Preventive Detention – Definition, Legal Basis, and Areas of Application
Preventive detention is an administrative measure of direct coercion in which a person is temporarily taken into custody by the police for purposes of averting danger and not as part of criminal prosecution. The aim of preventive detention is to prevent concrete threats to public security and order or imminent criminal offenses. The following provides an in-depth examination of this measure in its legal context, practical application, as well as the constitutional framework and control mechanisms.
Legal Basis of Preventive Detention
Statutory Provisions in Germany
In German law, preventive detention is governed by the police laws of the federal states. The exact requirements, durations, and procedures may vary depending on the state. Generally, preventive detention serves to avert an existing danger, prevent imminent disturbances or criminal acts, and, in certain cases, to protect specific persons.
The legal basis can be found, for example, in § 18 of the Lower Saxony Law on Public Security and Order (Nds. SOG), § 32 of the Bavarian Police Tasks Act (BayPAG), as well as comparable provisions in other federal states. For the protection of minors, special family law provisions may also be applicable.
Distinction from Detention for Criminal Prosecution
Preventive detention is clearly distinct from deprivation of liberty as part of criminal prosecution, such as pre-trial detention or imprisonment. While the latter serves to investigate and sanction committed crimes, preventive detention applies ex ante, that is, before the commission of a criminal act, to avert a specific danger to important legal interests or to prevent future regulatory offenses and crimes.
Requirements for Preventive Detention
Concrete Danger
The measure generally requires the existence of a concrete threat to public security or order. Such a danger exists if, based on the objectively expected course of events, damage to significant legal interests is likely to occur in the foreseeable future if no intervention takes place.
Necessity and Proportionality
Police preventive detention may only be taken if it is necessary to avert danger and there is no less intrusive but equally effective means available. A proportional balance must be struck between the public interest in averting danger and the individual’s fundamental right to personal liberty.
Formal Requirements
As a rule, the ordering of preventive detention requires a judicial decision (§§ 23 ff. EGGVG), unless there is imminent danger that necessitates urgent action. The individual must be immediately informed of the reasons for the measure.
Duration of Preventive Detention
The permissible duration of preventive detention is legally restricted and varies from state to state. Generally, detention may only continue as long as is necessary to avert the specific danger. Most police laws stipulate a time limit, often between 24 and 48 hours. Certain exceptions, such as in Bavaria, allow for a longer detention in individual cases, subject to enhanced judicial requirements.
Control Mechanisms and Legal Protection
Judicial Order and Court Review
To safeguard fundamental rights, an effective control system is provided: preventive detention generally requires a prior judicial order. If this is not possible, the matter must be submitted to the court without delay. The affected person has the right to have the measure judicially reviewed. The provisions of the Act on Legal Protection in Cases of Deprivation of Liberty (FamFG) as well as relevant police law provisions apply.
Rights of the Affected Person
Persons taken into custody must immediately be informed of the reasons for their deprivation of liberty and their rights, such as the right to legal representation or other representative and the right to notify a trusted person. The conditions of detention must not impose any restrictions beyond the mere deprivation of liberty.
Areas of Application and Practical Examples
Threat Assessment and Preventive Measures
Common applications arise in connection with announced major events, demonstrations, or groups prone to violence. Here, preventive detention often serves to counteract criminal offenses or prevent disturbances of public peace. It is also used in cases of imminent self-harm or harm to others, such as with persons at risk of suicide or to protect potential victims of domestic violence.
Special Features in Assembly Law
The measure holds particular importance in connection with the accompaniment and safeguarding of assemblies under the German Constitution (Art. 8 GG). This is a particularly sensitive area since the right to assemble is a fundamental liberty. The threshold for ordering preventive detention is therefore high.
Constitutional Assessment
Preventive detention constitutes a significant interference with the fundamental right to personal liberty (Art. 2 para. 2 sentence 2 GG in conjunction with Art. 104 GG). Deprivation of liberty may only occur by virtue of a law and subject to strict formal and material requirements. The assessment of constitutionality is determined by the principle of proportionality, the reservation of law, and the constitutional requirements for judicial control.
The Federal Constitutional Court has emphasized in several rulings that preventive detention is only permissible under narrow conditions and for the prevention of specific dangers. Blanket or indiscriminate detentions are incompatible with the German Constitution.
Criticism and Discussion
Relation to Individual Freedom
The expansion of preventive detention, for example by extending maximum durations or defining weaker threat scenarios, is the subject of ongoing legal-political and public debate. Proponents argue for increased security, while critics see the risk of disproportionate restrictions on individual rights.
