Constitutional requirements regarding the imposition, maintenance and execution of pre-trial detention in Germany

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1 Constitutional requirements regarding the imposition, maintenance and execution of pre-trial detention in Germany Michael Lindemann I. Introduction Among constitutional and human rights, the freedom of the person is of pivotal importance as its exercise besides the guarantee of life and bodily integrity establishes an important condition for the enjoyment of other rights and freedoms. Due to this reason, the German Basic law and the European Convention on Human Rights (ECHR) allow interventions into personal freedom only under certain conditions and, additionally, provide far reaching procedural guarantees for the affected person. 1 Thus, Article 2 paragraph 2 sentence 2 German Basic law declares personal freedom to be inviolable; possible constrictions are defined precisely in Article 2 paragraph 2 sentence 3 and Article 104 paragraph 1 sentence 1 German Basic law and complemented by certain procedural rights in Article 104 paragraphs 2-4 German Basic law for the case of detention. 2 If a deprivation of liberty by pre-trial detention is in question, the affected person can also invoke the presumption of innocence (Article 2 paragraph 1 and Article 20 paragraph 3 German Basic law), whereas for the authorities the public interest in effective law enforcement serves as a potential ground of justification for interfering with the freedom of the person. The attempt to equilibrate these diverging interests as carefully as possible 3 is subject of a number of Senate and Chamber decisions of the Federal Constitutional Court, on which I will focus in the following. 4 Of course, the jurisprudence of the European Court of Human Rights (ECtHR) on Article 5 ECHR has not been without influence on the German law on pre-trial detention. 5 In the following, I will point out some particularities of this influence. However, a comprehensive comparison of German fundamental rights and European human rights guarantees would go beyond the scope of this lecture. 6 II. Provisions of statutory law To ease the understanding of the legal situation in Germany, I will outline briefly the provisions for remand in custody provided by statutory law. 7 According to Section 112 paragraph 1 sentence 1 Code of Criminal Procedure (CCP) pre-trial detention may be ordered against the accused if he is strongly suspected of the offence and if there is a ground for arrest. Furthermore, detention may not be ordered if it is disproportionate to the significance of the case or to the penalty or measure likely to be imposed (Section 112 paragraph 1 sentence 2 CCP). A person is strongly suspected if, according to the actual state of the investigations, there is a high probability that he/she is principal or sec See Dörr, in: Grote/Marauhn (eds.), EMRK/GG Konkordanzkommentar, chapter 13 margin number 1. Dörr, in: Grote/Marauhn (eds.), EMRK/GG Konkordanzkommentar, chapter 13 margin number 10 et seq. Grünwald, in: Strafverteidigervereinigungen (eds.), 20. Strafverteidigertag 1996, p. 63. A thorough presentation of the Federal Constitutional Court s jurisprudence on the law of pre-trial detention can be found at Kazele, Untersuchungshaft Furthermore, see the comments of former Judge Broß, in: Arbeitsgemeinschaft Strafrecht im DAV (eds.), Strafverteidigung im Rechtsstaat 2009, p. 962 et seq. See Kazele, Untersuchungshaft 2008, p. 18 et seq. All German Courts are obliged to take due account of the decisions of the ECtHR; see BVerfGE 111, 307 Görgülü. See again Dörr, in: Grote/Marauhn (eds.), EMRK/GG Konkordanzkommentar, chapter 13 margin number 1 et seq. On the jurisprudence of the ECtHR see also Kühne/Esser, StV 2002, p. 383 et seq. For a more detailed account see Münchhalffen/Gatzweiler, Untersuchungshaft 2009; Schlothauer/Weider, Untersuchungshaft 2010.

