Differences between imprisonment and pre-trial detention

At first glance, it is difficult to tell whether a prisoner is being held in pre-trial custody from a prison. In both cases, the person concerned spends 24 hours a day behind bars, isolated from the outside world and without the possibility of being able to move freely. The prisoners’ relatives have the opportunity to write letters and use the few visiting hours to cultivate contacts.

Nevertheless, criminal detention and pre-trial detention have different purposes. There are considerable differences in detail.

pre-trial detention

1. Imprisonment

A person who has been convicted by a court of law for committing a criminal offence is in criminal custody. The serving of the custodial sentence serves to enforce the sentence and is intended to rehabilitate the perpetrator. Criminal custody is carried out in “Justizvollzugsanstalten” (JVA).

There are separate departments and institutions for women, for violent offenders, for day-release and in some cases also for older prisoners. The length of time spent in the prison is limited to the term of imprisonment recognized in the sentence. Some convicts, in particular those who are being detained for the first time (so-called first-time serving), may leave the institution on parole after two-thirds of the prison sentence to be served by a court order.

2. Pre-trial detention

Those in custody in pre-trial detention have not yet been convicted.

Pretrial detention is ordered during the investigation procedure if the person concerned is urgently suspected of committing a criminal offence and there is also a reason for arrest. The reasons for arrest include flight, the risk of escape, the danger of collusions and the seriousness of the crime. Pretrial detention serves to ensure the conduct of criminal proceedings and the subsequent execution of sentences. Pre-trial detention is carried out in own detention facilities or in separate departments of prisons.

Pretrial detention is not an anticipated punishment. The presumption of innocence applies. The investigation procedure must be speeded up. After six months at the latest, the Higher Regional Court examines whether the pre-trial detention was legally ordered and whether its duration can still be justified.

3. Life in prison

When the prisoner is taken into custody, a comprehensive medical examination of the prisoner is carried out and the personality and living conditions of the prisoner are investigated. The treatment in prison is coordinated with the prisoner and recorded in the prison plan.

However, the initial examination in custody is limited to a medical examination. Pre-trial detention is not permanent and is not designed to rehabilitate the prisoner, which is why it is not necessary to draw up an enforcement plan.

Life in prison is similar in some areas: Health care and the practice of religion must be made possible for all prisoners, as must intercourse with relatives.

Prison leave is not possible for remand prisoners. The prisoner on remand normally wears his own clothes and can use his own bed linen; the convicted prisoner, on the other hand, has to wear institutional clothing in most federal states.

All prisoners are allowed to receive radio and television in their free time. On weekdays, prisoners are generally obliged to work if this is not contrary to the prisoner’s abilities and physical condition. Young prisoners in remand can also be called upon to work at the prison for educational reasons up to the age of 21. Other detainees, however, are not obliged to work, but can voluntarily take up work in the correctional facility upon application.

4. Defender’s mail

Special restrictions on postal traffic may be imposed during pre-trial detention. Correspondence is supervised by the court or the public prosecutor’s office, visits are only permitted with the written consent of the judge or the public prosecutor’s office.

Only with the lawyer as a criminal defender may be corresponded via the so-called defender mail without surveillance. However, the defender’s mail may not be used to “smuggle” letters to other persons (relatives, co-defendants, etc.).

5. Release from custody

In most cases, the date for release from prison is specified in the enforcement plan from the outset. Changes may occur if further sentences are subsequently enforced or if the prisoner can be released prematurely. The prison laws of the federal states provide for some relaxation of the law enforcement regulations, which serve to prepare for dismissal. In order to promote reintegration after release, special leave may be granted so that the prisoner has the opportunity to look after housing and work. In the case of suitable prisoners, transfer to open detention may also be considered in advance.

Release from pre-trial custody is often unpredictable. The arrest warrant may be revoked or suspended at any time if there is no urgent suspicion or reason for arrest; the person concerned must be released immediately in this case. In some cases, the person concerned will also be transferred directly from pre-trial custody to criminal custody if a final judgment has ordered the serving of a custodial sentence.