Definition and general meaning of detention under the law
Das Detention is a legally relevant term that arises particularly in connection with the restriction of a person’s freedom of movement. It is used in criminal law, police law, civil law, as well as in public law, and describes the forced or voluntary remaining of a person in a specific place, either against or without their express will. Detention may be carried out by natural persons or state authorities and is always subject to specific legal requirements.
Detention in criminal law
Provisional arrest by private individuals (§ 127 Section 1 of the Code of Criminal Procedure)
In criminal procedure law, detention particularly refers to the option to provisionally detain a person who is caught or pursued during the commission of an offence. According to Section 127(1) of the Code of Criminal Procedure (StPO) any person is authorized to detain such an individual until the police arrive, provided there is a risk of flight or the perpetrator’s identity cannot be immediately determined. However, such detention is only permissible if the requirements of the regulation are met and may not exceed what is necessary to secure the situation.
Justification and limits
Detention as a preliminary deprivation of liberty must always be proportionate. Excessive use of force or disproportionate duration is impermissible. The applicable self-defense and emergency aid provisions (§§ 32, 34 StGB) and the principle of justification also apply.
Police measures for detention
In addition to private individuals, the police and public order authorities are especially authorized to detain individuals, for example following an arrest warrant or to prevent a threat. The State security provisions of the state police acts regulate the principles of police detention. The police may detain a person in certain circumstances for identification purposes, to avert danger, or to enforce an arrest warrant.
Detention under police law
Identification and custody
According to state police laws, detention is permitted for establishing identity (§ 163b StPO, § 12 PolG NRW), to avert danger or to enforce a dispersal order or search. Detention is considered a temporary restriction of liberty and may only last as long as necessary to fulfill the police purpose. If the deprivation of liberty lasts longer, judicial approval must be obtained (judicial reservation, Art. 104 GG).
Temporary custody
For prolonged detention (custody), a judicial decision is required, unless there is imminent danger. The affected person must be brought before a judge at the latest by the end of the following day. This constitutes a controlled restriction of fundamental rights, in particular the fundamental right to personal freedom (Art. 2 Sec. 2 Sentence 2, Art. 104 GG).
Detention in civil law
Self-help measure under § 229 BGB
Civil law mainly regulates detention in the context of self-help (§ 229 BGB). According to this, a person may provisionally detain another if, for example, the latter is attempting to evade an unlawful act and immediate state assistance is not available in time. The precondition is always the impossibility of prompt official help, as well as the principle of proportionality.
Possessory defense and recovery (§ 859 BGB)
Detention is also found within the context of possessory defense and recovery under § 859 BGB If the possessor is disturbed by unlawful interference or deprived of possession, he is temporarily entitled to self-help, for example by detaining the offender until the police arrive.
Distinction between detention and other legal terms
Difference from deprivation and restriction of liberty
Detention must be distinguished from full deprivation of liberty, such as imprisonment or confinement in a closed institution. While detention generally occurs on a short-term basis and pursues a concrete, legitimate purpose, deprivation of liberty is much more intrusive and requires stricter legal prerequisites and comprehensive legal protection.
Physical force and detention
Detention as an actual physical intervention is a form of physical force within the meaning of § 240 StGB (coercion). Even simply forcing someone to remain in a particular place meets this requirement. Unlawful detention can constitute criminal deprivation of liberty (§ 239 StGB) or give rise to civil claims for damages.
Constitutional aspects
Protection of freedom of movement
Detention affects the Basic Law especially with regard to the right to personal liberty (Art. 2 Sec. 2 Sentence 2 GG). Interventions are only permitted where there is an explicit legal basis, must adhere to the principle of proportionality, and are subject to judicial review. The legislator is required to provide adequate legal and factual safeguards against abuse.
Judicial reservation
Once detention exceeds a short-term measure, Art. 104 GG mandates presentation to a judge. Otherwise, the measure is unlawful.
Legal remedies against unlawful detention
Persons unlawfully detained have various legal remedies available to them. These include:
- Complaint under police law
- Application for a declaration of unlawfulness of the measure
- Compensation claims under § 839 BGB in conjunction with Art. 34 GG in cases of official misconduct
- Criminal complaint for deprivation of liberty (§ 239 StGB)
Summary
Detention is a clearly defined term under German law, which has various meanings and legal consequences in different areas of law. By law, detention always requires a legal basis, must be proportionate, and is generally subject to judicial review. Any form of restriction of freedom of movement constitutes an interference with constitutionally protected legal positions and is therefore only permissible within narrow legal limits. Unlawful detention can be pursued under both criminal and civil law.
