Definition and Legal Basis of Preparation Detention
Die Preparation Detention is a special form of detention in German law, associated with certain administrative or criminal procedural measures. It is imposed to ensure the implementation of an impending main proceeding or an upcoming measure. In contrast to pre-trial detention or penal detention, preparation detention is not for executing an already imposed prison sentence or securing the criminal process, but rather for preparing certain official or judicial actions.
The statutory bases for preparation detention can be found in various special laws. The most relevant regulations include the Residence Act (AufenthG), the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG), and other procedural laws.
Areas of Application for Preparation Detention
Preparation Detention in Immigration Law
The most common form of preparation detention is found in the context of immigration law. According to Section 62 (2), Sentence 1 of the Residence Act, preparation detention may be ordered if there are concrete indications that a deportation of a person required to leave the country is to be carried out and other measures, especially repatriation, are insufficient.
Typical cases include:
- Securing identity verification
- Clarification of passport and travel documents
- Clarification of transport routes and options
Requirements
Preparation detention may only be ordered if, otherwise, the implementation of the measure ending the residence would be jeopardized. The decision is made by the competent local court upon application by the immigration authority. Furthermore, it must be examined whether less severe means would suffice (principle of proportionality).
Duration of Detention
The maximum duration of preparation detention under immigration law may not exceed two weeks according to Section 62 (3) Residence Act. It must be kept as short as possible and must be lifted immediately once the purpose of detention has been achieved or is no longer pursued.
Preparation Detention in Criminal Procedure Law
Regulations regarding preparation detention are also found in German criminal procedure law if it serves to secure the presence of the accused in a court proceeding. In this context, it is often referred to as ‘provisional arrest’ or ‘detention for preparation of the main hearing’.
Reasons for Ordering
Preparation detention can be ordered, for example, if:
- The accused will certainly not respond to a summons for the main hearing
- There is a risk of flight or risk of collusion
The requirements and procedure are governed by the general provisions on detention in criminal proceedings, especially the Code of Criminal Procedure (StPO).
Preparation Detention in Guardianship and Placement Law
Under public law placement regulations (e.g., under the PsychKG or state laws on threat prevention), preparation detention may be considered in certain cases to prepare for a placement measure, such as securing a mentally ill person until a court decision is made.
Legal Requirements
Here, it must also always be observed:
- Preparation detention must always be used only as a last resort
- The limited time frame must be observed
- Because it encroaches on the fundamental right to personal freedom (Art. 2 para. 2 GG), especially thorough scrutiny is required
Legal Protection and Procedure for Preparation Detention
Jurisdiction and Application Procedure
The local courts are generally responsible for ordering preparation detention. The application is filed by the competent administrative authority or public prosecutor’s office. After receipt of the application, the affected person is heard by a judge, possibly with the assistance of a legal representative.
Right to Hearing and Lodging a Complaint
The affected person must be heard in person before the order of preventive detention, unless urgent circumstances require an immediate decision. There is a right of immediate complaint against the judge’s decision (Section 62 (5) Residence Act and Sections 58, 59 FamFG).
Constitutional and Human Rights Principles
Proportionality and Protection of Fundamental Rights
Preparation detention constitutes a serious interference with the fundamental right to freedom (Art. 2 para. 2 sentence 2 GG). Therefore, it is subject to the principle of proportionality. Detention may only be ordered if no less severe means are available and if there is a concrete risk of the respective administrative purpose being endangered. The order and continuance of detention must also be subject to regular review.
International Standards
International minimum standards (e.g., from the European Convention on Human Rights, ECHR) must also be observed when designing and conducting preparation detention. In particular, detainees must be promptly informed of the reasons, have access to judicial review, and receive humane treatment.
Legal Consequences and Termination of Preparation Detention
Preparation detention ends when its purpose is achieved, but at the latest after expiration of the maximum allowable period. If it is ordered unlawfully or executed longer than necessary, claims for damages and liability under the rules of official liability may arise.
Distinction from Other Forms of Detention
Preparation detention must be distinguished from other forms of civil, criminal, or administrative detention:
- Detention pending deportation: Serves exclusively to ensure the deportation of a person required to leave the country
- Pre-trial detention: Securing the accused’s appearance in criminal proceedings or preventing the risk of collusion
- Penal detention: Enforcement of an imposed custodial sentence
The preventive nature and relatively short duration are central features of preparation detention.
Literature and Further Information
For a more in-depth engagement with preparation detention, it is recommended to consult relevant commentaries on the Residence Act, procedural law, and the European Convention on Human Rights. Judgments of the Federal Constitutional Court and decisions of higher courts also provide fundamental guidance on the requirements and limitations of ordering.
Summary
Preparation detention is a significant instrument for safeguarding administrative and court proceedings in Germany, subject to high standards of the rule of law. It is characterized by strict formal and substantive requirements, a limited duration, and comprehensive judicial oversight. Its design under the rule of law serves to protect fundamental rights and to ensure that preparation detention is applied only in clearly defined exceptional cases.
