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Executive Summary

Germany has constitutional guarantees against an improper detention and these require a judicial warrant for an arrest and insist on procedural remedies to challenge a detention. These constitutional guarantees have been implemented in statutory law in a manner that can be considered as equivalent to writs of habeas corpus.

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Constitutional Parameters

Article 104, paragraph 1 of the German Constitution[1] provides that deprivations of liberty may be imposed only on the basis of a specific enabling statute that also must include procedural rules.  Article 104, paragraph 2 requires that any arrested individual be brought before a judge by the end of the day following the day of the arrest.  For those detained as criminal suspects, article 104, paragraph 3 specifically requires that the judge must grant a hearing to the suspect in order to rule on the detention.

Restrictions on the power of the authorities to arrest and detain individuals also emanate from article 2 paragraph 2 of the Constitution which guarantees liberty and requires a statutory authorization for any deprivation of liberty.  In addition, several other articles of the Constitution have a bearing on the issue.  The most important of these are article 19, which generally requires a statutory basis for any infringements of the fundamental rights guaranteed by the Constitution while also guaranteeing judicial review; article 20, paragraph 3, which guarantees the rule of law; and article 3 which guarantees equality.

In particular, a constitutional obligation to grant remedies for improper detention is required by article 19, paragraph 4 of the Constitution which provides as follows:

Should any person’s right be violated by public authority, he may have recourse to the courts.  If no other jurisdiction has been established, recourse shall be to the ordinary courts.

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Statutory provisions

In federal law, the constitutional guarantees against improper detention are implemented primarily in the Code of Criminal Procedure[2] and in an Act on Court Proceedings for Deprivations of Liberty (hereinafter: Deprivations of Liberty Act).[3]  The Act is applicable on a subsidiary basis to all detentions imposed by federal law, if the specific enabling provisions are not sufficient.[4]  In the states, these constitutional guarantees are implemented in the laws governing the police.

The Code of Criminal Procedure applies to all criminal proceedings and it requires that a detained person be brought before the judge on the day of detention as a rule, but at the latest on the day following detention.[5]  In addition, this Code provides that a detained person may at any time submit a complaint challenging the detention, by claiming either that the detention was unlawful to begin with or that it is no longer required on the basis of law.[6]

The Act on Deprivations of Liberty also requires a judicial hearing within the constitutionally prescribed time limit of the day following the day of arrest.[7]  In addition, this Act provides appeals possibilities for decisions on detention[8] and allows the detained person to challenge the detention at any time.[9]                

An example for an implementation of the constitutional safeguards against detentions in a law of the states is contained in the Act on Public Security and Order of the State of Lower Saxony.[10]  This Act allows police detentions for a maximum of four days to protect public safety in general, and for a maximum of ten days to prevent a serious criminal offense.  Detainees must be brought before a judge by the day following the detention and they have appeals possibilities against a detention decision.

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Prepared by Edith Palmer
Senior Foreign Law Specialist
May 2007

Updated by Edith Palmer
Senior Foreign Law Specialist
March 2009

  1. Grundgesetz für die Bundesrepublik Deutschland, May 23, 1949, BUNDESGESETZBLATT [BGBl. official law gazette of the Federal Republic of Germany] 1. [Back to Text]
  2. Strafprozessordnung [StPO], repromulgated Apr. 7, 1987, BGBl I at 1074, as amended. [Back to Text]
  3. Gesetz über das gerichtliche Verfahren bei Freiheitsentziehungen [FreihEntZG], Jun. 29, 1956, BGBl I at 599. [Back to Text]
  4. FreihEntZG § 1. [Back to Text]
  5. StPO, § 115. [Back to Text]
  6. StPO § 117. [Back to Text]
  7. FreihEntZG § 5. [Back to Text]
  8. FreihEntZG § 7. [Back to Text]
  9. FreihEntZG, §§ 10 and 12. [Back to Text]
  10. Niedersächsisches Gesetz über die öffentliche Sicherheit und Ordnung, repromulgated January 19, 2005, NIEDERSÄCHSISCHES GESETZ- UND VERORDNUNGSBLATT 9, § 18-21. [Back to Text]

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Last Updated: 07/30/2015