In a multitude of legal systems, options for the preventive detention of terror suspects (so-called endangerers) have been expanded or introduced as a reaction to recent terrorist attacks. This study analyzes the existing legal bases in Germany for preventive detention in this context and identifies the limits that the Basic Law and the European Convention on Human Rights impose on the development of bases for this type of intervention.

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 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 per­miss­ible only 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.