Tip: What to do if you are arrested?

When a warrant of arrest has already been drawn up, then we speak of an arrest. Otherwise it is known as detention. The police can detain you, when the officer has a strong suspicion that you have committed a crime.

Over and above that there must be a reason for an arrest. Reasons for arrest are risk of absconding, risk of suppression of evidence or risk of a crime being repeated. After all, the detention must be in proportion to the penalty which is to be expected.

In the event of detention the accused must be brought before a judge within a day at the latest. In practice this can take almost 48 hours. The judge then decides whether to issue a warrant of arrest and/or allows the accused to go (refraining from enforcement of arrest).

The judge issues a warrant of arrest when

  • there is a strong suspicion that the accused committed the crime in question. The judge evaluates the evidence gathered by the investigation so far (e.g. witness statements), and assumes that the accused did commit the crime
  • in the view of the judge there is a reason for arrest (risk of absconding, risk of suppression of evidence, or risk of a repeat crime)
  • the warrant of arrest seems reasonable to the judge, and is therefore in proportion to the sentence to be expected.

Even when the judge has issued a warrant of arrest, this does not necessarily mean that the accused will now be held on remand. Consideration may be given to allowing the accused to stay out of prison. This could happen if, in the judge’s opinion, less drastic measures than remand custody (e.g. requirement to register or bail) can remove the reason for the arrest (usually risk of absconding).

In the event of an arrest you can make application for a verbal review of remand in custody. This must occur within two weeks. In this event, the committing magistrate then again decides whether there is a reason for arrest or whether consideration should be given to refraining from enforcement of arrest.

Instead of an application for a verbal review of remand in custody the accused can lodge a so-called complaint against an order for arrest. The warrant of arrest will then be reviewed by the superior court.

In the event of detention/arrest in particular you should inform your defence counsel immediately and say nothing about the matter before consulting a lawyer!