Police custody

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The police custody ( PG ) means in Germany the police custody of persons for the purpose of averting danger . It is one of the standard police measures . The legal basis are the police laws of the federal states and the federal government.

Unlike arrest, purely preventive police custody is not a criminal prosecution measure and does not require an arrest warrant . There is also no preliminary investigation .

Police detention cell

history

The term protective custody was introduced by Friedrich Wilhelm IV in the “Law for the Protection of Personal Freedom” of September 24, 1848 . For example , people who had become homeless and vagrants during the imperial era were often taken into police custody without a judicial order. The protective custody during the so-called. Third Reich was not subject to judicial review.

meaning

Police custody means an encroachment on the freedom of the person ( Article 2, Paragraph 2, Sentence 2 of the Basic Law , Article 5 of the ECHR ). In this case, the person is kept in a manner appropriate to the police purpose and is prevented from moving according to their free will until further notice.

Article 2, Paragraph 2, Sentence 2 of the Basic Law describes the freedom of the person as "inviolable". This basic constitutional decision characterizes the right to freedom as a particularly high legal value that may only be encroached upon for important reasons. Protected legal interest is the actual physical freedom of movement given within the framework of the applicable general legal system before state interference, i.e. before arrest, arrest and similar measures of direct coercion.

According to Article 104.1 sentence 1 of the Basic Law, the freedom of the person guaranteed in Article 2.2 sentence 2 of the Basic Law may only be restricted on the basis of a formal law and only in compliance with the forms prescribed therein. A restriction of freedom exists 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 offense of deprivation of liberty only comes into consideration if the - actually and legally given - physical freedom of movement in every direction is abolished. The deprivation of liberty is the most severe form of the restriction of liberty, which according to Article 104, Paragraph 2, Sentence 1 of the Basic Law is not only subject to the reservation of the law but also to the further, procedural reservation of a judicial decision .

Legal bases

The individual legal regulations are based on the example of Section 13 of the draft model of a uniform police law (ME PolG). In addition to the Federal Police Act and the Federal Criminal Police Office Act , all state police acts also contain provisions on custody.

In terms of material, a distinction must be made between so-called preventive detention and protective detention. Preventive custody serves to avert danger, especially if this is essential in order to prevent the imminent commission or continuation of a criminal offense or an administrative offense of considerable importance for the general public (see Section 39 (1) No. 3 BPolG; Section 20p (1) No. 2 BKAG: Defense against the dangers of international terrorism). Protective custody is permissible to protect a person against danger to life or limb, in particular because the person is recognizably in a state that precludes the free determination of will or is otherwise in a helpless situation (see Section 39 (1) No. 1 BPolG).

The process is known as detention and establishes a legal relationship established by sovereign power, by virtue of which a person is deprived of their freedom in such a way that they are prevented by the police from leaving. In the case of deprivation of liberty, the person is placed in a detention cell. Restrictions on freedom are simply holding onto or being asked to stay in a certain place. Detention begins with the deprivation of liberty. Detention in a patrol car is just as much custody as being forced to stay at the police station or being encircled in the open air.

There is no authorization to intervene for preventive detention in order to carry out a smooth and trouble-free search measure , even in the event of a feared disruption .

The statutory legal bases are supplemented by administrative regulations (custody orders) of the state interior ministers , which contain more detailed provisions on the implementation of police custody.

addressee

The addressee is the person responsible for the condition ( disturber ). Since preventive police intervention does not presuppose fault, an unlawful act is sufficient without the need for any intervening excuses that might benefit the person concerned . It is also possible to detain children who are under the age of criminal responsibility and who have not yet reached the age of 14. The processing of youth matters is regulated in a special police service regulation (PDV).

requirements

Preventive custody

Preventive custody is also known as security custody , preventive custody , preventive custody , contraceptive custody or preventive custody .

Indispensability

As a special form of the principle of proportionality , detention must be essential in order to prevent the imminent commission or continuation of an administrative offense of considerable importance for the general public or a criminal offense. Since the instrument of detention was massively misused during the National Socialist era, the elements "indispensable" and "imminent" should make it legally impossible for the provision to be extended to authorize so-called preventive detention (formerly: protective custody ).

