IncommunicadoDetention in Germany: An Example of Reactive Anti-terror Legislation and Long-term Consequences

Abstract

Of all anti-terror-laws adopted in Germany in the last thirty years, one of the most famous measures is certainly the so-called Kontaktsperregesetz, an Act introducing the possibility of incommunicado detention in the case of imminent terrorist threats. It is the prime example of how far reactive legislation can go, under the pretext to fight terrorism. This form of incommunicado detention was adopted in 1977, by introducing a new section (section 4, Sections 31–38) to the Introductory Act to the Judicature Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, hereinafter EGGVG). The provisions were enacted in response to a particular terrorist incident, and have not been applied since. Surprisingly enough, in April 2006, a seemingly new provision was added to this regime (Section 38a EGGVG), however, as we will later see, this regulation is in fact not new, but has only changed its systematic position within the enormous legislative forest of Germany, and, at the same time, its legal nature (from transitory to permanent). Section 38a EGGVG extends the scope of application of incommunicado detention considerably, by allowing it to be used not only in terrorist cases, but also for other forms of criminal organizations like mafia. It thus increases the possibility of prisoners to be absolutely isolated from other inmates, family, friends, and even from their defense counsels, for up to thirty days; a period which can be prolonged for an indefinite period of time, provided that certain requirements are met.