Preventive detention

Germany is under pressure to change its system of preventive detention, which allows for violent and repeat offenders to be detained indefinitely, even after they have served their sentence.

In December, the European Court of Human Rights (ECHR) ruled that Germany had violated the European Human Rights Convention in the case of German inmate Reinhard M., who was convicted for attempted murder and had been kept in prison more than 10 years after his sentence.

The 52-year-old man had completed his five-year prison sentence in 1991, but was not released, as he was deemed a danger to the public. He was detained for the next 10 years, the maximum term for preventive detention at the time. But a change in German legislation in 1998 meant that prisoners can now be detained indefinitely.

Right to liberty

The ECHR ruled that because Reinhard M had been convicted before the change in the law in 1998 Germany violated the 'right to liberty'.

The court also stated that "there was no sufficient causal connection between his conviction and his continued deprivation of liberty."

Germany requested the case be referred to the ECHR's Grand Chamber, which has now been refused, making the original court decision binding.

The ECHR can only tackle specific cases, but the ruling has already sparked a debate on how to protect the public from criminals convicted of murder, armed robbery, rape and other violent crimes.

"We need a comprehensive not an alarmist debate on the ramifications and options of today's ruling [by the ECHR]," Justice Minister Sabine Leutheusser-Schnarrenberger said in a statement on Tuesday.

New framework

The federal coalition agreement from last autumn calls for a reform of the current system, but the government has not released any details yet. The Bavarian justice minister, Beate Merk, however, has been vocal in calling for a complete overhaul of preventive detention in Germany.

"A few band-aids here and there just will not do," she said in a statement.

"We need a completely new system that can deal with violent offenders that are likely to reoffend and be a danger to the public even after they have served their sentence," she added.

Merk is adamant that some form of post-sentence detention is necessary, but she would like to see the sentence, ie the punishment, separated from the subsequent detention, with separate facilities and dedicated therapy options for violent criminals - one of the areas the ECHR had criticized as lacking in the current system.

Longer sentences

But some legal experts believe preventive detention is not the answer.

"The law has been extended in the past because of an unsubstantiated fear of crime, at a time when crime rates are going down in Germany, and I don't believe there is a need for it at all," Hermann Kuehn, an expert in criminal law who runs his own law firm, told Deutsche Welle.

He would like to see longer sentences handed down instead. Currently, the maximum sentence is 15 years, unless a defendant is sentenced to life.

"We could extend the fixed-term punishments to give courts the opportunity for a longer prison sentence and then leave it to the court to release him earlier if he is no longer a danger to society," Kuehn said.

He believes the power to release a potentially dangerous person should remain with the court, however. He argues that leaving violent criminals to medical authorities for preventive detention by separating punishment from detention could be dangerous if you rely on medical staff alone to determine whether or not a detainee is a danger to society.

Author: Nicole Goebel
Editor: Chuck Penfold