Definition and concept of preventive detention
Preventive detention is a measure of reform and security under German criminal law that can be imposed in addition to a prison sentence for particularly dangerous offenders. The aim of preventive detention is to protect the general public from further serious offenses by a convicted person when, after serving the prison sentence, there remains a significant danger to public safety. The legal basis, prerequisites, and implementation of preventive detention are comprehensively regulated and subject to both national and international requirements.
Legal basis of preventive detention
Normative foundation
The legal basis for preventive detention can be found in the German Criminal Code (StGB), particularly in Sections 66 to 66c StGB. Supplementary provisions concerning accommodation, implementation, and review are regulated in the Prison Act (StVollzG), state laws on custodial measures, and relevant administrative regulations.
Objective of the measure
In contrast to the execution of a sentence, which focuses on punishment and rehabilitation of the offender, preventive detention has a preventive character. Its purpose is to prevent future serious crimes by allowing offenders deemed dangerous to remain in custody after serving their original prison sentence.
Requirements for the order
Initial and reserved preventive detention
Distinction
The law differentiates between so-called “primary” (immediate) preventive detention and “reserved” preventive detention.
Requirements for imposing the order
An order is only possible under certain conditions, in particular:
- Conviction for a serious catalog offense (e.g., sexual offenses, serious violent crimes, robbery, extortion)
- Establishment of the offender’s dangerousness to the general public
- Repeat offender or particular severity of the offense
- Negative social prognosis by the court (likelihood of further serious crimes)
- Observance of the principle of proportionality
Subsequent preventive detention
Preventive detention may also be ordered subsequently if it only becomes apparent during imprisonment that the inmate still poses significant dangers (§ 66b StGB).
Duration, review, and end of preventive detention
Duration of detention
Preventive detention is generally not limited in time. It ends as soon as the dangerousness of the detainee no longer exists. The prerequisites are regularly reviewed annually (§ 67d paras. 2 to 3 StGB).
Review and judicial oversight
The competent court continuously examines whether the further requirements for detention still exist. Release takes place as soon as an ongoing “dangerousness prognosis” justifies it. Oversight lies especially with the criminal execution chamber as part of the regional court (§ 463 StPO).
Supervision after release
If the requirements no longer exist, release will take place, usually with imposition of supervision of conduct to ensure ongoing monitoring after release.
Legal status and treatment of detainees
Differences to imprisonment
There are numerous special features in preventive detention compared to regular imprisonment. The detainees are not considered prisoners. The aim is not (only) custody, but also their improvement and later reintegration into society. This objective is reflected in different detention conditions.
Modalities of detention
The legislator stipulates that detainees should, as far as possible, be kept separate from prisoners and offered extensive therapeutic and development programs to reduce the risk of reoffending (§ 66c StGB).
Rights of detainees
Detainees are entitled to extensive rights, in particular to humane accommodation, individual care, social therapy, visitation and communication opportunities, as well as regular judicial review of the continuation of the measure.
Constitutional and human rights requirements
Relationship to the fundamental right to liberty
Preventive detention constitutes a significant interference with the fundamental right to personal liberty (Art. 2 para. 2 sentence 2 GG). Therefore, it is only permissible under strict adherence to the principle of proportionality and under parliamentary oversight.
Decisions of the Federal Constitutional Court
The Federal Constitutional Court, in several fundamental decisions (particularly BVerfG, judgment of May 4, 2011 – 2 BvR 2365/09), has specified the requirements for the design of preventive detention:
- Conditions clearly distinguishable from prison execution (“distance requirement”)
- Necessity of therapeutic offers
- Protection of existing rights in cases of subsequent or extended preventive detention
- Continuous judicial oversight
- Prohibition of retroactive orders to the detriment of the affected person
European case law
The European Court of Human Rights (ECtHR) has also developed requirements for preventive detention from the European Convention on Human Rights (ECHR), especially from Art. 5 (liberty and security) and Art. 7 (prohibition of retroactivity).
Historical development of preventive detention in Germany
Origins
Preventive detention was first introduced into German criminal law in 1933 to respond to a growing number of serious repeat offenders. After World War II, the measure remained in German law and was modified several times.
Reforms and current developments
Particularly following decisions by national and international courts, the law of preventive detention has been comprehensively reformed. The most significant amendment took place in 2011 and emphasized the preventive nature of preventive detention as well as the necessity of therapeutic and rehabilitative measures.
Special features and distinctions
Distinction from other measures
Preventive detention differs from other measures of reform and security, such as placement in a psychiatric hospital (§ 63 StGB) or in a detoxification facility (§ 64 StGB). While those measures primarily serve treatment, preventive detention focuses on the protection of the general public.
