Court orders overhaul of preventive detention laws

Violent criminals and sex offenders who have been held indefinitely under the German practice of preventive detention, despite having already served their sentences, will now be set free, the country's top court ruled on Wednesday. Police leaders and charities have reacted with concern, warning of a danger to the public.

Dangerous criminals held in preventive detention to protect the German public will likely be released following a highly anticipated decision by the country's Constitutional Court. The Wednesday ruling said the practice is unconstitutional, confirming the recent European Court of Human Rights opinion that found it violates individuals' basic right to freedom.

The government will now have to revise the entire set of rules for preventive detention within the next two years.

"In short, the verdict means that highly dangerous criminals can still be held under strict guidelines, and the others can be let go," Constitutional Court president Andreas Vosskuhle said in Karlsruhe.

To prevent a flood of prisoner releases, the current rules will remain in place, with a few changes, until May 31, 2013, with emphasis on developing a "freedom-oriented and therapy-based plan."

Prisoners held in preventive detention must receive intensive therapy that provides "a realistic prospect of release," while their time in the program should provide the most normal living conditions possible, including contact with friends and family, the court said.

European court's decision upheld

The decision confirmed the European Court of Human Rights' objection to what amounted to the indefinite extension of sentences through preventive detention after full sentences had been served. The practice was also found lacking in distinctions between different crimes, a separation urged by the European court in a December 2009 ruling.

Only extremely dangerous criminals -- including those of "high-grade danger for serious violence or criminal sexual offences" or with a "credibly proven psychiatric disorder" -- must still remain in custody for public safety, the court said Wednesday.

A number of so-called "old cases," involving individuals who are still being held after having their time extended following a 1998 ruling that scrapped a 10-year limit, must also have their cases reviewed immediately -- or be released by year's end. Experts believe that the total number of old cases that will have to be reviewed is well over 100.

'Unforeseen impacts'

Police leaders and social organizations reacted with alarm to the ruling, which came in response to a complaint from four prisoners currently held in preventive detention.

The deputy head of the German Police Union, Hermann Benker, said he regretted that the Constitutional Court had chosen the freedoms of the affected prisoners over the security interests of the public, while Bernhard Witthaut, head of Germany's other main police union, the GdP, called for the quick establishment of facilities to house released detainees.

Georg Ehrmann, head of Deutsche Kinderhilfe, a German children's aid society, said the verdict would have "unforeseen impacts" and could increase the "danger of repeat offenders."

But justice minister Sabine Leutheusser-Schnarrenberger said she wanted to see the new measures implemented swiftly.

"The federal and state governments are now required to take better account of the discrepancy between criminal sentences and preventive detention," she said in Berlin.

(Published by Spiegel Online - May 5, 2011)