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Returning to Germany with an Outstanding Arrest Warrant

If you live abroad and know of an arrest warrant in Germany, you should not sit the problem out. Your return can be prepared. The aim is that it does not begin with an arrest on entry; in the end, the court or the public prosecutor's office decides.

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What happens while you are abroad

No trial takes place against an accused person who is abroad if bringing them before the court does not appear feasible or appropriate (Sections 276 and 285(1) of the Code of Criminal Procedure [Strafprozessordnung, StPO]); I describe exceptions below. That does not settle the proceedings, however. Evidence is preserved, and the arrest warrant remains in force. Once charges have been brought, and if the grounds for suspicion would justify an arrest warrant, the court can seize your assets in Germany. The only exception is for offenses for which the law provides no more than six months' imprisonment or a fine of 180 daily rates; what counts is the statutory range of punishment, not the sentence expected in the individual case (Section 290 StPO).

Waiting for the statute of limitations is not a reliable solution. An arrest warrant, the indictment and other procedural steps interrupt it, including orders to establish your whereabouts; after that, it starts running again (Section 78c of the Criminal Code [Strafgesetzbuch, StGB]). There is an upper limit: twice the statutory period, extended by the periods during which the limitation period is suspended. If Germany makes a formal extradition request to the state in which you live, the limitation period is suspended from the time the request is received there until you are surrendered, leave that state in some other way, its refusal is received by the German authorities or Germany withdraws the request (Section 78b(5) StGB). This does not apply where fixed time limits such as those for the European Arrest Warrant exist for the request. Whether a case is time-barred is something I check on the basis of the file.

What happens on entry

If the arrest warrant has been entered as an alert for arrest (Section 131 StPO), any check can lead to an arrest: on entry – at the external borders of the Schengen area, Germans too are checked against the wanted-persons databases – just as at any other check, including later within Germany. If the arrest warrant is based on suspicion of an offense, you must then be brought before the competent court without delay; if that is not possible by the day after the arrest at the latest, before the nearest local court (Amtsgericht; Sections 115 and 115a StPO). Whether you remain in pre-trial detention is decided by the court. What happens at the airport in detail is explained on the page Arrest at a German Airport.

How your return can be prepared

Having the execution of the arrest warrant suspended

If the arrest warrant is based on the ground that you have fled (Section 112(2) no. 1 StPO), that ground falls away with your return; the question of a risk of flight remains. If the arrest warrant is based solely on a risk of flight, the court must suspend its execution if less intrusive measures are sufficient, such as reporting obligations or the provision of security (Section 116(1) StPO). Your willingness to turn yourself in voluntarily is an argument against a risk of flight. I negotiate these conditions with the public prosecutor's office and the court before you enter the country.

Safe conduct

The court can grant an absent accused person safe conduct and attach conditions to it (Section 295(1) StPO). It exempts you from pre-trial detention, but only for the offense for which it is granted. It lapses as soon as a judgment imposing imprisonment is handed down, even if it is not yet final, and also if you make preparations to flee or do not comply with the conditions (Section 295(2) and (3) StPO). There is no entitlement to it; the court decides at its discretion.

Concluding the proceedings without returning

Not every case requires your presence. For less serious offenses (Vergehen), the public prosecutor's office can apply for a penal order (Strafbefehl); it is issued without a trial and imposes, for example, a fine or, if you have defense counsel, imprisonment of up to one year suspended on probation (Section 407 StPO). If you lodge an objection, you can be represented at the trial by defense counsel holding a power of attorney (Section 411(2) StPO). If no more than six months' imprisonment or a fine of up to 180 daily rates is to be expected, the court can, on application, release you from the obligation to appear at the trial; you are then examined by a judge on the charges (Section 233 StPO). Whether one of these routes is open depends on the charge.

If the sentence is already final

If the issue is no longer pending proceedings but a final sentence, safe conduct does not help; it concerns only pre-trial detention. If you did not report to begin serving your sentence when summoned, or if you are suspected of flight, the enforcement authority can issue an enforcement arrest warrant (Section 457(2) StPO). The question then is when and how you begin serving the sentence. In the case of a fine, the default imprisonment is not enforced to the extent that the fine is paid (Section 459e(4) StPO); the enforcement authority decides on payment relief, such as installments or a deferral (Section 459a StPO).

Here, too, you should not rely on the passage of time: if you are staying in an area from which your extradition or transfer cannot be obtained, the court can, on application by the enforcement authority and before the period expires, extend the limitation period for enforcement once by half (Section 79b StGB).

How I proceed

The first step is access to the file (Section 147 StPO); while the investigation is ongoing, it can be restricted. I clarify which arrest warrant exists, what it is based on and whether it has been entered as an alert for arrest. I then negotiate the conditions of your return with the public prosecutor's office and the court before you board the plane. Only once that has been settled is the travel date fixed.

Return with an arrest warrant at a glance

Sitting it out is no solution

Without your participation there is no trial, but the proceedings remain pending: evidence is preserved, assets can be seized after an indictment (Section 290 StPO), and the statute of limitations can be interrupted or suspended (Sections 78b and 78c StGB).

Negotiate before entry

An arrest warrant based solely on a risk of flight must be suspended if less intrusive measures are sufficient (Section 116 StPO). The court can also grant safe conduct (Section 295 StPO).

Not every case needs you in person

A penal order is issued without a trial (Section 407 StPO), and after an objection, defense counsel holding a power of attorney can represent you (Section 411(2) StPO).

What those affected often ask

Will I be arrested on entry if there is an arrest warrant against me?
You must expect it. If the arrest warrant has been entered as an alert for arrest, it can come to light at border control or at any later check. If it is based on suspicion of an offense, you will be brought before the court (Sections 115 and 115a StPO), which decides on pre-trial detention; if it concerns a final sentence, the arrest marks the start of its enforcement. That is why I clarify beforehand which arrest warrant exists: I seek to have a pre-trial detention warrant set aside or its execution suspended; in the case of a final sentence, I discuss with the enforcement authority when and how you begin serving it.
What is safe conduct?
The court can grant an accused person who is abroad safe conduct and attach conditions to it (Section 295 StPO). It exempts you from pre-trial detention for the offense for which it is granted. It lapses as soon as a judgment imposing imprisonment is handed down, if you prepare to flee or if the conditions are not met.
Can I wait until the case becomes time-barred?
You should not count on it. An arrest warrant, the indictment and other procedural steps interrupt the limitation period (Section 78c StGB), and a formal extradition request to your state of residence suspends it, except where fixed time limits such as those for the European Arrest Warrant apply (Section 78b(5) StGB). For a final sentence, the court can extend the limitation period for enforcement once by half if your extradition cannot be obtained (Section 79b StGB). Whether a case is time-barred is something I check on the basis of the file.
Can the proceedings be concluded without me coming back?
Depending on the charge, yes. For less serious offenses, a penal order can be issued without a trial (Section 407 StPO); after an objection, defense counsel holding a power of attorney can represent you at the trial (Section 411(2) StPO). If only a minor sentence is expected, the court can also release you from the obligation to appear (Section 233 StPO). Without one of these routes, no trial takes place against absent persons; the proceedings then serve only to preserve evidence (Section 285(1) StPO).
What happens to my assets in Germany while I am away?
Once charges have been brought and the grounds for suspicion would justify an arrest warrant, the court can seize your assets in Germany; not, however, for offenses for which the law provides no more than six months' imprisonment or a fine of 180 daily rates (Section 290 StPO). Independently of this, an asset freeze (Vermögensarrest) can be ordered to secure the confiscation of a monetary equivalent (Section 111e StPO).
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