Uncertain fate

At the beginning of May, Germany's Federal Constitutional Court ruled that preventive detention of high-risk criminals was unconstitutional, and that the policy must be reviewed.

At the time, many people took to the streets in protest of the ruling, fearful that sexual criminals who were currently locked up would be set free after serving their time.

Some protests took place outside the homes of sexual criminals who had already been released, and cries of 'child molesters out!' were chanted by the demonstrators.

Uncertain future

However, not everyone responded to the court's decision with doubt and worry. At a penitentiary in Aachen, the head of the preventive detention department, Monika Isselhorst-Zimmermann, initially welcomed the ruling of the court. But these feelings eventually gave way to uncertainty.

The detainees and the staff of the penitentiary weren't exactly sure what might come of a restructuring of the preventive detention rules. In the two years that lawmakers have been debating the issue, many scenarios could have played out, said Isselhorst-Zimmermann.

"Who should stay and who should go?" she asks. "And when they are released, where are they supposed to go, where are they going to live? All these questions are not so easy to answer. Our efforts to accommodate prisoners’ progression back to freedom in the past have met with many difficulties. They know what awaits them outside, and what doesn’t await them, and that society doesn’t really want them."

Distinguishing preventive detention from sentences

The stipulations of the Constitutional Court say that a criminal should be given a realistic perspective for recovering their freedom. For that reason, preventive detention should be significantly distinguishable from their criminal sentencing. A criminal should be preventively detained to protect society from him, but he should also be free of as many limitations as possible, since his sentence will already have been served.

It is important "to provide inmates more space, to really break up the everyday routine, to restrict outside movement but to create large, open spaces inside. To expand shopping possibilities, to allow them their own furnishings, to change the way they get paid for work. Contact with the outside world, outings, vacations, all these things represent something different," says Isselhorst-Zimmermann

A two-track system that provides for extra security and rehabilitation for especially dangerous criminals exists in Austria, Germany and Switzerland. Hans Georg Koch, a lawyer with the Max Planck Institute of international criminal law, says this is expanding to other European countries as well.

European regulations

"Slovakia and France have introduced [preventive detention measures] relatively recently," Koch says. "The Italians have it, too. But this has very little practical significance in those countries because they, unlike in Germany, have the option of much harsher sentencing."

Koch is conducting a research project that examines the preventive detention regulations in 14 countries, most of which are in Europe. He points out that it goes against the legal principle that measures should not have retroactive effects to threaten a convict with preventive detention after a verdict has been made, during or after the sentence.

In most European countries, the presiding judge in a case must decide in the verdict itself if preventive detention is a possibility if the convicted person doesn't show good enough signs of rehabilitation in detention.

"This way, the potential danger posed by an inmate is assessed by suitable experts at the end of the sentence," Koch says.

Even if these assessments are subject to imperfections, Koch thinks they are a more reasonable solution than sentences that go on too long. England and Wales, for example, have the strictest regulations Europe-wide. Life-sentences for a repeat sexual offender are not uncommon. In that case, the question of additional preventive detention becomes irrelevant. But, Koch says, preventive detention in its current form is still a punishment, even if it has a different name.

Little progress

A month after the decision of the German Constitutional Court, there haven't been any new suggestions for preventive detention regulations. Even an expert panel appearing before parliament this month isn't expected to yield any concrete results. The future of preventive detention facilities - whether they will be closed, expanded, or changed at all - remains open.

However, the European Court of Human Rights in Strasbourg has made another decision regarding Germany's preventive detention policy. This time, it bodes better for Germany than the two plaintiffs who brought the issue to the court.

The court decided that the two convicts could have foreseen preventive detention after their sentences because it was part of their original verdict and sentencing. Therefore, there was no case that the measures had retroactive effects. The two men, both in the preventive detention facility in Aachen, will remain where they are.

Author: Daphne Grathwohl / mz
Editor: Nicole Goebel