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Pre-trial detention

Rebutting reoffending risk in pre-trial detention

Reoffending risk under section 173 para 2 no 3 StPO: how therapy, social stabilisation, probation supervision and appeal rebut the ground for detention.

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30 June 2026 · Mag. Christopher Angerer, Rechtsanwalt

Reoffending risk is a detention ground that particularly arises where there is a relevant criminal history, addiction or an unstable social situation. Under section 173 para 2 no 3 StPO the fear must be grounded in specific facts. Mere prior conviction suspicion is not enough. The defence must specifically rebut the causes of the feared offence.

This post shows how that works in practice. Starting therapy, social stabilisation and probation supervision remove the factual basis of the detention ground. Instead of detention section 173 para 5 StPO provides a package of measures as a less restrictive measure. The order can be challenged at the Higher Regional Court.

Which step fits your situation?

Start therapy, stabilise socially, accept probation or appeal, what do you need?

Reoffending risk under section 173 para 2 no 3 StPO is based on specific facts suggesting the accused might commit a further offence. Therapy, social stabilisation and conditions can rebut the ground. Choose what concerns you most.

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01 Question 1

What is at the centre of your case?

Reoffending risk can be rebutted where the causes of the feared offence are specifically addressed. Choose the angle that holds in your case.

All paths at a glance

Overview of all answers.

01

Starting addiction treatment or psychiatric therapy concretely shows the court that the causes of the feared offence are being addressed.

Reoffending risk under section 173 para 2 no 3 StPO can be grounded in addiction or mental disorder. Someone who starts therapy or enrolls in an in- or outpatient detoxification programme removes the factual basis of the detention ground. The court can assess this as a sufficient countermeasure.

What to do now: First, present a concrete therapy placement or admission confirmation for a detoxification programme. Second, document that therapy can begin before or immediately after release. Third, show in the release motion that therapy specifically removes the opportunity for the feared offence.

In depth: pre-trial detention at a glance →
02

Stable employment, secure housing and a functioning social network can substantially reduce reoffending risk.

Reoffending risk is often rooted in the absence of social stability. Secure employment, stable housing and a functioning social environment remove the conditions under which a new offence might be feared. The defence must evidence these factors concretely.

What to do now: First, present an employment contract, job offer or evidence of ongoing employment. Second, produce a tenancy or ownership record for housing. Third, document social support through family, acquaintances or counselling services available after release.

In depth: less restrictive measures →
03

Probation supervision and concrete conditions show the court that reoffending risk is manageable without detention.

Under section 173 para 5 StPO pre-trial detention is to be avoided where the purpose can be achieved by a less restrictive measure. For reoffending risk probation supervision, regular reporting duties and further conditions that structurally reduce the risk of relapse are particularly suitable.

What to do now: First, make concrete contact with a probation officer or probation service and present a supervision commitment. Second, offer a regular reporting duty at a police station. Third, offer further conditions tailored to the specific cause of the reoffending risk.

In depth: grounds for pre-trial detention →
04

A detention order based on reoffending risk can be appealed to the Higher Regional Court within three days.

The decision imposing or continuing pre-trial detention on grounds of reoffending risk can be appealed to the competent Higher Regional Court within three days of service. In parallel a reasoned release motion can be filed at any time where new circumstances exist.

What to do now: First, secure the three-day appeal deadline and check whether the order cites specific facts on reoffending risk. Second, in parallel file a release motion with a package of therapy, social stabilisation and conditions. Third, by the next detention hearing present fresh evidence on the start of therapy and the social situation.

In depth: detention appeal →

The ground of reoffending risk under section 173 para 2 no 3 StPO

Under section 173 para 2 no 3 StPO pre-trial detention is admissible where, on the basis of specific facts, it must be feared that the accused will commit a criminal act constituting a serious violation of the legal interests of another person. Specific facts from the life history, social situation or prior record of the accused are decisive.

Prior convictions can be an indicator but do not alone carry the detention ground. What matters is whether concrete conditions exist that make a further offence likely: an untreated addiction, lack of housing or an unstable social environment. Where these factors are absent or specifically eliminated, reoffending risk loses its foundation.

With every day in pre-trial detention the pressure to reassess the detention ground grows. Where the social situation changes, therapy starts or a care institution becomes available, the starting point for assessing reoffending risk changes materially.

Defence strategy: remove the causes and offer a less restrictive measure

The most effective strategy against reoffending risk is to specifically address the actual causes of the feared offence. Someone who starts addiction treatment, demonstrates stable housing and employment and accepts probation supervision shows the court that the risk is manageable.

The offer to the court must be concrete and evidenced: a confirmed therapy placement, a signed tenancy agreement, a written supervision commitment from the probation service. Abstract declarations of intent seldom convince. Concrete commitments and documents are the foundation of every successful release motion.

Less restrictive measures under section 173 para 5 StPO can be combined: reporting duty, residence requirement, therapy obligation and probation supervision can together form a package showing the court that reoffending risk is sufficiently contained without detention.

Reoffending risk at a glance

Facts, counterarguments and less restrictive measures

The defence against reoffending risk works along the causes of the feared offence. The overview places typical court facts and the corresponding defence building blocks side by side.

Building blocks of a defence against reoffending risk under section 173 para 2 no 3 StPO
Axis Court's assumed fact Defence building block
Addiction Untreated dependency as cause of relapse Therapy commitment or admission confirmation Therapy obligation as less restrictive measure
Housing No secure housing, unstable situation Present tenancy or ownership record Residence requirement or reporting duty
Employment No employment, no income Employment contract, job offer, training place Employment condition and reporting duty
Social network Isolated environment, no support Family ties, counselling services Probation supervision as less restrictive measure
Prior record Relevant prior convictions or offences Offence-free period, changed circumstances Package of conditions and supervision

Under section 173 para 2 no 3 StPO specific facts must carry the fear; prior convictions alone do not establish reoffending risk.

Frequently asked questions

What people often ask about rebutting reoffending risk.

Are prior convictions alone enough for reoffending risk? +

No. Under section 173 para 2 no 3 StPO specific facts must support the fear that a new offence is imminent. Prior convictions can be an indicator but do not alone establish reoffending risk. Changed circumstances can argue against it.

Does a therapy placement really help with release? +

Yes, if the connection between addiction and the feared offence is credibly explained. A concrete confirmed therapy placement is considerably more convincing than a mere declaration of intent.

What counts as a less restrictive measure for reoffending risk? +

Under section 173 para 5 StPO reporting duty, residence requirement, therapy obligation and probation supervision are available. A combination of several measures is possible and often more convincing than a single one.

What to do if there is no employment or housing available? +

The defence should proactively seek offers: non-profit housing providers, counselling centres and social services can issue concrete commitments for accommodation or employment to be presented to the court.

How is the detention appeal argued for reoffending risk? +

The appeal must specifically identify the facts cited in the order and show why they are insufficient or rebutted by new circumstances. A simultaneously filed package of measures strengthens the prospects of success.

In depth

Further topics on pre-trial detention

Pre-trial detention at a glance

The focus page on grounds, deadlines and legal protection.

Less restrictive measures

Which conditions can replace detention in the individual case.

Detention appeal

How to attack the order at the Higher Regional Court.

Grounds for pre-trial detention

Which grounds the law names and what matters.

Topics
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