2 ondary participant in a criminal act. 8 As grounds for arrest, the law provides for flight or risk of flight (Section 112 paragraph 2 number 1, 2 CCP), risk of tampering with evidence (Section 112 paragraph 2 number 3 CCP), danger of recidivism (Section 112a CCP) and the suspicion of a capital crime (Section 112 paragraph 3 CCP). 9 According to Section 114 CCP, pre-trial detention shall be imposed in a written warrant of arrest, which shall indicate the accused, the offence of which he is strongly suspected, the ground for arrest, as well as the facts on which the strong suspicion of the offence and the ground for arrest are based (unless disclosure would endanger national security). Whereas public prosecution offices and officials in the police force are authorized to make a provisional arrest under certain conditions (Section 127 CCP), pre-trial detention may be imposed by a judge only according to Article 104 paragraph 2 sentence 1 German Basic law. The accused may apply for a review of detention (Section 117 CCP) or lodge a complaint (Sections 304 ff. CCP) and thereby obtain that the judge revokes the arrest warrant or at least suspends its execution, provided, for example that an adequate security deposit is lodged (Section 116 paragraph 1 sentence 2 number 4 CCP). In the event that farther reaching interferences with the accused s rights (for instance, surveillance of visits or a separation from other detainees) become necessary in the process of pre-trial detention, they can be based on Section 119 CCP or state law; remedies against those measures are provided for in Section 119 paragraph 5 and Section 119a paragraph 1 CCP. 10 Considerable practical significance is attached to the provisions of Section 121 paragraph 1 and 2 CCP, which determine that the warrant of arrest shall be revoked if remand detention for one and the same offence exceeds a period of six months and if not either a judgment has been given imposing imprisonment or a measure or the particular difficulty, the unusual extent of the investigation or some other important reason do not yet admit pronouncement of judgment and justify continuation of remand detention. This special review of detention is carried out by the Higher Regional Court (Section 122 CCP), which is not involved in the preliminary investigation and thus supposed to act with greater independence than the magistrates. 11 III. Jurisprudence of the Federal Constitutional Court regarding the imposition and maintenance of pre-trial detention Basic explanations on the constitutional guidelines to be considered with the imposition of pre-trial detention can be found in a decision of the Federal Constitutional Court from The Senate had to decide whether it should be possible to suspend the execution of an arrest warrant even if pretrial detention was grounded solely on the suspicion of a capital crime (Section 112 paragraph 3 CCP resp. Section 112 paragraph 4 of the former version). However, it began with some general considerations, reflecting the fundamental dilemma of imposing imprisonment to a defendant who is presumed to be innocent until proven guilty: See Beulke, Strafprozessrecht 2010, margin number 210. For the requirements in detail see Beulke, Strafprozessrecht 2010, margin number 212 et seq. A critical analysis of the underlying functions of detentions can be found at Weigend, in: Jung, et al. (eds.), FS für Egon Müller 2008, p. 739 et seq. The splitting of legislative competencies goes back to the federalism reform in On the current legal situation see König, NStZ 2010, p. 185 et seq. Kazele, Untersuchungshaft 2008, p. 95 et seq. 2

3 "In the legal institution of pre-trial-detention, the conflicting relationship between the right of the individual to personal freedom guaranteed in Article 2 paragraph 2 and Article 104 German Basic law and the irrefutable needs of effective criminal prosecution are clearly visible. The speedy and just punishment of serious criminal acts in many cases would not be possible if it was forbidden without exception to the police and prosecuting authorities to apprehend the suspected perpetrator before conviction and keep him detained until the court s decision. On the other hand, the total deprivation of personal freedom by confinement in a remand institution is an evil which, in a constitutional state, ought, in principle, only be inflicted on a person who, because of an action lawfully threatened with punishment, has been convicted by a final judgement. To take this measure against a person merely suspected of a criminal act can only be permissible in strictly circumscribed cases. This also follows from the presumption of innocence, which excludes, even in the case of the strongest suspicion against the accused, the imposition of measures in anticipation of punishment which are in effect equal to a