An arrest warrant that confines itself to establishing the ground for detention, without engaging in concrete terms with the question whether less severe measures under Section 116 StPO — namely a duty to report, a residence requirement or the lodging of a security — would be equally suited to achieving the aim of detention, fails to meet the constitutional requirements of the proportionality review.
Significance for defense practice
With this decision the Federal Constitutional Court has once again made clear what is all too often neglected in the day-to-day practice of the local courts (Amtsgerichte) and regional courts (Landgerichte): ordering pre-trial detention is not automatic. Between the existence of a ground for detention and the order of detention stands an independent proportionality review, which must be expressly documented in the arrest warrant. This requirement is not new — but, as the present case shows, it is systematically underestimated in practice.
The principle of subsidiarity of pre-trial detention
Section 116 StPO provides that the judge is to suspend execution of the arrest warrant where less intrusive measures can equally well achieve the purpose of pre-trial detention — depending on the ground for detention: securing the proceedings, preventing collusion, or preventing further offenses. These measures include the duty to report, the prohibition on leaving one's place of residence or a particular area, the instruction to be present at a particular place at particular times, and the lodging of a security. Only where these alternatives are insufficient in the specific case may pre-trial detention be executed.
The BVerfG emphasizes that this review of subsidiarity is not to be carried out merely as a formality. It is not enough to note in an arrest warrant, in standard-form terms, that detention alternatives do not come into consideration. Rather, the judge must give concrete reasons why the individual circumstances of the accused — his living situation, his family and professional ties, his economic situation, his conduct in the proceedings to date — mean that less severe measures cannot fulfill the purpose of pre-trial detention in the specific case.
Individual analysis instead of a template
In the underlying proceedings the accused had been taken into pre-trial detention on suspicion of commercial handling of stolen goods; the ground for detention assumed was a risk of flight (Section 112(2) no. 2 StPO). The arrest warrant contained a passage indicating that the judge did not consider the risk of flight to be capable of being offset by detention alternatives — yet without addressing the accused's concrete personal circumstances. The accused had been registered as resident in Germany for years, had no foreign residence, was in steady employment and lived together with his family. The BVerfG set aside the arrest warrant: these circumstances would necessarily have had to be included in the review of detention alternatives.
Relevance for the detention review and the detention-appeal procedure
The decision has immediate practical consequences for defense strategy in detention matters. In every detention review under Section 117 StPO and every detention appeal under Section 304 StPO, careful examination should be made of whether the arrest warrant contains a sufficient engagement with the personal circumstances of the client and the detention alternatives concretely available. A formulaic exclusion of alternatives without individual reasoning makes the arrest warrant open to challenge — and the BVerfG will intervene where the specialist courts omit this review.
Defense lawyers should therefore always set out in detail, in the application for a detention review, the personal circumstances of the client: a fixed residence, family ties, an employment relationship, social environment, conduct in the proceedings to date, passport and travel documents. The more concrete this submission is, the harder it becomes for the court to dismiss detention alternatives in a single sentence. Where this nevertheless happens, the present BVerfG decision provides a sound basis for a constitutional complaint.
Pre-trial detention and European fundamental rights
It should be added that the ECtHR too, in its settled case law — most recently confirmed in Buzadji v. the Republic of Moldova — requires national courts, when extending pre-trial detention, to give concrete reasons specific to the individual case why the accused cannot remain at liberty. Both standards — the constitutional and the Convention-based — thus lead to the same result: standard-form arrest warrants are unlawful. The BVerfG's decision reinforces this line and gives the defense a further argument to deploy.