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,¹ 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 2013.² 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 2013.³ This essay briefly discussesto 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 (hereinafter “the Convention”).

 

 

1. Overview of fundamental legal conditions
An offender’s confinement in preventive detention does not in itself fail to meet constitutional or requirements of the Convention.⁴ In particular, neither Basic Law nor the Convention imply a ban on life-long detention based on non-retaliatory, merely preventive reasons.⁵ According to this basic legal framework, the following general application requirements for a preventive detention order also meet the Basic Law as well as the Convention:

- The detainee was convicted for the perpetration of at least one grave violent crime or a sexual assault (“Anlasstat” – underlying offence); minor offences (such as property crimes or misdemeanors) are not suitable justifying a preventive detention order (Art. 66 § 1 no. 1 of the Criminal Code).

- The underlying offence was perpetrated in a healthy state of mind. If the offender lacked criminal responsibility due to insanity (Art. 20 of the Criminal Code), the court shall make a mental hospital order instead (Art. 63 of the Criminal Code).

- The offender presumably constitutes a serious danger to the public (Art. 66 § 1 no. 4 of the Criminal Code).

- The delinquent was sentenced to a considerable fixed-term imprisonment; if the imposed sentence is life-long imprisonment, there is no need for the subsequent execution of preventive detention, for highly dangerous convicts cannot be released even on parole (Art. 57a § 1 in conjunction with Art. 57 § 1 no. 2 of the Criminal Code).⁶

 

 

A decisive precondition for the constitutionality of the new preventive detention-provisions is their compliance with the so-called distance requirement (“Abstandsgebot”). The term distance requirement was coined by the FCC in 2004, when the Court ruled that the former provisions on preventive detention were constitutional.⁷ In a rather vague way the FCC linked the distance requirement with the idea of a privileged execution of preventive detention (in con-trast to regular imprisonment), inter alia demanding “a rest of life quality” for long-term detainees. Back then, this requirement, derived from Art. 2 § 2 in conjunction with Art. 104 § 1 of the Basic Law, did not play an important let alone decisive role in the Court’s decision. However, in the wake of the ECHR’s 2009-verdict ruling that the German Criminal Code’s provisions on subsequent preventive detention constitute a breach of the Convention,⁸ the FCC entirely changed its mind concerning the provisions’ constitutionality: Mainly on the ground of a violation of the distance requirement, it declared the legal system of preventive detention incompatible with the Basic Law.⁹ In this judgement the distance requirement effectively became a “magic formula”¹⁰. This time the FCC explained in detail the necessary requirements for a constitutional way of executing preventive detention. Based on the reasoning that – unlike the repressive sanction of a penalty (“Strafe”) – preventive detention is merely legitimated by the concept of outweighing public interests, the detainee’s deprivation of liberty for the sake of public safety therefore to him, the detainee, constitutes a special sacrifice (“Sonderopfer”)¹¹.  Against this backdrop, the Court’s findings, guided by the leitmotif of a liberty-orientated and therapy-aimed master plan (“freiheitsorientiertes und therapiegerichtetes Gesamtkonzept”)¹², culminate in seven precepts the legislator must observe¹³:

- Ultima-ratio-principle (“ultima-ratio-Prinzip”): Preventive detention can only be imposed as a last resort. In order to reduce a convict’s dangerousness already while serving the sentence of imprisonment, all necessary means must be provided.

- Principle of individualization and intensification (“Individualisierungs- und Intensivierungsgebot”): Not later than the beginning of the execution of preventive detention, the detainee must be subject to a comprehensive and scientific examination, aimed at preparing an individual therapy-offer.

- Principle of motivation (“Motivierungsgebot”): Negative psychic impacts that unlimited detention might cause need to be counteracted by offers of treatment and care.

- Principle of separation (“Trennungsgebot”): The execution of preventive detention must be carried out witha considerable separation of regular imprisonment. However, there is no necessity for a complete areal separation of detainees and regular prison inmates.

- Principle of minimization (“Minimierungsgebot”): The necessary individual concept of treatment must include guidelines for detainment-easing (“Vollzugslockerungen”), for preparing a release on probation and for help and assistance afterwards.

- Principle of legal aid and support (“Rechtsschutz- und Unterstützungsgebot”): The detainee must have a right to demand the fulfillment of the above mentioned principles; if the assistance of defence counsel or similar legal support appears necessary, it must be granted.

- Principle of revisal (“Kontrollgebot”): The further enforcement of the custodial measure must be reviewed at least once a year.

 

 

The FCC demanded the implementation of the distance requirement on two different levels. While the Federation (“Bund”) must provide the basic legal guiding principles, it is the duty of the Federal States’ (“Bundesländer”) Legislature to adopt detailed regulations concerning the execution of preventive detention.¹⁴

 

a) Basic guidelines
The Federal Act of Implementation of the Distance Requirement in the Law of Preventive Detention¹⁵, coming into force on 1 June 2013, implemented the FCC’s guidelines into the Criminal Code. Its new Art. 66c, entitled Execution of Placement in Preventive Detention and the Previous Imprisonment (“Ausgestaltung der Unterbringung in der Sicherungsverwahrung und des vorhergehenden Strafvollzugs”), mainly reiterates the FCC’s guidelines. The article’s § 1 no. 1 contains the principles of motivation and of individualization and intensification, no. 2 deals with the principle of separation, and no. 3 is meant to ensure the principle of minimization; Art. 66c § 2 of the Criminal Code serves the implementation of the ultima-ratio-principle. In order to force the realization of the named principles, Art. 67c § 1 and 67d § 2 of the Criminal Code were amended and now state that the chambers of the Regional Courts responsible for the execution of sentences (“Strafvollstreckungskammern”) shall declare the measure terminated and order the release of the detainee, if the correctional facility in practice fails to meet the principles for a significant period of time.¹⁶ Besides, amendments in the Federal Execution of Sentences Act (Art. 109 § 3) and in the German Code of Criminal Procedure (Art. 463 §§ 3 and 8) declare the participation of defence counsel being mandatory in certain proceedings before the Strafvollstreckungskammern that deal with the compliance with the distance requirement. Lastly, the principal of revisal led to an amendment in Art. 67e § 2 of the Criminal Code, now stating that the question of terminating the measure because the conditions for the measure no longer exist or because the continued enforcement of the measure would be disproportionate, shall be reviewed once a year and, if ten years of an incapacitation order have been served, at least every nine month.

Altogether, on the Federal level the implementation of the distance requirement succeeds to comply with the FCC’s guidelines.¹⁷ Likewise, it seems highly improbable that the ECHR will object to the new provisions of the Criminal Code.

 

b) Implementation on the Federal States-level
Due to the division of legislative powers between the Federation and the Länder, it falls with-in the competence of the latter to adopt regulations concerning the practical issues of the ex-ecution of preventive detention. The following description exemplary deals with some inter-esting provisions of thedraft of the Bavarian Execution of Preventive Detention Act (“Siche-rungsverwahrungsvollzugsgesetz”), presumably coming into force on 1 June 2013.¹⁸ Art. 1 § 2 and Art. 85 § 1 state that the execution of preventive detention will be carried out in a separate section of a prison. While Art. 2 et seqq. primarily deal with the FCC’s guidelines in a rather abstract manner, other provisions establish concrete privileges for detainees in comparison to regular inmates. For instance, while the regular prison inmates’ cells rarely exceed a size of 7 sqm. per person,¹⁹ persons detained for preventive reasons not only live in housing groups using “homelike furnished” rooms for groups and visitors (Art. 84 I, III), but also have a single room for themselves with a minimum size of 15 sqm. (Art. 16). In addition to that the detainees in principle have the possibility to use the facility’s outdoor area (Art. 15 § 1), they have the opportunity to cook for themselves, wear their own clothes and – in case of employment within the facility – earn significantly more money (2,52 € wages per hour) than regular prison inmates (currently 1,42 € hourly wages). Further differences concern the right to have visitors (Art. 22 § 1: at least twelve hours per month in comparison to a minimum of one hour per month), the right to telephone (Art. 25 § 1) and to use other forms of telecommunication such as e-mail and videophone (Art. 30). Moreover, the concept of easing of detainment (“vollzugsöffnende Maßnahmen” – Art. 54) provides, inter alia, for suitable detainees the allowance to leave the premises for a period of up to two weeks.

With regard to the guidelines of the FCC and the Federal legislator, the Bavarian solution to the problem of how to implement the distance requirement in an apparent and tangible way seems to be a successful one. Therefore, it is expectable the FCC will deem the Bavarian Ex-ecution of Preventive Detention Act satisfying in terms of the guidelines.

