Measures of rehabilitation and security – Meaning and legal foundations
Definition and systematics
Measures of rehabilitation and security are criminal sanctions under German law that are not solely punitive in nature, but primarily aim to both protect the public from dangerous offenders and promote their resocialization or rehabilitation. In contrast to punishment, specific preventive purposes are paramount. The measures serve to protect public safety and order as well as to reintegrate the offender into society.
Statutory basis
The measures of rehabilitation and security are mainly regulated in Sections 61 to 72 of the German Criminal Code (StGB). Alongside punishment, they constitute the second important form of state response to unlawful conduct and may be imposed either independently or in addition to a punishment.
Distinction from punishment
While punishments in criminal law are regarded as a socio-ethical condemnation of an act with an element of atonement, measures of rehabilitation and security are based on the dangerousness of the offender and his or her psychological or social disposition. The order is issued independently of any finding of guilt.
Types of measures of rehabilitation and security
According to Section 61 StGB, German criminal law recognizes the following measures of rehabilitation and security:
Placement in a psychiatric hospital (§ 63 StGB)
This measure is imposed on persons who have committed a serious criminal offense due to a mental disorder and are still considered dangerous to the general public. It is crucial that the offense was committed in a state of criminal incapacity or significantly diminished criminal responsibility.
Placement in a detoxification facility (§ 64 StGB)
This concerns offenders for whom dependency on alcohol or other intoxicating substances led to the commission of the offense. The measure is aimed at achieving lasting withdrawal and reintegration.
Placement in preventive detention (§ 66 StGB)
Preventive detention serves to protect the public from highly dangerous offenders who are considered permanently dangerous. Its imposition is subject to strict legal requirements and was revised following several decisions by the Federal Constitutional Court and the European Court of Human Rights. The principles of proportionality and the requirement to foster resocialization are of particular relevance.
Supervision of conduct (§ 68 et seq. StGB)
The supervision of conduct is intended to ensure a controlled reintegration into society. It establishes special rules of conduct and supervisory measures that come into effect after the completion of the sentence or after release from a custodial measure.
Occupational ban (§ 70 StGB)
This measure is imposed to prevent further offenses in connection with certain occupational activities. It is particularly applied when abuse of a profession has been involved in the commission of an offense.
Withdrawal of driving license (§ 69 et seq. StGB)
In cases of offenses involving the operation of a motor vehicle, the withdrawal of the driving license may be ordered as a measure. The aim is to prevent further violations of road traffic law.
Order and execution
Requirements for ordering
The ordering of measures of rehabilitation and security always requires an explicit determination of the offender’s dangerousness. Extensive expert opinions and psychiatric assessments form the basis of the court’s decision. The ordering of a measure can also occur in addition to a principal penalty, provided that the statutory elements are fulfilled.
Duration and review
Measures are generally ordered for an indefinite period, unless the law provides otherwise. Their continuation is subject to regular review by the court in order to comply with the principle of proportionality. Continuation is only permissible if dangerousness persists.
Legal protection
Affected persons have comprehensive rights to challenge the ordering and implementation of a measure. These include, in particular, legal remedies such as an appeal or revision, as well as judicial review procedures in the context of decisions on further continuation.
Significance in practice
Measures of rehabilitation and security play an essential role in German criminal law in dealing with offense-oriented and dangerous individuals. They allow for a flexible response tailored to individual risk assessments, with public protection and offender rehabilitation at the center. Their application, given the fundamental rights implications of restrictions on liberty, is shaped by numerous constitutional and international requirements.
International and historical development
In international comparison, the institution of measures of rehabilitation and security shows parallels with, for example, Austrian and Swiss criminal law. The origin and development of these regulations is historically rooted in the realization that not all dangerous offenders can be adequately sanctioned or rehabilitated within the framework of classical punishments.
References and further sources
- German Criminal Code (StGB) §§ 61-72
- Federal Constitutional Court, decisions on preventive detention
- European Court of Human Rights, case law on measures
This article provides a comprehensive overview of the concept, types, legal requirements, and practical significance of measures of rehabilitation and security under German law.
Frequently asked questions
Which legal provisions govern the measures of rehabilitation and security?
