First reading of the draft act to reform the law on preventive detention and on the accompanying provisions
Statement of the Federal Minister of Justice Sabine Leutheusser-Schnarrenberger on 29th October 2010 at the German Bundestag
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the primary objective of this act is to introduce a reform of the law governing preventive detention, something which is urgently necessary in three different respects: in terms of aspects of the rule of law, in terms of content, and in terms of aspects of criminal policy.
Firstly, preventive detention must be structured in accordance with strict rule-of-law principles, given the drastic effect it has on the life of a convicted person who has served his or her sentence. It has to remain the criminal-policy measure of last resort and needs to adhere strictly to the requirements enshrined in constitutional and European law.
Secondly, it is the case that the law governing preventive detention has been subject to repeated amendments over the last few years, sometimes made at great haste. It is therefore time to replace this permanent building site with a new and self-contained construction. We have to reform the subject matter in a way that also ensures that the public’s legitimate security interests are being served.
Thirdly, a judgment of the European Court of Human Rights became final in May. This judgment has led to the release of several offenders who were considered dangerous.
All this means that a reform is now called for und we have very clear goals for this:
Primary preventive detention will be restricted to what is absolutely necessary. In the future, it will thus essentially only be possible to impose primary preventive detention in cases of violent or sexual offences as well as in cases of offences dangerous to the general public. In cases of less severe, property-related offences not involving the use of violence, primary preventive detention will in principle no longer be a possibility.
Subsequent preventive detention will − apart from very limited exceptions − be abolished. In practice, it hardly plays a role; moreover, there is doubt as to whether it is compatible with the European Convention on Human Rights. It would seem that subsequent preventive detention is more likely to create problems in the long term than to solve them.
The changes regarding primary and, particularly, reserved preventive detention will ensure better protection from dangerous offenders in the future. These changes include the following:
- The courts will be able to reserve an order for preventive detention also where a severe offence has been committed by a first-time offender. Until now, this has not been possible, something that has, in practice, repeatedly led to problems.
- Moreover, the courts will have more time to issue the order for preventive detention where this was reserved; if necessary, this will now be possible up until the end of the prison sentence. This means that the conduct of the person concerned throughout the entire prison term can be included in the comprehensive assessment that has to be made.
In addition to this, supervision of conduct will be further strengthened, in particular by means of the introduction of electronic monitoring of whereabouts. This will make it easier to monitor whether bans on visiting certain locations are being complied with, and increase the chances of discovery in cases of reoffending. Moreover, this also contributes to preventing reoffending, as forensic experts have confirmed that a high risk of discovery can have a preventive effect also on violent offenders and sex offenders.
The final building block of this draft act is a temporary solution for so-called old cases, that is, cases in which the judgment of the European Court of Human Rights could lead to releases from preventive detention or in which such releases have already taken place. Where these cases concern offenders suffering from mental disorders, these offenders are, in the future, to be given therapeutic treatment in appropriate closed institutions and subject to strict requirements. This will thus precisely not constitute a punishment.
The requirements include a conviction for a serious offence, a mental disorder and − as a result of this − a significant danger to the life, physical integrity, personal freedom or sexual self-determination of another person.
The procedure will be as follows: The person concerned must be assigned a counsel; the decision must be made by a civil division composed of three professional judges; the court must consult two experts and, at intervals no longer than 18 months, must review whether placement in preventive detention continues to be necessary.
Anyone who has followed the debate in the last months knows that the German Basic Law and the European Convention of Human Rights contain strict requirements in this regard. This is why I want to state very clearly that I do not see a margin for expansion of any kind here.
All in all, the draft act represents a well-balanced overall concept. It creates a good balance between freedom and security and ensures appropriate protection of the public, without neglecting the rule-of-law guarantees provided for at the national and the European level.
I am therefore confident that this draft act will find broad support and that deliberations will be concluded rapidly, since it would be a very positive step if this act were to enter into force as soon as possible.