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vestigate to determine whether charges are to be prefer- of pretrial detention, in which the prisoner, who had been detained for
red. During the investigation the prosecutor gathers all an unreasonably long period, asserted the right to be set free during the
evidence pertaining to the offense, whether incriminating pendency of the trial. 82
or exonerating. In addition to collecting information con- In addition, section 136 (a) of the procedural code (StPO)
cerning the crime, the prosecutor is charged with extend- states that:
ing his investigation to "circumstances which are impor- (1) The freedom of decision and voluntary manifestation of the ac-
tant for the measure for punishment, for the suspension cused's will shall not be impaired by ill treatment, fatigue, bodily inter-
of punishment or probation, and for ordering measures of ference, drugs, torture, deception, or hypnosis. . .. Threats with
prevention and reform." 73 TO complete his investigation, measures not permitted by the procedural provision or promise of an ad-
vantage not provided by the law are prohibited.
the prosecutor may request assistance from all public (2) Measures which impair the memory or the capacity of judgment of
authorities and agencies, as well as the police, to conduct the accused are not permitted. . ..
the necessary inquiries. The agencies and police are re- (3) These prohibitions apply irrespective of the consent of the accused.
quired by law to comply with the request of the prosecutor Statements which were obtained by violation of this prohibition shall not
be used, even if the accused agrees to their use.
for assistance. 74
A-19. Rights of the Accused. a. General. The rights of A-20. Pretrial Confinement. During the investigation, a
the accused are set out in the Code of Criminal Procedure person may be placed in pretrial confinement if he is
in great detail. He is to be interviewed by the prosecutor "strongly suspected of the act" and if the person has fled
prior to termination of the investigation and, if the ac- or is hiding or there is a danger the person would evade
cused requests that evidence be taken for his defense, the prosecution by fleeing; or if the person might destroy,
prosecutor is obligated to secure it if it is considered to be alter, remove, suppress, or falsify evidence, to include im-
of sigmfkance. 75 At the initial interview the accused is to properly influencing co-defendents, witnesses, or experts
be advised of the offense charged, including the applicable (or cause others to do so); or if the person is accused of a
section of the Penal Code. Additionally, he felony involving morality or indecency, he might commit
shall be advised that the law grants him the right to respond to the ac- another offense; or if the person is suspected of a felony
cusation, or not to make any statements regarding the subject matter against life. 83 If the act is punishable only by imprison-
and even prior to his examination to consult with a defense counsel of ment up to six months, pretrial detention is not permissi-
his choice. 76 ble on the grounds of the danger of obscuring evidence,
b. Right to Counsel. The defendant is entitled to have a but only to prevent evasion of prosecution by flight.
defense counsel at any state of the proceeding 77 and in Pretrial detention is imposed by order of a judge who is
certain cases, a defense counsel is maiidatory. 78 Provision also responsible for granting bail which can be furnished
is also made for appointment of defense counsel. 79 In ad- by depositing cash or bonds, by pledging property, or by
dition to the rights provided in the StPO, the Constitution furnishing suitable persons as sureties. If a person is
of the Federal Republic of Germany, (1949) caught in the commission of a crime, anyone is authorized
(Gnmdgesetz) guarantees certain procedural safeguards, to apprehend him temporarily, without a judicial order, if
e.g., exclusive jurisdictions of the judiciary in criminal there is reason to suspect that the person will flee or if his
matters, guarantee of an independent judiciary, prohibi- identity cannot be immediately ascertaned. Also, under
tion of irregular courts, right of the defendant to be heard certain circumstances, police officials or the prosecutors
before a court, prohibition against double jeopardy, and are authorized to temporarily detain a person if a danger
special rights that are applicable to judicial actions which of delay exists. Review of pretrial confinement may be on
may result in deprivation of liberty. 80 In addition to the motion of the accused or in the discretion of the court sua
domestic guarantees provided by the Code of Criminal sponte.
Procedure and the Grundgesetz, Germans (as do other A-21. The Defense Counsel. The defense counsel
persons resident within the territory of a convention sig- has access to the prosecutor's entire fde including the material to be in-
natory) have the legal remedy of applying to the European troduced into evidence upon completion of the preliminary investiga-
Commission of Human Rights in Strassbourg or the tion. The defense counsel may even take the files to his office for study
European Court of Human Rights if they believe that and preparation of his counter-argument. . . . But he does not have to
reveal to the prosecutor the counter-proof which he plans to introduce at
basic or human rights have been violated. 81
the trial other than the names and address of his witnesses and ex-
Many of the decisions of these European organs have concerned cases
perts.84
A-22. Indicting. Once the prosecutor has investigated to
73. SPO 5 160(3).
74. Id. at 5 161(1). the point where he believes that sufficient evidence exists
75. Id. at 5 136. for preferring public charges, he will do so either by mov-
76. Id. at 5 163(a).
77. Id. at 5 137.
78. Id. at 5 140. 82. Jescheck, Principles of German Criminal Procedure in Com-
79. Id. at 5 141. parison with American Law, 56 VA. L. Rev. 239, 242.
: 80. Gnmdgese~,Arts. 92, 97, 101, 103, 104. 83. StPOfj 112.
81. Id. at Art. 48. 84. Jescheck, supra note 82, at 246.