A measure is only essential if the security possible, and not by any other measure, such as a the only way Expulsion is replaceable. There must be an acute threat to public safety. In view of the intensity of the intervention, comprehensible facts must be available in the specific case that lead to the certainty that the damage will occur immediately or in the near future. The mere "impression" is not enough. The hazard standard of immediacy is no different from a present hazard. The current danger is defined as a situation in which the event damaging public safety or order has already occurred (disruption) or is imminent with a probability bordering on certainty immediately or in the very near future. This means that damage to legal interests can be expected in the immediate future, in the very near future, if there is no intervention in development.

Risk forecast

Some police laws such as Art. 17 Para. 1 No. 2 lit. a to c PAG also contain so-called hazard-indicating elements of the offense, which provide the police and the competent courts with concrete indications for a prognostic decision about the imminent impending criminal offenses and administrative offenses. If these prognostic criteria are present, general life experience suggests that the crime is imminent.

This can be the case if the person has announced the commission of the act or has asked to do so or carries banners or other objects with such a request (Art. 17 Para. 1 No. 2a PAG), if the person has weapons, tools or other objects are found that are clearly intended for the commission of an offense or, based on experience, are used in such offenses (Art. 17 Para. 1 No. 2b PAG) or if the person has already committed several major offenses in the past for comparable reasons Significance for the general public or criminal offenses as a disruptor and under the circumstances a repetition of this behavior is to be expected (Art. 17 para. 1 No. 2c PAG). Other items that are clearly intended for committing a crime, may also be objects that such as masks or hoods at a meeting with a banned next active aggression means disguise serve. A single earlier legal violation is not sufficient to justify a risk of repetition.

In addition, it is necessary that the existing indications in the specific individual case give rise to fear that the person concerned will commit or continue the crime if he is released.

In the design and application of the condition of imminent commission or continuation of a crime or offense is not the police authorities discretion given. The ex-ante consideration at the time of the measure required in hazard prevention law is subject to full judicial review.

Administrative offense of considerable importance for the general public

Police custody is generally permissible to prevent criminal offenses, not just "criminal offenses of considerable importance to the general public". This restriction only applies to administrative offenses.

The significance of an administrative offense is significant for the general public if damage to a particularly significant legal asset (life, health, freedom, irreplaceable assets) or other legal assets to a considerable extent or for the existence of the state and its institutions is to be feared, or if the the relevant provision protects another significant interest of the general public. An administrative offense of considerable importance for the general public can be e.g. B. disturbing noise according to § 117 OWiG.

In police practice, preventive detention is primarily used in the event of trespassing , stalking or domestic violence (cf. §§ 35 Paragraph 1 No. 4, 34a PolG NRW).

Protective custody

Self-harm

If a person is taken into custody in order to avert danger to life and limb, then one speaks of protective custody. This form of detention is permissible if the person is recognizably in a state that precludes the free determination of will or is otherwise in a helpless position.

A general danger is not enough. Rather, it must be about a specific danger situation. Here, the police are, for example, in the event of attempted suicide , which is considered an accident i. S. d. Section 323c StGB is not only authorized to intervene, but even obliged (see Section 28 (1) No. 2c PolG).

Before a helpless person is taken into custody, it must be checked whether he or she can be handed over directly to a relative or to another suitable place such as a hospital, a home or a psychiatric clinic - if necessary with the involvement of the emergency services. If a helpless person is to be brought into police custody, the ability to be detained must first be determined by a doctor.

Protection of private rights

Individual police laws also allow detention to protect private rights, for example Section 30 (1) No. 4 ASOG , Section 30 (1) No. 4 HSOG or Section 35 (1) No. 5 PolG NRW. According to this, the police can, for example, take a debtor into custody and bring him before the arrest court if the creditor has applied for personal arrest , but the debtor cannot be arrested by the bailiff in time (cf. §§ 916 ff., § 933 , § 802g Paragraph 2 ZPO).

Minors

The police can detain minors who have escaped the custody of their custodians or who are in places where they are threatened with moral danger or neglect in order to take them to the custodians or the youth welfare office (Art. 17 para. 2 PAG, Section 32 (2) HSOG, Section 30 (2) ASOG). For example, minors are at risk if they are in places where people are engaged in prostitution , illegal gambling or narcotic drugs are offered illegally. As a rule, there is also a risk when children seek a ride from people they do not know or are found traveling with them ( hitchhiking ).