 

 

The provision on primary preventive detention (“anfängliche Sicherungsverwahrung”), Art. 66 of the Criminal Code, remains unaffected by the latest reform. Thus, a person that has been convicted before because of a serious crime and afterwards has perpetrated one of the under-lying offences enumerated in Art. 66 of the Criminal Code, shall be subject to a preventive detention order, if a comprehensive evaluation of the convicted person and his offences re-veals that, due to his propensity to commit serious offences, he poses a danger to the general public.

Though Art. 66 of the Criminal Code had been declared incompatible with the Basic Law by the FCC in its May 2011 judgement, the provision does not conflict with the constitution any more. Since the reason for the FCC’s incompatibility verdict was solely based on the violation of the distance requirement, the legislator’s mending in this matter (see above) revived, so to speak,the once unconstitutional provision. Neither does this provision constitute a breach of the Convention. The deprivation of liberty of a person serving a primary preventive detention order is justified according to Art. 5 § 1 (a) of the Convention. The condition of a detention “after conviction by a competent court” is met, especially for the conviction of the underlying offence complies with the requirement of the finding that the person concerned is guilty of an offence.²⁰

 

Provided that the formal conditions of Art. 66 are met, Art. 66a of the Criminal Code renders it possible to reserve a detention order (“vorbehaltene Sicherungsverwahrung”), if the court convicting an offender of an underlying offence cannot establish with sufficient certainty whether the convicted person presents a danger to the general public. In case a preventive detention order has been reserved in accordance with that provision, the very same court shall decide on making an incapacitation order no later than six months before the date when the convicted person becomes eligible for early conditional release (Art. 66a § 3 of the Criminal Code in conjunction with Art. 275a of the Code of Criminal Procedure). Hence, in the case of a reserved preventive detention order, the main hearing is split into two parts – the first one leading to the convicting judgement along with the reserved detention order and, commencing after the completion of two-thirds of the prison term, the second one deciding whether the convicts present-day dangerousness makes the execution of the deferred preventive detention actually necessary.

 

Art. 66a of the Criminal Code complies with the Basic Law. Apart from the – meanwhile re-mediated – infringement of the distance requirement, the FCC recently reiteratedits determi-nation whereby the current provision on reserved preventive detention is in accordance with the constitution.²¹

 

However, it is disputed whether or not Art. 66a of the Criminal Code complies with the Con-ventional provisions on the deprivation of liberty. Again, a justification can only be based on Art. 5 § 1 (a) of the Convention. In this respect, some scholars²² argue that a reserved preven-tive detention order fails to meet the requirement of a sufficient causal connection between the (primary) conviction and the deprivation of liberty, since the finding of the offender’s guilt (concerning the underlying offence) is object to the first main hearing only, whereas the final detention order merely is the result of the second main hearing. Nonetheless, the FCC convincingly states that, albeit the second decision (which merely deals with the offender’s dangerousness) occurs between the primary conviction and the execution of the preventive detention, the causal link between the first judgement and the execution still is sufficient in the terms of Art. 5 § 1 (a) of the Convention.²³ Due to the fact that the second main hearing does simply fill in what was left open (yet predisposed) in the first main hearing, the latter continues being an important conditio sine qua non with regard to the execution of the detention. For this reason the above mentioned objection is wrong.

 

The formerprovisions on subsequent preventive detention („nachträgliche Sicherungsverwahrung“), Art. 66b §§ 1 and 2 of the Criminal Code, applied, if new evidence became available during an offender’s prison term. Under these provisions, the prisoner did not know whether or not preventive detention would be ordered until the end of his prison term. In answer to different judgments of the ECHR on the matter of preventive detention, as from 1 January 2011 the legislator abolished subsequent preventive detention to a large extent.²⁴ With respect to these changes, however, it is necessary to differentiate whether the underlying offence was committed before 1 January 2011 (old cases – “Altfälle”) or afterwards (new cases – “Neufälle”).

 

a) New cases
With regard to the new cases, according to Art. 66b of the Criminal Code (new version), sub-sequent preventive detention henceforth only applies, if a mental hospital order pursuant to Art. 63 of the Criminal Code has been declared moot because the condition causing insanity or diminished responsibility on which the order was based did not exist at the time of that declaration and a comprehensive evaluation of the person, his offences and his development during detention under the measure indicates a high likelihood of his committing serious offences. In short, Art. 66b applies, if a dangerous madman turns mentally healthy but remains dangerous nevertheless; the mental hospital order in this case is simply transformed into a preventive detention order.

 

In terms of constitutional law, the FCC did not express any objections with regard to Art. 66b of the Criminal Code (as long as the distance requirement is met).²⁵  However, the named provision partially fails to meet requirements of the Convention.²⁶  Deprivations of liberty pur-suant to Art. 66b of the Criminal Code can only be justified on grounds of Art. 5 § 1 (a) of the Convention, thus presupposing a conviction including the finding of the offender’s guilt. But in the event that the primary mental hospital order was solely based on the finding of the offenders’ insanity (which Art. 63 of the Criminal Code renders possible), the offender might end up in preventive detention without ever being convicted “properly” (i.e. in a judicial proceeding that involved the determination of his guilt).

 

b) Old Cases
In case the underlying offence was committed before the year 2011, Art. 66b §§ 1 and 2 of the Criminal Code (former version) apply and therefore subsequent preventive detention orders beyond the scope of Art. 66b (new version) – i.e. in cases the offender did not act in a state of insanity – remain possible. This kind of detention order appears to be legally precarious, since it does not fall within the ambit of Art. 5 § 1 (a) of the Convention. In order to avoid further constitutional complaints or law suits against German legal statutes relating to subsequent preventive detention, the legislator, referring to Art. 5 § 1 (e) of the Convention,henceforward allows subsequent preventive detention in old cases only if the supplemental condition is met, that the detainee suffers from a “mental disorder” (“psychische Störung”) –such as psychopathy or paedophilia²⁷ –, Art. 316f § 2 of the Introductory Law of the German Criminal Code. However, it is somewhat doubtful whether the requirement of a mental disorder meets the requirement of an “unsound mind” within the meaning of Art. 5 § 1 (e) of the Convention. Some scholars argue that, on the one hand, to fall within the ambit of subsection(e), the offender’s state of mental health must exclude (or at least diminish) criminal responsibility,²⁸ and, on the other hand, a mental disorder leaving legal culpability untouched is an impossible state of affairs anyway.²⁹ Despite this, the FCC – though in a slightly different legal context –has already expressed its satisfaction concerningthat newly amended requirement.³⁰

 

According to the FCC, preventive detention is not considered a penalty; thus, principles of sentencing such as the prohibition of ex post facto effects do not apply strictly.³¹ Art. 2 § 6 of the Criminal Code in conjunction with various Articles of the Introductory Law of the Crimi-nal Code even explicitly allow the retroactive application of laws intensifying preventive detention. Therefore, all of the three above mentioned types of preventive detention – primary, reserved and subsequent preventive detention – might generate retroactive effects: In cases of primary detention, because in 1998 a 10-year cap on preventive detention (for certain first offenders) was retroactively lifted in favor of an unlimited duration; in cases of reserved detention (established in 2002), if the underlying offence was committed before 2002; and in cases of subsequent detention pursuant to Art. 66b §§ 1 and 2 of the Criminal Code (former version as amended in 2004), if the underlying offence was committed before 2004. Contrary to the FCC’s jurisprudence, the ECHR in various judgements holds that preventive detention because of its resemblance to the penalty of imprisonment falls within the ambit of Art. 7 § 1 of the Convention – and thus retroactive preventive detention constitutes a breach of that provision.³² In addition to that, relating to Art. 5 § 1 (a) of the Convention, retroactive detention fails to meet the requirement of a sufficient causal link between the conviction (of the underlying crime) and the execution of the (retroactively imposed) preventive detention.³³

 

In answer to this jurisprudence of the ECHR, the German Federal legislature did two things. Firstly, it adopted the Therapy Placement Act (“Therapieunterbringungsgesetz”), enabling placing orders (“Unterbringungsanordnung”) with respect to those dangerous individuals who

- have been subject to a court’s discharge orderin the aftermath of the ECHR-judgements,

- are still considered to be a danger to the public and

- suffer from “mental disorder” (Art. 1 § 1 of the Therapy Placement Act).

