Preventive detention as a counter-terrorisminstrument in Germany

Tim Nikolas Mueller

# Springer Science+Business Media Dordrecht 2014

The threat of international terrorism has led to new schools of thought about securitythroughout the entire world. In their wake, national legislators and international organisa-tions have introduced or promoted legal grounds for preventive detention that are specifi-cally tailored to persons suspected of terrorism [1]. With regard to Germany, variouschanges to administrative and criminal detention regimes have been contemplated in legalpolicy debates since the September 11 attacks.While efforts to further expand the respectivecoercive powers under administrative law stalled in 2005, new provisions facilitating thedetention of potential terrorists have been enacted in substantive and procedural criminallaw [2]. The principal reason for this development can be traced back to the incoherentstandards applied to administrative and criminal detention by the German ConstitutionalCourt (GCC) and the European Court of Human Rights (ECtHR).

The distinction between administrative and criminal law

Traditionally, the German legal system distinguishes preventive and retributive measuresinto two separate branches of law [3, p. 253]. According to the constitutional allocation oftasks, criminal law is only dedicated to deal with actions that harm or immediately threatenprotected legal interests and thus warrant prosecution. Therefore, preparatory acts prior tothe stage of attempt have generally been exempted from punishment [4, p. 523]. Inconsequence, detention on remand as the earliest deprivation of liberty governed by criminallaw presupposes inter alia the “strong suspicion” that a person has already committed orattempted an actual crime (Section 112 of the Criminal Procedure Code, CPC). Criminal lawis principally oriented towards the past and primarily serves a retributive function [4, p. 4].

In contrast, administrative law (for instance police law and foreigners’ law) follows apreventive approach and comprises measures against future risks [3, p. 188]. Thethreshold for measures under administrative law consists in a “concrete danger”, i.e.situations where the unimpeded course of events constitutes an ample probability ofharm to protected legal goods within a conceivable time-frame [3, p. 202]. Unlike

Crime Law Soc ChangeDOI 10.1007/s10611-014-9524-8

T. N. Mueller (*)Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germanye-mail: timmueller@freenet.de

criminal law, measures taken under police law or foreigners’ law are void of moralreproaches and are designed as situational responses to specific threats [3, p. 253].Within the meaning of the Basic Law, preventive detention as such hence constitutes ashort-term intervention in the domain of administrative law.

The protection of the right to liberty in the Basic Law and the ECHR

The right to liberty is protected by the Basic Law as well as the European Convention onHuman Rights (ECHR), of which Germany has been a member state since 1952. Sincethe deprivation of liberty represents the most intrusive measure in European legalsystems, the fundamental rights provide strict limitations to statutory detention, whilstimplementing a different regulatory approach.

The fundamental right to liberty, Article 2 (2) sentence 2, Article 104 of the Basic Law

In the German legal system, the fundamental right to liberty is granted by Article 2(2) sentence 2 of the Basic Law, which reads: “Freedom of the person shall beinviolable.” Pursuant to the subsequent sentence of the norm, the right to libertymay be interfered with only pursuant to a law. According to the reservation ofstatutory powers (Gesetzesvorbehalt) embodied herein (refined by Article 104 (1)sentence 1 of the Basic Law), a curtailment of the right to liberty may only beundertaken by virtue of powers conferred by a formal law [5, p. 283].

While Article 2 (2) sentence 2 of the Basic Law enshrines the fundamental right in itsmaterial sense, Article 104 (1) to (4) of the Basic Law govern the formal prerequisitesunder which an encroachment of personal liberty may be administered. Pursuant toArticle 104 (2) of the Basic Law, “Only a judge may rule upon the permissibility orcontinuation of any deprivation of liberty. If such a deprivation is not based on a judicialorder, a judicial decision shall be obtained without delay.” Additionally, according toArticle 104 (3) of the Basic Law, “Any person provisionally detained on suspicion ofhaving committed a criminal offence shall be brought before a judge no later than the dayfollowing his arrest; the judge shall inform him of the reasons for the arrest, examine him,and give him an opportunity to raise objections. The judge shall, without delay, eitherissue a written arrest warrant setting forth the reasons therefore or order his release.”

According to the Basic Law, any interference with the right to liberty has to be inkeeping with the principle of proportionality [5, p. 283]. For this purpose, any curtailmentmust serve a legitimate purpose. The German Constitutional Court (GCC) has continu-ously ruled that a deprivation of liberty may only be effectuated for the protection of“absolute public interests”, including, but not restricted to, the aim of keeping harm fromothers [6, p. 322]. Statutory detention for the purpose of terrorism prevention satisfies thisrequirement.

