Section 1. Respect for the Integrity of the Person
d. Arbitrary Arrest or Detention
The constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements.
Laws at the state level give police the power to take preventive action against an “impending danger.” Critics argued that this provision expands police surveillance power, which had been reserved for the country’s intelligence services. As of September a case challenging the law in Bavaria was pending at the Federal Constitutional Court, as was a separate case at the Saxony Constitutional Court regarding that state’s law.
While several states required police to wear identity badges, the nongovernmental organization (NGO) Amnesty International Germany criticized the lack of a nationwide requirement to do so, noting that six states had no such requirement.
In February a man was acquitted for a third time of charges of resisting police officers and causing bodily harm during a public demonstration in Cologne. The court upheld a charge of insulting a police officer but imposed no penalty, finding fault instead with the officers themselves. The judge in the man’s second trial in 2019 had dismissed the charges as unfounded and apologized to the defendant. Two police officers were placed under investigation in 2019, and in February the case against them was dropped in exchange for fines. The man thereafter sued the state of North-Rhine Westphalia for 15,000 euros ($17,300) in compensation, which the state agreed to pay in July.
Arrest Procedures and Treatment of Detainees
Authorities must have a warrant issued by a judicial authority to arrest an individual. Police may also arrest individuals they apprehend in the act of committing a crime, or if they have strong reason to suspect the individual intends to commit a crime. The constitution requires authorities to bring a suspect before a judicial officer before the end of the day following the arrest. The judge must inform the suspect of the reasons for his or her detention and provide the suspect with an opportunity to object. The court must then either issue an arrest warrant stating the grounds for continued detention or order the individual’s release. Authorities generally respected these rights.
Although bail exists, judges usually released individuals awaiting trial without requiring bail. Bail is only required in cases where a court determines the suspect poses a flight risk. In such cases authorities may deny bail and hold detainees for the duration of the investigation and subsequent trial, subject to judicial review.
Detainees have the right to consult with an attorney of their choice; the government provides an attorney at public expense if detainees demonstrate financial need. The law entitles a detainee to request access to a lawyer at any time, including prior to any police questioning. Authorities must inform suspects of their right to consult an attorney before questioning begins.
Pretrial Detention: The Federal Statistical Office and the NGO World Prison Brief reported that, as of December 2020, persons held in pretrial detention accounted for 20.8 percent of all prison inmates in the country. In 2019 the Ministry of Justice reported that the median stay in pretrial detention was between four and six months. The courts credit time spent in pretrial custody toward any eventual sentence. If a court acquits an incarcerated defendant, the government must compensate the defendant for financial losses as well as for “moral prejudice” due to his or her incarceration.
e. Denial of Fair Public Trial
The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality.
The constitution provides for the right to a fair and public trial, and an independent judiciary generally enforced this right.
Defendants enjoy a presumption of innocence and have the right to be informed promptly and in detail of the charges against them. The trial shall be fair, public, and held without undue delay. The law requires defendants be present at their trials. Defendants have the right to consult with an attorney of their choice, and the government provides an attorney at public expense if defendants demonstrate financial need, as stated above. Defendants and their attorneys have the right to adequate time and facilities to prepare a defense. The government provides an interpreter to any defendant who cannot understand or speak German and does so free of charge if the defendant demonstrates financial need or is acquitted. Defendants have access to all court-held evidence relevant to their cases. Defendants may question the prosecution’s witnesses and may introduce their own witnesses and evidence in support of their case. Defendants may not be compelled to testify or confess guilt. Defendants have the right to appeal.
The law does not allow courts to punish a person twice for the same crime. A court may, however, order an offender convicted of rape, homicide, or manslaughter to spend additional time in “subsequent preventive detention” after completing a sentence. The court can only order preventive detention if it determines that the offender suffers from a mental disorder or represents a continuing serious danger to the public. The law permits the imposition of such detention for an indefinite period, subject to periodic review.
Because the law does not regard such detention as punishment, authorities are legally required to keep those in preventive detention in separate buildings or in special prison sections with better conditions than those of the general prisons. Authorities must also provide detainees with a range of social and psychological therapy programs. According to the Federal Statistics Office, 589 offenders were held under preventive detention at the end of March 2020, the most recent date for which figures were available.