The measures of rehabilitation and security are governed in German law by Sections 61 to 72 of the Criminal Code (StGB). They represent an independent legal consequence of a criminal offense and are fundamentally different from classical penalties such as imprisonment or fines. The legislator provides for the measures in the interest of public safety and to prevent further crimes. They are mainly tailored to the offender, whose dangerousness or condition requires special treatment or security. Measures can be imposed either in addition to or independently of a penalty. In criminal proceedings, the court decides, after considering all circumstances, whether and which measures are to be ordered. The legal provisions also determine the specific prerequisites, the procedure for ordering, and the duration and review of these measures.
Which measures of rehabilitation and security are recognized in German criminal law?
German criminal law recognizes a finite number of measures that are expressly provided for by law. The most important include placement in a psychiatric hospital (§ 63 StGB), placement in a detoxification facility (§ 64 StGB), placement in preventive detention (§ 66 et seq. StGB), occupational ban (§ 70 StGB), supervision of conduct (§ 68 et seq. StGB), exclusion order (§ 56c StGB), and withdrawal of driving license (§ 69 StGB). Each of these measures has its own requirements, which the court must examine precisely. Measures may also be combined if the circumstances of the offender so require.
When are measures of rehabilitation and security ordered?
The ordering of measures of rehabilitation and security is subject to specific requirements derived by the court from statutory regulations and case law. The decisive factor is whether, due to the offender’s condition or dangerousness, there is a threat to the general public that necessitates special rehabilitation or security. The measures usually come into consideration when a punishment alone is insufficient to prevent further crimes or to resocialize the offender. In ordering, the court examines whether the statutory requirements are met in the specific case, taking into account particularly the risk assessment, the presence of psychological disorders or substance addictions, and repeated offending.
How do measures differ from punishments in German criminal law?
Measures of rehabilitation and security differ significantly from punishments in their purpose, legal nature, and mode of ordering. While punishment serves as a sanction for wrongdoing and addresses culpable behavior (retribution and general prevention), measures serve the preventive protection of society (security purpose) and the rehabilitation of the offender (rehabilitation purpose). They do not necessarily require the offender to be guilty or legally responsible. Measures can also be ordered alongside punishments and last as long as the security or rehabilitation purpose requires. Punishments, on the other hand, are generally time-limited and determined by the degree of culpability.
Is there a maximum duration for measures of rehabilitation and security?
As a rule, for some measures, such as placement in a detoxification facility or psychiatric hospital, there is no fixed maximum duration. The order of these measures remains in place as long as the measure’s purpose – that is, the rehabilitation of the offender or the protection of the public – so requires. However, the law provides for regular reviews to determine whether the conditions for continued placement are still met. For example, preventive detention is reviewed by the court at regular intervals, with particular emphasis on the risk assessment. There are, however, statutory time limits for occupational bans and the withdrawal of driving licenses.
What legal means of review or challenge are available against the ordering of measures?
The ordering of measures of rehabilitation and security is subject to the general legal remedies of criminal procedure. The person concerned may regularly lodge an appeal or revision against the first-instance decision, whereby the relevant rights and procedural guarantees under the Code of Criminal Procedure (StPO) must be observed. Even during the execution of the measure, a review of the detention is possible; the court regularly reviews ex officio whether the conditions continue to exist. In addition, the person concerned can file an application for judicial decision (§ 67e StGB, § 104 StVollzG) or lodge a complaint against burdensome enforcement decisions.
What is the significance of the principle of proportionality in the ordering of measures?
The principle of proportionality is a fundamental principle throughout German law and is of particular significance in the ordering of measures of rehabilitation and security. Since these measures can represent significant interferences with fundamental rights, especially the right to personal liberty (Art. 2 para. 2 GG), the court must always examine whether the measure is disproportionate to the intended purpose. In particular, the measure must be suitable, necessary, and appropriate. Alternatives with less severe intrusiveness must be preferred. The principle of proportionality also requires regular judicial review of the continuation of such measures.
How do measures of rehabilitation and security affect the execution of sentences?
The ordering of measures of rehabilitation and security has a direct impact on the execution of sentences. For example, placement of the convicted person in a psychiatric hospital or detoxification facility may result in the execution of a custodial sentence being postponed (§ 67 StGB); execution usually takes place only after completion of the measure, provided the offender is still deemed dangerous. In the case of preventive detention, its execution follows the full serving of the prison sentence. The legislator provides detailed regulations regarding the interaction between measures and sentences to take account of both the protection of the public and the interests of the offender’s resocialization.
