Developments in German Criminal Law: The Urgent Issues Regarding Prolonged Pre-Trial Detention in Germany

Abstract

Freedom is one of the fundamental rights enshrined in Art. 2(2)(2) of the German Constitution. However, nearly 30,000 remand prisoners were incarcerated in pre-trial detention in Germany in 2017 pending trial. Due to the presumption of innocence, remand prisoners are subjected to a flagrant violation of their constitutional right to freedom. After outlining the legal pre-requisites of pre-trial detention under German law, this article addresses various legal areas of conflict arising from periods of prolonged pre-trial detention by examining a case brought before the Federal Constitutional Court in Germany in 2018. At the same time, the article demonstrates how severely pre-trial detention affects the personal lives of remand prisoners. The longer any such period of pre-trial detention lasts, the more important the question is whether this deprivation of liberty can be justified. Over the past few years, the number of cases involving protracted pre-trial detention has increased dramatically due to overworked courts. By emphasizing that a lack of judicial resources cannot justify lengthy terms of pre-trial detention, this article highlights the importance of the fundamental right to freedom of each and every one of us.