The legal difficulties relating to the requirement of a mental disorder have already been discussed. In addition to that, it is highly doubtful whether the Therapy Placement Act falls within the legislative power of the Federation (instead of the one of the Länder)³⁴  and whether it complies with the latest judgement of the FCC, which prohibits all kinds of retroactive preventive detention unless very strict requirements in terms of the offender’s dangerousness are met, i.e. a high degree of danger to the public due to the offenders mental disorder.³⁵

 

Secondly, concerning all other cases of retroactive preventive detention, the latest legislative reform came up with Art. 316f § 2 of the Introductory Law of the Criminal Code, stating that, in addition to the already complicated requirements of Art. 66a and 66b (former version) of the Criminal Code, the offender must not only suffer from a mental disorder, but also constitute a high-degree danger to the public. Once again, this provision is burdened with the legal hazard of the “mental disorder”-requirement. At least the newly adopted distance requirement, eliminating preventive detention’s resemblance to regular imprisonment, seems to fulfill the German legislature’s obligation regarding Art. 7 of the Convention.³⁶

 

 

The newly adopted German provisions on preventive detention convincingly manage to meet the constitutional requirements, especially the so-called distance requirement. The new regu-lations therefore will probably stand the certain-to-come constitutional complaints. The same holds true for the new law’s compliance with the European Convention on Human Rights (apart from Art. 66b of the Criminal Code, rendering possible preventive detention orders pertaining former madmen who have never been found guilty by a court). In contrast, the leg-islator’s attempt to maintain the possibility of retroactive preventive detention in certain old cases by establishing the category of sane-but-mentally-disordered criminals, the concept,at least,raises doubts in terms of compliance with the Basic Law as well as the Convention.

 

Due to the finiteness of the reservoir of old cases, the legal problems regarding retroactive preventive detention will naturally play a decreasing role in the jurisprudence of both the FCC and the ECHR. Of more significance is the question, whether or not the measure of preventive detention will be imposed less often in the future. There are some indications that (long-term) preventive detention will be cut back in the medium-term: On the one hand the enormous costs of detaining offenders in accordance with the distance requirement, and on the other hand the recently adopted possibility to supervise dispatched ex-detainees with electronic ankle monitors, Art. 68b § 1 No. 12 in conjunction with Art. 67d § 3 of the Criminal Code. However, on the basis of the sane-but-mentally-disordered concept a renaissance of subse-quent preventive detention also seems possible, for some Bundesländer have already ex-pressed their ambition for reintroduction.³⁷

In any case, it is unlikely that preventive detention will be completely abolished even in the long term. Instead, a different fundamental political debate is looming. To the internal logic of preventive detention, the requirement of an underlying offence does not deem necessary. To put it bluntly: Why wait until serious crimes have been committed? In this regard, the FCC in 2004 declared the underlying offence an “indispensable indication” of the offender’s pre-sumed dangerousness, and therefore the abandonment of the underlying offence-requirement would constitutean act of “disproportionateness”.³⁸ But given the case the ECHR gives his blessings to the concept of detaining mentally disordered perpetrators of violence and sexual assault pursuant to Art. 5 § 1 (e) of the Convention, it will be interesting to see the legal poli-tician’s demands,once the neuroscience’s ability to predict delinquent behavior even without the existence of an underlying offence exceeds today’s (little accurate³⁹) prognostic abilities of psychiatrists including the consideration of an underlying offence.

 

 

Footnotes: 

1. A brief summary is provided by Grischa Merkel, Incompatible Contrast? – Preventive Detention in Germany and the European Convention on Human Rights, in: German Law Journal 11 (2010), pp. 1046–1066 (at 1047 et seqq.), http://www.germanlawjournal.com/pdfs/Vol11-No9/PDF_Vol_11_No_09_1046-1066_GMerkel.pdf (last accessed 14 February 2013).
2. BVerfGE 128, 326 (at 404 para. 167), http://www.servat.unibe.ch/dfr/bv128326.html (last downloaded 14 February 2013).
3. In the past only, very few provisions in the Execution of Sentences Acts (“Strafvollzugsgesetze”) dealt with the specifics of executing preventive detention.
4. See BVerfGE 128, 326 headnote no. 3 (b); Jörg Kinzig, Die Neuordnung des Rechts der Sicherungsverwahrung, in: Neue Juristische Wochenschrift 2011, pp. 177–182 (at 178 fn. 10).
5. Cf. BVerfGE 109, 133 (p. 149 para. 70), http://www.servat.unibe.ch/dfr/bv109133.html (last accessed 14 February 2013); ECHR, Schmitz v. Germany, App. no. 30493, 9 June 2011, paras. 46–49.
6. FCJ, judgement of 10 January 2013 – 3 StR 330/12 (not yet published).
7. BVerfGE 109, 133 (at 167 para. 126).
8. ECHR, M. vs. Germany, App. no. 19359/04, 17 December 2009.
9. BVerfGE 128, 326 operative provision no. II.
10. Katrin Höffler/Johannes Kaspar, Warum das Abstandsgebot die Probleme der Sicherungsverwahrung nicht lösen kann, in: Zeitschrift für die gesamte Strafrechtswissenschaft 124 (2012), pp. 87–131 (at 88).
11. BVerfGE 128, 326 (at 374 para. 101).
12. BVerfGE 128, 326 (at 381 para. 115).
13. BVerfGE 128, 326 (at 379 et seqq. paras. 112–118).
14. BVerfGE 128, 326 (at 387 et seq. paras. 129 et seq.).
15. BGBl. I 2012, p. 2425 (accessible via http://www.bgbl.de).
16. The order for release, however, automatically leads to the person being subject to supervision, Art. 67d § 2 of the Criminal Code.
17. See also Klaus Leipold, Bundestag beschließt Neuregelung der Sicherungsverwahrung, in: Neue Juristische Wochenschrift-Spezial 2012, pp. 760 et seq. (at 761).
18. The draft can be accessed via http://www.justiz.bayern.de/media/gesetzentwurf_baysvvollzg.pdf (last accessed 14 February 2013). Similar acts have already been adopted by other Länder, e.g. the Lower Saxon Execution of Preventive Detention Act (Nds. GVBl. 2012, p. 566, http://recht-niedersachsen.de/34140/svvollzg.htm – last accessed 14 February 2013).
19. See Konrad Huchting/Helmuth Pollähne, in: Kommentar zum Strafvollzugsgesetz (AK-StVollzG) (Feest/Lesting eds., 6th ed. 2012), § 144 StVollzG, at marginal nos. 3–5.
20. Robert Esser, in: Löwe-Rosenberg StPO (Erb et al. eds., 26th ed. 2012), Art. 5 EMRK, at marginal no. 80.
21. FCC, decision of 20 June 2012 – 2 BvR 1048/11, para. 68. The decision can be accessed on the Court’s web-site (http://www.bundesverfassungsgericht.de/entscheidungen.html); for a printed version see Neue Juristische Wochenschrift 2012, pp.3357–3366).
22. See e.g. Jörg Kinzig, Das Recht der Sicherungsverwahrung nach dem Urteil des EGMR in Sachen M. gegen Deutschland, in: Neue Zeitschrift für Strafrecht 2010, pp. 233–239 (at 239).
23. FCC (supra note 21), paras. 92–112.
24. See Robert Esser, Sicherungsverwahrung, in: Juristische Arbeitsblätter 2011, pp. 727–734 (at 734).
25. Cf. BVerfGE 128, 326 (at 404 para. 166).
26. ECHR, S. v. Germany, App. no. 3300/10, 28 June 2012, paras. 86–90; Robert Esser (supra note 20), at marginal no. 86; Franz Streng, Die Zukunft der Sicherungsverwahrung nach der Entscheidung des Bundesverfassungsgerichts, in: Juristenzeitung 2011, pp. 827–835 (at 833 et seq.); Joachim Renzikowski, Das Elend mit der rückwirkend verlängerten und der nachträglich angeordneten Sicherungsverwahrung, in: Zeitschrift für Internationale Strafrechtsdogmatik 2011, pp. 531–543 (at 535), http://www.zis-online.com/dat/artikel/2011_6_589.pdf(last accessed 14 February 2013).
27. Cf. the official explanatory memorandum, in: Bundestagsdrucksache 17/9874, p. 31, http://dipbt.bundestag.de/dip21/btd/17/098/1709874.pdf, in conjunction with Bundestagsdrucksache 17/3403, p. 54, http://dipbt.bundestag.de/dip21/btd/17/034/1703403.pdf (both documents last accessed 14 February 2013).
28. See e.g. Arthur Kreuzer, Beabsichtigte bundesgesetzliche Neuordnung des Rechts der Sicherungsverwahrung, in: Zeitschrift für Rechtspolitik 2011, pp. 7–11 (at 10); Franz Streng (supra note 26), at 832.
29. Grischa Merkel/Gerhard Roth, Langzeitverwahrung von Gewalttätern, in: Humboldt Forum Recht 2010, pp. 250–279 (at 268 et seqq.), http://www.humboldt-forum-recht.de/druckansicht/druckansicht.php?artikelid=239 (last accessed 14 February 2013).
30. FCC, decision of 15 September 2011 – 2 BvR 1516/11, paras. 35–40. The decision can be accessed on the Court’s website (http://www.bundesverfassungsgericht.de/entscheidungen.html); for a print version see Strafver-teidiger 2012, pp. 25–27.
31. BVerfGE 109, 133 (at 168 para. 127); 128, 326 (at 239 et seq. paras. 141 et seq.).
32. See e.g. ECHR (supra note 8), para. 133. For further information see Grischa Merkel (supra note 1), at 1051 et seqq.
33. ECHR, Haidn v. Germany, App. no. 6587/04, 13 January 2011, para. 88. For details see Grischa Merkel, Case Note – Retrospective Detention in Germany, in: German Law Journal 12 (2011), pp. 968–977 (at 972 et seq.), http://www.germanlawjournal.com/pdfs/Vol12-No3/PDF_Vol_12_No_03_968-977_Developments_Merkel.pdf(last accessed 14 February 2013).
34. See Karl Nußstein, Das Therapieunterbringungsgesetz – Erste Erfahrungen aus der Praxis, in: Neue Juristische Wochenschrift 2011, pp. 1194–1197 (at 1194); Thomas Ullenbruch, Walter H. in den Rückfängen des ThUG – aktuellster Spaltpilz zwischen EGMR und BVerfG?, in: Strafverteidiger 2012, pp. 44–51 (at 48).Concerning this matter a constitutional complaint currently is pending before the FCC (reference no. 2 BvR 2302/11).
35. Cf. Karl Nußstein, (Kein) Anwendungsbereich des Therapieunterbringungsgesetzes nach dem Sicherungsverwahrungs-Urteil des BVerfG?, in: Strafverteidiger 2011, pp. 633–635 (at 634).
36. Cf. the official explanatory memorandum, in: Bundestagsdrucksache 17/3403, p. 21. Critically: Thomas Ullenbruch (supra note 34), at p. 48.
37. See the proposal of the Federal Council of Germany (“Bundesrat”) for adopting provisions on subsequent therapy placement (“nachträgliche Therapieunterbringung”), in: Bundestagsdrucksache 17/9874, p. 37 et seqq. Critically: Ralf Peter Anders, Kritik der nachträglichen Therapieunterbringung, in: Juristenzeitung 2012, pp. 498–505.
38. BVerfGE 109, 190 (at 220 paras. 111 et seq.), http://www.servat.unibe.ch/dfr/bv109190.html (last accessed 14 February 2013).
39. See e.g. Jürgen L. Müller, Die Regelungen der Sicherungsverwahrung im Lichte des Bundesverfassungsgerichtsurteils vom 04.05.2011 in ihren Auswirkungen auf Psychiatrie und Psychotherapie, in: Neue Kriminalpolitik 2012, pp. 54–61, stating that more than half of the preventively detained person are in fact harmless false positives.