The competent authority to avert a danger within the meaning of the Youth Protection Act is the police whenever immediate measures are to be taken because the youth protection authority originally responsible cannot intervene, cannot be reached or its employees are not on duty, for example at night. In such cases, the police have urgent authority .

Until the transfer to the youth welfare office, child or youth-friendly accommodation must be guaranteed. Children are not to be placed in detention rooms. If they are not handed over to the youth welfare office, they are to be placed under police supervision in other suitable rooms.

If direct coercion is required when taking into care by the youth welfare office , the police must be called in ( Section 42 (6) SGB VIII).

Escape from prison

Due to the police laws, persons without search requests according to 87 StVollzG are taken into custody and returned to the institution who have escaped from the execution of pre-trial detention , imprisonment or custodial measures of reform and security or are otherwise outside the penal institution without permission, for example do not return from release or detention leave .

Removal custody

Removal custody is a special case of police detention. This occurs when a troublemaker is brought to another location by the police and left there.

It is controversial whether transfer custody is even permissible.

Procedure in the event of detention

The police may not keep anyone in their own custody longer than the end of the day after the arrest ( Article 104, Paragraph 2, Sentence 3 of the Basic Law). If a person is taken into custody on Wednesday at 12:05 a.m., they must be released by Thursday at midnight. The same applies if the person was taken into custody at 11:59 p.m. on Wednesday. Exceeding this time limit renders the detention unlawful.

Judge's reservation

The person taken into custody must be brought before the judge no later than the day after the arrest ( judge's reservation , Art. 104 (3) sentence 1 GG), unless it is to be expected that the reason for the custody will cease to exist by the end of that day ( Section 40 (1) BPolG).

For reasons of effective legal protection, it must be ensured that the competent judge can be reached and that his judicial tasks can be performed appropriately. Accessibility at the time of day must always be guaranteed. A judicial on-call duty at night is required if there is a practical need for this that goes beyond the exceptional case, for example in the event of an announced mass demonstration.

According to Article 104, Paragraph 2, Sentence 1 of the Basic Law, the deprivation of liberty generally requires a prior judicial order. As an exception, this can be made up immediately if the constitutionally permissible purpose pursued with the deprivation of liberty could not be achieved, provided that the arrest would have to be preceded by a judicial decision. The requirement of an immediate decision applies to the police and the court.

The judge must determine ex officio the facts that are intended to justify deprivation of liberty ( Section 26 FamFG). In the case of urgent decisions, the files, objects seized, the statements of the officers involved and the personal hearing of the person concerned are available as a means of own judicial clarification of the facts . The judge can either issue a reasoned written arrest warrant or order the release ( Article 104.3 sentence 2 of the Basic Law).

If the detention needs a judicial order because of its duration, one speaks of long-term detention . The maximum permissible duration is based on the relevant law in each individual case. For example, according to Section 42 (1) sentence 3 of the Federal Police Act, it may not exceed 4 days, according to Section 427 (1) sentence 2 FamFG, it must not exceed six weeks or up to three months according to Article 20 No. 3 PAG and can be extended by a maximum of three months. Are available to the police for long-term detention facilities inadequately equipped, one can Penitentiary extent assistance afford and accommodate the prisoners.

The district court in whose district the person is being held is responsible for the decision. Until August 31, 2009, the procedure was based on the Act on Judicial Procedure in the Event of Deprivation of Liberty . With effect from September 1, 2009, cases of deprivation of liberty, which relate to the deprivation of liberty ordered on the basis of federal law, were newly regulated in Book 7 of the Act on the Procedure in Family Matters and in Matters of Voluntary Jurisdiction (§§ 415 ff. FamFG). The police laws of the federal states almost always refer to the FamFG for judicial proceedings in the event of deprivation of liberty.

Legal protection

In addition to the right to be heard, the person concerned has the right to remain silent on the matter, to be represented by a lawyer of his choice and to notify relatives. Since preventive police custody is not a criminal prosecution measure and therefore the code of criminal procedure is not applicable, there is no case of a necessary defense according to. § 140 Abs. 1 Nr. 4 StPO, so that the person concerned is no public defender acc. § 141 StPO is appointed. § 419 FamFG only provides for the appointment of a method caregiver before.

