Germany

Constitutional Provisions

The Constitution of the Federal Republic of Germany is the Basic Law, as last amended on 23 December 2014. The Basic Law stipulates that human dignity is inviolable and obligates the state to respect and protect human rights.Art. 1(1), Basic Law for the Federal Republic of Germany, as last amended on 23 December 2014.Every person is accorded the rights to life and to physical integrity.Art. 2(2), Basic Law for the Federal Republic of Germany, as last amended on 23 December 2014.

According to Article 8 of the Basic Law:

(1) All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission.

(2) In the case of outdoor assemblies, this right may be restricted by or pursuant to a law.

Treaty Adherence

Global

Regional

National Legislation

Police Use of Force

At federal level, police use of force is governed by the 1994 Federal Police Law. This allows the police to use necessary measures for the performance of their duties.S. 14(1), 1994 Federal Police Law.Where several options exist to achieve the desired law enforcement objective, the least harmful one for the suspect and the general public must be selected.S. 15(1), 1994 Federal Police Law.

Under the Code of Criminal Procedure, everyone is entitled to act in self-defence, which is defined as "any defensive action that is necessary to avert an imminent unlawful attack on oneself or another."S. 32, 1987 Code of Criminal Procedure (as amended through 2013).According to Section 34, 

A person who, faced with an imminent danger to life, limb, freedom, honour, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. This shall apply only if and to the extent that the act committed is an adequate means to avert the danger.

Police Oversight

According to Amnesty International, both federal and state authorities have still to establish independent investigation mechanisms or oversight bodies. Three of Germany's regions (states: Länder) -- Bavaria, Bremen, and Hamburg -- have established units to conduct investigations into alleged excessive use of force by the police, but they form part of the  respective Ministry of the Interior and are therefore not fully independent. It is further claimed that nine in ten police officers are not convicted of any offence following an investigation.

In its 2019 Concluding Observations on Germany, the UN Committee against Torture stated that:

While welcoming the establishment of ombudspersons in several Länder to facilitate the independent and impartial investigation of allegations of criminal conduct by police officers, the Committee remains concerned that in other Länder and at the federal level, no such mechanism exists. The Committee is concerned that the State party does not consider it necessary to establish such a mechanism at the federal level, despite the recent judgment by the European Court of Human Rights in Hentschel and Stark v. Germany, ... and other reports by civil society that investigations of police misconduct have been inadequate.

Caselaw

Global

Views and Concluding Observations of United Nations Treaty Bodies

In its 2012 Concluding Observations on Germany, the Human Rights Committee expressed its concern about allegations of ill-treatment by police and prison officers in Germany. The Committee was also concerned that Germany had not yet set up independent complaint bodies to deal with complaints on police misconduct. The Committee called upon German to ensure that:

(a) all allegations of ill-treatment by police and prison officers are assessed, promptly, thoroughly and impartially investigated, (b) those responsible are punished accordingly, and (c) victims are provided with compensation; The State party should also ensure that victims of ill-treatment by police and prison officers are aware of their rights and can lodge complaints without fear of reprisals. The State party should further set up independent complaint bodies to deal with police allegations of ill-treatment, as previously recommended by the Committee.Human Rights Committee, Concluding Observations on Germany, UN doc. CCPR/C/DEU/CO/6, 12 November 2012, §10.

Regional

Hentschel and Stark v. Germany (2017)

The case concerned the complaint by two football supporters of having been ill-treated by the police following a match and of the inadequacy of the ensuing investigation. The Court was unable to establish beyond reasonable doubt that the events had happened as described by the applicants. As regards the investigation, the Court observed that the helmeted police officers of the riot control units had not worn any name tags or other individually identifying signs, but only identification numbers on the back of their helmets. Therefore, other measures to establish the identities of the persons responsible for the alleged ill-treatment had become especially important. However, the difficulties resulting from the lack of identifying insignia had not been sufficiently counter-balanced by other investigative measures. Notably, only excerpts of the video material recorded by the riot units had been provided to the investigating unit and some potentially relevant witnesses had not been identified and questioned.

Gäfgen v. Germany (2010)

In its 2010 judgment in this case, the Grand Chamber of the European Court of Human Rights held that to threaten an individual with torture may constitute at least inhuman treatment.European Court of Human Rights, Gäfgen v. Germany, Judgment (Grand Chamber), 1 June 2010 (as rectified on 3 June 2010), §91.In the case at hand, the Court was unable to conclude that Mr Gäfgen’s complaints of physical assaults and injuries and the alleged threat of sexual abuse during interrogation were established beyond reasonable doubt.European Court of Human Rights, Gäfgen v. Germany, Judgment (Grand Chamber), 1 June 2010 (as rectified on 3 June 2010), §98.It did conclude that threat of imminent and severe physical pain was proven, observing that the threat was not a spontaneous act but was premeditated and calculated in a deliberate and intentional manner.European Court of Human Rights, Gäfgen v. Germany, Judgment (Grand Chamber), 1 June 2010 (as rectified on 3 June 2010), §104.The Court noted that

the fear of physical torture may itself constitute mental torture. However, there appears to be broad agreement, and the Court likewise considers, that the classification of whether a given threat of physical torture amounted to psychological torture or to inhuman or degrading treatment depends upon all the circumstances of a given case, including, notably, the severity of the pressure exerted and the intensity of the mental suffering caused.European Court of Human Rights, Gäfgen v. Germany, Judgment (Grand Chamber), 1 June 2010 (as rectified on 3 June 2010), §108.

The plaintiff had abducted and killed an 11-year-old boy and the police had used threats of torture to seek to persuade him to confess as to his whereabouts.

National

In 2006, a young Black man of Congolese descent, Dominique Koumadio, was shot and killed after he reportedly brandished a knife when police officers confronted him on a street in Dortmund. He was said to be suffering from mental illness at the time. Two police officers shot him at close range, once in the leg and then a second time through the heart. The failure of the officers to act with more restraint prompted demonstrations against police brutality in Germany. His case has been memorialised as part of a perceived pattern of police violence against people of colour. The state prosecutor considered the actions of the police as in legitimate self-defence and closed the file on the investigation. 

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