Deprivation of liberty
According to Article 3 of the Universal Declaration of Human Rights (UN Charter of Human Rights) and Article 5, Paragraph 1, Clause 1 of the European Convention on Human Rights , everyone has the right to freedom and security. The deprivation of liberty requires a legal regulation ( reservation of law , Art. 5 Para. 1 Clause 2 ECHR) and is subject to judicial control ( judge's reservation , Art. 5 Para. 3 and 4 ECHR). Unlawful arrest or deprivation of liberty justifies a claim for damages (Art. 5 (5) ECHR).
According to Art. 5 Para. 1 Clause 2 ECHR , freedom may only be withdrawn in certain cases and only on the basis of legal procedures:
- Deprivation of liberty after conviction by a competent court such as imprisonment and measures for reform and security
- Arrest or deprivation of liberty for failure to comply with a lawful court order or to enforce compliance with a legal obligation (examples: compulsory , compulsory and orderly detention as a preventive measure)
- Arrest or deprivation of liberty for presentation to the competent judicial authority if there is reasonable suspicion that the person concerned has committed a criminal offense or if there is reasonable cause to believe that it is necessary to commit them to the commission of a criminal offense or to fleeing after committing one to prevent such, in particular the presentation of an absent defendant, police custody and pre-trial detention
- Deprivation of liberty for minors for the purpose of supervised upbringing or for demonstration to the competent authority ( closed home accommodation , police custody of juvenile drifters and street children according to the state police laws )
- Deprivation of liberty with the aim of preventing the spread of infectious diseases, as well as in the case of the mentally ill, alcohol or drug addicts and vagabonds (security-related residence bans , custodial accommodation )
- Arrest or deprivation of liberty to prevent unauthorized entry as well as persons against whom an expulsion or extradition procedure is in progress ( deportation and extradition detention ).
In addition, the UN Convention against Enforced Disappearance provides in Art. 17 that no one is kept secretly in custody and may contact his family, legal counsel or any other person of his choice, as well as an official register or official files on the People deprived of their liberty must be guided.
The freedom of the person protects acc. Paragraph 2, Sentence 2 of the Basic Law, the actual physical freedom of movement given within the framework of the applicable general legal system before state interference, in particular before arrest, arrest and similar measures of direct coercion.
The Federal Constitutional Court delimits the deprivation of liberty (Article 104, Paragraph 2 of the Basic Law) against the restriction of liberty (Article 104, Paragraph 1 of the Basic Law) according to the intensity of the interference. According to this, deprivation of liberty is the most severe form of restriction of liberty. A restriction of freedom exists when 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 offense of deprivation of liberty only comes into consideration when the - actually and legally given - physical freedom of movement in every direction is abolished. The deprivation of liberty requires a legal basis ( sentence 1 GG). A judge has to decide on the admissibility and the continuation of a deprivation of liberty ( Basic Law). See. Also imprisonment , youth custody , preventive detention .
The mental illness laws of the individual federal states regulate the accommodation of mentally ill people in a closed ward for reasons of hazard prevention . People who are under care or who are minors can be accommodated in accordance with , German Civil Code (BGB) in order to avert significant harm to themselves or others . Restrictions on freedom in the inpatient area (such as restraint in clinics) always require the approval of the supervisory court (Section 1906 (2) sentence 1 BGB).
Especially for the detention within the detention and for custodial measures after the Infection Protection Act there was a separate procedure law that law on the judicial proceedings in deprivation of liberty of 29 June 1956. This Act was repealed on 1 September 2009 and under the heading detention matters in the new FamFG ( ) incorporated.
Possible reasons for withdrawing personal freedom are, in particular, pre-trial detention and criminal detention, regulated in the Code of Criminal Procedure, or deprivation of liberty as a preventive means such as bringing a suspect or witness to court. The deprivation of liberty due to illness is possible if the person concerned is a source of danger for the spread of contagious diseases or if he or she endangers himself or others because of a mental illness. The Accommodation Act applies to hospitals and psychiatric departments in which people are stopped in a closed area or other restrictions on their freedom of movement are subjected. Children who are not under the age of conviction may not be detained, but they may be brought up to an educational measure in a home . Finally, there are imprisonment police measures to secure the expulsion or extradition of the person concerned.
Deprivation of liberty can be ordered within the framework of remand and security detention, (premature) inpatient execution of sentences and measures, administrative detention under aliens law and welfare accommodation .
- Resolution of the General Assembly, 217 A (III). Universal Declaration of Human Rights , United Nations , December 10, 1948 (PDF).
- Silvia Meisen: Legal deprivation of liberty website accessed on November 14, 2018
- International Convention for the Protection of All Persons from Enforced Disappearance, Resolution 61/177, adopted at the 82nd plenary session on December 20, 2006
- BVerfG in st. Rpsr, cf. BVerfG, decision 15 May 2002 - 2 BvR 2292/00 no. 22nd
- Deutsches Jugendinstitut (2006): "Mild measures are not possible!" Measures depriving of liberty according to § 1631 b BGB in youth welfare and youth psychiatry (pdf, 148 pp.)
- BGBl. I p. 599
- Law on the judicial procedure in the event of deprivation of liberty a. K. .
- Federal Constitutional Law of November 29, 1988 on the Protection of Personal Freedom RIS , accessed on November 13, 2018
- Permissible reasons for deprivation of liberty minilex.at, accessed on November 14, 2018
- sentences and measures website of the Federal Office of Justice , November 12, 2013
- Study on deprivation of liberty and restriction of liberty in the asylum procedure Swiss Competence Center for Human Rights , website accessed on November 12, 2018
- in Switzerland National Commission for the Prevention of Torture, website accessed on November 12, 2018