Definition and Legal Classification of Protective Custody
The term protective custody refers to a form of police custody primarily aimed at protecting the individual concerned – for example, from self-harm, harming others, or shielding them from specific dangers to life, limb, or liberty. Protective custody differs from other types of custody, such as police custody for danger prevention or penal detention, as the focus is not on prosecution or punishment of committed offenses, but rather on protecting the individual concerned or third parties.
Legal Bases of Protective Custody
State Police Acts
The regulations concerning protective custody are mainly found in the police laws of the German federal states. Since danger prevention, and thus also protective custody, generally falls within the competence of the federal states, there are minor differences in wording and scope among the respective regulations. Largely, the measure is governed by provisions on police custody, often found under the following paragraphs:
- Art. 17 Bavarian Police Duties Act (PAG)
- Section 35(1) Saxon Police Act (SächsPolG)
- Sections 18, 19 Hamburg Law on the Protection of Public Safety and Order (SOG Hamburg)
As a rule, it is purely a measure for hazard prevention and not a deprivation of liberty under criminal procedure law.
Fundamental Rights and Constitutional Requirements
Since protective custody constitutes an interference with the fundamental right to personal freedom under Article 2(2) sentence 2 in conjunction with Article 104 of the Basic Law (GG), this measure is subject to particularly strict requirements and legal protection guarantees. Nevertheless, the legal boundaries for intervention, in particular with regard to proportionality, must always be observed.
International Law
International regulations, such as the European Convention on Human Rights (ECHR), especially Art. 5, must also be observed when applying protective custody. These emphasize the lawfulness and necessity of any deprivation of liberty as well as the right to have its lawfulness reviewed by a court.
Prerequisites and Purpose of Protective Custody
Purpose and Scope
The central legal interests protected by protective custody are life, physical integrity, and personal liberty. In particular, protective custody is ordered to:
- Protect persons at risk of suicide from harming themselves
- Safeguard minors from dangers to life, limb, or health (e.g., in cases of child abduction or loss of legal guardians)
- Ensure the safety of persons at risk of becoming victims of criminal acts
- Remove persons from dangerous places or situations (such as during demonstrations or disasters)
Prerequisites for the Measure
The following prerequisites must be met for the imposition of protective custody:
- Specific danger: An imminent, significant danger to the individual concerned or to third parties, which cannot be averted by other means.
- Suitability and necessity: Deprivation of liberty must be the least intrusive means of preventing imminent harm.
- Proportionality: Intervention and objective must be proportionate to one another.
Whenever possible, less intrusive measures should be considered first (e.g., medical care or social services support).
Procedure and Implementation of Protective Custody
Order and Implementation
Protective custody is usually ordered by the police. The individual concerned must be informed immediately, in a manner understandable to them, of the reason for the measure and its expected duration.
Judicial Decision-Making Authority
If protective custody lasts longer, a judicial decision must be sought without delay, usually no later than within 24 hours (cf. Art. 104 GG). Only a judge can confirm or terminate the deprivation of liberty. During protective custody, humane and appropriate accommodation and care must be assured.
Termination and Duration
Protective custody is to be terminated immediatelyas soon as the prerequisites cease to exist or another, less burdensome measure is sufficient to avert the danger. The permissible duration is governed by the principle of proportionality. In individual cases, statutes may prescribe maximum limits, e.g., a maximum of two weeks for minors (Art. 17(2) PAG Bavaria).
Legal Remedies for Affected Persons
Court Supervision
Affected persons may appeal against protective custody measures legal remedies may be filed, in particular the judicial procedure to review the deprivation of liberty in accordance with the provisions of the Administrative Court Procedure Act (VwGO) or specific legal process provisions of the police statutes.
Complaints Procedures
Moreover, extraordinary legal remedies such as complaints to an ombudsman or data protection authority are available, particularly where aspects of personal protection are at issue.
Legal Distinction from Other Areas
Distinction from Police Custody
Whereas regular police custody is primarily for the prevention of public order disturbances and criminal prosecution, protective custody is solely aimed at safeguarding the individual concerned or third parties.
Distinction from Criminal Procedural Measures
Protective custody is not pre-trial detention or any other criminal procedural deprivation of liberty, as provided for, for example, by the Code of Criminal Procedure (StPO).
