Concept and History of the Term ‘Custodial Measures’
Custodial measures in German criminal law are actions that may be ordered in addition to or instead of a punishment, in order to protect the public from further significant violations of the law by an offender. Unlike punitive measures, custodial measures focus not on retribution but on prevention. Custodial measures, together with rehabilitative measures, form the so-called ‘measures of rehabilitation and security’. The relevant regulations are mainly found in the Criminal Code (StGB).
The institution of such measures was introduced with the so-called ‘Maßregelvollzugsgesetz’ (Measure Enforcement Act) and was already included in the Imperial Criminal Code of 1871, further developed, and systematically anchored in the StGB in 1933. The main goal was to prevent recidivism by offenders lacking criminal responsibility or with diminished responsibility, as well as by dangerous repeat offenders.
Systematics of Measures for Rehabilitation and Security
Distinction between Punishment and Measure
While penalties (e.g. imprisonment, fines) are based on guilt and aim at retribution, vengeance, or deterrence, the measures for rehabilitation and security focus on the dangerousness of the offender and their prospects for resocialization or improvement.
- Custodial Measures aim to protect the general public.
- Rehabilitative Measures focus on the treatment and rehabilitation of the offender.
Legal Foundations
The most important regulations for custodial measures can be found in §§ 61-72 StGB.
§ 61 StGB – Catalogue of Measures
Custodial measures are listed in § 61 StGB. The most important include:
- Placement in a psychiatric hospital (§ 63 StGB)
- Placement in a detoxification facility (§ 64 StGB)
- Placement in preventive detention (§ 66 StGB)
- Supervision of conduct (§ 68 StGB)
- Professional ban (§ 70 StGB)
- Revocation of driving license (§ 69 StGB)
An Overview of the Individual Custodial Measures
Placement in a psychiatric hospital (§ 63 StGB)
This measure is for the protection and rehabilitation of offenders who, in a state of criminal incapacity or substantially diminished responsibility, have committed significant unlawful acts and whose continued freedom poses a significant danger.Requirements:
- Criminal incapacity or substantially diminished responsibility (§§ 20, 21 StGB)
- Commission of an unlawful act
- Significant risk of further major offenses
Purpose: Both the protection of the public and therapy for the offender.
Placement in a detoxification facility (§ 64 StGB)
This measure is designed for offenses related to a propensity for substance addiction.Requirements:
- Tendency to abuse alcohol or narcotics
- Addiction must be a contributory cause of the offense
- Risk of repeat offenses due to addiction
Purpose: Primarily rehabilitation (therapy), but also protection of the public.
Placement in preventive detention (§ 66 StGB)
Preventive detention is the strictest form of protection and can be ordered either together with a custodial sentence or subsequently.Requirements:
- Commission of particularly serious offenses (catalog offenses)
- Tendency towards serious offenses
- Risk assessment: risk of future serious offenses
Purpose: Exclusive protection of the public by preventing further offenses after completion of the sentence.
Supervision of conduct (§ 68 StGB)
Supervision of conduct means that an offender is monitored by authorities after the main sentence. This supervision can be ordered alone or in addition to other measures.Requirements:
- After serving a prison sentence, measure, or upon suspension of placement
- Risk of further dangerousness
Purpose: Prevention of new offenses through monitoring and support.
Professional ban (§ 70 StGB)
A professional ban can be imposed if a person commits an offense while performing their profession or trade and if it is to be expected that they would commit further offenses if they continue in their profession.Requirements:
- Connection between the offense and the profession
- Risk of further offenses in the course of professional activity
Purpose: Protection against further offenses in the professional context.
Revocation of driving license (§ 69 StGB)
Revocation of the driving license is a custodial measure related to road traffic.Requirements:
- Offense in connection with operating a motor vehicle
- Unfitness to operate motor vehicles
Purpose: Prevention of further dangerous driving.
Legal Consequences and Duration of Custodial Measures
Order, Duration, and Review
Custodial measures are ordered by the court at its discretion if the legal requirements are met. Some measures, such as supervision of conduct or revocation of a driving license, are limited to a specific duration. Others, like preventive detention or placement, can be indefinite but must be reviewed regularly to determine whether the requirements still exist.
Relationship to Sentence and Enforcement of Measures
Coexistence of Sentence and Measure
Custodial measures may be imposed independently of a punishment but often also in addition to imprisonment or fines, if required to protect the public.
Enforcement of Measures
Implementation and execution of the measures, in particular placement in a psychiatric hospital, detoxification facility, or preventive detention, are governed by the measure enforcement laws of the federal states. These laws regulate the procedural conduct, treatment concepts, review, and release.
Constitutional and Human Rights Aspects
Custodial measures represent a significant intrusion on the fundamental rights of the affected person, in particular the right to personal freedom. Proportionality and strict adherence to legal requirements are therefore subject to scrutiny by the highest courts, especially the Federal Constitutional Court and the European Court of Human Rights (ECtHR).