In addition, the intervention ought to be suitable and necessary to achieve the objectivein question. In order to be suitable, the measure has to contribute positively to therespective aim [7, p. 172]. The interference is necessary when no less intrusive measureto achieve the aim exists [7, p. 172]. Given the probable effect that the preventive detentionof potential perpetrators may, at least in some cases, conduce to keeping harm from others,the interference with their right to liberty will generally meet these two requirements.

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The focal point of the proportionality principle, however, is the requirement of areasonable relation between the intervention and the purpose in question [7, p. 172].While the prevention of terrorism undoubtedly has to be considered a sovereign functionof utmost importance, the GCC repeatedly struck down a number of anti-terrorism laws inthe recent past, reconfirming that the end does not justify all means [8, p. 274]. Theproportionality principle thus sets a high standard regarding the legal prerequisites and thelength of any deprivation of liberty.

The right to liberty and security, Article 5 of the ECHR

The right to liberty and security is enshrined in Article 5 (1) sentence 1 of the ECHR:“Everyone has the right to liberty and security of person.” The article aims to protect theindividuals’ physical liberty against arbitrary and wrongful arrest and detention [9, § 92].While the Basic Law addresses the proportionality of intrusive measures, Article 5 (1) ofthe ECHR specifies an exhaustive list of all cases in which a person may be arrested orimprisoned [10, § 57]. At the same time, Article 5 (2) to (5) of the ECHR lay downimportant procedural safeguards.

In sum, no person shall be deprived of his liberty save in the cases set forth in Article 5(1) (a) to (f) of the ECHR and in accordance with a procedure prescribed by law. In orderto comply with the ECHR, the member states thus have to enact concurring domesticprovisions [11, p. 104]. However, the national laws must not exceed the list of permissiblecases for arrest or detention. In contrast, any deprivation of liberty must occur inaccordance with a procedure prescribed by the domestic law, which itself must be inconformity with the ECHR [11, p. 105]. In the present context, Article 5 (1) (a), (b), (c)and (f) of the ECHR may, in principle, justify prevention of terrorism detention regimesand will therefore be discussed in the following sections.

As regards the formal requirements, Article 5 (3) of the ECHR prescribes the right ofprompt access to judicial proceedings to determine the legality of one’s arrest or detentionand to trial within a reasonable time or release pending trial for all persons detained underArticle 5 (1) (c) of the ECHR. In addition, Article 5 (2) of the ECHR stipulates thateveryone who is arrested shall be informed promptly, in a language which he understands,of the reasons for his arrest and of any charge against him. Article 5 (4) of the ECHRenshrines that “Everyone who is deprived of his liberty by arrest or detention shall beentitled to take proceedings by which the lawfulness of his detention shall be decidedspeedily by a court and his release ordered if the detention is not lawful.”

Article 15 of the ECHR allows contracting states to derogate from certain rightsguaranteed by the ECHR, including Article 5 of the ECHR, in time of war or otherpublic emergency threatening the life of the nation, to the extent strictly required by theexigencies of the situation, provided that such measures are not inconsistent with theirother obligations under international law. However, with respect to Germany, thedeclaration of a derogation has not been seriously deliberated in recent years.

Preventive detention regimes under administrative law

In the context of preventive detention as a counter-terrorism instrument, the most relevantcoercive powers under German administrative law are police custody and pre-deportation

Foundations and limits of personal liberty in the Basic Law and the ECHR

confinement. While a reform of foreigners’ law in 2005 facilitated pre-deportation con-finement of potential terrorists, the provisions on police custody have remained unchanged[1]. However, considerable thought has been given to expanding the maximumduration of police custody or introducing a specific administrative detention regimefor terrorist suspects below the traditional threshold of a “concrete” or “immediate”danger [12, p. 72].

Police custody

The police laws of the federal states empower the police to arrest and hold a person incustody for the purpose of preventing the commission of an offence. For instance,according to Article 17 (1) number 2 of the Bavarian Police Code, “the police maytake a person in custody if this is necessary to prevent the imminent committal orcontinuation of a crime (...)”. Article 19 number 3 of the Bavarian Police Code reads:“The arrested person has to be released at the latest at the end of the day following thearrest, unless the continuation of the deprivation of liberty has been ordered by acourt. In the order of the court, the maximum length of the deprivation of liberty hasto be ascertained; it must not exceed more than two weeks.”