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Every society is being confronted with the need to protect its citizens from dangerous criminals that tend to repeatedly reoffend. As this need for security directly collides with the offender’s right to liberty,¹ repressive actions, which are caused by a society’s 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.² 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 society’s 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.³ This article will scrutinize and critically analyze the systems implemented in European states.⁴

 

 

1. The Mere Use of Penalties to Meet the Need for Public Protection
Whilst in Germany a clear distinction is made between penalties and security measures for the prevention of crime and reformation of the offender, the English sanctioning system does not provide for an alternative instrument independent from the requirement of criminal liability. The English legal system is based on a single-track system that provides for punitive sentences only.⁵ Hence, the English sanctioning system embodies the antithesis to the German double-track system.  This shall not leave the impression, that the English legal system simply ignores the problem of treating dangerous offenders or offers no solution in that respect. Quite to the contrary, it does not only recognize the problem, but also offers an even more resolute protective mechanism.⁶ The specific difference to the German system lies in the fact that the reaction to a dangerous offender’s crime is not referred to as security measure but is treated like a regular punitive sanction in cases of common offenders, although that penalty should rightly be titled a “special custodial sentence”⁷ as it encompasses formal and material peculiarities distinguishing it from regular punitive sanctions and as it pertains to dangerous offenders only. However, this criminal policy has an effect far beyond the question of terminology, as will be shown in the following; it is linked to the question of the limitations of criminal law.

The discrepancy between the two sanction systems derives from the fact that the English criminal law system was subject mainly to practical considerations, whereas in Germany a dogmatic discourse had led to the aforementioned double-track system.⁸ This becomes obvious when looking at the historical development of the instrument of preventive detention in Germany and the establishment of the “special custodial sentence” in England. The double-track sanction structure in Germany is a result firmly embedded in the doctrinal discourse between traditional theory based on the legacy of Hegel and Kant, and the so called Marburg Manifesto, a theory based on the writings of Franz von Liszt, aiming to balance out preventive measures and retributive penalties. The development of the “special custodial sentence” in England can be ascribed to mere practical considerations.⁹ As trigger served Australia’s denial to accept any further convicted criminal on its territories in the 19th century.¹⁰ Hence, England was forced to halt its deportation policy to distant colonies and to look for an alternative treatment of its criminals. Aside from these practical problems, further factors have influenced the English system, e.g. amongst others, the traditional role of the judge and the focus on comprehensibility of law for regular citizens, which prevented a slide into a rather dogmatic discourse.¹¹

 

2. Details of the “Special Custodial Sentence” in the Criminal Justice Act 2003
The Criminal Justice Act of 1991 already provided a specific mechanism designed to deal with dangerous offenders. It included extended prison sentences which may exceed the maximum sentence prescribed by the principle of proportionality, i.e. so called longer-than-proportionate sentences.¹² However, until the passing of the Criminal Justice Act 2003¹³, a systematic approach towards the treatment of offenders was non-existent.^{14 15} It is also very dubious, that, in order for someone to be classified as a dangerous offender, regard will be taken only to the seriousness of the predicate offence.¹⁶ In contrast to German preventive detention, the English system contains no additional requirement that the offender must have committed a specific number of crimes. Thus, the offender remains unprotected from and unprepared against the imposition of a special custodial sentence, as the formal requirement of multiple convictions would have served as a warning function before one of the most severe measures may be imposed.¹⁷ Furthermore, by waiving the requirement of prior offences, the risk assessment of an individual is stripped off the objective assessibility that could easily be deduced from the “legal biography” of a criminal.¹⁸ Nonetheless, a prior conviction for a serious offence will result in an assumption of dangerousness.¹⁹ That solution, however, is unconvincing. A legal presumption of this kind disregards the limitations of criminal law as prescribed by the rule of law and oversimplifies the risk assessment of an individual, thereby, ultimately disregarding the ultima-ratio nature of the special custodial sentence.

 

The Criminal Justice Act 2003 provides for three different kinds of special custodial sentences: a) imprisonment for life, b) imprisonment for public protection and c) extended sentences. ^{20 21} As all three special custodial sentences implicate a different duration of detention, a decision as to which will be imposed in respective cases depends entirely on the seriousness of the predicate offence. Offences that qualify for a special custodial sentence are listed in annex 15 to the 2003 Act. They include violent and sexual offences only. However, the term of a sexual offender used in the Act may be subjected to criticism as it uses a very wide definition. Within the category of specified sexual offences that lead to special custodial sentences one can identify a broad variety of offences, including but not limited to prostitution and paedophilia.²²

 

Especially in regard to the rule of law, England’s treatment of those dangerous offenders, which German law would render mentally incapable due to psychological disorders, may cause further unease. Although the Mental Health Act of 2003 allows for the placement of such individuals in mental institutions, a court is not obliged to order such placement, thereby expanding the potential applicability of the special custodial regime.²³ Henceforth, in England, individuals generally may be convicted of a crime without any regard to their mental capacity.²⁴ It is an unconvincing policy that is the result of the lack of theoretical and dogmatic fundament at the heart of the English sanctioning system, which fails to consider the criminal capacity of an individual when answering the question “mad or bad?” and which fails to distinguish between a penal system and a system of measures for the prevention of crime and the reformation of offenders.²⁵ The already ill-defined structure of the English sanction system becomes even more vague and blurry when examining preventive arrests of suspected terrorists and the questionable issuing of “anti-social behaviour orders”, or short “ASOBs”.²⁶ These harsh measures are allocated to administrative law and thereby circumvent guarantees of criminal law.²⁷ As a concrete preventive measure against putative terrorists whose prosecution and conviction is not possible due to insufficient evidence, control orders may be issued. They shall be issued as long as a criminal prosecution is not possible.²⁸ It is obvious that such a policy infringes upon the in dubio pro reo principle.²⁹