prison sentence. Although the presumption of innocence is not expressly laid down in the Basic law, it corresponds to a conviction universally accepted in constitutional states and has also been introduced into the positive law of the Federal Republic by Article 6 paragraph 2 ECHR. A justifiable solution to this conflict of two principles which are equally important for the constitutional state can only be reached if the limitations of freedom, which appear to be necessary and appropriate from the standpoint of prosecution are continually, as a corrective, set against the unconvicted accused s claim to freedom. This means: pre-trial detention must, as to its imposition and execution, be governed by the principle of proportionality. An interference with the personal freedom is only to be accepted if and insofar as on the one hand, justified doubt exists as to the innocence of the suspected person due to strong suspicion on a solid basis; and, on the other hand, the legitimate claim of the state community to see the deed cleared up completely and the perpetrator punished rapidly cannot be otherwise secured than by the provisional taking of the suspected person into custody. In every case, the pursuit of other purposes by pre-trial detention is excluded in principle; in particular it may not anticipate by way of punishment the protection of legal interests which substantive criminal law should provide for. [ ] In the assessment, which is accordingly incumbent upon him, the judge must always keep in mind that the main purpose and the real ground of justification for pre-trial detention is to guarantee the carrying out of orderly criminal proceedings and to ensure the later execution of punishment. If it is no longer necessary for one of these purposes, it is disproportionate and therefore impermissible in principle to order, maintain or execute it." 12 From these broad constitutional guidelines the Senate deduced that the severity of the alleged offence can not by itself justify pre-trial detention. 13 As regards the legitimacy of the suspicion of a capital crime as a ground for arrest, the Senate concluded: "Neither the seriousness of the crime against life nor the seriousness of the (not yet established) guilt justify on their own the arrest of the accused; even less sufficient is consideration of a more or less clearly ascertainable 'excitement of the public' which would consider it unacceptable that a 'murderer' should be moving around freely. Rather, there must always be circumstances at hand, even here, which substantiate the danger that the immediate clearing up and punishment of the deed could be endangered unless the accused is arrested. Suspicion of flight or suppression of evidence not verifiable by 'definite facts', but not in the circumstances in the case to be excluded, can in certain circumstances, suffice." BVerfGE 19, 342 (347 et seq.). The English version of this and the following part of the FCC s reasons is based on the complete translation of the decision presented by Youngs, Sourcebook on German Law 2002, p. 111 et seq., which has been slightly modified for this publication. On the constitutional guidelines worked out by the Federal Constitutional Court see Broß, in: Arbeitsgemeinschaft Strafrecht im DAV (eds.), Strafverteidigung im Rechtsstaat 2009, p. 962 (964 et seq.); Kazele, Untersuchungshaft 2008, p. 14 et seq. Different from this, the ECtHR "accepts that, by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time"; see ECtHR, No /86, Judgement of 26 June 1991 (Letellier vs. France), paragraph 51. BVerfGE 19, 342 (350). 3

4 The Senate also pointed out that the option of suspending a warrant of arrest s execution pursuant to Section 116 CCP forms a specific expression of the constitutionally guaranteed principle of proportionality. The Constitutional Court held that in every case, in which pre-trial detention is imposed to prevent flight, tampering with evidence or recidivism, the judge had to consider whether the purpose of detention could not be achieved by less severe restrictions of personal freedom. If this were the case, he/she would have to suspend the execution of the warrant. In the light of the fundamental importance that is attached to the principle of proportionality in the law of pre-trial detention, suspension of a warrant of arrest should also be available where the arrest was grounded solely on the suspicion of a capital crime. 15 According to the jurisprudence of the Federal Constitutional Court, the principle of proportionality is also of particular importance to the question under which circumstances pre-trial detention may be upheld for a longer period. 16 On the one hand, it should be noted that with increasing duration of the detention the right of freedom of the accused can (and regularly will 17 ) gain weight in relation to the interest in effective law enforcement. 