In short, the provisions presuppose an “imminent danger” that an individual willcommit a criminal act, but do not require that the stage of attempt has already beenreached [13, p. 81]. To illustrate, police custody was used to prevent a suspectedterrorist attack on the Munich Oktoberfest in 2009, when two potential perpetratorswho could not be charged with having committed or attempted a crime were takeninto custody in order to prevent them from committing an assault.

Pursuant to Article 104 (2) sentence 3 of the Basic Law, which is echoed in thepolice law provisions, the police must not hold a person in custody on its ownauthority beyond the end of the day following arrest. The maximum permissibleduration of imprisonment based on a judicial order varies from state to state, butnever exceeds more than two weeks [3, p. 477].

Initial plans to introduce a specific detention regime for so-called “endangerers”,i.e. persons that are conceived of as potential perpetrators of terrorist crimes, wereabandoned. Likewise, the legislators of the federal states have refrained fromexpanding the maximum duration of detention under the police law statutes. Theprincipal reason for this swing in legal policy can be traced back to a judgment by theGCC, in which the court stated that the long-term preventive detention of persons thathave not committed a crime would be disproportional and therefore unconstitutional[14, p. 220].

Police custody in the jurisdiction of the GCC and the ECtHR

In most cases, the GCC and the Federal Administrative Court have continually affirmedthat police custody constitutes a proportionate and constitutional state intervention forthe prevention of crimes. However, according to a judgment from 2004, “it is solely thedistinct indication of having committed a crime that entitles the state to assess thedangerousness of a person and impose a long-term deprivation of liberty grounded onthe result of this assessment. Below the threshold of a criminal conviction, the state mayonly react to concrete dangers by deploying situational instruments such as 14-day

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custody under police law statutes” [14, p. 220]. In contrast, detaining a person who hasnot been convicted or only convicted of having committed minor offences (i.e. misde-meanors) for an extended period of time would, according to the GCC, be dispropor-tionate and violate the fundamental right to liberty [14, p. 220]. Hence, while the GCChas reiterated that police custody falls within the limits set byArticle 2 (2) sentence 2 andArticle 104 of the Basic Law, the judges held that this measure and similar forms ofadministrative detention have to remain a short-term instrument.

Additionally, Article 5 of the ECHR imposes heavy limitations on police custody in themember states. Police custody cannot be legitimated byArticle 5 (1) (b) of the ECHR,whichprovides for “the lawful arrest or detention of a person (…) in order to secure the fulfilmentof any obligation prescribed by law”. According to the ECtHR, the provision only concernsthose caseswhere the law permits the detention of a person to compel him to fulfil a “specificand concrete” obligation (unlike the general duty not to commit crimes) which he has failedto satisfy [9, § 101]. In contrast, “the clause does not contemplate arrest or detention for theprevention of offences against public peace and public order or against the security of theState” [15, § 9]. Likewise, “a wide interpretation would entail consequences incompatiblewith the notion of the rule of law from which the whole ECHR draws its inspiration” [10, §69]. As a matter of fact, the interpretation of Article 5 (1) (b) of the ECHR as a generalpermission for statutory deprivation of liberty would render all other grounds for detentionsuperfluous, as they invariably result from obligations prescribed by law [16, p. 120]. Hence,such a view is entirely incompatible with the rationale of Article 5 of the ECHR.

Additionally, scholars have argued that the detention of potential terrorists could bejustified under Article 5 (1) (c) of the ECHR, which inter alia provides for the lawfularrest or detention of a person “to prevent his committing an offence” [17]. Whileadministrative detention of terrorist suspects seems, at first glance, to fit perfectly withinthe meaning of this clause, the jurisprudence of the ECtHR clearly rules out theapplication of such measures. The ECtHR reiterated that Article 5 (1) (c) of the ECHR“is not adapted to a policy of general prevention directed against an individual or acategory of individuals who, like mafiosi, present a danger on account of their continu-ing propensity to crime; it does no more than afford the Contracting States a means ofpreventing a concrete and specific offence” [9, § 102]. Therefore, detention regimes for“endangerers” would not comply with the requirements of the ECHR.

