Detention
In constitutional states, imprisonment is a form of deprivation of liberty that results from a judicial order ( arrest warrant ). A detention serves the administration of justice (justice) and begins with the arrest . In Germany, Article 104 (2) of the Basic Law forms the legal basis for deprivation of liberty as a measure of criminal law.
An adhesion engages in the basic and human rights of a particular person temporarily one to be able to better protect the rights of the general public, and also serves the Criminal Procedure of atonement and possibly also the safety of the procedure. The most common form is detention for the execution of a sentence (criminal detention). Detention is to be separated from arrest and police custody .
Arbitrary arrests also regularly occur in countries with a poorly developed rule of law.
Civil procedural law
If the debtor has to be forced to submit an affidavit (previously: an oath of disclosure ), a compulsory measure according to §§ 901, 904 ZPO is permissible. This detention cannot last longer than six months. The arrest is carried out by the bailiff , who regularly avails himself of enforcement assistance from the police. The custody takes place in the penal institutions .
The obsessive may be imposed if unacceptable acts should be enforced (such as an information). This detention may not exceed six months either. The legal basis are Sections 888 and 904 ff. ZPO. In practice, compulsory detention is only imposed if previously imposed periodic penalties could not bend the will of the debtor or the periodic penalty cannot be collected and substitute compulsory detention is carried out instead. Exception: Nobody may be detained only because they are unable to fulfill a contractual obligation. (Art. 11, 8th International Covenant on Civil and Political Rights of December 19, 1966).
The court can order compulsory detention if certain acts are to be compelled (e.g. surrender of evidence , testimony, etc.). This also Beugehaft called adhesion form is also in the area of criminal law to find.
Orderly
Is against court violated orders or a court hearing is disturbed, the court may order imprisonment imposed (including Eidverweigerung or versäumtem shows) against the violator. Ordinary detention lasts at least one day and can last up to two years in the event of a plurality of violations. If a fine can not be collected as a means of coercion, the court will impose so-called alternative custody .
Criminal Procedure Law
Imprisonment and substitute imprisonment
The serving of a criminal procedural imprisonment is called a prison sentence (also: criminal detention). If the person sentenced to a fine is unable or unwilling to pay, a substitute custodial sentence (EFS) can be ordered. This so-called "enforcement arrest warrant" is not issued by a judge, but by a senior judicial officer of the public prosecutor's office, since the public prosecutor's office in Germany is the enforcement agency.
Custody
If criminal proceedings have not yet been concluded, the urgent suspect can be placed in pre- trial detention (“pre- trial detention”). For detention on remand there must be an urgent suspicion and a reason for detention according to § 112 StPO . The reasons for detention in Section 112 of the Code of Criminal Procedure include a risk of escape and a risk of blackout (risk of destruction of evidence or the like). A third possible reason for detention is the risk of repetition ( Section 112a StPO).
Extradition custody
Extradition custody is also a measure of criminal prosecution . Germany is thus fulfilling its obligations to other states based on international law to bring fugitive offenders to justice in their home country.
The legal bases for this are
- the Law on International Mutual Legal Assistance in Criminal Matters of December 23, 1982 (IRG) and
- bilateral agreements between states ( mutual legal assistance agreements ).
The prerequisite for extradition is that the offense alleged in the extradition request is also unlawful under German law . Likewise, the act in Germany would have to be threatened with a maximum of imprisonment of at least one year. If a prison sentence has already been imposed on the person to be extradited by the country requesting the extradition, which is now to be enforced, this prison sentence must be at least four months (according to § 3 IRG ). Political offenses (according to § 6 IRG ) and purely military crimes (according to § 7 IRG ) are excluded from extradition. There will also be no extradition if the person to be extradited is threatened with the death penalty (according to § 8 IRG ) or political persecution (according to § 6 para. 2 IRG ).
Asylum granted does not stand in the way of extradition ( Section 6 AsylG ). The danger of impending persecution is to be checked independently in the extradition procedure.
The extradition of German citizens is fundamentally not permitted under Article 16 of the Basic Law . Exceptionally, a different regulation can be made by law for extraditions to a member state of the European Union or to an international court of law, provided that constitutional principles are observed, see also ( Section 80 IRG ).
A delivery, the territorial jurisdiction decides Court of Appeal .
Organizational detention
If, in addition to the imposition of a prison sentence, a measure of reform and security is ordered against a criminal , then the measure is generally carried out before the prison sentence. The convicted person is held in organizational detention until he can be accommodated in the penal system (e.g. in a clinic for forensic psychiatry ).
Custody
In order to prepare for deportation (preparatory detention ) and to secure deportation (preventive detention), detention pending deportation can be ordered according to Section 62 of the Residence Act (AufenthG) . Detention pending deportation is ordered by the local court at the request of the competent authority (usually the immigration authority). Reasons for detention for preparatory detention arise from Section 62 (2) sentence 1 of the Residence Act, and reasons for preventive detention from Section 62 (3) of the Residence Act.
This type of detention is not a criminal detention, but a measure to enforce the obligation to leave the country. Therefore, the procedural provisions of the Code of Criminal Procedure applicable in criminal law do not apply . It is a matter of deprivation of liberty to which the provisions of the law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG) apply, Section 106 subs. 2 AufenthG, Section 415 ff. FamFG.
In Austria detention pending deportation is referred to as detention pending deportation. This is regulated in Section 76 Aliens Police Act 2005 and, in addition to securing deportation, can also serve to safeguard the asylum procedure. Due to the European asylum jurisdiction system according to the Dublin III regulation, this means that refugees may also be detained during the admission procedure.
Criminal law
Imprisonment was the mildest form of deprivation of liberty in the Federal Republic of Germany until the Great Penal Reform in 1969 (Section 18 of the Criminal Code, old version). It could be imposed for transgressions as well as for offenses of insult and defamation . The minimum duration was one day and the maximum six weeks. In the course of the criminal law reform, instead of the three different forms of deprivation of liberty ( penitentiary , prison and detention), the uniform prison sentence (in force since 1970) was introduced.
In the GDR , similar rules applied to imprisonment as in the Federal Republic until 1968; later, a prison sentence of between one week and six months could be imposed for some offenses (Section 41 of the Criminal Code (GDR) ).