 

3. Conclusion Regarding the English System
The premature recourse to special custodial sentences, the careless and undifferentiating treatment of offenders, mentally capable and incapable, the imposing of penal sanctions even prior to a crime under the veil of security measures, indicate a punitive system deriving from an increasing fear of crime, media populism,³⁰ and the symbolic crime policy of the late modern age.³¹ Predominantly, two events triggered the trend towards increased control and sanctioning mechanisms and an aggravation of society’s attitude towards a punitive practice in England: Firstly, the tragic murder of a child, James Bulger, by two ten-year-olds, which shocked the English public in 1993. Secondly, a populist statement made in the same year by former Home Secretary Michael Howard, stating that “the prison works”, even though the Home Office just three years prior to that statement had emphasized that the “prison system can be an expensive way of making bad people worse”.³² That created the sense of an atmosphere of danger³³ that was not reflective of the actual criminal situation and which now is manifested in a sanctioning system which neglects many guarantees for liberty in criminal law.³⁴ It does not seem unjustified to conclude that the English sanctions regime falls short of the standards applied in rational crime policy, namely, to not merely claim the presence of a danger, but to empirically validate its existence.³⁵

 

1. Vacillation in Swedish Criminological Politics
The Swedish sanctions system is also based on a single-track approach. However, Sweden was induced to develop that solution by reasons entirely different from those of England. While England aimed at repression through the single-^track system, Sweden aspires to achieve a rather humane and mild treatment of offenders. According to the Swedish policy, the double-track system infringes upon the principle of humanity.³⁷ The Swedish system provides an interesting example for the following reason: Although the Swedish crime policy always applies the single-track approach, it vacillates between different forms, leaning from one extreme into the other just to turn back to its original position. For that reason, the shift in Swedish criminal policy has been compared with a pendulum.³⁸ While in the 19th century crime policy had been influenced by the traditional criminal law school’s aim to define general preventative measures, in the 20th century, it developed to become a single-track system aiming at individual preventative mechanisms, just to transform again into a single-track system that recognizes penal sanctions only and dispenses with the preventive mechanisms of indefinite detention.³⁹ Because of developmental particularities of the current Swedish crime policy on the one hand, and because of the difficulty of defining an appropriate reaction to dangerous habitual criminals on the other, it is worth outlining the contrarian conceptual considerations that led to the establishment of an ever new single-track solution in Sweden.

 

2. The Treatment-Optimism Model
In the beginning of the 20th century, derogating from the principle of liability and from the requirement of proportionality between an offence and a relating sentence as required by the traditional school of criminal law, the Swedish criminal policy, being characterised as purposive and unemotional, shifted towards the ideals of the positive and modern schools of criminal law.⁴⁰ Thereby, the abstract theory of retribution was dwarfed by the rise of sanction system concepts characterized by individual preventive mechanisms and a focus on treatment. A cornerstone of the Swedish approach is the proposition that every human is morally sane and that criminal behaviour is the result of disease-like states of abnormality that can be cured by appropriate treatment.⁴¹ Insofar, Hassemer was correct when claiming that “the concept of resocialization strips the punishing sovereign off the odium of a gaoler and bestows upon it the dignity of a doctor”.⁴² Claiming to be treating instead of punishing is a clever justification for the serious infringement of the rights and liberties of an individual. Resocialization is being presented as the more humane and human friendly alternative to retribution.⁴³ Against this background, the freedom of will is compromised and the traditional concept of liability rendered representative of obsolete metaphysics.⁴⁴ A differentiation between offenders that are criminally capable or incapable becomes obsolete and irrelevant as long as both are deemed to be in need of treatment.⁴⁵

 

Based on that optimism regarding treatment, the penal code of 1965 was implemented, which de facto abolished the requirement of criminal responsibility. The current legislator abides by that decision.⁴⁶ The new legislation, embodying the ideology of treatability, effected the marginalization of the term penalty and of its practical importance. Seeing the introduction of new special sanctions (e.g., compulsory education, juvenile prison for minors, and detention for mentally abnormal and dangerous offenders) may be indicative of a replacement of the traditional punitive sentences with a system of measures for the prevention of crime and the reformation of offenders that is detached from the principle of proportionality. It seeks to prevent an offender from committing a crime and to protect society from recidivists.⁴⁷ Symbolically, the term “penalty” has even been omitted on purpose in the title of the law.⁴⁸

 

The new legislation, by focussing on the offender, left a wide margin of appreciation for the courts to define the exact form and manner of the treatment in each individual case.⁴⁹ The fundamental instruments available to the judiciary were comprised of socio therapeutic, pedagogic and psychiatric treatment. Forensic psychiatry played an eminent role⁵⁰ and following the judicial ordering of a transfer into one of the special treatments, the prison authority obtained the competence to decide upon the time of release of the offender.⁵¹ It shall be noted that the detention was originally designed to be indefinite. The term “habitual offender”, whose “mental condition”⁵² could indicate the necessity of detention, encompassed even offenders that relied on theft and fraud as their primary source of income and that were prone to becoming recidivistic.⁵³

 

3. Neoclassicism
The treatment model, by approaching a criminal as a diseased member of society being in need of treatment, was noble, but contained a notion of naivety that had already been identified by the empiric-criminological research at the time of the coming into effect of the penal code in 1965. Increased crime rates were evidence of the failure of the treatment-optimism model.⁵⁴ Another argument forwarded against the “theory of treatment” was a concern regarding discrimination of offenders of different social backgrounds.⁵⁵ Socially disadvantaged offenders which are needy of treatment have been sentenced to special custodial sentences more frequently than offenders with a socially privileged background.⁵⁶ The neo-classic philosophy developed in the light of that criticism of the treatment theory, demanding more certainty of the law and increased predictability of the sanctions.⁵⁷ Accordingly, criminal law should focus on the offence committed, rather than on the offender’s personality; prognoses regarding the necessity of treatment and the prospect of success of a resocialization of an offender should recede into the background.⁵⁸ The penalty is no longer conceptualized as an instrument of treatment so as to minimize the risk for potential recidivism, but rather as a reaction to a past state of affairs. From a humanitarian perspective, that approach seems more appealing than focussing on a monolith-like system of treatment, that is characterized in great part by uncertainty and unpredictability. Henceforth, the neo-classicistic requirements represent a positive step towards a more balanced sanctions system in Sweden.

 

Departing from individual preventative treatment, in 1983 and 1989, under the influence of the neo-classic school, indefinite custodial sentences were abolished and general preventive punitive measures were introduced to the penal code.⁵⁹ Due to the strict single-track nature of the Swedish system following these amendments, subsequent imprisonment following compulsory treatment is no longer an option.⁶⁰ Predetermined custodial sentences are the only means available in Swedish criminal law to deprive an individual of his or her liberties. The duration depends on the seriousness of the crime. In case of recidivists, the respective maximum sentence proscribed by law may be exceeded by up to four years.⁶¹ Compulsory treatment, which is nothing short of detention, may only be ordered in cases of a serious psychological disorder. Hence, an order for preventive detention for someone without a psychological order, in contrast to the German system, is not permissible in Sweden.⁶² It is irritating, though, that the Swedish law does not require liability or criminal capacity as a prerequisite for a criminal conviction. As a consequence, minors and mentally disabled are deemed to be able to commit crimes and may be held responsible for their actions.⁶³ Criminal incapacity may only have a mitigating effect on the determination of the sentence. Since 2008, the legal situation may be subjected to even further criticism. Whilst until 2008 imprisonment was not permissible, under specific circumstance, it now may well be.⁶⁴

 

4. A further Motion of the Pendulum?
Despite the weaknesses of the system in regard to criminal capacity, it must be emphasized that the Swedish sanctions system is guided not by repression, as the English is, but rather by a humanitarian philosophy. Especially the departure from the concept of radical treatment, the requirement of proportionality between the offence and the sentence, and the imposition of mild instead of harsh sentences made Sweden a model-state for modern crime policy.⁶⁵ A further shift in policy threatens to relativize that image.  Published in 1995 and 2002, two expert opinions on the reform process, call for enhanced public protection and crime prevention through individual treatment, thereby indicating a further backswing of the pendulum.⁶⁶ One may infer from these developments, i.e., the recommended mechanisms to be introduced for public protection against juvenile recidivists, the introduction of the reaction mechanisms in the preliminary stage of offences involving terrorism, and the 2005 tightening of legislation on sexual offences, an increased level of repression in Sweden.