Moreover, the ECtHR has, for decades, interpreted Article 5 (1) (c) of the ECHR asmerely comprising detention on remand, thus requiring a reasonable suspicion of havingcommitted an offence. The interpretation is founded on the idea that the deprivation ofliberty under every category of cases of arrest or detention under Article 5 of the ECHR iseffected for the purpose of bringing the person before the competent judicial authority [15,§ 14]. It is for the judicial authority to assess whether the person detained or arrestedshould be held in detention on remand and be subjected to a criminal trial. Suchassessment, however, can only be rendered in cases where there already is a reasonablesuspicion of an offence that was committed in the past.

In the most recent and decisive judgment, the ECtHR explicitly stated that “A personmay be detained within the meaning of Article 5 (1) (c) of the ECHR only in the contextof criminal proceedings, for the purpose of bringing him before the competent legalauthority on suspicion of his having committed an offence” [18, § 50]. Therefore,preventive detention as part of a campaign to combat terrorism cannot be brought withinArticle 5 (1) (c) of the ECHR [19, p. 110]. Since Article 5 of the ECHR lacks further

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potentially permissible grounds for arrest and detention, the idea to detain “endangerers”contravenes the fundamental right to liberty and security granted by the ECHR.

In sum,while the GCCholds that traditional police custody of up to 14 days complies withthe requirements of the Basic Law, it cannot be brought in accordance with Article 5 of theECHR.Moreover, a long-term administrative detention of “endangerers”would fail to satisfythe requirements of both the Basic Law and the ECHR. Thus, police custody and similarforms of administrative detention face serious constitutional and conventional caveats.

Pre-deportation confinement

Under German law, a person may be taken into custody in order to secure his deportationto his native country. Similar to other countries, Germany has expanded its foreigners’ lawfor the purpose of combatting terrorism in the aftermath of the September 11 attacks [20].With the effect of 1 January 2005, the German legislator extended the grounds fordetention under foreigners’ law.

Most notably, the administrative order to deport (Abschiebungsanordnung) in Section58a of the Residence Act provides for the immediate detention of a person in order tosecure his deportation. Pursuant to the provision, “the highest federal state authority may,without prior expulsion, issue an administrative order to deport grounded on a prognosisbased on facts against a foreigner for the purpose of averting an exceptional or terroristthreat for the security of the Federal Republic of Germany. The order to deport isenforceable immediately, a prior declaration of deport is unnecessary.” Also, accordingto Section 58a (2) of the Residence Act, the FederalMinistry of the Interior may declare theassumption of authority in case of a particular interest of the German Federal Government.

However, an administrative order to deport must not be enforced if the deportationitself is prohibited by Section 60 (1) to (8) of the Residence Act [20]. This provision lists anumber of restrictions on the deportation of foreigners. These include the possibility thatthe foreigner could be facing torture or death penalty in his native country [20]. Unlessthese prohibitions apply, pre-deportation confinement may be imposed pursuant toSection 62 of the Residence Act.

Pursuant to this Section 62 (2) number 2 of the Residence Act, a foreigner has to betaken into custody by order of a court for the purpose of securing the deportation if anadministrative order to deport according to Section 58a of the Residence Act has beenissued, but cannot be executed immediately. In accordance with Section 62 (3) of theResidence Act, pre-deportation confinement can be imposed by judicial order for sixmonths and be extended for an additional twelve months if the foreigner intentionallyobstructs his deportation, for instance by destroying documents such as his passport.

Pre-deportation confinement in the jurisdiction of the GCC and the ECtHR

Despite the relatively long detention periods, the GCC has declared pre-deportationconfinement to comply with the requirements embodied in the principle of proportionality[21, p. 250]. This view, however, fails to adequately consider that pre-deportationconfinement can in reality be employed to circumvent the strict constitutional and judicialrequirements relating to police custody.

Unlike police custody and the concept of administrative detention of “endangerers”,pre-deportation custody finds an admissible ground for detention in Article 5 of the

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ECHR as it satisfies the requirements of Article 5 (1) (f) of the ECHR which allows the“lawful arrest or detention of a person against whom action is being taken with a view todeportation or extradition.”

