Subsequent order of preventive detention
Subsequent preventive detention is a controversial possibility in Germany to keep offenders who have served their sentence further in detention through a subsequent decision. If the order of preventive detention was reserved in the judgment, there is no subsequent preventive detention within the meaning of this article.
introduction
The subsequent preventive detention is based on the 1933 by the Nazis "original" introduced and has since maintained preventive detention on. The latter was only permissible if it was recorded by the sentencing court at the same time as the sentence. Subsequent preventive detention was decided by the Bundestag in 2004 in order to make it possible to continue to detain those offenders after having served their sentence, for whom the judging court had not ordered subsequent admission to preventive detention. It had to be ordered by the court in a new procedure, based on new findings during the execution of the sentence ("nova"), without the need for a new offense to be the basis (Section 66b StGB). In 2008, subsequent preventive detention was also introduced in juvenile criminal law (Section 7 (2-4) JGG for young people; Section 106 (5) and (6) JGG for adolescents).
Violation of human rights
The European Court of Human Rights (ECHR) has condemned subsequent preventive detention in several decisions as a violation of the prohibition of retroactive punishment (Article 7 of the European Convention on Human Rights). This was preceded by convictions against the retrospective abolition of the 10-year maximum duration for the first preventive detention, which the Court also regarded as a case of retroactive punishment. The German government defended itself by stating that preventive detention (here: subsequent) is not a punishment, but a measure of security. The ECHR counters this by stating that the criminal nature of preventive detention may a. It follows from this that this measure differs only insignificantly in practice from the execution of a prison sentence.
Current legal situation
Due to the decisions of the ECHR, the previous Section 66 b of the Criminal Code was repealed. According to a new Section 66 b of the Criminal Code, which has been in force since January 1, 2011, it should be possible, however, to order preventive detention by the court retrospectively if a criminal was instructed according to Section 63 of the Criminal Code, but this instruction was later declared to be completed. Until 2013, there was the possibility of subsequent preventive detention in juvenile criminal law. If the offense was committed before January 1, 2011 or June 1, 2013, preventive detention can still be ordered retrospectively if there is a mental disorder (Article 316e and 316f Introductory Act to the Criminal Code ). By contrast, in the case of acts committed today, the court can reserve preventive detention in the judgment, even if there is no mental disorder.
Subsequent therapy placement
In the search for a human rights-compliant basis for the subsequent placement of criminals who are considered “dangerous” and whose release is imminent, Article 5, Paragraph 1, Clause 1e of the ECHR was discussed. According to this, the deprivation of liberty is also permissible for "persons of unsound mind". In the coalition agreement negotiated between the CDU / CSU and the SPD, “subsequent therapy placement” is envisaged under point 5.1, “to protect the population from highly dangerous, mentally disturbed violent and sexual offenders whose particular danger only becomes apparent during their detention”. However, this is highly controversial for legal and factual reasons.
See also
literature
- Michael Alex: Subsequent preventive detention - a rule of law and criminal policy debacle. Felix-Verlag, Holzkirchen 2nd edition 2013, ISBN 978-3-927983-81-6 (also dissertation University Bochum 2010).
Individual evidence
- ↑ EGMR, Gv Germany, June 7, 2012
- ↑ ECHR, KvGermany , June 7, 2012
- ↑ see in particular ECHR, M. v. Germany , December 17, 2009
- ^ Coalition agreement of November 17, 2013
- ↑ Open letter from practitioners and scientists dated December 12, 2013