The judicial decision to order or refuse custody can be challenged by the person concerned or the police with a complaint to the local court ( § 59 , § 64 FamFG).

Deprivation of liberty without a judicial order, e.g. B. offs are permanent administrative acts that deal with the release handle . A possible objection has no suspensive effect ( Section 80 (2) No. 2 VwGO). They can be checked for their legality by means of an action for a declaration of continuation before the administrative court ( Section 40 (1) VwGO). If the detention is qualified as a real act , the declaratory action according to 43 VwGO admissible. The urgent special assignment to the ordinary courts for judicial administrative acts ( Section 23 EGGVG ) does not apply to preventive police measures.

costs

The administrative costs of lawful police custody and related transportation can be passed on to the initiator.

Release of prisoners

As soon as the person concerned is considered a prisoner , the release is a criminal offense of the release of the prisoner . Typically, the act is committed as a unit of bodily harm according to § 223 StGB and resistance against enforcement officers according to § 113 StGB.

Web links

Individual evidence

  1. ↑ Art. 5 Right to Freedom and Security dejure.org, accessed on June 13, 2018
  2. ↑ European Court of Human Rights, judgment of March 7, 2013, case O. ./. Germany no. 15598/08
  3. ↑ OVG Münster, judgment of June 7, 1978 - IV A 330/77 = NJW 1980, 138
  4. ↑ BVerfG, decision of May 15, 2002 - 2 BvR 2292/00 para. 22 ff.
  5. ↑ Comparison of selected preventive police standard measures in federal and state law Scientific Services of the German Bundestag , February 16, 2017. Tabular overview of federal and state law, pp. 5–7
  6. ↑ VG Köln, judgment of November 20, 2014 - 20 K 1799/13 para. 49
  7. ↑ Regional Court Frankfurt am Main, decision of February 26, 2008 - Az. 5/26 Qs
  8. ^ Police custody order for the state of North Rhine-Westphalia circular of the Ministry of the Interior - 43.57.01.08 - of March 20, 2009
  9. ↑ Police custody order for the state of Brandenburg (Polizeigewahrsamsordnung) of April 5, 1995 (OJ / 95, [No. 32], p. 402)
  10. ↑ Custody Regulations for the Police of the State of Rhineland-Palatinate of February 2, 2013, MinBl. 2013, 104
  11. ↑ OLG Frankfurt am Main, decision of June 20, 2007 - 20 W 391/06, no. 13
  12. ^ Polizeidienstvorschrift (PDV) 382 "Processing of youth matters" website of the DVJJ , accessed on June 8, 2018
  13. ↑ OLG Frankfurt, decision of June 18, 2007 - 20 W 221/06, no. 9
  14. ^ LG Frankfurt am Main, decision of February 26, 2008 - 5/26 Qs 6/08 marginal no. 21st
  15. ↑ Rachor in: Lisken / Denninger, Handbuch des Polizeirechts , 4th ed., F, Rn. 570; see. also Marschner / Volckart, deprivation of liberty and accommodation , 4th ed., E, marginal no. 50
  16. ^ Heyen, General Police and Ordinance Law , in: Manssen, Staats- und Verwaltungsrecht für Mecklenburg-Vorpommern , p. 255
  17. ↑ BVerfGE 115, 320, 363 on § 31 PolG NW 1990
  18. ↑ Higher Regional Court Rostock, decision of August 30, 2007 - 3 W 107/07 marginal no. 25th
  19. ↑ Munich Higher Regional Court, decision of October 2, 2008 - 34 Wx 10/08 para. 19th
  20. ↑ Munich Higher Regional Court, decision of October 2, 2008 - 34 Wx 10/08 para. 20 ff.
  21. ↑ BVerfG, decision of April 20, 2017 - 2 BvR 1754/14 para. 46
  22. ↑ BayObLG, judgment of May 28, 1998, 3 Z BR 66/98 = NVwZ 1999, 106
  23. ↑ Bavarian administrative regulation on Art. 17 (custody), 17.3.1
