Germany: Towards a "police state"
01 September 2000
During the 1990s there was a shift in Germany's policy-making that saw an extension of control mechanisms and police powers for "internal security" which was based on so-called "preventative" policing. Extending police powers, because of legal restrictions laid down in the German constitution (Grundgesetz), was more difficult than in the UK, for example. However, over the past six years, local authorities and regional police forces have gained far-reaching new powers. These include the electronic surveillance of public spaces, arbitrary stop and search operations, the detention of people for up to six days as a "preventative" measure, the issuing of curfews extending to entire local authorities as well as a shoot-to-kill provision in the event of hostage situations, the so-called finale Rettungsschuß ("final saving shot"). Data protection officers and civil rights groups have criticised the measures as creating a "police and security state" but to little avail.
There have always been provisions in German law which allow for "non-suspect related" stop and search operations, as in the case of traffic controls or airport security laws. The more recent call to extend the practice of Schleierfahndung however, has been framed in terms which links crime with foreigners, its main aim being the "prevention and ending of illegal crossings of national boundaries", "illegal residence" and "the preventative fight against cross-border crime" (see Kant in CILIP 65, and Statewatch news online for an English-language translation detailing analysis of this recent provision as an instrument in criminalising migrants). The stop and search provision was introduced into the "model draft law for a uniform police regulation (MEPolG)" which was drawn up by the Interior Ministry in the 1970s and has served as a guideline for the regional Länder in extending their police regulations in the 1980s and 1990s. During this process, there have been several complaints over the constitutionality of the provision.
After five citizens' lodged an appeal with the regional constitutional court of Mecklenburg-Vorpommern, the latter ruled the law "partially unconstitutional" in October 1999 on grounds of Article 2 of the Grundgesetz (the right to a personal life) which includes data protection considerations (informationelle Selbstbestimmung). However, the court allowed for the Schleierfahndung to take place within 30 kilometres of Germany's external eastern borders (to combat cross-border crime) and also internally for the prevention of organised crime. The relevant regional parliament now have to draw up a register of crimes that fall under the definition of "organised crime" in order to conduct arbitrary stop and search operation outside the 30 kilometre remit.
Although some have welcomed this decision, the expectation of Werner Kessel, data protection officer of Mecklenburg-Vorpommern, that it will send a clear signal to other regional administrations to respect the constitutional rights of the individual, has not been met. The law has not been repealed in the eight regions (Länder) in which it had been introduced during the last few years, and the Länder Hesse and Saxony-Anhalt introduced the Schleierfahndung and additional police powers, on 16 May and 22 June this year. Due to the federal organisation of regional police laws, the recent legislative changes have not been introduced uniformly. There is, however, a tendency towards a blanket introduction of the Schleierfahndung as well as the installation of CCTV cameras in public spaces and crime focal points (Kriminalitätsschwerpunkte).
A new development is the introduction or the extension of existing powers to detain people who are thought likely to commit a crime in the future. This "preventative detention" (Unterbindungshaft) was extended to four days in Brandenburg last year and to six days in Hesse this year. Another controversial provision, similar to the Travel Restriction (P