18 On the other hand, the period of detention may not become disproportionate with regard to the prison sentence that is to be expected in the case of a subsequent conviction. Apart from this, the principle of proportionality sets general limits to the duration of pre-trial detention regardless of the expected sentence. This touches upon the right to a speedy trial, which is also enshrined in the constitution and forces prosecution and judicial authorities to take all possible and reasonable steps to ensure that necessary investigations are completed as quickly as possible and to bring about a judgement on the alleged offences. 19 Insufficient personnel and material resources do not provide a justification for delay in this context. 20 If the proceedings are significantly delayed due to avoidable errors of the judiciary, continuation of pre-trial detention may not be ordered. 21 An expression of the principle of advancement in statutory law can also be found in the earlier mentioned provision of Section 121 paragraph 1 CCP, according to which pretrial detention exceeding a period of six months shall remain the exception and requires additional justification. In the view of the Federal Constitutional Court, the exemptions allowed by this provision must be interpreted and applied restrictively. 22 In view of this, the Federal Constitutional Court has repeatedly overruled orders of the Higher Regional Courts with regard to the continuation of pre-trial detention because they did not comply with these strict requirements. 23 A review of these decisions shows that the principle of advancement unfolds significance at all stages of the criminal procedure. For example, it requires prompt scheduling when the case is committed for trial and a BVerfGE 19, 342 (351 et seq.). See BVerfGE 20, 45 (49); 20, 144 (148). BVerfGE 53, 152 (158 et seq.); BVerfG, Decision of 7 August 1998, reg. no. 2 BvR 962/98, NStZ-RR 1999, 12 (13). BVerfGE 36, 264 (270). See BVerfGE 20, 45 (49 et seq.); 20, 144 (148 et seq.); 36, 264 (273); BVerfG, Decision of 24 August 2010, reg. no. 2 BvR 1113/10, StV 2011, 31 (33). BVerfGE 36, 264 (275). BVerfG, Decision of 27 August 2003, reg. no. 2 BvR 1324/03, BVerfGK 1, 340 (343). See BVerfGE 20, 45 (50); 36, 264 (271); BVerfG, Decision of 7 August 1998, reg. no. 2 BvR 962/98, NStZ-RR 1999, 12 (13). For an overview sorted by categories, see Kazele, Untersuchungshaft 2008, p. 75 et seq. 4

5 careful preparation of the trial, including an effective summons of witnesses and experts; 24 furthermore rapid drafting of the reasons for the decision 25 and organizational measures in order to prevent delays in the sphere of the administration of the court. 26 The guidelines developed by the Federal Constitutional Court also apply for warrants of arrest, the execution of which is suspended by a decision pursuant to Section 116 CCP. 27 Whereas according to the case law of the ECtHR deprivations of liberty as associated with pre-trial detention can be based on a law in the material sense, 28 German Basic law requires a formal law for all restrictions on personal freedom (Article 2 paragraph 2 sentence 3, Article 104 paragraph 1 sentence 1 German Basic law). Unanimously, a deprivation of liberty can be justified only if it is carried out "in accordance with a procedure prescribed by law" (Article 5 paragraph 1 sentence 2 ECHR) resp. "in compliance with the procedures prescribed" in the (formal) law (Article 104 paragraph 1 sentence 1 German Basic law). 29 On the issue of competence to order restrictions of freedom the requirements of German Basic law again go beyond the text of the ECHR: According to Article 104 paragraph 2 German Basic law only a judge may rule upon the permissibility or continuation of any deprivation of liberty. Any person provisionally detained on suspicion of having committed a criminal offence shall be brought before a judge no later than the day following his arrest; the judge shall inform the person of the reasons for the arrest, examine him, and give him an opportunity to raise objections. The judge shall, without delay, either issue a written arrest warrant setting forth the reasons therefore or order his release (Article 104 paragraph 3 sentence 1 and 2 German Basic law). In contrast, Article 5 paragraph 3 sentence 1 ECHR allows that persons arrested or detained in accordance with the provisions of paragraph 1 lit. c of the Article are brought before an "other officer authorised by law to exercise judicial power". However, according to the jurisprudence of the ECtHR, the officer must meet certain requirements, inter alia, regarding its independence from the executive and from the parties involved in the criminal proceedings. 