 

As the most recent reforms of the criminal law in the Czech Republic are difficult to reconcile with the principle of proportionality, her double-track system is worth being analysed in the context of the present debate. It traditionally differentiates between punitive sanctions on the one hand, and the security mechanism on the other, whilst regarding preventive detention as an ultima ratio instrument against dangerous offenders.⁶⁷ The new Czech penal code of 2009 includes alterations that intensify the focus on penalties and that dispense with the ultima ratio character of preventive detention.⁶⁸

 

Prerequisite for the imposition of preventive detention is a psychological disorder or a drug addiction, both of which, however, will not necessarily lead to mental incapacity. Additionally, it is required that both, psychological disorder and drug addiction, cannot be treated appropriately by in-patient protection treatment.⁶⁹ Therefore, preventive detention is subsidiary to protection treatment. Whilst, originally, courts could only impose preventive detention on offenders for serious crimes committed with intent and carrying a minimum prison sentence of five years, they may nowadays impose such sanctions against perpetrators of less serious crimes.⁷⁰ It suffices that an offender refuses a therapy ordered by a court or otherwise impairs protection treatment. In essence, even an offender who had committed merely theft in less serious cases and who subsequently behaves uncooperatively during an inpatient protection treatment ordered by a court because of an alcohol addiction or who has fled from such therapy may well find him- or herself in preventive detention.⁷¹ It is obvious that such quick recourse to the most serious preventive instrument of criminal law is in breach of both, the principle of proportionality and human rights in general.⁷²

 

Italy, Spain and Greece operate on a double-track system. All three systems distinguish clearly between penalties and measures for the prevention of crime and the reformation of offenders (pena-misure di sicurezza, pena-medidas de seguridas, und ποινή-μέτρα ασφαλείας).⁷³ However, the precise concept of preventive detention exists only in Italy.

 

Like Germany, Italy imposes a form of preventive detention on criminally capable offenders that is separated from the prerequisite of liability (colpevolezza) and dependent only on the dangerousness of the individual for the general public (pericolosità sociale).⁷⁴ The Italian penal code does not prescribe a limitation for the maximum duration of preventive detention.⁷⁵ In Italy, one can identify the same problematic abnegation of the prohibition on retroactivity which had led to a controversial debate in Germany and to the decision of the European Court of Human Rights finding Germany in breach of human rights. Decisive in that context is § 200 of the Italian penal code, which allows for the retroactive validity of the provisions covering preventive detention.⁷⁶ Thus, decisions that impose measures for the prevention of crime and reformation of the offender may be based on those provisions that are valid at the time of the execution of the measure.

 

In contrast to the Italian double-track system, neither the Greek nor the Spanish system provide for an indefinite measure for mentally capable, fully liable, dangerous offenders. These measures may only be imposed on offenders that suffer from a total or partial exemption of criminal responsibility and whose mental incapacity is the result of a psychological anomaly or disorder, or a drug addiction (Art. 20 Nr. 1-3 CP and 69-71 ΠΚ).⁷⁷ The question of dangerousness of an individual with full criminal responsibility is henceforth a question of the correct sentence, which, in case of recidivists, may be substantially increased.⁷⁸

 

In Spain, recidivism is an aggravating factor for the determination of the sentence (Art. 22(8) CP). In May 1996, the new penal code of Spain abolished the former special law “Ley sobre Peligrosidad y Rehabilitación social” (LPRS), which provided for five types of detention for dangerous offenders.⁷⁹ Therefore, in the new Código Penal one can no longer find the type of preventive detention that required the detention in a “Centro de custodia”.⁸⁰ The Spanish criminal law further provides for three types of sanctions that involve the deprivation of liberty: detention in a mental institution, in a detoxification institution, or the internment in a centre for special treatment. All of these may be imposed only on offenders who are mentally incapable or have reduced criminal liability.

 

In Greece, the provisions on sentencing (Art. 90, 91 ΠΚ) allow for the indefinite detention of recidivist dangerous habitual offenders while requiring only a determination of the minimum duration. A limitation to the duration can be found, however, in Art. 91 Nr. 3. In case the minimum sentence of imprisonment was completed, the detention may not exceed 15 years if the predicate offence carried a sentence of up to ten years, and it may not exceed 20 years when the predicate offence carried a sentence of over ten years. Prerequisites for an indefinite detention are: a) a predicate offence committed with intent, b) the committing of at least three prior crimes, of which at least one carried a sentence between five and twenty years, and c) a negative risk assessment based on the offender’s criminal history.

 

It is obvious that the indefinite detention of the Greece penal code equates exactly to the nature of preventive detention with the decisive difference, that this kind of sanction is classified as a penal measure and not as a measure for the protection from crime and reformation of the offender, which, as it constitutes a serious invasion into the rights and liberties of the offender, appears to be a more honest solution.⁸¹ A discussion on preventive detention is one regarding full responsibility and liability, and certainly the area of law affected by that discussion is that of penalties and sanctions. Even though special preventative considerations have led to the possibility of extending the undetermined sentence in Greece and the extended sentence in Spain beyond that which is proportionate to the offender’s liability, this is not indicative of a change of track. In contrast to those systems classifying preventive detention as a measure for the prevention of crime and reformation of the offender, the Spanish and Greek solutions appear to be less contradictory in regard to the functions and aims of both sanctioning tracks.

 

Preventive detention is a hybrid instrument in the intersection between prevention and retribution: liability for past actions and social risk of danger in the future.⁸² That preventive detention is not completely separated from liability, as other security measures are, is shown by fact that we deal with responsible individuals, whose prior liability (liability for prior offences as well as predicate offences) provide a basis for a risk assessment, which in turn serves as a justification for preventive measures. In the light of the purely preventive nature of the security measures and the prevailing view on the penal system, which by mutual understanding encompasses preventive aims,⁸³ it appears more consistent to transfer the special preventive aspects of preventive detention to the penal system rather than mixing questions of liability with a purely preventative instrument.

 

Against that background, it remains to be pointed out that even Art. 41 of the Greek penal code is highly questionable, as it enables the imposition of indefinite detention for dangerous offenders with limited criminal capacity. Problematic is also the rather extensive caps of fifteen and twenty years imprisonment respectively. It becomes even more problematic when considering that the imposition of indefinite penalties is not limited to violent perpetrators, but may also be imposed against recidivists of aggravated theft, misappropriation and fraud. Whether the social dangerousness of these individuals can be equated to that of individuals that use violence is highly doubtful.^{84 85} 

 

Apart from the fact that even here it is not possible to find regulations that are entirely convincing, the fundamental concept that evolved in Spain and Greece, both of which having been influenced by the German legal culture and its double-track system,⁸⁶ is plausible and very justifiable. A higher level of constitutional guarantees has been established. It especially leads to a more thorough appreciation of the principle of legality in regard to dangerous recidivists. Reacting to these types of offenders merely with a punitive instrument leaves no margin of appreciation for departure from the validity of the principle of prohibition of retroactivity.⁸⁷ Thereby, the principle of the protection of legitimate expectation  is preserved.⁸⁸

 

 

The Netherlands also implemented a double-track sanctions model that does not include an instrument of preventive detention. In 1929, due to constitutional concerns, the government failed in its effort to introduce preventive detention for dangerous but mentally sane habitual offenders for duration of five to ten years that were to be served following a respective sentence of imprisonment.⁸⁹ The Dutch reaction to recidivism is the increase of sentences.⁹⁰ Also, in the Dutch criminal law system, sentences of imprisonment serve a preventive function.⁹¹ Apart from that solution, which is focussed on the sentencing, courts have the ability to impose a treatment-oriented detention order that involves care by the state (so-called TBS-measure, Art. 37 b StGB). However, that may only be done in cases in which the offender has a mental disorder and is deemed dangerous and not in cases of dangerous offenders without a psychological disorder.⁹² In cases of offenders with limited criminal liability TBS can be ordered,⁹³ which is a solution that appears favourable to that of the Greek legislator, who subjects offenders with limited criminal liability to the so-called undetermined detention. The Dutch solution results in offenders with limited criminal capacity being treated according to their liability and according to their disabilities or disorders. Due to a substantial increase in detainees in TBS-institutions and the ensuing cost consideration, the Netherlands in 1999 introduced the controversial longstay-concept.⁹⁴ Accordingly, patients in TBS-institutions will be classified as either treatable or non-treatable. All those of the latter category will be put in longstay-institutions where the treatment will be not as intense as it usually is in TBS-institutions. Contrary to the latter, longstay-institutions no longer focus on resocialization and prevention of recidivism. Nowadays, the only aim of the Dutch penal code is public protection, for the achievement of which the current policy seems more than questionable as crime rates have slightly increased over the past years.⁹⁵

