Dealing with climate activists: Why Bavaria’s preventive detention is controversial

Status: 11/17/2022 5:28 p.m

In Munich, several climate activists are in so-called preventive detention – without a criminal trial. This detention can last up to two months in Bavaria. Is that proportionate?

By Max Bauer, ARD legal department

There was already criticism in 2017, when preventive detention was greatly expanded in the Bavarian Police Tasks Act. Up to three months of preventive detention for dangerous persons were originally planned. With the option to renew over and over again.

Theoretically, the Bavarian state would have had the opportunity to detain someone indefinitely without criminal proceedings. After violent protests and demonstrations in Munich, this regulation was overturned. But preventive detention in Bavaria is still particularly strictly regulated.

Different regulations in the countries

Preventive detention or preventive detention exist in the police laws of all federal states. Above all, the duration of detention is regulated differently. The time frame is usually between four and 14 days. In Berlin it is only a maximum of 48 hours. Bavaria clearly stands out: 30 days of preventive detention are possible, which can also be extended by another month.

Detention without trial?

There have always been constitutional concerns about the long preventive detention. Deprivation of liberty through imprisonment is a serious encroachment on fundamental rights. In the constitutional state, imprisonment is therefore actually only intended as a punishment that is imposed by a criminal court and not by the police. If the personal guilt of an accused is determined in a public criminal trial, there may be imprisonment.

But this prison sentence is different from preventive detention. The penalties that the state provides are actually the answer to a violation of the law. With preventive detention, i.e. preventive detention, the state wants to prevent breaches of the law in advance and ward off imminent dangers. This means that when the police take someone into preventive custody, it is not to punish them, but to prevent them from committing crimes. In most police laws of the federal states, preventive locking up means custody and not imprisonment.

A court must confirm custody

But there are certain hurdles to police custody. It is not possible to imprison people in every danger. It must be about a “significant disruption to public security”, about averting “a danger to an important legal interest” or about preventing an “administrative offense of considerable importance for the general public” or a criminal offence.

In the Bavarian debate about preventive detention, politicians from the CSU had repeatedly emphasized that police custody was primarily there to get terrorist threats under control. In addition to the danger to an important legal interest, the police laws also provide for another requirement: Every preventive detention must be confirmed by a judge without delay.

Is preventive detention disproportionate?

Unlike criminal proceedings, however, the judicial review of preventive detention takes place behind closed doors. The Erlangen law professor Markus Krajewski has that opposite the “Süddeutsche Zeitung” pointed out. He complained about the Bavarian preventive detention before the Bavarian Constitutional Court.

According to the lawyer, there is nothing wrong with preventive detention. For example, if the police need time to bring the wife and children of a violent man to safety who violates contact bans and endangers his family. The detention period of a maximum of two months is “extreme”, also in comparison with the other federal states.

A lawsuit is filed against preventive detention

That preventive police detention against climate activists is disproportionate, also thinks the justice journalist Ronen Steinke. He compares police custody with classic criminal detention. In criminal proceedings against the Munich street blockers, it would be doubtful whether they committed criminal coercion at all. And even if they did, no court would immediately impose a prison sentence, because that would be disproportionate. The 30-day “long-term preventive detention” by the Munich police against the climate activists is now also disproportionate.

The Greens, SPD and Jusos have appealed to the Bavarian Constitutional Court against the long preventive detention in Bavaria. And at the Federal Constitutional Court in Karlsruhe there is also a norm control action against the Bavarian Police Tasks Act. It was submitted in the past legislative period by the FDP, Greens and Left.

Preventive detention for football hooligans and Castor Transport protesters has been confirmed in the past by the European Court of Human Rights and the Federal Constitutional Court. However, these decisions mostly concerned cases of short preventive detention of a few hours or days.

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