30 In addition, recent judgements indicate that the Court requires a judicial decision within the scope of Article 5 paragraph 1 ECHR. 31 Finally, Article 4 paragraph 4 ECHR stipulates that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and that his release be ordered if the detention is not lawful BVerfG, Decision of 5 December 2005, reg. no. 2 BvR 1964/05, NJW 2006, 672 (674 ff.) with a comment by Jahn, NJW 2006, 652 Cf. BVerfG, Decision of 29 December 2005, reg. no. 2 BvR 2057/05, StV 2006, 81 (85). Cf. BVerfG, Decision of 16 March BvR 170/06, NJW 2006, 1336 (1339). BVerfGE 53, 152 (159 f.); see also Broß, in: Arbeitsgemeinschaft Strafrecht im DAV (eds.), Strafverteidigung im Rechtsstaat 2009, p. 962 (968). References at Dörr, in: Grote/Marauhn (eds.), EMRK/GG Konkordanzkommentar, chapter 13 margin number 133. See Dörr, in: Grote/Marauhn (eds.), EMRK/GG Konkordanzkommentar, chapter 13 margin number 140 et seq. Cf. Dörr, in: Grote/Marauhn (eds.), EMRK/GG Konkordanzkommentar, chapter 13 margin number 49; Kazele, Untersuchungshaft 2008, p. 24 et seq. Cf. EGMR, No /95, Judgement 28 March 2000 (Baranowski vs. Poland), paragraph 57; see also Dörr, in: Grote/Marauhn (eds.), EMRK/GG Konkordanzkommentar, chapter 13 margin number 214; Kühne/Esser, StV 2002, 383 (385). 5

6 Beyond the procedural safeguards mentioned above, the Federal Constitutional Court derives certain requirements regarding organisation and proceedings directly from the liberty basic right. 32 For example, the "wertsetzende Bedeutung" of the fundamental right of personal freedom (Article 2 paragraph 2 sentence 2 and 3, Article 104 German Basic law) results in a duty to arrange the examination of the detention in a way that prevents a devaluation of the basic right. The interference with the personal freedom has to be compensated by means of procedural safeguards, especially by placing high demands on the "Begründungstiefe" of decisions upholding pre-trial detention. Courts entrusted with matters of detention have to consider carefully the requirements for the continuation of remand in custody and give detailed reasons for their decision. 33 As a general rule, there have to be comments on the requirements imposed by Section 121 CCP, of the weighing to the respective individual and public interests and of the proportionality of further detention. Courts will have to take into account the expected duration of the proceedings, the presumed prison sentence in the event of a conviction, its hypothetical end and delays in the proceedings. The obligation to give conclusive and comprehensive reasons for a decision is meant to provide the accused with the information needed to establish its lawfulness, but shall also encourage the court s self-monitoring. 34 Therefore, the mere reference to a previous decision is just as unacceptable as the use of stereotyped phrases or a plain reproduction of the wording of the law. 35 Furthermore, the Federal Constitutional Court has ruled that the right of the detained suspect to a fair trial in compliance with the rule of law and his right to be heard imply the right of his defence counsel to inspection of the files, as far as the information contained is needed to influence the court s decision on continuation of remand detention and oral information on the facts the court wishes to base its decision on is not sufficient. 36 According to the jurisprudence of the ECtHR, the detained suspect is entitled to access the information essential for assessing the legality of his detention. 37 In implementing the above-mentioned case law, Section 147 paragraph 2 sentence 2 CCP now requires that the necessary information is made accessible to the detained suspect s defence counsel, and that this is usually done by granting inspection of the files. 38 IV. Jurisprudence of the Federal Constitutional Court regarding the execution of pre-trial detention Not only the imposition and maintenance of pre-trial detention but also its execution has been subject to a large number of decisions by the Federal Constitutional Court. Recent judgements cover Cf. Broß, in: Arbeitsgemeinschaft Strafrecht im DAV (eds.), Strafverteidigung im Rechtsstaat 2009, p. 962 (966 et seq.); Dörr, in: Grote/Marauhn (eds.), EMRK/GG Konkordanzkommentar, chapter. 13 margin number 20 et seq. Last affirmed by BVerfG, Decision of 24 August 2010, reg. no. 2 BvR 1113/10, StV 2011, 31 (33). Cf. BVerfG, Decision of 4. April 2006, reg. no. 2 BvR 523/06, BVerfGK 8, 1 (5); Decision of 11 June 2008, reg. no. 2 BvR 806/08, StV 2008, 421 (422). Cf. BVerfG, Decision of 7 August 1998, reg. no. 2 BvR 962/98, NStZ-RR 1999, 12 (13); Decision of 16 March 2006, reg. no. 2 BvR 170/06, NJW 2006, 1336 (1338); see also Kazele, Untersuchungshaft 2008, p. 96 et seq. Cf. BVerfG, Decision of 11. July 1994, reg. no. 2 BvR 777/94, NStZ 1994, 551; affirmed by BVerfG, Decision of 27 October 1997, reg. no. 2 BvR 1769/97, NStZ-RR 1998, 108; Kazele, Untersuchungshaft 2008, p. 53 et seq. See EGMR, No /03, Judgement of 13 December 2007 (Mooren vs. Germany), paragraph 92 et seq. with further references; see also Judgement of the Great Chamber of 9 July 2009, paragraph 121 et seq. See Michalke, NJW 2010, 17 (18). 6

