Ein Musterentwurf mit Schlagseite zulasten der Freiheit

Abstract

This contribution, entitled “A Sample Draft with a Tendency towards Curtailing Freedom”, critically examines the planned project of a standardised police act (Musterpolizeigesetz). This template legislation is discussed by Markus Thiel in the preceding article. Firstly, the lead commission’s approach to standardise “the maximum that is permissible from a constitutional point of view” is considered misguided. It makes extremely one-sided use of the legislator’s corridor between freedom and security, and jeopardises the project as a whole - a project that makes sense in itself. Secondly, the legal concept of “impending danger”, which has already found its way into recent amendments to state police legislation, is criticized linguistically, constitutionally, and politically. The attempt is made to achieve the necessary police-law defence against terrorism through careful adjustments, rather than by overcoming the tried and tested constitutional dogma of the terms “danger” and “responsibility”. Thirdly, reasons are given for why preventive police detention infringes European and constitutional law. Detention is imposed without the existence of a concrete danger, or for a period exceeding 14 days. It is recalled that, in terms of legal history and comparative law, preventive detention is a typical instrument of the state of emergency and of regimes of injustice.