 

 

The system operated in France is a somewhat balanced one. A major contribution to that system was the decision of 21 February 2008 of the Conseil constitutionnel regarding the nature of preventive detention.⁹⁶ The French system does not recognize a dual system of penalties and security measures and courts generally impose penalties only. While substantively the term penalty encompasses the measures of protection (mesures de sûreté), it is highly controversial which sanctions shall be classified as penalties and which as security measures. The answer to that question is left to the discretion of the courts.⁹⁷ Hence, when introducing preventive detention for public protection from dangerous offenders by a law on 25 February 2008, there was substantial disagreement as whether to classify preventive detention as either a penalty or as security measure.⁹⁸ The solution was provided by the Constitutional Council of France, which recognized the hybrid nature of the sanction, but held in favour of a classification as a security measure due to the independence of that sanction from liability considerations.⁹⁹ However, the decision would have been of insignificance, if it had not included a decisive limitation. Bearing in mind the deprivation of liberty by that sanction, the duration of the detention, the potential for its indefinite extension, and the fact, that the measure will be imposed by court after the actual sentence, the Constitution Council of France declared any retroactive effect of preventive detention as unconstitutional.¹⁰⁰ Although principally, that solution is correct as it acknowledges the penal nature of preventive detention, it must be noted that the French system still suffers from a fundamental flaw as long as the classification of the sanction is not manifested by law but instead left to the discretion of the judiciary, which may well be subject to rapid changes of opinions.

 

 

 In summary, European countries experiment with a variety of concepts so as to address the issue of an effective and fair treatment of dangerous offenders. However, a comparative analysis of the systems shows that no European legal system has so far established a model-concept. The examination of each of them leaves the observer with a taste of imperfection. One of the main grounds for that is the trend towards a “pro-active”¹⁰¹ criminal law that is excessively focussed on crime prevention. The claim for protection leads to a normative disorientation¹⁰² and to a disproportional level of repression. The analysis attests to a failure to appreciate that in a liberal society, governed by the rule of law, full public protection is a utopian ideal.¹⁰³ A second reason lies within the nature of preventive detention. As it seriously infringes upon the rights and liberties of an individual independent of that individual’s liability, it will always remain – other than in cases of an exact definition in a given legal system – at the edge to an unconstitutional crime policy and will henceforth always incite scepticism. However, a state (independently from such audacious concepts such as a basic right to security and protection) must fulfil its role as the protector of its subjects and henceforth cannot dispense with a preventive treatment of dangerous offenders. Nonetheless, it can be expected from an enlightened society that it seeks to free itself from irrational fear of crime and to establish by way of proportionate reaction-policies against dangerous offenders, a balanced relation between liberty and security. Reflecting on the advantages and disadvantages of the various European sanctioning systems can provide a vital contribution to achieve that end.

 

 