Article 5 (1) (f) of the ECHR provides only very limited assistance to detained non-nationals. The ECtHR has so far declined to read into the words of Article 5 (1) (f) of theECHR any requirement for the proportionality of measures taken against persons facingdeportation. According to the ECtHR, there is no need for the state to establish thatdetention was reasonably considered necessary to prevent the expulsee from abscondingor committing an offence [19, p. 129]. In the absence of any procedural irregularity orofficial arbitrariness, the only way to establish a breach of the ECHR is to prove that theexpulsee was not truly the object of deportation action [19, p. 129]. However, even delaysof two years and eight months to over six years awaiting deportation were considered notto constitute a violation of Article 5 of the ECHR in the view of the ECtHR [22].

Nevertheless, pre-deportation confinement on the basis of a deportation order hasremained a virtually unused legal instrument. Whilst the provision was specificallyintended to counter Islamic terrorists, it failed to overcome several practical challenges.Firstly, the order to deport can only be effectuated against foreigners, while Germany, inthe recent past, mainly struggled with “homegrown terrorism”, i.e. terrorists holding aGerman passport. Secondly, persons must not be deported and can therefore not bedetained because of limitations imposed by the ECHR if they could be facing torture ordeath penalty in their native country. In consequence, many internationally known terroristsuspects cannot be taken into custody on the basis of pre-deportation confinement.

The expansion of terrorism-related substantive and procedural criminal law

As a response to the practical limitations of a detention under foreigners’ law and thestrict criteria applied to preventive detention under police law by the GCC and theECtHR, the German legislator has opted for facilitating the detention of potentialterrorists through an expansion of substantive and procedural criminal law [2]. TheGovernment realised that whilst the introduction of new grounds of detention underadministrative law would provoke significant constitutional and conventional issues, theexpansion of substantive and procedural criminal law would very likely be accepted byboth the GCC and the ECtHR. However, the recent developments challenge the func-tional limits of criminal law and the allocation of tasks as laid down by the Basic Law.

The approach to using criminal law as a preventive measure is two-fold: Firstly, thelegislator attaches criminal liability at an earlier point in the unfolding of a criminaloffence, i.e. by criminalising preparatory acts, in the field of substantive law [2].Secondly, the coercive powers in procedural law are expanded, for instance by intro-ducing lower thresholds and more extensive grounds for detention on remand [1]. As aconsequence, preventive criminal law then facilitates the detention of potential terroristslong before harm to other individuals actually occurs. However, when relocating theboundaries of criminal accountability into the early stages of the commission of a crime,uncertainties as to the true nature of the criminalised actions remain. From an objectiveviewpoint, it is impossible to determine the ultimate purpose of a suspicious activitysuch as the acquisition of skills which can be applied in various criminal as well as non-criminal contexts.

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Statutory offences for the prevention of terrorism

German substantive criminal law has known a variety of terrorism-related offences. Aspart of a counter-terrorism strategy against the “Red Army Fraction”, a leftist terroristorganisation whose members and supporters conducted a series of high-profile terroristattacks from the 1970s onwards, the German legislator introduced a membership crimefor terrorist organisations, Section 129a of the German Criminal Code (CC).

Pursuant to this offence, whosoever forms an organisation whose aims or activitiesare directed at the commission of particularly severe crimes such as inter alia murderunder specific aggravating circumstances (Section 211 of the CC) or crimes againsthumanity (Section 7 of the German Code of International Criminal Law) or whoso-ever participates in such a group as a member shall be liable to imprisonment fromone to ten years. The same penalty shall be incurred by any person who forms anorganisation whose aims or activities are directed at committing a list of typicalterrorist crimes established in Section 129 (2) numbers 1 to 5 of the CC or by anyperson who participates in such a group as a member, if one of the offences stipulatedis intended to attain terrorist aims, such as inter alia unlawfully coerce a publicauthority through the use of force.

Thus, criminal liability under Section 129a of the CC does not presuppose the priorcommission of an actual terrorist attack by the organisation, but merely the respectivecommon intent of its members [23, § 129a]. The provision's scope of application hasbeen expanded in 2002 in order to cover criminal and terrorist organisations abroad(Section 129b of the CC).

In addition, Section 30 (2) of the CC criminalises the agreement with another tocommit a felony. According to Section 30 (2) of the CC “a person who agrees withanother to commit or abet the commission of a felony shall be liable according to theprovisions governing attempted felonies”. However, while themitigation of the sentencefor an attempt in comparison to a consummated crime is at the discretion of the judge,the mitigation is obligatory with respect to the mere agreement to commit a felony(Section 30 (2) sentence 2 of the CC).