Relationship to prison execution
Separation from prison execution is required by law. The conditions in preventive detention must, wherever possible and reasonable, be positively differentiated from those of regular imprisonment.
International perspective
Comparable institutions for the subsequent securing of dangerous offenders also exist in other legal systems, such as in Austria, Switzerland, or France, although the exact scope of application and the legal design differ in some respects.
Literature and further information
- Criminal Code (StGB), §§ 66-66c
- Federal Constitutional Court, judgment of May 4, 2011 – 2 BvR 2365/09
- Prison Act (StVollzG)
- European Convention on Human Rights (ECHR), Art. 5, Art. 7
Summary
Preventive detention is a particularly severe measure in German law that may be ordered under strict legal prerequisites to protect the public. It requires a concrete prognosis of dangerousness, strict judicial control, and humane accommodation. Constitutional and human rights requirements shape both the legal framework and practical implementation of preventive detention.
Frequently asked questions
Under what circumstances can preventive detention be ordered?
The ordering of preventive detention is regulated in §§ 66 ff. StGB. It may generally be ordered when a person has been convicted of a serious crime and the legal prognosis indicates that further serious crimes are to be expected from them. It is usually decisive that the offense in question is listed in the catalog of § 66 para. 1 no. 1 StGB (for example, sexual offenses, serious bodily injury or robbery offenses), that the offender has already been convicted of such offenses, and that there is a danger to the public. The ordering of preventive detention must be expressly specified in the judgment, and both initial and reserved orders are possible. The legal requirements have been tightened by judgments of the Federal Constitutional Court and the European Court of Human Rights (ECtHR); in particular, the prognosis of dangerousness must be based on a current and well-founded factual basis.
What differences exist between a ‘normal’ prison sentence and preventive detention?
Preventive detention differs fundamentally from an ordinary prison sentence: While a prison sentence serves retribution and rehabilitation and is limited in time, preventive detention is a measure of reform and security and is imposed for an unlimited period. Its sole purpose is to protect the public from particularly dangerous repeat offenders. The conditions of accommodation are less strict than in regular imprisonment; for example, there are more opportunities for relaxation, occupational activities, and therapy. According to the ‘distance requirement’ jurisprudence, the difference between prison execution and preventive detention must also be perceptibly designed in practice.
How is the continuing dangerousness of the detainee reviewed by the court?
The prognosis of danger is regularly reviewed. According to § 67e StGB, the court must check at least every two years whether the prerequisites for the continuation of preventive detention still exist. In addition to the judicial decision, expert opinions are obtained, which particularly focus on the development of the personality of the detainee, their behavior during detention and risk factors for future serious crimes. If there are serious doubts about the continued dangerousness or if there is positive development, preventive detention must be lifted. Thus, there is continuous legal protection for the person concerned.
What legal remedies are available against the ordering or continuation of preventive detention?
The ordering or continuation of preventive detention is not without legal remedy. Against the initial decision, the ordinary remedy of appeal may be lodged. For review and continuation decisions, the procedure is governed by §§ 454, 463 StPO, so that, in particular, immediate complaint is permitted. In addition, the detainee has the possibility to lodge a constitutional complaint with the Federal Constitutional Court or to appeal to the ECtHR if international or human rights standards are violated.
Can juveniles or young adults be placed in preventive detention?
In principle, preventive detention is reserved for adult criminal law. However, the Juvenile Court Act (JGG) provides for corresponding application in § 7, but only under very strict prerequisites. In the case of young adults (18 to 21 years), reserved preventive detention can only be imposed if they have been convicted of a particularly serious crime and are deemed to be extremely dangerous. Preventive detention is fundamentally excluded for juveniles under 18, as the focus here is on education.
Is there an entitlement to specific treatment measures during preventive detention?
Yes, pursuant to § 66c StGB, detainees are entitled during preventive detention to individual and intensive treatment measures designed to reduce dangerousness and enable release from preventive detention. These include psychotherapeutic, psychiatric, social-therapeutic, and occupational therapy programs. The implementation of these measures is part of the so-called ‘distance requirement,’ which provides for preventive detention to be structured with the goal of reducing the risk of reoffending. If the state refuses appropriate treatment, this may affect the legality of continued detention.
How does preventive detention end legally?
Preventive detention ends when the enforcement court determines that the detainee no longer poses a significant danger, in particular no longer presents a risk of serious crimes. In addition, it ends by operation of law at the latest twelve years after the start of detention, unless quite exceptional circumstances justify further detention. In any case, release must be prepared and accompanied, since there is an entitlement to assistance with reintegration, for example through supervision of conduct or a probation officer.
