The Impact of the European Convention on Human Rights (ECHR) on Preventive Police Detention as Governed by German Law

Abstract

The European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights (ECtHR) influence the German legal system to a remarkable extent. In order to illustrate the impact of the Court's jurisprudence on German police law in particular, the present article will shed a light on the cases of Schwabe and M.G. v. Germany (no. 8080/08 and 8577/08) as well as Ostendorf v. Germany (no. 15598/08). These cases related to the question whether police custody-carried out for the mere purpose of preventing someone from committing a criminal offence-can be considered as compatible with the guarantees of the Convention, especially with the right to liberty and security as laid down in Article 5 § 1 ECHR. Since the Convention only allows deprivation of liberty in a strictly limited number of cases listed in Article 5 § 1 (2) ECHR, the Court had to undertake a detailed assessment of the eligible provisions and, thereby, give an answer to an ongoing controversy. Moreover, by refining its previous jurisprudence, the ECtHR did establish general human rights standards for purely preventive detention as governed by German police law. Therefore, the author will outline the Court's finding and, subsequently, examine the implementation of the requirements set out by the ECtHR into German law.