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.