How long can pre-trial detention last? Maximum time limits under section 178 StPO

Section 178 para 1 StPO has four tiers. If pre-trial detention is based solely on the risk of collusion under section 173 para 2 Z 2 StPO, it may last at most two months. Where the charge is a misdemeanour, the maximum duration is six months. Where the charge is a felony, the ceiling is one year. If the charge is a felony carrying a custodial sentence of more than five years, the maximum duration extends to two years. The decisive factor is the most serious charge on which the detention rests.

What to do now: First, examine the exact charge and the detention order to identify the applicable tier. Second, record the start of detention precisely, because the time limit runs from the first day of pre-trial detention. Third, discuss with the defence whether the classification of the offence as a misdemeanour or felony is correct and whether any objection is available.

As the time limit draws near, the need for action intensifies. The periodic detention review under sections 175, 176 StPO takes place in any event, but a timely release application can trigger an earlier hearing and sharpen the focus on the expiry date. Proportionality under section 5 StPO is an independent argument at this stage: even before the time limit has run, detention may already be disproportionate if the investigation has stalled.

What to do now: First, calculate the exact expiry date and factor it into the defence strategy. Second, consider a release application to focus the detention review on the approaching time limit. Third, examine whether proportionality already supports release even before the maximum duration expires.

Section 178 para 2 StPO allows extension beyond six months only where the special difficulty or special scope of investigations makes it unavoidable in relation to the weight of the grounds for detention. The threshold is high: general complexity is not enough; the authorities must set out concretely why the investigation could not yet be concluded. The general maximum duration under section 178 para 1 StPO and proportionality under section 5 StPO remain independent constraints alongside this.

What to do now: First, read the grounds for extension in the detention order carefully and assess whether they are substantiated. Second, develop counter-arguments against the alleged special difficulty or special scope. Third, consider a detention appeal to the higher regional court if the extension reasoning does not meet the statutory threshold.

When the time limit under section 178 StPO runs out without the main hearing having started, pre-trial detention must be lifted and the defendant released. The time limits run until the beginning of the main hearing. If the person released because the time limit expired is re-arrested for the purpose of the main hearing, this is permissible under section 178 StPO for at most a further six weeks at a time. This short period is designed to ensure that the main hearing is conducted without delay.

What to do now: First, use the freedom after release to prepare for the main hearing together with the defence. Second, keep the date of the main hearing in view, because that is where the proceedings will be decided. Third, examine whether compensation for the pre-trial detention suffered may be available under the StEG 2005 if the proceedings are discontinued or an acquittal is obtained.