Literature and additional regulations
- Criminal Code (StGB)
- Code of Criminal Procedure (StPO), in particular § 127 StPO
- Civil Code (BGB), in particular §§ 229, 859 BGB
- State police laws
- Basic Law for the Federal Republic of Germany (Art. 2, Art. 104 GG)
The precise application of the term detention always depends on the circumstances of the individual case and the relevant area of law.
Frequently asked questions
When is detaining a person permissible under German law?
Detaining a person is only permissible under German law under certain conditions. The relevant legal bases are § 127 StPO (provisional arrest by any person) and, where applicable, provisions of the state police acts. According to § 127(1) StPO, anyone—regardless of whether they are a police officer or a private individual—may provisionally detain a person (using direct force) if they are caught in the act or being pursued and there is a risk of flight or the person’s identity cannot be immediately established. This is expressly a special provision to protect legitimate interests (e.g., for apprehending an offender). Detention may only last until the police arrive and must be proportionate in its degree. In addition, under the respective police laws, the police have an independent right of arrest if required for threat prevention or law enforcement. Unlawful or excessive detention may lead to criminal consequences (coercion, deprivation of liberty) or civil claims for damages.
What conditions must be observed for a private arrest?
For a lawful arrest by a private individual under § 127(1) StPO, the following conditions must be met: Firstly, the person to be detained must be caught in the act of committing a criminal offence (not merely a regulatory offence) or be pursued immediately. It is sufficient if the immediate act is observed or the pursuit begins without delay. Furthermore, there must be a risk of flight or the perpetrator’s identity cannot be immediately established. As a final point, the so-called prohibition of excess is crucial: measures must not go beyond what is necessary for the purpose of detention. In addition, the police must be informed immediately so that they can take the required further measures and review the question of custody. Detaining someone beyond what is necessary is legally impermissible and may constitute a criminal act.
What rights does a detained person have?
Even in the event of lawful detention, the individual is protected by numerous safeguards. In particular, persons in detention must not be physically mistreated, humiliated, or held longer than absolutely necessary. The basic rights to physical integrity and human dignity must be observed without exception. The measure is permitted only for as long as the reason for detention persists—that is, for example, until the police arrive. The detained person has the right to be informed immediately of the reason for the detention. They must not be compelled to make statements or confessions. Furthermore, injuries resulting from detention must be prevented as far as possible; otherwise claims for damages and compensation for pain and suffering may be asserted.
What criminal risks exist for unauthorized detention?
Anyone who unlawfully detains someone—i.e., without meeting the necessary requirements or by using disproportionate means—may be criminally liable for coercion (§ 240 StGB) or deprivation of liberty (§ 239 StGB). Such offences may be punished with imprisonment or a fine. Furthermore, civil claims for damages or compensation for pain and suffering may arise if the person detained has been physically or mentally harmed by the improper measure. The risk of criminal consequences is particularly high if detention occurs without any suspicion or is conducted much longer or more harshly than permitted by law.
How does the law distinguish between detention and provisional arrest?
In legal terminology, a distinction is often made between ‘detention’ and ‘provisional arrest’. Detention describes the factual restriction of a person’s freedom of movement, for example by preventing them from leaving. A (provisional) arrest, however, is a technical legal term and refers to the lawful—generally by state authorities (police, public prosecutor)—and under certain conditions imposed deprivation of liberty for the purposes of law enforcement or threat prevention. While private individuals may, in exceptional cases, have the right to a provisional arrest under § 127(1) StPO, arrest in the strict sense is regularly reserved for state authorities and subject to stricter rules, such as judicial review for prolonged deprivation of liberty (§ 104 StPO, Art. 104 GG).
What special rules apply to detention of children or juveniles?
Detention of children or juveniles is subject to additional legal and factual requirements. Here, too, the prohibition of excess and the right to personal protection apply. Since minors are entitled to enhanced protection, measures against juveniles must be carried out with particular caution and restraint. Physical force or intimidation is to be avoided. In addition, the police should be involved as quickly as possible so that—especially in cases involving persons under 14—the involvement of legal guardians and youth authorities is ensured. The law provides that minors are generally not permitted to conduct arrests independently; even when adults detain children, the child’s welfare must always be taken into account.
Can consent to detention exclude unlawfulness?
A person’s consent to be detained can, under certain conditions, exclude the unlawfulness of the measure. However, this only applies if the consent is given voluntarily, knowingly, and seriously, and if no overriding legitimate interests of third parties or the general public are affected. In criminal law, it should be noted that in cases of severe infringements of personal liberty (such as to circumvent law enforcement), consent is not always recognized as a justification. In addition, consent by particularly vulnerable persons (minors, mentally impaired individuals) may be questioned if they cannot comprehend the implications. In cases of doubt, caution is always advised, and the lawfulness of detention based on consent should be critically examined.
