Restriction of freedom

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A restriction of freedom is any interference with the freedom of the person ( Art. 2, Paragraph 2, Clause 2 of the Basic Law ). In Germany it is only permissible on the basis of a formal law ( Article 104 (1), first sentence, GG).

According to the delimitation of the Federal Constitutional Court, there is a restriction of freedom if someone is prevented by public violence against his will from visiting or staying in a place that is (actually and legally) accessible to him. The act of deprivation of liberty is the most severe form of restriction of liberty and only comes into consideration if the physical freedom of movement in any direction - actually and legally given - is abolished. The continuation of custodial measures is subject to Art. 104 (2) GG in addition to the judge's reservation .

Examples of freedom-restricting measures are the demonstration and the expulsion . For traffic controls on the basis of Section 36 (5) StVO, it is disputed whether these are restrictions on freedom. The overwhelming opinion, however, denies this. Otherwise, according to Article 104 (1) sentence 1 of the Basic Law requires a formal law to be implemented , while the Road Traffic Regulations are purely a statutory ordinance .

Restrictions on freedom can be enforced by competent officials with immediate force . In the case of police custody or provisional arrest , the arrested person must be brought before the judge no later than the day after the arrest. If there is no reason for detention , he is to be released ( Article 104, Paragraph 3, Clause 1 of the Basic Law, Section 128 of the Code of Criminal Procedure).

The ordering of a restriction of freedom does not generally require a judicial decision.

Individual evidence

  1. BVerfG, decision of May 15, 2002 - 2 BvR 2292/00 para. 24