On 4 August 2009, three new criminal provisions were enacted as part of “the law forthe prosecution of the preparation of severe terrorist crimes” (Gesetz zur Verfolgung derVorbereitung schwerer staatsgefährdender Gewalttaten). The provisions partly origi-nate from the Council of Europe Convention on the Prevention of Terrorism which wassigned in Warsaw on 16 May 2005 [24]. As a result of the Warsaw Convention, theparties undertook to adopt the necessary measures to establish training and recruitmentfor terrorism as well as public provocation to commit a terrorist offence, when commit-ted unlawfully and intentionally, as a criminal offence under their domestic law. Whendischarging the obligations under the Warsaw Convention, the German legislator aimedat criminalising preparatory acts committed by individuals, taking into account the riskthat terrorist attacks can be and have been carried out by persons who had not been partof a terrorist organisation [24].

Section 89a of the CC criminalises a wide range of preparatory acts for the commissionof severe terrorist crimes. Most notably, it covers the attendance of a terrorist trainingcamp. However, the scope of the actus reus extends much further and encompasses theacquisition of specific skills necessary for the commission of a terrorist crime. As has beenpointed out in academic writing, this comprises a variety of perfectly legitimate actions

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such as the attendance of a chemistry class, a course in Arabic or taking lessons in drivingschool [23, § 89a].

Moreover, the offence incriminates the provision of weapons and explosives, butalso covers the procurement of objects essential for the creation of improvisedexplosive devices – such as fertiliser or hydrogen. Eventually, Section 89a of theCC criminalises the collection, acceptance or procurement of significant assets for thefinancing of a severe terrorist crime. In order to limit the provision's wide objectivescope, a person is only liable if, for instance, the acquisition of a relevant skill is ledby the intent to later use it for the commission of a terrorist attack. The threat ofpunishment for the incriminated actions is a custodial sentence of up to ten years.

Section 89b of the CC criminalises the establishment or retention of a relationshipwith a terrorist organisation with the intent to receive terrorist training. The offencecan be fulfilled, given the required intent, by merely contacting a terrorist group via e-mail, even if the terrorist group is not interested or willing to establish a relationshipor willing to provide terrorist training [23, § 89a]. A person who commits the crimeshall be liable to a custodial sentence of up to three years.

Section 91 of the CC proscribes the dissemination or procurement of a documentintended for the preparation of a terrorist crime. The statutory offence can, for instance,be consummated by publishing a bomb-building manual on an Islamist message board [2].Likewise, whosoever downloads such a document can be sentenced to a custodial sentenceof up to three years.

Arguably, the purpose of all these provisions, especially the maximum ten yearcustodial sentence for attending a terrorist training camp, is not retribution for the actitself, but rather prevention of a terrorist attack by means of detaining a potentialperpetrator. Thus, criminal detention, be it in form of imprisonment after conviction bya court or in the form of detention pending trial, fulfills a preventive rather than aretributive function if based on these pre-emptive statutory offences. In consequence,there is an inherent risk that the provisions will be used to circumvent the strict criteriaapplicable to preventive detention under administrative law.

Criticism of the new anti-terror provisions

The new statutory offences have faced serious criticism in academic writing. Whilesome scholars have argued that the expansion of criminal law on preparatory acts of anindividual is per se illegitimate and impermissible [25], others have conceded the needfor an expansion of criminal law, but have proposed more specific criteria for theadmissibility of such pre-emptive offences [2]. There is, at least, widespread agreementthat criminal provisions are not fit to cover actions whose wrongfulness solely dependson the mens rea, i.e. ultimately depend on the thoughts and intentions of a potentialperpetrator [2, 25]. Such statutory offences would be contradictory to the legal propo-sition that no-one must suffer punishment for mere intentions (cogitationes poenamnemo patitur) [26]. As a minimum standard, criminal provisions incriminating prepa-ratory acts should entail an objectively identifiable wrongdoing, thus excluding “neu-tral” acts such as attending a chemistry class.

There is high risk of abuse of these offences as a means to trigger unjustified criminalinvestigations or “preventive detention” in the guise of “retributive punishment”. Byshifting away from its retributive function, criminal law partly assumes the preventive

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function of administrative law. The purpose of extending the scope of substantive law isbelieved to be the facilitation of prosecutorial powers, such as wiretapping (Section 100aof the CPC) and, ultimately, detention on remand (Section 112 of the CPC) [27].

