Former Federal Constitutional Court President Hans-Jürgen Papier suggests that there are legal avenues available for expanding the use of ankle restraints against individuals considered a terrorist threat, a proposal recently considered by Federal Minister of the Interior, Alexander Dobrindt (CSU). According to “Welt am Sonntag”, the legislature may still have room to maneuver within constitutional bounds to broaden the current rules, particularly when specific circumstances indicate a substantial risk of terrorism. However, Papier emphasized that a concrete threat of an attack is not necessary, provided that the constitutional principle of proportionality is maintained.
Papier acknowledged that this involves a severe infringement of fundamental rights. Nevertheless, he assessed that this measure is less severe than the expansion of preventive detention also put forward by Dobrindt. He specified that this form of preventative or interception custody is technically referred to as a crime prevention measure and is significantly more restrained. The constitutional limits regarding the prerequisites and duration of this custody are narrow. While German federal states currently handle this matter differently-with Bavaria having the most expansive rules in its police law for temporary preventative deprivation of freedom, currently subject to a review before the Federal Constitutional Court-Papier stated that lengthy detention to prevent crimes would likely be unconstitutional under current law.
The emeritus law professor at the University of Munich also sees potential for reforms in juvenile criminal law concerning young adults aged 18 to 21. Currently, judges must assess whether a young adult still aligns with the standard of a minor based on their moral and intellectual development, and whether they committed a juvenile offense. A potential change discussed by Papier is the possibility of a statutory presumption favoring adult criminal law when dealing with terrorist offenses.
