Comparing Procedural Models From German Trending The Use Of Pre-Trial Detention

Comparing Procedural Models From German Trending The Use Of Pre-Trial Detention Presented by: Mr. Morgenstern Date: 31 March 2023 Research Projects - (Pre-Trial DETention as Ultima Ratio) • DETOUR- research grant under the scheme for "Projects to enhance the rights of persons suspected or accused of crime - Action grants 2014", funded and administered by the Directorate General Justice (and Consumers), 2016-2017 - Universities/research institutions in Vilnius (LT), Dublin (IR), Bucharest (RO), Utrecht/Leiden (NL), Greifswald (DE), Wien (AT); Brussels (BE) Research Projects: The German DETOUR study (Pre-Trial DETention as Ultima Ratio) - Mixed methods: • Desk-top research (legislation, policy, jurisprudence, statistics, literature review) • Exploratory empirical research by studying (a few) files and by observing PTD hearings • 31 semi-structured interviews, incl. a „case vignette" with judges (11), public prosecutors (8) and defense lawyers (9) and prison officials (3) in different German regions Research Background Legal-theoretical: Human Rights - European Convention on Human Rights; jurisprudence of the ECtHR - Germany: Constitutional Fundamental Rights, statutory legislation, jurisprudence of the Federal Constitutional Court - Presumption for liberty before and during trial; PTD detention as ultima ratio - What ratio (= purpose)? secure an orderly procedure with a fair result; prevention of further offences - Proportionate measures - No anticipation of punishment (presumption of innocence; respect for the Rule of Law / Rechtsstaatsprinzip) Research Questions - PTD must be a means of last resort - is it? - How does the law seek to implement this principle? - (How) Do legal practitioners implement this principle? - What is the role of 'alternatives' to PTD? - European and comparative aspects (cross-border co-operation etc.) German context - European comparison: relatively low rate per 100.000 inhabitants (2016: 16; 2019: 17) - Percentage of all persons with a final court decision in criminal cases (conviction and acquittals) who had been in PTD: 3,3% in 2019 (,PTD ratio'), depending strongly on the offence - But... - Strong regional differences within Germany, rate per 100.000 is between 8 and 28 - Length: about 50% of all prisoners stay three months or less, but about 6% stay more than 1 year (this share may rise due to the Corona backlog) - Outcomes: of all defendants with PTD, only about 55% receive an immediate prison sentence; about 34% receive a suspended sentence, about 9% a fine, 1,5% are acquitted - Strong overrepresentation of suspects without German passport (depending on the region, up to % of all pre-trial detainees are foreigners): German average in 2017: 61%; the PTD ratio for Germans is 2% and for foreigners 6,5% Law and practice of ordering PTD: Judicial decision-making - Grounds and pre-requisites as required in statutory law (Code of Criminal Procedure, Strafprozessordnung, §§ 112, 112a StPO) • Urgent suspicion ("dringender Tatverdacht") • Proportionality (... "It may not be ordered if it is disproportionate to the significance of the case or to the penalty or measure of reform and prevention likely to be imposed.") - 4 grounds for detention: • flight or the risk of absconding (Flucht, Fluchtgefahr), • risk of collusion / tampering with evidence (Verdunkelungsgefahr), • risk of repeating or continuing a listed offence of a (relatively) serious nature (Wiederholungsgefahr) • - the gravity of the offence (Schwere der Tat), not a stand-alone ground 1965 Construction and motives for ordering pre-trial detention: • "... in the end usually it then is the risk of absconding." (4, judge, 143; with a similar wording 9, lawyer, 47). • "So, it in first instance secures the trial and in second instance the execution of the sentence. This means, when I have to fear that there will be no trial at all with whatever result, I principally have to keep him here". (interview 15, judge) - Risk of absconding - the legal construct: • - complicated of balance of incentives and obstacles for absconding Some interview partner reflected the problems of prognosis • "With the risk of absconding it is a balance between the expected sentence and the personal circumstances. I have to predict and this prognosis in the end cannot be checked. If I leave him inside, we will never know if he absconded and if I let him out and he bunks off.... There are such cases, but not very often..." (10, judge; comparable 13, judge) • "But now, if he has one [job] and a family, you just have to imagine a little, would he now, if we release him, would he abscond? If you say he has children, family, a permanent job, why should he flee? If there is no really serious punishment imminent?" (11, PP) • "But most of the people do not go into hiding, because flight is an unbelievable stress. Financially, the fewest have the possibility really to go into hiding.... simply not being at home. But also this is permanent anxiety, most people don't stand this." (5, lawyer, 116) - Public Prosecutors: „detention means work" - Dominating factors to justify detention (1) • Expected sentence, in particular with regard to prior convictions  Interviewer: „Keyword 'expected sentence', what role does it play?"  Interviewed person 2: "The higher the expected sentence, the higher the risk of flight..."  Interviewed person 1: "... and the quicker pre-trial detention." (16 and 17, judges, 91-94) • Thresholds? What is a 'perceptible' sentence substantiation a risk of absconding? • very diverse answers, in particular by judges, but we heard answers ranging from one year (when not suspended) to five..., public prosecutors sometimes six months - Expected sentence does sometimes also play a role for proportionality considerations ■ some did not request/grant PTD when a suspended sentence is possible or in assess of petty offences - But... • "For trivial offence it [the arrest warrant] is out of the question. Except you have definite indications for flight or such a situation of neglect, that means no social bonds, that you have to say you can't seriously conduct the proceedings at all [without arrest warrant]." (31, judge, ) - Dominating factors to justify detention (II) • fixed address and housing situation most important factors • for foreigners in Germany: settled status (residence permit etc.) additionally important (mixed answers for refugees) • "mixed result regarding defendants from other EU-countries • "For many the most important: Is there an address to summon s.o. or to send the police to? • This means that foreigners without fixed abode in Germany, in particular when socially not integrated, can hardly avoid PTD, regardless of offence - Extra-legal factors or motives for PTD (,apokryphe Haftgründe')? • No clear pattern, not even in critical account by lawyers, but examples or part bundle of motives of a • Public or media pressure • Disciplinary functions (pressure on the defendants to confess or to cooperate) • Crisis intervention (e.g. vulnerable homeless drug-addicts) • General preventive reasons (ability of the authorities to counter crime; signal to certain criminal milieus) • Unclear: What about preventive reasons in the concrete case? Conclusion - Pre-trial detention is mostly a measure geared to secure the presence of defendants at trial. Other grounds of detention are marginal in the law and/or in practice in your jurisdiction. • - Yes - not marginal, but less important Grounds for detention aimed at preventing re-offending and/or protecting victims (and the general public) are the main cause of the over-use of pre-trial detention in your jurisdiction • No- although they may play a role (older research has shown this for example for juveniles) - Current procedural rules allow judges too much discretion to order or extend pre-trial detention. This can be solved by amending the statutory framework, e.g. by posing more constraints on judicial discretion. • - (rather) yes - stricter thresholds would help to avoid PTD for petty offences But: restraint rather has to do with judicial culture; foreigners remain the unsolved problem