Detention on remand and custodial sentence as preventive instruments

Besides a “strong suspicion” that the accused has committed an offence, detention onremand requires a “ground for arrest” pursuant to Section 112 (1) sentence 1 of the CPC.According to Section 112 (1) sentence 2 of the CPC it may not be ordered if it isdisproportionate to the significance of the case or to the penalty likely to be imposed.Based on the new preventive offences, detention on remand can be effectuated at a veryearly stage in the unfolding of a terrorist attack.

Initially, the CPC only encompassed three “grounds for arrest”: flight (Section 112 (2)number 1 of the CPC), risk of absconding (Section 112 (2) number 2 of the CPC) anddanger of suppression of evidence (Section 112 (2) number 3 of the CPC). Two furthergrounds for arrest were introduced into the law in 1964 with a view to combat crime andfacilitate pre-trial detention with a preventive nexus: risk of re-offending (Section 112a ofthe CPC) and suspicion of a severe crime (Section 112 (3) of the CPC).

The scope of application of Section 112a of the CPC has recently been expandedto comprise the preparation of a terrorist attack. Pursuant to the newly phrasedprovision, “a ground for arrest shall also exist if the accused is strongly suspectedof having repeatedly or continually committed a criminal offence which seriouslyundermines the legal order pursuant to Section 89a of the CC […] and certain factssubstantiate the risk that prior to final conviction he will commit further seriouscriminal offences of the same nature or will continue the criminal offence, if detentionis required to avert the imminent danger, and […] imprisonment exceeding one yearis expected to be imposed.” Thus, if a person is suspected to commit furtherpreparatory acts, he can be held in detention on remand even where there is nodanger of absconding or suppression of evidence.

Moreover, the field of application of the suspicion of a severe crime encompasses theprovisions prohibiting the forming of a terrorist organisation, Section 129a of the CC andSection 129b of the CC. According to Section 112 (3) of the CPC, “remand detentionmaybe ordered against an accused strongly suspected of an offence pursuant to Section 129a(1) of the CC […] even if there is no ground for arrest pursuant to Section 112 (2) of theCPC”, i.e. flight, risk of absconding or danger of suppression of evidence.

However, the GCC ruled that if Section 112 (3) of the CPC were interpreted to theeffect that detention on remand did not require an actual ground for arrest it would beunconstitutional and therefore void due to an infringement of the principle ofproportionality and the presumption of innocence [28, p. 350]. At the same time,the judges avoided the nullity of the provision by means of a so-called interpretationin conformity with the Basic Law. Thus, the GCC declared that for detention onremand based on Section 112 (3) of the CPC, it is sufficient that the risk ofabsconding or suppression of evidence “cannot be ruled out” [28, p. 350]. Giventhe nature of the charge, virtually any person seriously suspected of a terroristmembership crime will be taken in detention on remand pursuant to Section 112(3) of the CPC because it is almost impossible to “rule out” the danger of absconding.Thus, while the GCC rejected a mandatory system of remand on grounds of the

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nature of the charges, it accepted that the severity of the alleged crime reduces thethreshold for the assumption of other grounds of detention on remand [28, p. 351].

With regard to the ECHR, Article 5 (1) (c) of the ECHR allows for “the lawfularrest or detention of a person effected for the purpose of bringing him before thecompetent legal authority on reasonable suspicion of having committed an offence orwhen it is reasonably considered necessary to prevent his committing an offence orfleeing after having done so.” The provision thus requires a “reasonable suspicion”,which presupposes the existence of facts or information which would satisfy anobjective observer that the person concerned may have committed the offence [11,p. 118]. However, with regard to the difficulties inherent in dealing with terroristcrime, the ECtHR held that what is “reasonable” depends upon the circumstances.While the judges were prepared to lower the burden of proof, they ruled that anational court “must be furnished with at least some facts or information capable ofsatisfying it that the arrested person was reasonably suspected of having committedthe alleged offence” [29, § 51].

The preventive scope of substantive criminal law also affects the general functionof custodial sentences. Arguably, insofar as the newly enacted statutory offensesserve a preventive rather than a retributive function, the conviction of the perpetratorand the subsequent custodial sentence effectively also amount to preventivedetention.

