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.
What this means for extradition defense
This decision concerns "ordinary" pre-trial detention under Section 112 StPO directly, not extradition detention under Sections 15 et seq. IRG. But the principles the BGH confirms regarding Section 121 StPO and the speedy-trial principle are directly relevant to extradition-detention practice: the speedy-trial principle in detention matters is a constitutionally anchored rule that follows from Article 2(2) sentence 2 of the Basic Law read together with the principle of proportionality, and therefore applies to every deprivation of liberty — including extradition detention, where the timing framework differs but the underlying constitutional standard is identical.
Transferability to extradition detention
Extradition detention under Section 15 IRG does not have a fixed six-month limit followed by detention reviews at three-month intervals, as Sections 121 and 122 StPO provide for pre-trial detention. Instead, Section 26 IRG provides for its own detention review: after two months, the Higher Regional Court (Oberlandesgericht, OLG) decides of its own motion on the continuation of detention, and this review is repeated at two-month intervals. In the present decision, the BGH makes clear that while a special detention-review procedure is pending, the court that would otherwise have jurisdiction may not make a parallel decision of its own on the continued existence of the arrest warrant — a principle of procedural concentration that applies by analogy to the relationship between the ex officio review under Section 26 IRG and a detention appeal filed in parallel. Anyone challenging continued detention in an extradition case needs to know which court has jurisdiction at which stage of the proceedings — duplicate reviews and jurisdictional conflicts cost time that a client in detention does not have.
The second building block of the BGH's decision is decisive: blanket references to the complexity of the proceedings do not suffice to justify continued detention — the authorities must set out concretely why a final decision has not yet been reached. I encounter exactly this pattern of reasoning regularly in extradition proceedings, when the Office of the Attorney General's decision on admissibility or the OLG's review of admissibility drags on for months because the requesting state is still submitting documents, translations are missing, or queries go unanswered. The same principle applies here: mere references to the foreign dimension of the case or to the complexity of international mutual legal assistance do not justify unlimited continued detention if the proceedings are not being conducted with the expedition required.
The speedy-trial principle as a lever in practice
For extradition detention, this has a concrete consequence: if the review of an extradition request drags on for months without any discernible substantive reason — for instance because the requesting state fails to respond or the authorities do not process queries promptly — this is a point of leverage for the defense. In such cases, I actively highlight the breach of the speedy-trial principle, file applications to set aside or suspend enforcement of the arrest warrant, and monitor the conduct of the proceedings closely so that an unjustified delay does not go unnoticed. If the courts fail to provide a remedy — as the BGH itself notes, referencing the relevant case law of the Federal Constitutional Court (BVerfG) — a constitutional complaint remains available as a last resort.
Significance for extradition defense
This decision illustrates, by way of example, that principles of detention law operate across areas of law: what the BGH decides regarding "ordinary" pre-trial detention also shapes, via the constitutional proportionality standard, the interpretation of extradition detention. I follow the case law on the speedy-trial principle closely and apply it wherever a client's liberty is at stake in an extradition proceeding — from detention review under Section 26 IRG through to a constitutional complaint before the BVerfG.