Compensation for unlawful detention under the StEG 2005

The StEG 2005 attaches the claim for compensation to a clear set of facts. Under section 2 StEG compensation is due where someone was arrested or held on suspicion of an offence and is later acquitted or the proceedings concerning that offence are discontinued. The claim therefore presupposes that the detention was actually suffered and that the proceedings end with an outcome favourable to the person concerned.

The claim is directed against the federal state. It exists only where no ground for exclusion applies. The StEG 2005 lists grounds that can exclude compensation in whole or in part. Whether such a ground is relevant should be examined early, because that determines whether and to what extent a claim can realistically be enforced.

Careful documentation of the period of detention is important. What matters are the days from arrest to release, because the daily rate attaches to the number of days of detention. The acquitting judgment or the decision discontinuing the proceedings, together with the evidence of the duration of detention, forms the foundation of the claim.

Before the claim can be brought to court, the request procedure under section 9 StEG must be completed. The injured person requests the federal state, represented by the Finance Procurator, in writing to declare within three months whether the claim is recognised or rejected in whole or in part. This request is the mandatory preliminary stage; without it the lawsuit is not admissible.

If the federal state declares recognition within the three months, the compensation can be settled out of court. If it rejects the claim or fails to declare, the route of a lawsuit is open to the person concerned. The request procedure thus serves to clarify whether a dispute is needed at all and structures the further course.

For the deadline the request procedure has a twofold significance. It not only opens the route to a lawsuit, it also suspends the running limitation period. Those who bring the request in good time secure the deadline and obtain the federal state’s declaration as a basis for the next steps.

The claim is time-limited. It becomes time-barred three years from knowledge of the circumstances giving rise to it, that is from the point at which the acquittal or discontinuation and the loss suffered are known. The request procedure under section 9 StEG suspends the limitation period for as long as it runs. Anyone who lets the deadline pass loses the claim for good, which is why the timely request is the decisive step.

The scope is made up of several items. For detention in the narrower sense a daily rate between 20 and 50 euros per day of detention is due. Alongside this, loss of earnings, that is the earnings lost through the detention, and the necessary defence costs are recoverable. The exact level of the daily rate moves within this range and is to be substantiated in the request procedure.

The connection with crediting under section 38 StGB must be noted. If the detention has already been credited against another penalty, additional compensation for the same detention is excluded. Crediting and compensation exclude one another to that extent; there is no double compensation. This delimitation should be clarified before the claim is quantified.