CURRENT ISSUE      CENTRE FOR PENAL AND CRIMINOLOGICAL RESEARCH      THE STAFF... (2003-2015)      ARCHIVE (ALL ISSUES)    Issue 5 - March 2013  
Introduction to the Problem of Preventive Detention
Prof. Dr. Jochen Bung,
Universität Passau
 
The German sanction instrument of preventive detention (Sicherungsverwahrung) has unleashed an ever more complex and almost inscrutable debate. I shall venture to assume that even in Germany only a few people have a comprehensive insight into the issue. All the more one should wonder, in how far that discussion is perceived as interesting outside of Germany. Certainly,preventive detention does not stand for any old question in criminal science. It touches on fundamental questions of criminology. It has a distinctive but questionable history. Due to statements of the ECtHR it has gained European attention and its significance for comparative studies has become apparent. Following the comments of German legislation and the Federal Constitutional Court, one may be very curious about what may be presented as remedy for the troubles preventive detention was originally designed to cure before it had turned out to be a problem in itself.
 
In the following, the matter of preventive detention shall be approached in a manner that does not seek to reproduce the most sophisticated arguments of a discourse which meanwhile has taken on features of a hermetical science. It shall rather address the key questions and arguments which are of veritable importance to the self-conception of criminal science as a whole and to the conceptualization of the role of sanctioning in a modern society. ...
 
 
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Annotations to the History of the Preventive Detention in the First Half of the 20th Century
 
Prof. Dr. Georg Steinberg,
EBS Law School
 
In the history of German criminal law, the concept of preventive detention(“Sicherungsverwahrung”) has existed for centuries.  Already the ConstitutioCriminalis Carolina, 1532, the criminal code of the Holy Roman Empire, permits the confinement of dangerous persons for an unlimited period. In the late 18th century the penal servitude is generally established, and the modern jail sentence arises. Around the same time the Prussian penologist Ernst Ferdinand Klein (1744–1810) initiates a scientific debate on how preventive detentioncan be dogmatically and practically interpreted in relation to the prison sentence. He also implements custody penalties into the criminal law of the Prussian Law Code, 1794.
 
In the late 19th century, Franz von Liszt (1851–1919) revives the concept of preventive detention in his “Marburger Programm”, 1882/83, where he defines different types of contraveners and the appropriate forms of sanction. For one type, the incorrigible habitual criminal (“unverbesserlicherGewohnheits-verbrecher”), he proposes the permanent placement in preventive detention. The dogmatic quality and justification of preventive detention, and the question whether it can be interpretedas a penalty, is one of the pivotal points in the discussion of penologists in the late 19th century (so-called “Schulenstreit”). As a compromise the Swiss Carl Stooss (1849–1934) develops the concept of double-track-system (“Zweispurigkeit”), which applies till nowadays: Preventive detention does not belong to the category of penalty, but is considered necessary and belongs to the category of reprimands.
 
 
 
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The European Court of Human Rights and German provisions on preventive detention

Prof. Dr. Martin Heger/Dr. Erol Pohlreich,
Humboldt-Universität zu Berlin

In order to deal with unlawful acts, the German Criminal Code provides a twin-track system of sanctions that consists of penalties (Strafen) – mainly imprisonment and fines, both being determined according to the defendants guilt (see Article 46 1 of the Criminal Code) – and measures of correction and prevention (Maßregeln der Besserung und Sicherung). As a measure of correction and prevention the offender can be placed in a psychiatric hospital (Article 63 of the Criminal Code), in a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Art. 66 of the Criminal Code). Being placed in preventive detention is tantamount to an additional imprisonment: The offender remains in prison after having served his prison sentence, albeit preventive detention is being executed in separate prison units.
 
 
 
 
The Federal Constitutional Court and the German concept of preventive detention
 
Prof. Dr. Kirstin Drenkhahn,
Freie Universität Berlin
 
In the course of the debate about the German concept of preventive detention, the Federal Constitutional Court (Bundesverfassungsgericht, FCC) seemed to be the oracle everybody was waiting for to pronounce the answer. The question, by the way, was how can Germany keep the status quo and at the same time not be convicted for human rights violations by the European Court of Human Rights again? Therefore, it is not surprising that the Courts judgment of May 2011 is beyond the scope of mere jurisdiction and highlights the Courts political role.
 

 
 
 
Criminal Sanctions under Human Rights Pressure
“Reserved” Preventive Detention and Aspects of Discrimination
 
Robert Esser
Director of the Research Centre “Human Rights in Criminal Proceedings” (HRCP)
University of Passau (Germany)
Helmut Krickl
Academic Assistant at HRCP 
 
According to German Criminal Law there are two different kinds of sanctions: penalties (“Strafen”) and measures of rehabilitation and incapacitation (“Maßregeln der Besserung und Sicherung”). As penalties are pronounced according to the defendants guilt they do not always provide adequate protection from the risk of reoffending. Therefore, there can be ordered, under certain circumstances, the measure referred to as preventive detention (“Sicherungsverwahrung”) against dangerous defendants which would be executed after the penalty has been fully served.
 

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The New German Provisions on Preventive Detention
 
Dr. Till Zimmermann,
Universität Passau
 
The German law on preventive detention (“Sicherungsverwahrung”) has recently been subject to major legislative changes. Due to the fact that German legislature had significantly expanded the applicability of this measure of correction and prevention (“Maßnahme der Besserung und Sicherung”) since 1998 in different ways, the European Court of Human Rights (ECHR), the German Federal Constitutional Court (“Bundesverfassungsgericht” –FCC), the German Federal Court of Justice (“Bundesgerichtshof” – FCJ) as well as various German Courts of Appeal (“Oberlandesgerichte”) were constantly challenged to establishing the legal boundaries of preventive detention. In a judgement issued on 5 May 2011, the FCC finally declared the existing legal system of preventive detention incompatible with the Basic Law (“Grundgesetz”) and ordered the continued application of the provisions in questionuntil the entry into force of new legislation, at the latest on 31 May 2013. In reaction to this order, the lawmaker amended, inter alia, the relevant provisions of the German Criminal Code (“Strafgesetzbuch”) and passed new Execution of Preventive Detention Acts (“Sicherungsverwahrungsvollzugsgesetze”), coming into force on 1 June 2013. This essay briefly discusses to which extent the new legal system of preventive detention is able to meet the requirements of the German constitution and the European Convention of Human Rights...
 
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Public Protection from Dangerous Criminals within Europe
 
Georgia Stefanopoulou
LL.M., Universität Passau
 
As the need for security directly collides with the offenders right to liberty, repressive actions, which are caused by a societys unreasonable fear of crime and unreasonably affect the rights and liberties of an offender, are genuinely questionable. Criminal policy should rather be guided by rational considerations. The cultural sophistication of a society is directly reflected in its treatment of its dangerous offenders. It is a major challenge for society – the nature of which is reflected in its norm and provisions - to reconcile the need for security with the rights and liberties of an offender. Of particular interest is a comparative analysis of how other European countries strive to balance the need for public protection with these respective rights. Through that analysis, it is possible to gain a deeper insight into a societys moral views and its attitude towards crime and its own criminal policies. Additionally, one might get some insights into how to achieve a considerate and appropriate treatment of dangerous offenders. In its decision of 17 December 2009, the European Court of Human Rights deemed it vital to broaden the view onto the subject and provided a comparative sketch of the European systems. This article will scrutinize and critically analyze the systems implemented in European states. 
 
 
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