Relationship to Civil Law Protective Provisions
There are also distinctions from civil measures, such as detention under the Guardianship Act (BtG) or the state laws for the assistance of the mentally ill (PsychKG). For the protection and treatment of persons with mental illness, and particularly in cases of medical necessity, civil law-motivated placement with judicial decision may be required.
Special Case Groups and Recent Developments
Protection of Minors
The protection of minors is of special importance, for example in cases of endangerment under Child and Youth Welfare Law (Section 42 SGB VIII) or neglect by legal guardians. Here, the police may act as a ‘helper in emergency cases’ within the framework of protective custody.
Mental Illnesses
In cases of acute mental illness, protective custody may be used for short-term hazard prevention before further care (such as admission to a specialist clinic) is arranged. Such cases are regulated in detail by law.
Reform Efforts
Due to the sensitivity of this area, responsibilities, procedural rights, and monitoring mechanisms are regularly scrutinized and adapted to ensure the protection of personal freedoms.
Literature, Sources, and Web Links
State Police Acts Basic Law (GG), in particular Articles 2 and 104
* European Convention on Human Rights (ECHR), Article 5Web links:
- German Police Law Bavaria (PAG)
- Law on Public Safety and Order Hamburg (SOG)
- Article 104 GG – Fundamental Right to Liberty
Note: This overview highlights the key legal aspects of protective custody. The actual legal situation may differ depending on the federal state and specific case.
Frequently Asked Questions
Under what circumstances can protective custody be ordered?
Protective custody is applied under German law according to Section 35 Police Law (PolG) or the comparable regulations in the respective federal states. The order requires that there is a present significant danger to a person’s life or limb that cannot be averted by milder means. The measure must always be a last resort (ultima ratio), after all other less severe options have been exhausted or found unsuitable. The principle of proportionality must also be strictly observed. Protective custody may not be used for the purposes of criminal prosecution, evidence gathering, or disciplinary measures. The order is usually decided by the police; a judicial decision must be obtained promptly if the deprivation of liberty is expected to continue beyond the end of the day.
How long may protective custody last at most?
The duration of protective custody is legally restricted. According to Section 42 PolG NRW or comparable provisions of the federal states, custody may generally not last longer than necessary to avert the danger. If custody is likely to continue beyond the end of the day following detention, a judicial decision must be obtained. The maximum total duration may be regulated differently in each state, but is usually no more than 48 hours. In special exceptional cases, such as imminent suicide or protection of particularly vulnerable persons, a court may order a longer duration, but strict time limits always apply.
Who is responsible for ordering and supervising protective custody?
Protective custody is initially ordered by the competent police authority. However, if the deprivation of liberty is expected to exceed a certain period (usually: until the end of the day following the order), a judge must decide without delay on the legality and continuation of custody. This follows statutory requirements of the Basic Law (Art. 104 GG), which calls for effective judicial protection in cases of deprivation of liberty. Moreover, the police and, where applicable, the custody court are obliged to continually review ex officio whether the prerequisites for protective custody still exist.
What legal remedies do affected persons have against the order of protective custody?
Affected persons have the right to contest the order of protective custody in both administrative and judicial proceedings. In particular, they have the right to request a judicial decision pursuant to Art. 104 of the Basic Law and the relevant police laws. If custody is ordered by the police, the person concerned must be informed of the grounds and expected duration. Against a judicial decision, an appeal may be filed within specified time limits (Section 304 StPO analogously). Affected persons may also claim damages in a state liability lawsuit if custody was unlawfully ordered.
Are there special provisions to protect the rights of minors in protective custody?
Yes, special protective provisions apply to minors during protective custody. Police are required to immediately inform the legal guardians or youth welfare office and involve them in the proceedings. Minors may only be held in special facilities appropriate to their age-related needs. They must also receive special supervision during custody to avert endangerment. Information on their legal situation and rights must be provided in a manner suitable for their age.
How does protective custody differ from other forms of police custody?
Protective custody is aimed solely at shielding the individual concerned from an actual danger to their life or limb, whereas other forms of police custody, such as preventive or detention custody, are preventive measures to protect public safety and order or to prevent crimes or administrative offenses. Protective custody is not repressive, i.e., it is not about punishment or imposition of criminal sanctions, but rather about hazard prevention for the protection of the person concerned. This is also reflected in the particularly strict proportionality review.