1. Regarding the collision of security and liberty, W.Hassemer, StV 2006, 321 et seq.
2. Sturm, Die Sicherungsverwahrung in Deutschland und England, Ein kriminologisch-rechtsdogmatischer Vergleich, 2010, p.1.
3. ECrtHR, judgement of 17 December 2009 – no. 19359/04 (M v Germany).
4. The current analysis, however, shall only comprise a selection of systems. Prioritized were countries, in which the crime policy has produced solutions that differ the most from the German system.
5. A double-track system had been implemented in England through the passing of the Prevention of Crime Act 1908, but which was abolished in 1948 due to the practically limited application of preventive detention as prescribed by the act. See Allen, ZStW 80 (1968), 163 (164); Geisler, Die Sicherungsverwahrung im englischen und deutschen Strafrecht, Ein Beitrag zur Behandlung und Bestrafung der Rezidivisten, 1967, p. 65 et seq.; also moredetailed: Ashworth, SentencingandCriminal Justice, 2010, p. 196 et seq; Kinzig, Die Sicherungsverwahrung auf dem Prüfstand, 1996, p. 533 et seq.
6. On the repressive crime policy in general, see Ashworth, ZStW 109 (1997), 677 et seq.; on the tendency of the English sanctions system towards a “just deserts philosophy”, Baker/Clarkson, Crim.L.R 2002, 81 (85).
7. Referringtothisaccurateformulation, Sturm, Die Sicherungsverwahrung in Deutschland und England, Ein kriminologisch-rechtsdogmatischer Vergleich, 2010, p. 2.
8. Arguing, that the German sanctions system is more homogeneous and more elaborate, Wischmeyer, ZStW 118 (2006), 773, (798); also: Geisler, 1967, p. 33 et seq.; regarding the second-rank nature of the dogmatic discourse in England in contrast to Germany, Sturm, 2010,  p. 23 et seq.
9. Sturm, 2010, p. 11 et seq. and p. 17 et seq.; also Geisler, 1967, who draws attention to the empirical side of the English discussion on preventive detention, p. 33; regarding the German double-track system as a compromise between the schools of thought see also in its 1909 draft of a new criminal code Eser in: FS-Müller-Dietz, p. 213 (224).
10. See Sturm, 2010, p. 19.
11. Wischmeyer, ZStW 118 (2006), 773 (798).
12. See Ashworth/Player, MLR 2005, 822; Ashworth, ZStW 109 (1997), 677 (684); Henham, Crim. L.R 2001, 693 et seq.
13. A critical analysis of the law can be found in Ashworth/Player, MLR 2005, 822 (825). The authors identify the 2003 Act as a major step backwards. Main purpose of the sanctions of the Act is deterrence and public protection, both of which have led to a range of punishment that is in breach of the principle of proportionality. Forster, in: Sieber/Cornils, NationalesStrafrecht in rechtsvergleichenderDarstellung, AT, vol. 1, 2009, p. 155 (165); The treatment of dangerous offenders is covered in detail in Chapter 5, Part 12, sections 224 to 236.
14. Forster, in: Sieber/Cornils, Nationales Strafrecht in rechtsvergleichender Darstellung, AT, Band 1, 2009, p. 155 (165).
15. The treatment of dangerous offenders is regulated in chapter 5, part 12, in sections 224-226.
16. Sturm, 2010, p. 102 and p. 105 et seq.
17. Sturm, 2010, p. 102 and p. 105 et seq.
18. Sturm, 2010, p. 106.
19. Sturm, 2010, p. 61.
20. For details see Wischmeyer, ZStW 118 (2006), 773 (787); Sturm, 2010, p. 57 et seq. and p. 105 et seq.
21. One of the main differences between a special and a regular custodial sentence is the release from custody. Due to the policy of the “halfway release point”, regular criminals may be released from custody after having served half of their sentence. Dangerous offenders have to wait longer until released and in very serious cases a “whole life order” may cause imprisonment for life; see Sturm, 2010, p. 62.
22. Sturm, 2010, p. 106.
23. Wischmeyer, ZStW 118 (2006), 773 (786).
24. Wischmeyer, ZStW 118 (2006), 773 (787), pointing out, that in practice, the insufficient number of vacancies in hospitals is the most common reason for a failing to apply the Mental Health Act. As a consequence, a majority of individuals that German law would render criminally incapablewill end up in the penal system.
25. Wischmeyer, ZStW 118 (2006), 773 (787).
26. Forster, in: Sieber/Cornils, 2009, p. 155 (163, 166).
27. Wischmeyer, ZStW 118 (2006), 773 (785); Forster, in: Sieber/Cornils, 2009, p. 155 (163, 166).
28. Forster, in: Sieber/Cornils, 2009, p. 155 (166); in regards to ASOBs see also Ashworth, Sentencing and Criminal Justice, 2010, p. 362.
29. Forster, in: Sieber/Cornils, 2009, p. 155 (163); Forster criticises the entire structure of the English criminal law. The principle of responsibility and of the criminal law as last resort are not being considered appropriately and the norms and provisions of criminal law are being misappropriated as a solution to social and political problems, Forster, in Sieber/Cornils, 2009, p. 155 (156).
30. Regarding populism in policy-making, see Baker/Clarkson, Crim. L.R. 2002, 81 (93 et seq.).
31. Garland, KrimJ 2004, 3; also Wischmeyer, ZStW 118 (2006), 773 (792).
32. Ashworth/Player, MLR 2005, 822.
33. Hassemer, StV 2006, 321 (329).
34. Critically: Sturm, 2010, p. 26.
35. The exact formulation of that obligation was deducted from Hassemer, StV 2006, 321 (331).
36. An overview over all nordic countries: Cornils, ZStW 99 (1987), 873 (881 et seq.);Sveri, ZStW 80 (1968), 176 et seq.
37. Simson, in: Mattes, ZStW 80 (1968), 189 (194).
38. Cornils, ZStW 99 (1987), 873 (874).
39. In detail: Cornils, ZStW 99 (1987), 873 (874 et seq.); also Victor, ZStW 102 (1990), 435 et seq.
40. Cornils, ZStW 99 (1987), 873 (875).
41. Cornils, ZStW 99 (1987), 873 (876); Simson, in: Mattes, ZStW 80 (1968), 189 (195).
42. Hassemer, KrimJ 1982, 161 (162).
43. Mushoff, Strafe-Maßregel-Sicherungsverwahrung, 2008, p. 148.
44. Victor, ZStW 102 (1990), 435 (436); Cornils, in: Sieber/Cornils, 2009, p. 597 (649).
45. Sveri, ZStW 80 (1968), p. 176 (180); Victor, ZStW 102 (1990), 435 (436).
46. Cornils, in: Sieber/Cornils, 2009, p. 597(636); Victor,ZStW 102 (1990), p. 435(436).
47. Victor, ZStW 102 (1990), p. 435 (436).
48. Cornils,in: Sieber/Cornils, 2009, p. 597(650).
49. Victor, ZStW 102 (1990), p. 435 (437).
50. Sveri, ZStW 80 (1968), p. 176 (177).
51. Victor, ZStW 102 (1990), p. 435 (438).
52. Sveri, ZStW 80 (1968), p. 176 (177).
53. Sveri, ZStW 80 (1968), p. 176 (177).
54. Blau, in: FS für Joachim Schneider, p. 759 (766 et seq.), who critically notes that Neoclassicism represents a premature treatment pessimism; see also Cornils,in: Sieber/Cornils, 2009, p. 597(650); Victor, ZStW 102 (1990), p. 435 (440).
55. Victor,ZStW 102 (1990), p. 435 (440); Cornils,in: Sieber/Cornils, 2009, p. 597(650).
56. Cornils, ZStW 99 (1987), 873 (879)
57. Cornils, ZStW 99 (1987), 873 (879)
58. Cornils, ZStW 99 (1987), 873 (879).
59. Cornils, in:Sieber/Cornils, 2009, p. 597 (651); Victor, ZStW 102 (1990), 435 (441).
60. Cornils, in:Sieber/Cornils, 2009, p. 597 (634).
61. Blau, in: FS für Joachim Schneider, p. 759 (766 et seq.), who deems the possibility to extend the sentence as inconsistent with the principles of the single-track system.
62. Cornils, in:Sieber/Cornils, 2009, p. 597 (637).
63. Victor, ZStW 102 (1990), 435.
64. Cornils, in:Sieber/Cornils, 2009, p. 597 (636).
65. Cornils, ZStW 99 (1987), 873 (874).
66. Cornils, in:Sieber/Cornils, 2009, p. 597 (652).
67. Válková/Bohata, NK 2012, 82 (83).
68. Válková/Bohata, NK 2012, 82 (82).
69. Válková/Bohata, NK 2012, 82 (83).
70. Válková/Bohata, NK 2012, 82 (83).
71. Válková/Bohata, NK 2012, 82 (84).
72. Válková/Bohata, NK 2012, 82 (84).
73. Hence, it is not entirely correct to claim, Spain and Greece had chosen a single-track sanctions system, see Mushoff 2008, p. 483 (fn. 16); Roxin, Strafrecht AT I, § 3.
74. Javers, in: Sieber/Cornils, 2009, p. 279 (315 et seq.).
75. M v Germany (2009), no. 19359/04, § 71, ECHR 2009.
76. M v Germany (2009), no. 19359/04, § 72, ECHR 2009.
77. Porto, in: Sieber/Cornils, 2009, p. 665 (703); Mylonopoulos, Strafrecht AT I, Sakkoulas 2007, pp. 42 et seq.
78. Porto, in: Sieber/Cornils, 2009, p. 665 (703); Mylonopoulos, Strafrecht AT I, Sakkoulas 2007, pp. 42 et seq.
79. Blau, in: FS für Joachim Schneider, p. 759 (767 et seq.).
80. Blau, in: FS für Joachim Schneider, p. 759 (767 et seq.).
81. Frey points out that preventive detention in its literal meaning is a measure for the prevention of crime, but actually is a penalty, Frey, in: Mattes, ZStW 80 (1968), 189 (194).
82. Hassemer referred to it in the Frankfurter Rundschau of 22 October 2003 as “hybrid” (Zwitter) and Jung in his book “Was ist Strafe?” called it a “hybrid system” (Mischsystem), p. 38, cited from Mushoff, 2008, p. 279.
83. Roxin, AT I, § 3, marginal note 99. It appears, Austria is a special case as it defines an unambiguous preventive function by introducing the requirement of “liability of the offender” into the regular liability terminology. Thereby, the offender’s liability is aggravated every time recidivism occurs, ultimately increasing the sentence. As a result, the problem of preventive detention will also be located in the area of penal law, just as it is in Greece and Spain, although Austria provides for preventive detention as a security measure in § 23 StGB. For further details, see Burgstaller, in: Kilchling, ZStW 107 (1997), 165 (177). An overview over the individual measures for respective types of offenders can be found in Zerbes, in:Sieber/Cornils, 2009, p. 417 (455); regarding the seldom imposition of detention in Austria, also Blau in: FS für Joachim Schneider, p. 759 (768).
84. Correct in supporting the limitation of the applicability of preventive detention to violent offenders: Roxin, in:Kilchling, ZStW 107 (1997), 165 (174); Sturm, in: Mattes, ZStW 80 (1968), 189 (190); and Sveri, in: Mattes, ZStW 80 (1968), 189 (198).

85. Austria excluded all non-violent offences against property from preventive detention already in 1987, Burgstaller, in: Kilchling, ZStW 107 (1997), 165 (176); even England, traditionally being verypunitive, imposes the special penalty only on perpetrators of violent or sexual crimes (appendix 15 to the Criminal Justice Act 2003); see also Allen, in: Mattes, ZStW 80 (1968), 189 (197).
86. See also EGMR,EuGRZ 2010, 25 (39 et seq.).
87. Arguing similar, Kinzig, who claims that the imposition of a longer prison sentence is rather constitutionally compatible than the imposition of indefinite preventive detention, Kinzig, Die Sicherungsverwahrung auf demPrüfstand, 1996, p. 599; critical of this position, Mushoff, 2008, p. 484; Roxin, in: Kilchling, ZStW 109 (1997), p. 166 (174).
88. Dessecker, ZIS 2011, 706 (707).
89. Sagel-Grande, ZStW 103 (1991), 732 (740); concerningthelegislation, Finger, Vorbehaltene und nachträgliche Sicherungsverwahrung, 2008, p. 230 et seq.
90. Mushoff, 2008, p. 485.
91. Finger, 2008, p. 235.
92. Finger, 2008, p. 226; Mushoff, 2008, p. 485 ; for a thorough presentation of the requirements of the detention order, see Sagel-Grande, ZStW 103 (1991), 732 (742 et seq.);Kinzig, 1996, p. 510 et seq.
93. Sagel-Grande, ZStW 103 (1991), 732 (743).
94. For a thorough and critical analysis of the concept, see Mushoff, p. 484 et seq.; Lindermann, R&P 2002, 8 (10); regarding compatibility with the ECHR, see Finger, 2008, p. 264 et seq.
95. Finger, 2008, p. 227.
96. M v Germany (2009), no. 19359/04, § 75, ECHR 2009.
97. Pfützner/Adams/Neumann, in: Sieber/Cornils, 2009, p. 193 (239).
98. Pfützner/Adams/Neumann, in: Sieber/Cornils, 2009, p. 193 (241).
99. M v Germany (2009), no. 19359/04, § 75, ECHR 2009; Pfützner/Adams/Neumann, in: Sieber/Cornils, 2009, p. 193 (241 et seq.).

100.  M v Germany (2009), no. 19359/04, § 75, ECHR 2009; Pfützner/Adams/Neumann, in: Sieber/Cornils, 2009, p. 193 (241 et seq.).

101. Cornils, in: Sieber/Cornils, 2009, p. 597 (652).
102. Hassemer, StV 2006, 321 (332).
103. Mushoff, 2008, p. 483.