Detention review and detention appeal: difference and procedure in pre-trial detention

The detention review is the recurring check of whether pre-trial detention may continue. It takes place at the regional court and is decided by the detention and legal protection judge. Under sections 175, 176 StPO it runs at fixed intervals: the first detention review usually after fourteen days, then after one month and thereafter every two months. It is examined whether the urgent suspicion, a ground for detention and proportionality still exist. In addition, a release application can trigger a review hearing at any time.

What to do now: First, keep the next detention review date in view and prepare the defence for it in good time. Second, check whether more lenient measures can achieve the purpose of detention just as well, because proportionality is the most common point of leverage. Third, consider whether a release application should bring about an earlier hearing instead of waiting for the next date.

The detention appeal is the remedy against a concrete detention decision, such as the imposition or continuation of pre-trial detention. Under sections 87, 88 StPO it is decided by the higher regional court in a panel of three judges under section 33 StPO. The procedure is written; there is no oral hearing before the higher regional court. The appeal is filed at the court of first instance, that is the regional court that imposed detention, not directly at the higher regional court. It is examined whether the order holds up on suspicion, ground for detention and proportionality.

What to do now: First, examine the written copy of the detention order closely, because the deadline runs from its service. Second, align the grounds of appeal cleanly with sections 173 StPO and 5 StPO, that is with the urgent suspicion, the ground for detention and proportionality. Third, file the appeal at the regional court within the deadline.

For the detention appeal the deadline is decisive. On the initial imposition of pre-trial detention, section 88 para 1 StPO gives fourteen days from service of the written copy of the order. For later continuation orders, section 176 para 5 StPO applies: if the order is pronounced orally in the detention review hearing, the appeal must be filed within three days from pronouncement. If you miss these deadlines, this route against the concrete order is closed. The detention review itself, by contrast, is bound by no such deadline; it runs periodically of the court’s own motion.

What to do now: First, record exactly the moment of service or oral pronouncement, because it determines when the deadline begins. Second, for a continuation order pronounced in the hearing observe the short three-day deadline and file the appeal at once. Third, in case of doubt get legal help immediately so that no deadline is lost.

The two routes pursue different aims and can be combined. The detention appeal challenges a particular order and leads to review by the higher regional court; it is bound by a deadline. The detention review checks the continuation of detention continuously and can be triggered at any time by a release application. Anyone who wants to act against the current order uses the appeal; anyone relying on a changed situation or new arguments often uses the detention review. In many cases a combination makes sense: the appeal against the order within the deadline and, in parallel, preparation of the next detention review.

What to do now: First, secure the appeal deadlines, because they lapse first. Second, examine whether new facts or more lenient measures support the detention review. Third, coordinate the steps with the defence so that appeal and detention review complement rather than hinder one another.