Deprivation of liberty thing

from Wikipedia, the free encyclopedia

In German law, a matter of deprivation of liberty is a matter of voluntary jurisdiction .

term

Section 415, Paragraph 1 of the FamFG defines deprivation of liberty matters as “proceedings which concern the deprivation of liberty ordered on the basis of federal law, unless the federal law regulates otherwise”. One such deviating federal regulation is in particular the Code of Criminal Procedure (StPO).

A deprivation of liberty is according to Section 415 (2) FamFG provides “if a person is deprived of their liberty against their will or in a state of lack of will, especially in a locked facility such as a detention room or a locked part of a hospital”.

The introduction of the generic term “closed facility” replaced the previous section 2 (1) FrhEntzG in 2009, in which placement “in a correctional facility, a detention room, a closed custody facility, a closed care facility, a closed hospital or a closed one Part of a hospital ”. With the renouncement of these partly outdated terms and the introduction of the generic term "closed facility" changes in the practical application were not intended. For clarification, two typical closed facilities are mentioned: the detention room and the closed part of a hospital.

use cases

A practically important application is the detention according to Section 62 , Section 106 subsection 2 of the Residence Act .

According to § 30 IfSG , the forced placement in a locked hospital or a locked part of a hospital can be delegated by persons who are ill with pneumonic plague or hemorrhagic fever that can be transmitted from person to person or who are suspected of it ( quarantine ). For the procedure, section 30 (2) sentence 4 IfSG refers to sections 415 ff. FamFG.

Insofar as federal law allows a person to be taken into custody ( Section 39 BPolG , Section 57 BKAG ), Sections 415 FamFG are directly applicable. However, this does not apply to police custody due to state law. Because cases deprived of liberty within the meaning of § 415 FamFG are only proceedings that concern a deprivation of liberty ordered on the basis of federal law, unless the procedure is otherwise regulated by federal law. The provisions on the procedure in deprivation of liberty, however, apply mutatis mutandis in the case of an express referral under state law.

The judicial approval or order of a custodial placement or a coercive medical measure are specifically regulated as placement matters in §§ 312 ff. FamfG.

Procedure

The FamFG lays down in detail the local jurisdiction ( § 416 ), the application requirement ( § 417 ), the necessary parties ( § 418 ), the appointment of a method caregiver ( § 419 ), the order of the hearing ( § 420 ) as well as the content, Announcement and effectiveness of resolutions , their contestability, suspension and revocation and the possibility of an interim order ( Section 427 ).

Individual evidence

  1. Law on judicial proceedings in the event of deprivation of liberty of June 29, 1956, Federal Law Gazette I p. 599
  2. ^ Draft of a law to reform the procedure in family matters and in matters of voluntary jurisdiction (FGG Reform Act - FGG-RG) BT-Drs. 16/6308 of September 7, 2007, pp. 290 ff., 291
  3. Jürgen Schmidt-Räntsch : Deprivation of liberty according to. §§ 415 ff. FamFG NVwZ 2014, pp. 110–121
  4. BGH, decision of December 7, 2010 - StB 21/10 marginal no. 6th
  5. ^ Draft of a law to reform the procedure in family matters and in matters of voluntary jurisdiction (FGG Reform Act - FGG-RG) BT-Drs. 16/6308 of September 7, 2007, pp. 290 ff., 291