How to challenge the lawfulness of arrest and ask for compensation?
Right to complain
The grounds and procedures for arrest in cases of criminal suspicion are explained in this Guide. There could be situations where the police did not follow these grounds and procedures. In such situations you have the right to complain about the police behaviour.
What can you claim?
Since the period of arrest can only be a maximum of 48 hours, it is not feasible to complain about the unlawfulness of the arrest in order to get released. However, you may request compensation for being arrested unlawfully. In most cases, in order to receive compensation, you should complain about the unlawfulness of the arrest after you have been released or detained on remand.
You can complain about the lawfulness of your arrest to the prosecutor in charge of the investigation. The complaint can only be submitted while the pre-trial investigation is ongoing. If you are not content with the prosecutor’s decision, you can appeal it to the superior prosecutor. The superior prosecutor’s decision can then in turn be appealed to the investigative judge. The investigative judge’s decision is final and cannot be appealed further.
Situations
Depending on whether you have complained about the lawfulness of your arrest and whether the complaint was successful, the following two situations may occur:
- The prosecutor (or the investigative judge) decides that the arrest was unlawful. In such a case you can either receive compensation without further procedures under a special law, or you can apply to a court of general jurisdiction for compensation for an unlawful arrest.
- You have complained about the lawfulness of your arrest but the final decision was not favourable to you or you did not complain about your arrest. In such a situation if you believe that the arrest has violated your rights nonetheless, you can apply for compensation to a court of general jurisdiction.
note Under such circumstances it is often better to apply to the court after the criminal case against you is over, as the court deciding on the lawfulness of your arrest will most likely be taking the outcome of your criminal case into account and may halt the proceedings until that case is finished. However, the claim for compensation must be submitted within three years of the arrest.