Political Prisoners and Detainees
There were no reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies
Citizens may file complaints regarding abuses of their human rights with petition committees and commissioners for citizens’ affairs. Citizens usually referred to these points of contact as “ombudsmen.” Additionally, an independent and impartial judiciary in civil matters provides court access for lawsuits seeking damages for, or cessation of, a human rights abuse. Persons who exhaust domestic legal remedies may appeal cases involving alleged government violations of the European Convention on Human Rights to the European Court of Human Rights.
Property Seizure and Restitution
The government has laws and mechanisms in place for, and NGOs and advocacy groups reported it made significant progress on, resolution of Holocaust-era claims, including for foreign citizens. Since the end of World War II through 2020, according to the Federal Ministry of Finance, the government paid approximately 79 billion euros ($90.8 billion) in Holocaust restitution and compensation, which included an additional 1.04 billion euros ($1.19 billion) in hardship payments made to poorer Holocaust survivors severely affected by the COVID-19 pandemic in 2020. The country has also supported numerous public and private international reparation and social welfare initiatives to benefit Holocaust survivors and their families.
After World War II, the government adopted legislation to resolve compensation claims stemming from Nazi atrocities and Holocaust-era property confiscation. In 1952 the government designated the Conference on Jewish Material Claims against Germany (also known as the Claims Conference) as its principal partner in handling restitution and compensation claims made by Jewish victims of Nazi persecution.
Before German reunification in 1990, in accordance with the Federal Restitution Law, West German authorities provided property restitution and compensation payments for properties and businesses that were confiscated or transferred during the Holocaust era. The Claims Conference assumed ownership of and auctioned off heirless properties, using the proceeds to fund the organization’s efforts to support Holocaust survivors and fund Holocaust education. For confiscated Jewish property located in what was formerly East Germany, the Claims Conference filed additional claims under a law enacted after reunification. Since 1990 authorities have approved and granted restitution in 4,500 cases and provided compensation in approximately 12,000 cases. There were approximately 5,000 cases involving fixed assets remaining to be processed at the Federal Office for Central Services and Unsettled Property Issues, including land, real estate, and company shares.
Regular negotiations between the Claims Conference and the country’s federal government expanded existing programs and introduced additional ones. In the September 2020 negotiations, the government agreed to increase the total funding level during the year by 30.5 million euros ($35.1 million) for home-care services for frail and aging Holocaust survivors. In October the federal government agreed to provide monthly 375-euro ($431) pensions to an estimated 6,500 Holocaust survivors not previously receiving them, as well as symbolic one-time payments of 2,500 euros ($2,875) to child survivors born in 1928 or later. Additionally, survivors who received previous one-time payments under a hardship fund were scheduled to receive additional payments of 1,200 euros ($1,400) during the year.
In 2015 the federal government established the German Lost Art Foundation (DZK) to promote provenance research. The DZK maintained an online “Lost Art” database and helped victims and their heirs to find the right institutions and contacts. The database documented objects suspected or proven to be confiscated by the Nazis. In May the DZK announced it would provide $2.8 million in funding to 31 projects for research on cultural assets confiscated under the Nazis.
On April 29, the Duesseldorf City Council, following the recommendation of the country’s national commission on Nazi looted art, unanimously voted to return the 1913 Franz Marc painting Foxes to the heirs of Kurt Grawi. Grawi had used the sale of the painting to finance his escape from Nazi Germany and emigration to Chile in 1939. As of September the painting had not been returned to Grawi’s heirs.
The Bavarian State Painting Collections, owned by the State of Bavaria, has not referred the case of the Pablo Picasso painting Portrait of Madame Soler to the country’s national commission on looted art, contrary to usual practice when disputes concerning the provenance of artworks arise. The work had been sold by Paul von Mendelssohn-Bartholdy in 1934 or 1935; his heirs had first asked Bavaria in 2010 to refer the case to the commission, maintaining he sold the work under duress. In June the commission’s chair Hans-Juergen Papier dismissed the state’s view that the claim is irrelevant, saying it is up to the commission to evaluate such cases.