Particular criticism focuses on preventive detention, which is regarded as preventive lifelong custody after completion of a sentence. The requirements for forecasting future dangerousness and conditions of enforcement have been continuously adjusted in recent years.
References
- Criminal Code (StGB), §§ 61-72
- Measure Enforcement Laws of the Federal States
- Case law of the Federal Court of Justice (BGH) and the Federal Constitutional Court (BVerfG)
- Schöch, Heinz: ‘Measures of Rehabilitation and Security’, in: Schönke/Schröder, StGB Commentary
This comprehensive overview provides a detailed summary of the legal concept, individual measures, and the crucial importance of custodial measures within German criminal law.
Frequently Asked Questions
What are the legal foundations for custodial measures?
The legal basis for custodial measures is mainly found in §§ 111b et seq. of the Code of Criminal Procedure (StPO) and in specific provisions of the Criminal Code (StGB), such as §§ 69, 70, 72, 81 StGB. §§ 111b-111m StPO regulate the prerequisites, the procedure, and the effects of seizure, confiscation, and injunctions during investigations and the course of criminal proceedings. In addition to these regulations, state and special legislation, for example the Narcotic Drugs Act (BtMG) or the Administrative Offenses Act (OWiG), may also be relevant. The measures are intended to secure assets, objects, or rights to ensure the enforcement of decisions in criminal or administrative offenses proceedings—such as confiscation, forfeiture, or restitution. The legal framework specifies in detail under what conditions and with what participatory rights such measures may be permitted, what procedural safeguards exist, and what control mechanisms are in place.
At what stage of criminal proceedings can custodial measures be ordered?
Custodial measures can, in principle, already be ordered during the investigation phase, i.e., before formal charges are brought, by the investigating authorities or upon request of the public prosecutor by the competent court. In later stages—such as during the main hearing or in appeal proceedings—the possibility of ordering remains, as long as there is a corresponding protective purpose. Securing may also be necessary after a verdict has been issued to guarantee enforcement success, for example, if assets are required to carry out a confiscation or a reserve forfeiture order. It is always decisive that a concrete need for protection currently exists to prevent the purpose of the proceedings from being thwarted by interim disposal or removal of the objects or assets in question.
Who is responsible for ordering and supervising custodial measures?
Responsibility for ordering custodial measures depends on the stage of proceedings and lies either with the public prosecutor’s office or the competent court. During investigations, the public prosecutor may order measures themselves, especially in cases of imminent danger (see § 111e(1) sentence 1 StPO). However, a judicial decision is regularly required (e.g., under § 111e(1) sentence 2 StPO). For subsequent stages, especially after indictment, the court is generally responsible. Monitoring, supervision, and any subsequent lifting of the measures are also the responsibility of the respective judicial authorities, whereby affected persons may at any time seek judicial protection against the order (e.g., by appeal under § 304 StPO).
What legal remedies are available for affected persons?
Affected persons may contest the imposition of custodial measures with various legal remedies. The most important remedy against judicial orders is the appeal pursuant to §§ 304 ff. StPO. This enables a judicial review of the measure for legality and proportionality. In certain situations, it is additionally possible to petition for a decision on the continuation or revocation of the measure (see § 111e(2) StPO). Should fundamental rights be affected, such as the right to property (Art. 14 GG), the route to a constitutional complaint to the Federal Constitutional Court is also available. Furthermore, the authority must inform the affected person in a timely manner and ensure sufficient opportunity to be heard, so that effective defense is guaranteed.
What requirements must be met for the imposition of custodial measures?
Prerequisite for the imposition of custodial measures is the existence of a sufficient protective interest on the part of the investigative or enforcement authorities. The law specifically requires a certain likelihood that the affected objects or assets will later be confiscated, forfeited, or required as evidence in the main proceedings (§§ 73, 74, 111b StPO). Furthermore, the measure must be suitable and necessary to achieve the protective purpose; less severe means must not be available (principle of proportionality). The imposition also requires that the claim for forfeiture, confiscation, or restitution or the claim for surrender of evidence cannot be secured in another way.
What is the permissible duration of custodial measures?
Custodial measures must generally be limited in duration and may only continue as long as the protective interest persists. As proceedings progress, authorities must review whether the requirements are still met (periodic review, § 111e(2) StPO). The measure must be lifted as soon as its purpose has ceased—for example, after final conclusion of the proceedings or when the risk of confiscation or forfeiture no longer exists. In cases of disproportionately long duration, a judicial review may be required; the courts pay particular attention to proportionality and the affected person’s interest in regaining their rights or assets as soon as possible.
To what extent may custodial measures interfere with property rights?
Custodial measures constitute an official interference with property rights, permissible only on a legal basis and with strict observance of the principle of proportionality (Art. 14 GG, § 111b et seq. StPO). The law on the one hand requires a statutory order, and on the other a balance between the public interest in securing the confiscation or forfeiture purpose and the individual interests of the owner or holder of the affected objects. Practice and jurisprudence also require careful documentation of the order and the opportunity for the affected party to file effective legal remedies. If it is determined later that a measure was unlawful, there may be a claim for compensation.
