Visits, letters and telephone calls in pre-trial detention: rights under section 188 StPO

Under section 188 StPO an accused person in pre-trial detention has a right to visits at least twice a week, each lasting at least half an hour. Within the visiting hours set by the institution, additional visits are possible as often as the institution's operations allow. The visiting right extends to relatives and other trusted persons. The institution may regulate visits organisationally but may not reduce them below the statutory minimum.

What to do now: First, find out the current visiting hours of the competent institution and arrange an appointment in good time. Second, clarify whether the institution requires a visitor's pass or advance registration. Third, if a visit is refused or reduced below the minimum, seek legal help without delay.

Under section 188 StPO correspondence and telephone calls are in principle permitted, at the accused person's own expense. A restriction is only possible if the volume is exceptional and thereby impairs surveillance, and even then only to the extent necessary for surveillance. Letters to domestic legislative bodies, courts, authorities, EU institutions and the European Court of Human Rights are specially protected and may not be withheld. Contact with defence counsel is additionally protected by section 59 para 3 StPO.

What to do now: First, always identify letters to courts or authorities as such so that they are treated as protected correspondence. Second, find out the institution's facilities for letters and telephone calls and prepare accordingly. Third, if letters are wrongfully withheld or contact is restricted too far, inform defence counsel immediately.

Under section 188 StPO the content of conversations during visits may be monitored only to the extent that the public prosecutor orders this to safeguard the purpose of detention, or the institution considers it necessary for security reasons. Blanket surveillance without a specific reason is not permitted. The same principle applies to correspondence and telephone calls: restrictions are only lawful to the extent actually necessary. Contact with defence counsel under section 59 para 3 StPO is exempt from surveillance.

What to do now: First, check whether a formal order by the public prosecutor exists and on which purpose of detention it is based. Second, assess whether the surveillance measure exceeds what is permitted under section 188 StPO. Third, if surveillance is disproportionate, inform defence counsel and consider legal steps.

If visits are refused or reduced below the minimum required by section 188 StPO, or if correspondence is wrongfully withheld, legal protection is available. The detention and legal protection judge at the regional court is competent to review the lawfulness of such restrictions. Complaints against measures taken by the institution follow the general legal protection provisions of the StPO. The applicable standard is always proportionality under section 5 StPO and the specific purpose of detention.

What to do now: First, document the restriction in writing and record when it began and to what extent it applies. Second, inform defence counsel without delay so that the measure can be assessed and a complaint filed if appropriate. Third, find out whether the restriction is based on a formal public prosecutor's order or was imposed unilaterally by the institution.