In Custodia Legis
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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.
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.
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.
For more information on Habeas Corpus Rights see:
For more information on Germany see:
Prepared by Edith Palmer, Senior Foreign Law Specialist
May 2007/ Updated March 2009
- Grundgesetz für die Bundesrepublik Deutschland, May 23, 1949, BUNDESGESETZBLATT [BGBl. official law gazette of the Federal Republic of Germany] 1. [Back to Text]
- Strafprozessordnung [StPO], repromulgated Apr. 7, 1987, BGBl I at 1074, as amended. [Back to Text]
- Gesetz über das gerichtliche Verfahren bei Freiheitsentziehungen [FreihEntZG], Jun. 29, 1956, BGBl I at 599. [Back to Text]
- FreihEntZG § 1. [Back to Text]
- StPO, § 115. [Back to Text]
- StPO § 117. [Back to Text]
- FreihEntZG § 5. [Back to Text]
- FreihEntZG § 7. [Back to Text]
- FreihEntZG, §§ 10 and 12. [Back to Text]
- Niedersächsisches Gesetz über die öffentliche Sicherheit und Ordnung, repromulgated January 19, 2005, NIEDERSÄCHSISCHES GESETZ- UND VERORDNUNGSBLATT 9, § 18-21. [Back to Text]
Last Updated: 08/01/2012