7 topics such as minimum visiting hours for family members (especially when they are infants), 39 the protection of confidential correspondence 40 or the authority to order urine controls for the detection of drug abuse. 41 Due to the presumption of innocence, the constitutional guidelines developed for the execution of general prison sentences cannot be applied to the case of pre-trial detention; instead, the detained suspect s interests deserve particular protection. During the implementation of pre-trial detention, special importance is attached to the principle of proportionality. 42 Hence, restrictions on the rights of the detainee are admissible only if they are necessary to avert a real threat to the purpose of remand detention or to the order in the prison and if, in addition, this aim cannot be achieved by less intrusive means. 43 The imposition of a restriction is not yet permissible if a possible misuse of the right to freedom cannot be entirely ruled out; instead, there have to be concrete indications of an endangerment of the above-mentioned public interests. 44 V. Conclusion In conclusion, both the jurisprudence of the Federal Constitutional Court and of the ECtHR provide a high level of protection for the detained suspect s legal status. If one recalls that remand in custody deprives a person of his freedom, who is presumed to be innocent by law, 45 the caution with which both courts are searching for the best possible balance between individual rights and public interests is to be praised. However, the radiance of the guidelines established at the German and at the European level cannot hide the fact that the reality of pre-trial detention in Germany still all too often falls short of the constitutional requirements. For instance, there are reports on so called "apocryphal grounds for arrest": This means considerations like the hope for a quick confession of the accused under the impact of prison conditions or the fear of public indignation in the event of his release, which are the true reasons underlying the arrest warrant but remain unnamed and hide behind the grounds for arrest provided by the law. 46 Effective action of the defence counsel against such hidden reasons is made difficult by the considerable margin of discretion Sections 112 ff. CCP leave to the judges in assessing the suspicion and the grounds for arrest. Moreover, the considerable amount of successful constitutional complaints against decisions of Higher Regional Courts prolonging detention indicates that the constitutional requirements for the imposition and maintenance of pre-trial detention are not always given due attention in everyday practice. 47 In fact, the materialization of the principles of the rule of law is highly dependent on the ethos of the single judge de BVerfG, Decision of 23 October 2006, reg. no. 2 BvR 1797/06, StV 2008, 30. BVerfG, Decision of 23 November 2006, reg. no. 1 BvR 285/06, BVerfGK 9, 442. BVerfG, Decision of 6 November 2007, reg. no. 2 BvR 1136/07, NStZ 2008, 292 (293). For a summary of the decisions see Lübbe-Wolff/Lindemann, NStZ 2007, 450 (460 et seq.); Lübbe-Wolff/Frotz, NStZ 2009, 677 (685). BVerfG, Decision of 4 February 2009, reg. no. 2 BvR 455/08, EuGRZ 2009, 159. Cf. BVerfGE 35, 5 (9 et seq.); 35, 311 (321). Cf. BVerfGE 35, 5 (10); 42, 234 (236); 57, 170 (177); BVerfG, Decision of 20 June 1996, reg. no. 2 BvR 634/96, StV 1997, S. 257 (258); Decision of 6 November 2007, reg. no. 2 BvR 1136/07, NStZ 2008, 292 (293). Cf. Hassemer, StV 1984, 38 (40): Untersuchungshaft ist Freiheitsberaubung gegenüber einem Unschuldigen. Cf. Schlothauer/Weider, Untersuchungshaft 2010, margin number 661 et seq.; see also Dahs, in: Hanack, et al. (eds.), FS für Hans Dünnebier 1982, p. 227 et seq.; Hamm, in: Hassemer, et al. (eds.), FS für Klaus Volk 2009, p. 193 et seq.; Hassemer, StV 1984, 38 (39); Münchhalffen/Gatzweiler, Untersuchungshaft 2009, margin number 248 et seq. See Broß, in: Arbeitsgemeinschaft Strafrecht im DAV (eds.), Strafverteidigung im Rechtsstaat 2009, p Widespread disregard for the requirements formulated by the Federal Constitutional Court and demanded by statutory law is stated by Münchhalffen/Gatzweiler, Untersuchungshaft 2009, margin number 8. 7

8 ciding on the individual suspect s complaints. He should be well aware that pre-trial detention is the most massive state intervention into the life of the accused and therefore should only be used as a last resort Cf. Münchhalffen/Gatzweiler, Untersuchungshaft 2009, margin number 9. 8

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