Frequently Asked Questions
When can preparation detention be ordered?
The order of preparation detention (also known as detention for securing the preparation of expulsion, deportation, or transfer) is governed by Section 62 (2) Residence Act. It may only be ordered by a judge and requires that specific preparatory actions to enforce the departure of a foreign national are necessary—such as obtaining travel documents or clarifying identity. Detention is only permissible if less intrusive means are insufficient, particularly where the person concerned does not cooperate voluntarily or resists the termination of their stay. The measure must be proportionate and necessary; a detailed, case-specific judicial review as well as a written statement of reasons are required. Prior to the order, it must also be assessed whether there is a concrete risk of flight or risk of collusion with regard to the prompt execution of deportation. Finally, detention may in principle only be ordered for the absolutely necessary period—at most, however, for six weeks.
What is the court procedure for ordering preparation detention?
The court procedure for ordering preparation detention is designed as an independent procedure for deprivation of liberty pursuant to Sections 415 et seq. FamFG. The application for an order is generally submitted by the competent immigration authority to the responsible local court. Before the order, the person concerned must be personally heard by the judge, with both the right to be heard and the right to judicial review in the sense of effective legal protection being guaranteed. The procedure is subject to the principle of orality, but may—such as in cases of imminent danger—initially take place in writing. However, an oral hearing must then be made up for without delay. In the further course, legal counsel may be involved. The court examines the requirements on the basis of the files and the personal hearing and decides by written order. An appeal is available against the order as a legal remedy, and the person concerned must be explicitly informed of this possibility.
What rights does the person concerned have during preparation detention?
The person concerned has extensive rights during preparation detention, arising partly from the Basic Law, from simple statutory provisions, as well as international standards, especially the EU Charter of Fundamental Rights. These specifically include the right to legal counsel and unrestricted communication with them, the right to information about the reasons for and duration of the detention, and the right to immediate judicial review of the measure. The person is also entitled to contact family members, lawyers, and representatives of legal or social advisory organizations. There are also special protection provisions for minors, traumatized individuals, or particularly vulnerable persons, which may justify incapacity for detention. Execution of the detention is governed by the respective state laws and must take place in separate detention centers and be clearly spatially and organizationally separate from penal inmates, as it is expressly not penal detention.
How long may preparation detention last at most?
The maximum permissible duration of preparation detention is clearly limited by law to six weeks (Section 62 (2) sentence 4 Residence Act). A one-time extension of this form of detention is excluded; after the deadline expires, detention must be terminated immediately, unless new grounds for another form of deprivation of liberty apply, such as security detention under Section 62 (3) Residence Act. An immediate re-ordering is unlawful and violates the principle of proportionality and effective legal protection. The period begins with the actual start of deprivation of liberty and must be strictly observed; delays in administrative proceedings are not to the detriment of the person affected.
What legal remedies does the person concerned have against preparation detention?
Those affected by preparation detention have various legal remedies available. Primarily, an independent application for judicial review of the detention can be filed at any time with the competent local court. Furthermore, according to Section 424 FamFG, a right of appeal exists against the order. During the appeal proceedings, the appellate court is obliged to comprehensively examine all factual and legal circumstances ex officio. In parallel, the person is also entitled to request interim legal protection from the competent administrative court (e.g., concerning the suspensive effect of an objection to the obligation to leave the country), or to file a constitutional complaint if fundamental rights are affected.
Under what conditions is the order of preparation detention inadmissible?
The order of preparation detention is legally inadmissible in several scenarios. First, if milder means—such as reporting requirements or surrendering a passport—have not been exhausted or would suffice to achieve the purpose of preparation. Second, if the foreign person concerned fully cooperates with the preparation of departure and there are no indications of intent to thwart it. Third, if there are particular protection needs opposing detention, such as in the case of minors, pregnant women, the sick, or particularly vulnerable family members. Fourth, if the statutory formal requirements have not been observed, e.g., the judicial hearing or the written delivery obligation of the order. Fifth, if it is foreseeable that there is no prospect of carrying out the planned departure within the permissible period of detention.
What needs to be considered when applying preparation detention in relation to security detention?
In contrast to security detention under Section 62 (3) Residence Act, preparation detention is designed to effectively allow specific, necessary preparatory acts for later enforcement of the termination of stay. The legislature expressly provides for this form of detention as a ‘last resort’ when other means prove insufficient. Security detention only applies when the obligation to leave is already directly enforceable and there are concrete indications of risk of flight or intention to go into hiding. The requirements and, in particular, the permissible duration of detention differ significantly; transformation or seamless extension of preparation detention into security detention requires renewed judicial awareness and careful examination of all requirements. Abuse or mingling of both forms of detention is, according to constant higher court jurisprudence, to be strictly avoided.
