Preventive detention

Regional courts in Germany are currently deciding individually on how to handle dangerous repeat offenders whose court sentences are up.

Several months ago the European Court of Human Rights (ECHR) ruled against Germany's use of preventive detention in such cases, which it said was tantamount to post facto punishment. Under a 1998 law, German courts can rule to keep prisoners deemed to be societal threats under so-called "preventive detention" for an indefinite period after they have served their official sentences.

Following the ECHR's ruling, some German courts fell in line, but most decided to wait for the Federal Constitutional Court to rule on the matter.

'Not a form of punishment'

As many as 70 violent offenders may soon be released in accordance with the ECHR decision in the state of North-Rhine Westphalia (NRW) alone. These prisoners are the particularly questionable, so-called "old cases."

They were sentenced to prison with the possibility of preventive detention before 1998 - when an amendment lifted a 10-year time limit on post-term detention. In their cases, the new law was applied retroactively to keep them in jail after they had finished their actual prison terms and 10 years of post-term preventive detention.

In NRW the regional appeals court in the city of Cologne is one of the many to uphold current German law despite the ECHR ruling.

Court spokesman Hubertus Nolte told Deutsche Welle that under German law, "preventive detention is not a form of punishment" but "a safety measure for the general public, to protect the people against dangerous repeat offenders."

A violation of the right to liberty

The ECHR, however, views preventive detention as punitive, and in the case of Reinhard M. versus Germany, the ECHR ruled that the retroactive implementation of indefinite preventive detention was a violation of human rights.

In 1986, Reinhard M. was sentenced to 5 years in prison with the possibility of preventive detention. However, when 2001 came, the time when he was expecting to be released, a court retroactively applied the 1998 amendment to the Criminal Code that lifted the time limit on preventive detention - and Reinhard M. remained behind bars.

In a ruling in May this year, the European Court found that M.'s "continued preventive detention violated his right to liberty," a Court spokesperson told Deutsche Welle.

The Court also ruled that the plaintiff's further imprisonment was unlawful "in particular as there was not a sufficient causal connection between his conviction in 1986 and his continued detention, after the completion of ten years in preventive detention."

Dragging heels in Germany

Thomas Ullenbruch, a judge at the Emmendingen Circuit Court, sees the decision in Strasbourg as a call to action for German courts.

Instead, he says, they are only dragging their heels. "Although the decision from Strasbourg was anything but surprising, an unprecedented chaos now reigns," he told ZDF television, adding that, "Clear guidelines must be implemented in dozens of cases. Up till now very few people have been released and even the Federal Constitutional Court has been putting the issue off."

While some German regional courts have heeded the ECHR's decision and have begun releasing "old case" prisoners, Cologne's court authorities have refused do so until there is a ruling on the matter from the Federal Constitutional Court.

"Our court, like other state courts in Germany, is of the opinion that we can't simply apply the decision of the ECHR as if it were German law," Nolte said.

Judges 'aren't psychics'

Another issue at hand is the use of preventive detention in cases where it was not mentioned during sentencing at all.

Germany's Federal Minister of Justice, Sabine Leutheusser-Schnarrenberger, does not wish to do away with preventive detention but said in an interview with ZDF television that she wanted to see judges making use of it more often when first sentencing criminals, thus eliminating the need to impose it retroactively.

Leutheusser-Schnarrenberger's stance has met with criticism from state-level justice authorities, especially in parts of the country ruled by conservatives from the Christian Democrats (CDU) and Christian Social Union (CSU).

Bavaria's Minister of Justice Beate Merk of the CSU, sees one major "safety flaw" in limiting courts' rights to keep dangerous criminals away from society:

"Our judges aren't psychics. Maybe the Federal Minister of Justice thinks they are, but they aren't. If during a prisoner's term, new facts come to light and with them new insight, judges can only act then," she said. "For that scenario we need the ability to implement preventive custody retroactively."

Merk added that her state would not release any dangerous offenders unless ordered to do so by Leutheusser-Schnarrenberger's Ministry of Justice.

Until that occurs - if it does - courts in Bavaria and all over Germany will continue to hold repeat offenders in prison for as long as they see fit.

Author: David Levitz

Editor: Susan Houlton