  24. ^ OVG Saxony-Anhalt, decision of June 27, 2007 - 2 L 158/06
  25. ↑ § 35 Police Act of the State of North Rhine-Westphalia (PolG NRW)
  26. ↑ BGHSt 6, 147
  27. ^ Administrative Court of Karlsruhe , NJW 1988, 1536, with note Herzberg, JZ 1988, 182; partly controversial
  28. ↑ cf. § 28 Police Act (PolG) Baden-Württemberg in the version of January 13, 1992
  29. ^ Administrative regulation for the Police Act of the State of North Rhine-Westphalia (VVPolG NRW) circular of the Ministry of the Interior v. 19.12.03 - 44.1-2001, 35.11
  30. ↑ Hartmut Seltmann: The treatment of mentally ill people in police custody with comments from a member of the German National Preventive Mechanism , no year, accessed on June 8, 2018
  31. ↑ Dieter Seitzinger: Official cooperation in the accommodation of mentally ill people. The Mental Health Aid Act Baden-Württemberg (PsychKHG) and the role of the police. 20th September 2017
  32. ↑ Steffen Heide, Dankwart Stiller, Manfred Kleiber: Problem of the suitability for custody Deutsches Ärzteblatt 2003; 100 (12): A-791 / B-667 / C-627
  33. ^ Hessian law on public security and order (HSOG)
  34. ^ Administrative regulation for the Police Act of the State of North Rhine-Westphalia (VVPolG NRW) circular of the Ministry of the Interior from December 19, 2003 - January 44, 2001, December 35
  35. ↑ Quandt heiress: Klatten forces blackmailers into custody Der Spiegel , January 19, 2014
  36. ↑ Police Service Regulations (PDV) 382 "Processing of youth matters" website of the DVJJ , 2.2 Danger to Minors, p. 7 ff.
  37. ↑ Police Service Regulations (PDV) 382 "Processing of Youth Matters" website of the DVJJ , 2.3 Measures in the event of minors at risk 2.3.1, Restriction of liberty / deprivation of liberty for children 6.1.2
  38. ↑ cf. for example Section 22 (3) SächsPolG
  39. ↑ Muckel, Stefan: Cases on Special Administrative Law, 7th edition, Munich 2019, p. 38.
  40. ↑ Muckel, Stefan: Cases for Special Administrative Law, 7th edition, Munich 2019, pp. 38–41.
  41. ↑ BVerfG, decision of December 3, 2005 - 2 BvR 447/05, no. 37
  42. ↑ VGH Baden-Württemberg, judgment of September 27, 2004 - 1 S 2206/03
  43. ↑ BVerfG, decision of October 30, 1990 - 2 BvR 562/88 para. 34
  44. ↑ Ulrike Donat, Karen Ullmann: Police Deprivation of Freedom Berlin, January 2007, p. 19
  45. ↑ Extremism - Hanover: 19-year-old in long-term custody after threatened violence . Süddeutsche Zeitung , May 24, 2018, accessed on August 26, 2020 .
  46. ↑ Heribert Prantl : Dangerous Law: Bavaria introduces the infinity prison Süddeutsche Zeitung , July 20, 2017
  47. ↑ Law on the judicial procedure in the event of deprivation of liberty (FrhEntzG) of June 29, 1956 (Federal Law Gazette I p. 599)
  48. ↑ Art. 112 FGG Reform Act (FGG-RG)
  49. ↑ Draft law of the federal government 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, p. 290 ff.
  50. ↑ Police custody: What rights do police officers and those arrested have? German lawyer information , accessed on June 2, 2018
  51. ↑ Florian Naumann: "Without a lawyer in the mill of justice": Did the Interior Ministry lie about the police law? Merkur.de , October 12, 2018 (on the Bavarian Police Task Act )
  52. ↑ Diane Jahr: Legal character of police measures ZJS 2016, pp. 181, 184, 188
  53. ↑ Lower Saxony Higher Administrative Court, judgment of February 24, 2014 - 11 LC 228/12 rechtslupe.de, accessed on June 5, 2018
  54. ↑ Thorsten Kingreen: Involvement in the costs of a police detention. Jura 2015, p. 316