The electronic ankle tag — can it be used in cases of domestic violence?

It’s a sad truth: every day, women expe­ri­ence considerable violence from their part­ners and ex-part­ners, which in some cases even ends fatally. Statis­ti­cally spea­king, there is one attempted homicide per day and every third day a woman in Germany dies as a result of partner violence.

In order to coun­teract the rising numbers of partner violence, accor­ding to the Federal Criminal Police Office, contact and proxi­mity bans under the Protec­tion against Violence Act (GewSchG) are used, which are usually enforced in court by the lawyers of the victims of violence.

However, in the absence of effec­tive state control measures, perpe­tra­tors are viola­ting the orders with incre­asing frequency. Accor­ding to police crime statis­tics, there was an increase of 11 per cent between 2017 and 2022.

To solve precisely this problem, Spain began elec­tro­ni­cally moni­to­ring the where­a­bouts of offen­ders in 2009. As soon as the distance between the perpe­trator and the victim is less than 500 metres, the moni­to­ring system sounds an alarm so that the police can inter­vene in good time.

Accor­ding to a crimi­no­lo­gical study from 2019, not a single woman was killed by a man who was subject to such moni­to­ring between 2009 and 2019. Around 95% of the protected women also stated that they felt safe and protected by the programme.

France has already adopted the Spanish concept and a similar pilot project is curr­ently underway in Switz­er­land.

So far, there are no compa­rable control options in Germany. Only six of the federal states allow the use of elec­tronic ankle brace­lets in cases of dome­stic violence, but usually only for a few days. The order to wear an elec­tronic ankle tag is still not autho­rised for the moni­to­ring of no-approach orders, but can only be used as a short-term preven­ta­tive measure to prevent inti­mate partner violence.

Apart from cases of dome­stic violence, the wearing of an ankle bracelet can also be ordered as part of super­vi­sion of conduct (Section 68b I 1 No. 12 StGB).

In prac­tice, the possi­bi­lity of orde­ring the wearing of an ankle bracelet is almost never utilised by the autho­ri­ties in cases of inti­mate partner violence.

Patrick Liesching, Chairman of the White Ring, has perso­nally called on the Federal Minister of Justice, Marco Busch­mann (FDP), to allow the use of elec­tronic ankle brace­lets based on the Spanish model in Germany. Hesse’s Minister Presi­dent Boris Rhein has also spoken out in favour of the use of this control option.

Imple­men­ta­tion requires a federal regu­la­tion in the GewSchG, which was proposed last year by the confe­rence of justice minis­ters of the federal states. However, the Federal Ministry of Justice deemed the proposal unsui­table in November 2023 and referred to the respon­si­bi­lity of the federal states.

Irre­spec­tive of this problem of juris­dic­tion within the frame­work of fede­ra­lism, the use of an elec­tronic ankle tag also harbours consti­tu­tional problems. After all, this type of surveil­lance repres­ents a considerable encroach­ment on the funda­mental rights of the person concerned.

Above all, the general right of perso­na­lity of the offender (Art. 2 I GG in conjunc­tion with Art. 1 I GG) in its specific form of data protec­tion comes into play here. Whether the current requi­re­ments in the GewSchG are suffi­cient to justify such an encroach­ment seems at least doubtful.

If there were to be a serious discus­sion about the intro­duc­tion of an elec­tronic ankle monitor to control contact and proxi­mity bans, the provi­sions of the Protec­tion against Violence Act would have to be adapted to the legal requi­re­ments of the Criminal Code, which regu­lates the use of ankle moni­tors as part of an ordered super­vi­sion of conduct.