Surprisingly, both the GCC and the ECtHR have, so far, accepted the extension ofsubstantive criminal law beyond its retributive purpose. While the GCC has reiteratedthat interventions under police law which infringe on the right to liberty require theexistence of a “concrete danger”, the judges have confirmed that they do not considerstatutory offences criminalising mere “abstract dangers” to legal goods to be unconsti-tutional [30]. Thus, while a short-term intervention under administrative law, such aspolice custody, would be held unconstitutional, for instance, in case of initial preparatoryacts (because no “concrete” danger exists), such preparatory acts may, in principle, becriminalised and punished with a maximum ten year custodial sentence.

With regard to the conventional viewpoint, Article 5 (1) (a) of the ECHR permits thelawful detention of a person after conviction by a competent court. Within the meaning ofthe ECHR, conviction signifies the finding of guilt and the imposition of a penaltyinvolving the deprivation of liberty. The detention must occur pursuant to the decisionof a court and consequent upon it. Since the detention, not the conviction, must be lawful,the ECtHR has no power to under Article 5 (1) (a) of the ECHR to examine whether theevidence adducted before the domestic courts was sufficient for a finding of guilt [19, p.118].

As regards the limits of substantive criminal law, Article 7 of the ECHR embodies theprinciple of legality. The provision stipulates that no-one should be convicted orpunished except in respect of a breach of a pre-existing legal rule. Additionally, itrequires that national criminal law is formulated with sufficient precision to allow thecitizen to foresee the consequences of his actions – if need be, with appropriate advice[11, p. 278]. Still, the ECtHR has shown itself to be prepared to give national courts andlegislators considerable leeway with respect to the legal certainty and scope of applica-tion of criminal offences [19, p. 192].

As a matter of fact, a crime has to be extremely loosely defined before the court willfind a violation of Article 7 of the ECHR [19, p. 191]. For instance, the ECtHR accepted

Foundations and limits of personal liberty in the Basic Law and the ECHR

a provision proscribing “acts of terrorism” to be “well in keeping with the idea of anoffence” and therefore compatible with the requirements of the ECHR [31, § 196].Furthermore, the ECtHR ascertained that the English concept of the “breach of peace”amounted to a “criminal offence” for the purposes of the ECHR because it regarded theterm as being sufficiently clarified by the English courts and therefore adequatelydefined [32, § 55]. Thus, while the ECtHR ruled that Article 5 (1) (b) of theECHR does not contemplate arrest or detention for the prevention of offencesagainst public peace and public order, it permitted the application of a criminaloffence that is, for the most part, tailored towards incriminating almost identicalsituations and actions.

The ECtHR also does not scrutinise the legitimacy of statutory offences undernational criminal law. As a consequence, even those provisions that are enacted inorder to circumvent the strict criteria applied to administrative detention will notprovoke the opposition of the ECtHR. In consequence, the national legislators arebeing given a “carte blanche” as to the expansion of substantive criminal law forpreventive purposes.

Likewise, the GCC has held statutory offences criminalising mere abstract dangersto protected legal interests, such as preparatory acts, to be in accordance with theBasic Law [30, p. 188]. This is even more surprising when bearing in mind that theGCC has strictly defended the requirement of a “concrete danger” as the threshold forinterventions under administrative law, because the notion of this term is determinedby the limits of criminal law. In fact, a “concrete danger” presupposes the risk of thecommission of a criminal act, which includes the new provisions criminalisingpreparatory acts. Thus, by altering the boundaries of criminal law, the legislator alsoexpands the scope of application of administrative measures and hereby circumventsthe respective limits set by the GCC.

Conclusion

How does the approach to use criminal law as a means to facilitate preventive detentionfare with regard to the rule of law? On a positive note, statutory offences face higherrequirements with respect to their legal certainty pursuant to Article 103 (2) of the BasicLaw than interventions under administrative law. Additionally, the presumption ofinnocence (Article 6 (2) of the ECHR) and the principle in dubio pro reo, among otherprocedural rules, enhance the position of the defendant in the criminal justice system incomparisonwith court proceedings under administrative law. However, criminal sanctionsbear a great risk of abuse when attached mainly to an internal process rather than anobjectively identifiable wrongdoing.

In effect, the functional limits of criminal law and the consistency of the legalsystem are undermined by the current expansion process. The dividing line betweenadministrative law and criminal law is blurring. As a result, important safeguards andconstitutional limitations are circumvented. While the new statutory offences have sofar rarely been invoked in Germany, they provide a dangerous tool with very limitedobjective requirements for detaining individuals. Both the GCC and the ECtHRshould therefore reconsider their lenient jurisdiction in relation to the expansion ofsubstantive criminal law.

T.N. Mueller

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