Pre-trial detention may be continued beyond nine months under Section 121(1) StPO where the particular difficulty or the unusual scope of the investigation has not yet allowed a judgment to be handed down. While a special detention-review procedure under Sections 121, 122 StPO is pending before the detention-review court, the court with jurisdiction under Section 126 StPO is not empowered to make its own decision on the continued existence of the arrest warrant.
Significance for defense practice
The BGH's decision of 30 October 2025 reaffirms a central principle of detention law: pre-trial detention is the exception, not the rule. With Section 121 StPO, the legislature deliberately created narrow conditions under which detention beyond the six-month limit is permissible. The prosecuting authorities and the courts must set out specifically why a judgment has not yet been handed down — blanket references to the complexity of the proceedings are not enough.
Strict requirements before the main hearing
Before the main hearing begins, the Higher Regional Court (Oberlandesgericht, OLG) — or, where the BGH has jurisdiction, the BGH itself — reviews the continuation of detention in a special detention-review procedure under Sections 121, 122 StPO. This review is mandatory: once six months have elapsed, the arrest warrant must be set aside unless the OLG orders its continuation. The public prosecutor's office or the court with jurisdiction must demonstrate to the OLG in substantiated terms that the particular difficulty or the unusual scope of the investigation has not yet allowed a judgment to be handed down. Mere assertions do not suffice — as the BVerfG, too, recently made expressly clear in its decision of 5 February 2025 (2 BvR 24/25), reprimanding an OLG that had upheld the continuation of detention on inadequate reasoning.
In extensive proceedings — for example in cases of terrorism, organized crime or white-collar crime with numerous defendants and thousands of pages of investigation files — exceeding the six-month limit is entirely possible and is regularly ordered by the courts. That presupposes, however, that the proceedings are conducted with the special expedition required in detention matters. The requirements are concrete: the investigation must be completed promptly, the indictment brought without delay and the main hearing opened without avoidable delays.
After the main hearing begins: speedy-trial principle instead of automatic OLG review
Once the main hearing has begun, the control mechanism changes fundamentally. The time limit under Section 121 StPO is suspended under the second sentence of Section 121(3) StPO until the judgment is pronounced. An automatic detention review by the OLG no longer takes place in this phase. That does not mean, however, that pre-trial detention may continue indefinitely during the main hearing. The periodic OLG review is replaced by the speedy-trial principle in detention matters: the court must hear the case with a sufficient density of hearing dates and may not allow any avoidable pauses. The case law requires that the case be heard often enough — in practice this means regular hearing days without interruptions lasting months.
Where the speedy-trial principle is breached — for example because the court does not hear the case for weeks even though the hearing could be continued — the defense may at any time file an application for detention review under Section 117(1) StPO or lodge a detention appeal. In serious cases, a constitutional complaint also comes into consideration, as the case law of the BVerfG shows.
Significance for the defense
For the criminal defense, this yields a clear course of action: in detention matters the proceedings must be monitored closely — not only as to substance, but also with regard to the duration of the proceedings and the scheduling. Every avoidable delay attributable to the prosecuting authorities or the court can constitute a ground for setting aside detention. I enforce the speedy-trial principle in detention matters consistently — from the investigation through detention review to a constitutional complaint before the BVerfG.