by other measures. This includes searches of the person, seizure of objects, seizure of a mobile telephone or identification measures. Not everything is automatically inadmissible, but not everything is allowed without restrictions.

A physical search may be permitted to locate weapons, evidence or dangerous objects. Personal objects may also be secured. However, this does not mean that you have to actively participate in your own transfer, for example by voluntarily naming passwords or explaining content.

Mobile phones are often a major point of contention in practice. Securing the device and accessing content are not legally the same. Whether and to what extent data may be evaluated depends on the respective basis and on the state of the procedure. Here is almost always worth an immediate defense check.

Fingerprints, photographs or other identification measures may also be considered. Again, only what is legally covered and proportionate is permissible. Those affected often experience such measures as final prejudgment. Legally they are not, but in practice they can still have far-reaching consequences.

When does a judge have to decide?

If someone is provisionally arrested, the detention must not simply be continued indefinitely. If the person is not released, he must in principle be brought before a judge immediately. At the latest on the day following the arrest, a judicial review shall be carried out to determine whether pre-trial detention is to be ordered or whether the person is to be released.

This judicial presentation is a central protection mechanism. This is not only about the suspicion, but also about the question of whether there is a reason for detention, such as the risk of absconding, darkening or recurrence in cases regulated by law.

This is where legal representation is particularly important. An unprepared hearing can set the course early in the wrong direction. An experienced criminal defense lawyer can comment on the issue of detention, classify exonerating circumstances and encourage milder measures.

Typical errors after arrest

The greatest risks often arise not from the arrest itself, but from the reaction to it. Many sufferers talk too much out of nervousness. Others voluntarily agree to measures whose consequences they do not understand. Still others believe they can “clarify matters quickly” through informal talks with officials.

This hope is understandable, but often deceptive. What begins loosely often ends as a useful statement. Also messages to co-accused or witnesses directly after the arrest are risky. They can be interpreted as an attempt to darken or create new suspicions.

Equally problematic is resistance to the measure. Even if the arrest is unlawful, physical resistance often leads to additional accusations. Legal protection is not enforced on the streets in such situations, but later in the proceedings.

Practical use of rights in case of arrest in Germany

Anyone who wants to remain capable of acting in this situation does not need a legal lecture, but a clear line. Stay calm, do not resist physically, only provide information about yourself and do not comment on the matter. Ask to speak with a criminal defense attorney.

If there are health problems, medications are needed or communication difficulties, address them immediately. The same applies if you need a translation. A procedure is only fair if you understand what is happening.

For those affected in Bavaria, it can be useful to consult a specialized criminal defense lawyer on site at an early stage who is familiar with the procedures in the police, investigating authorities and courts. A law firm focused on criminal law such as MANWALT will not only act formally, but strategically.

What relatives should know

Relatives are often just as overwhelmed as the person concerned after an arrest. Actionism rarely helps. It makes sense to calmly record the basic data: where did the arrest take place, which department is responsible, which accusation was mentioned, are there medicines or urgent health issues?

It is then crucial to quickly organize a criminal defense. Relatives should not try to discuss the allegation with the police themselves or make explanations for the person concerned. Well-intentioned conversations rarely create clarity, but sometimes additional problems.

Anyone who knows their rights when arrested in Germany is not at the mercy of the situation. The decisive step is usually not to immediately explain everything, but to say nothing at the right moment and to set the defense early on the case.