European Law Aspects
The integration of the measure into European legal requirements, particularly the European Convention on Human Rights (Art. 5 ECHR), also prescribes strict requirements for the lawfulness, duration, and judicial review of any deprivation of liberty.
Summary
Preventive detention is a central instrument of hazard prevention under German police law. It always requires a concrete threat to significant legal interests that cannot be averted by less severe means. The measure is subject to strict constitutional and statutory requirements, especially regarding its order, duration, and oversight. The ongoing debate regarding the scope and practical use of preventive detention underscores the importance of a careful balance between security interests and the protection of individual freedom.
Frequently Asked Questions
When and under what conditions may preventive detention be ordered?
Preventive detention may only be ordered to avert an imminent and substantial danger to public security or order. The legal requirements for this are set out in the police laws of the respective federal states (e.g., § 17a PolG NRW, § 32 PolG Bayern). An order is generally only permissible if there are facts indicating that the person in question is likely to commit a serious criminal offense in the near future or poses a risk to the life, physical integrity, or significant legal interests of others. The measure also presupposes that other, less intrusive means of averting danger (such as dispersal orders or contact bans) are insufficient or have proven unsuccessful. A judicial order is generally required, although the police may act preliminarily in emergencies; however, a judicial decision must then be obtained without delay.
How long may a person be held in preventive detention?
The permissible duration of preventive detention is legally limited and differs significantly among the federal states. For example, the Bavarian Police Act provides for a maximum duration of up to one month (§ 17 PolG BY) with the possibility of repeated judicial extension. In other federal states, such as North Rhine-Westphalia, the maximum duration is usually limited to 48 hours, though extensions of up to seven days are possible in certain circumstances. Repeated or consecutive detention is permitted only under strict observance of the principle of proportionality and must always be legitimized by a court decision. Every order for preventive detention must be regularly reviewed and justified in writing.
What rights does an affected person have in preventive detention?
Affected persons have extensive rights during preventive detention, including the right to legal counsel, the right to notify a person of their choice, and the right to judicial review of the measure. They must immediately be informed of the reasons for their deprivation of liberty and their rights. An appeal against the order of preventive detention may be lodged at any time (§ 304 StPO analogously). In addition, the detention must comply with the requirements for deprivation of liberty, such as upholding human dignity and protection against inhumane treatment. Conditions must be humane, and adequate medical care must be ensured.
What role does judicial authorization play in preventive detention?
Judicial authorization plays a central role throughout the preventive detention procedure and serves to protect the fundamental right to personal liberty (Art. 104 para. 2 GG). A court decision is mandatory before deprivation of liberty, unless immediate detention is absolutely necessary for averting danger (e.g., in cases of imminent danger). In such cases, judicial approval must be obtained without delay. The judge reviews not only whether all statutory requirements are met but also whether the measure is proportionate, if there are less intrusive alternatives, and whether the duration is appropriate. Each extension of detention must also be judicially approved.
How does preventive detention differ from criminal or pre-trial detention?
Preventive detention does not serve criminal prosecution but is solely for hazard prevention and is therefore clearly distinct from criminal and pre-trial detention. Criminal and pre-trial detention are based on an offense already committed or a concrete suspicion, whereas preventive detention does not require a criminal act but is based on the existence of an imminent, but not yet completed, threat. The measure is preventive and intended to forestall future dangers. The procedures also differ substantially; in particular, preventive detention has its own judicial review and documentation requirements.
What possibilities are there for monitoring and review during preventive detention?
Persons in preventive detention always have the right to request judicial review of the measure. The competent court must continuously review both the formal and material requirements. In addition to individual legal protection, the police are obliged to continually assess the legality and necessity of the detention and report to the court. Furthermore, there is the option to file a supervisory complaint or a petition with (independent) complaint bodies, such as the state data protection officer or human rights organizations.
What special requirements apply regarding transparency and documentation in preventive detention?
Accurate and comprehensive documentation is mandatory. All decisions and actions must be fully, promptly, and comprehensibly recorded to enable subsequent judicial review and to ensure compliance with the rule of law. In particular, the reason, duration, specific hazard prevention measures, and every judicial order must be documented in detail. The information and instruction of the affected person as well as their rights and complaint options must also be recorded. The documentation serves as the basis for subsequent legal remedy options and for external oversight by courts or supervisory authorities.
