Measure of improvement and security
The measure is independent of guilt and is ordered to protect against dangerous criminals or to correct them. Therefore measures of reform and protection can also be ordered against adult criminals who are incapable of guilt . German criminal law thus follows a two-track system , in which a distinction is made between punishment and measure.
A measure is ordered based on a positive hazard prognosis. This means that the perpetrator can be classified as likely dangerous.
The following measures are specified in the Criminal Code (StGB) :
- Placement in a psychiatric hospital ( StGB)
- Placement in a rehab facility ( StGB)
- Placement in preventive detention ( StGB)
- Supervision of conduct ( StGB)
- Withdrawal of the driving license ( StGB)
- Professional ban ( Criminal Code)
The first three are custodial measures.
Measures may only be ordered if this is proportionate , ie the danger emanating from the perpetrator must not only be low. Several measures can also be arranged side by side.
As a side effect, soldiers lose their soldier status if a measure is ordered against them under or Criminal Code.
A measure of improvement and security is a measure under the StGB. The penal system is governed by the penal measures of the federal states (partly in their own penal penal laws, partly as part of the law for the mentally ill ).
The preventive detention can be reserved by the court since 2002 criminal conviction ( of the Criminal Code), and it can be arranged later in 2004 ( of the Criminal Code). However, in its judgment of December 17, 2009 , the European Court of Human Rights assessed their subsequent extension as violating human rights. Unlike the German classification in the measures of reform and security (which must be distinguished from the punishment ), he regards preventive detention as a punishment for which a subsequent extension is out of the question due to the rule of law principles of the protection of legitimate expectations and the prohibition of retroactivity . Therefore, there is currently a new regulation of subsequent preventive detention.
Ancillary criminal law
The following are regulated in ancillary criminal law:
- Ban on keeping animals ( Animal Welfare Act )
- Withdrawal of the hunting license ( Federal Hunting Act )
Through the law against dangerous habitual criminals and on measures of protection and reform of November 24, 1933 (RGBl. I 995), the measures of protection and reform were introduced into the penal code.
The following measures were planned:
- Placement in a sanatorium and nursing home (for those who are incapacitated, Section 42b StGB)
- Placement in a rehab facility (for "drunkards and habitual drinkers", § 42c StGB)
- Accommodation in the workhouse (for " anti-social ", § 42d StGB)
- Placement in preventive detention (for habitual criminals, Section 42e StGB)
- Emasculation of dangerous sex criminals (§ 42k StGB)
- Prohibition to practice (Section 42l StGB)
- Expulsion of foreigners (Section 42m StGB)
- 1945 castration (as a National Socialist injustice by the Control Council Act )
- 1945 placement in the workhouse (in the US zone of occupation, reintroduction in 1948)
- 1945 placement in preventive detention in the Soviet zone of occupation
- 1969 placement in the workhouse
The expulsion of foreigners has been deleted from the Criminal Code and regulated in the Aliens Act. Since then it is no longer a measure, but a measure carried out by the administration.
Supervision of conduct was introduced with effect from January 1, 1975 as part of the Great Criminal Law Reform. It partly replaced the police supervision , which already existed in criminal law, but which was not a measure.
- Bruhn, Davina, The preventive detention in juvenile criminal law, Hamburg, 2010, Verlag Kovac.
- Judgment. European Court of Human Rights, December 17, 2009, accessed on November 24, 2014 (subsequent prolongation of preventive detention is contrary to human rights).
- Rechtslupe.de: The subsequent preventive detention between ECHR and BGH .
- In the case of repeated housings, workhouse housing could last for life, cf. Wolfgang Ayaß : The work house in Breitenau. Beggars, vagrants, prostitutes, pimps and welfare recipients in the correctional and rural poor institution in Breitenau (1874–1949). , Kassel 1992.