Max Planck Institute for Foreign and International Criminal Law

The threat of international terrorism has led to new schools of thought about security throughout the entire world. In their wake, legal developments that call the liberal foundations of democratic constitutional states and the functional limits of criminal law into question have been promoted on both the national and international levels. The dominant theme of recent security laws is the expansion of prevention, that is, the maintenance of public security through interventions independent of concrete and specific threats or suspicions.

Regardless of its prominent significance in the German system of fundamental human rights and the European Convention on Human Rights, the right to liberty is being curtailed by legislative interference. In this context, the topic of this research project is the trend seen in many legal systems towards introducing legal grounds for preventive detention that are specifically tailored to persons suspected of terrorism. These legal institutions are meant to facilitate the imprisonment of individuals who may be associated with the preparation of terrorist attacks but for whom the indications of dangerous conduct do not add up to concrete grounds for suspicion of a criminal offense. Consequently, they conflict with the constitutional principle that detention is only permissible after conviction by a competent court or while awaiting trail.

The goal of this project is to present systematically existing German laws on preventive detention and to identify the limits and alternatives established by the Basic Law and the European Convention on Human Rights for the development of these types of intervention. Based on the classic differentiation between preventive and repressive measures under German law, the thesis will develop a model of deprivation of liberty in the context of terrorist threats and will evaluate the model against the backdrop of international legal developments and foreign legal systems. The aim of the project is to make a contribution to the discussion of how public security interests and individual liberty rights can be balanced fairly and justifiably.
The analysis is comprised of the following four steps. The first chapter elaborates upon the legal guarantees of Art. 2 para. 2 sen. 2 and Art. 104 of the Basic Law and Art. 5 of the European Convention on Human Rights that apply to all measures infringing upon personal liberty. Building upon this discussion, the second chapter presents the foundations and limits of the legal institutions that allow for preventive detention in Germany. The third section follows up by examining whether and to what extent the existing possibilities of preventive detention can be expanded or supplemented by additional bases of intervention without violating limits set by the Convention or the constitution. The final section assesses by means of a comparative legal analysis whether alternative solutions for the treatment of potential terrorists exist that are legitimate in the light of the criminal law of a democratic state founded on the rule of law.