It was a tremor right at the beginning of Markus Söder’s tenure. On May 10, 2018, between 30,000 and 40,000 people protested in downtown Munich against the tightening of the Police Duties Act (PAG). Against the background of terrorist attacks at home and abroad, the CSU government wanted to significantly expand the powers of the Bavarian police, for example in monitoring and preventive detention for potential threats. An outcry followed, critics feared massive encroachments on civil liberties. FDP leader Christian Lindner even warned Bavaria against taking the path “towards the police state”. And in Munich, anger erupted over the new prime minister, whose likeness adorned the protest posters: “Big Brother is watching you.”
Assunta Tammelleo also drove to Marienplatz at the time. “I could hardly get out of the subway station, the city was bursting at the seams,” said the artist on Thursday, almost exactly five years later. She is standing in front of heavy wooden doors in Munich’s Palace of Justice, and in a few minutes the constitutional lawsuit that she and her Bund für Geistfreiheit (BfG) filed against the PAG shortly after the large-scale demonstration will be heard behind them.
She’s not the only one. According to the Constitutional Court, a total of nine PAG proceedings are ongoing. SPD, Greens, Left, an alliance called “NoPAG” or a group of 20 law teachers and students: they all have expressed doubts about the constitutionality. The oral hearing on Thursday is just the beginning of a long series of proceedings.
After the amendments of 2017 and 2018, the law was revised several times and partially relaxed. Tammelleo, who represents the Greens on the Wolfratshausen city council, still sees the law as a “danger to our democracy.” According to the complaint, it violates a total of 25 norms: rule of law, separation of powers, human dignity.
The focus is on two points of contention: on the one hand, the concept of “imminent danger”. In 2017, it was written into law as the starting point for police measures instead of “concrete danger”. If there is an “imminent danger”, the police can identify people, monitor them (e.g. with an ankle bracelet) or secure the mail without their knowledge. Critics like Tammelleo find the term too vague and fear that the police could intervene too generously in civil liberties. The expression was “disproportionate and inappropriate,” said BfG attorney Rudolf Riechwald on Thursday.
The state government’s lawyers argue that the term “imminent danger” is used by the Federal Constitutional Court itself. It’s not a “suspected abstract danger,” says Markus Möstl, the government’s procedural officer. But about an imminent attack on a high-ranking legal interest that “can be determined with sufficient probability”.
The so-called preventive custody is also controversial. Since the PAG reform, the police have been able to lock up troublemakers without criminal proceedings for up to 30 days and extend their detention by a maximum of another month. Plaintiff Tammelleo speaks of a “punishment on suspicion”. “That shouldn’t exist in a constitutional state.”
Yes, the government lawyer concedes, it is a deep intervention. However, he was “only a last resort” if other means of averting danger had not worked. In addition, a judge ultimately decides on the duration of detention. The old maximum of 14 days was not sufficient to prevent an “attack on a Christmas market that lasted longer than two weeks”.
At this point a weakness in the government’s argument is revealed. Because Möstl does not go into the fact that preventive detention was recently used regularly against climate activists of the “last generation”. It is Hans-Joachim Hessler, the President of the Constitutional Court, who outlines the topic at the beginning. It is not the task of the Constitutional Court to evaluate individual cases, but rather the legal basis, says Hessler. The fact that Bavaria’s top guardian of the constitution expressly mentions the debate about the controversial action against the “last generation” is at least remarkable. After all, the critics of the PAG have always warned against precisely this: that the state will not only use its new powers against terrorists. June 14 will show what that means for the constitutionality of the law. Then the decision will be announced.