Preventive Measures – Legal Foundations and Areas of Application
Definition and Distinction
Preventive measures are state-ordered actions under German criminal law designed to protect the general public from dangerous offenders. Unlike penalties, preventive measures do not aim at retribution or atonement, but rather at preventing future significant violations of legal interests. They can be imposed in addition to or independently of a penalty and are primarily governed by the Criminal Code (StGB), especially in Sections 61 et seq. StGB.
Statutory Foundations
Regulations in the Criminal Code (StGB)
Sections 61 to 72 StGB address the different types, requirements, and legal consequences of preventive measures. The system of preventive measures is part of the German law on the execution of measures and differs from penalties both in purpose and in legal quality.
Relationship to Other Measures
Preventive measures must be distinguished from ancillary penalties, probationary measures, and other preventive actions. In line with the dual-track system of German sanctions, a person may be subject to a penalty and, if necessary, additionally to a preventive measure. In exceptional cases, a preventive measure can be imposed without a conviction for a penalty, for example, in cases of criminal incapacity (Section 63 StGB).
Types of Preventive Measures
The German Criminal Code recognizes several preventive measures with different objectives. The most important include:
1. Placement in a psychiatric hospital (Section 63 StGB)
This measure is ordered for individuals who, due to a severe mental disorder and associated offenses, pose a danger to the public. It presupposes that the offender is either criminally irresponsible or only partially responsible.
2. Placement in a detoxification facility (Section 64 StGB)
This involves the placement of individuals who, due to a tendency for excessive consumption of intoxicants and consequent criminal offenses, are considered dangerous. The aim is both rehabilitation and the protection of the public.
3. Preventive detention (Sections 66 et seq. StGB)
Preventive detention is an indefinite deprivation of liberty for particularly dangerous repeat offenders after serving their sentence. It can be ordered in the judgment as ‘reserved’ or directly, and serves solely to protect the public from serious crimes.
4. Supervision of conduct (Sections 68 et seq. StGB)
Supervision of conduct imposes certain obligations and instructions on the person concerned following imprisonment or the execution of a measure. The aim is to control and support the individual to prevent recidivism.
5. Revocation of driving license (Section 69 StGB)
The preventive measure of revoking a driving license is imposed for offenses committed in connection with operating motor vehicles, where the offender has proven to be unfit to drive.
6. Professional ban (Section 70 StGB)
If a professional ban is imposed, the offender is excluded from working in a particular profession, trade, or sector for as long as a significant danger to the public exists.
Order, Duration, and Termination
Requirements
The imposition of a preventive measure always requires a court decision. In its verdict, the court must carefully examine and substantiate the legal requirements, particularly with regard to the risk assessment. The crucial factor is always the current and future potential danger posed by the person concerned.
Duration of the Measures
The duration is determined by the individual risk potential and the progress toward the purpose of the measure (e.g., rehabilitation, protection). Sections 67d, 67e, and 67h StGB contain special provisions for review and termination. In particular, preventive detention and placement in a psychiatric hospital require regular reviews.
Legal Remedies
Individuals concerned can seek judicial review of the imposition, continuation, or enforcement of preventive measures by way of complaint or by filing appeals in accordance with the regulations of the Code of Criminal Procedure (in particular Sections 454, 463 StPO).
Legal Consequences and Enforcement
Separation of the Execution of Measures and Sentences
Measures of rehabilitation and protection are carried out in a special system of execution for such measures. This applies particularly to psychiatric hospitalization or preventive detention, which are to be distinguished spatially and substantively from the execution of penalties. The modalities of the execution of measures are regulated in the measure execution laws of the federal states.
Effects on Other Legal Areas
Preventive measures may result in subsequent decisions, such as the duration of supervision of conduct or the extension/non-extension of measures. There may also be social law and civil law consequences, for example regarding maintenance or pension rights.
Historical Development and Reforms
Preventive measures were incorporated into German law with the introduction of the Reich Criminal Code in 1933 and have undergone several reforms, most recently fundamentally as part of the federalism reform in the execution of measures. Changes have been made in particular due to requirements from the Federal Constitutional Court regarding preventive detention, especially concerning proportionality, placement, and therapy offerings.
International Classification
Comparable instruments can be found in many legal systems. Characteristic of the German system is the objective and institutional separation of punishment and preventive measures. The European Court of Human Rights (ECtHR) has reviewed various national regulations on preventive detention and the execution of such measures for their compatibility with the European Convention on Human Rights.
Literature and Further Legal Sources
- Criminal Code (StGB), Sections 61 et seq.
- Code of Criminal Procedure (StPO), relevant provisions
- Federal Central Register Act (BZRG)
- Laws on the execution of measures of the federal states
- Federal Constitutional Court (various decisions on preventive detention)
- Literature: Fischer, Criminal Code, Commentary; Kinzig, Measures of Rehabilitation and Protection
Note: The exact application and interpretation of preventive measures must be undertaken by the courts in each individual case, taking into account the current scientific findings, particularly regarding risk assessment. Changes in the legal situation or case law must be observed.
Frequently Asked Questions
When are preventive measures imposed in German criminal law?
Preventive measures are imposed in German criminal law as special measures alongside or instead of punishment when it appears necessary to protect the public from further dangerous acts. They are particularly applied when, due to special circumstances, an offender poses an increased risk to public safety. Such orders are issued in particular when the requirements of Sections 61 et seq. StGB are met and a conventional criminal sanction alone seems insufficient to prevent future crimes. Generally, the concrete imposition of a preventive measure requires an expert report to substantiate the risk assessment in accordance with the rule of law.
What types of preventive measures does the Criminal Code provide for?
The Criminal Code (StGB) provides for various types of preventive measures, which are set out in Sections 61 et seq. StGB. These include placement in a psychiatric hospital (Section 63 StGB), placement in a detoxification facility (Section 64 StGB), preventive detention (Section 66 StGB), professional bans (Section 70 StGB), driving bans (Section 69 StGB) as well as revocation of the driving license (Section 69 StGB), prohibition on working with children and adolescents (Section 70c StGB) and supervision of conduct (Section 68 StGB). Each of these measures is subject to specific, legally regulated requirements and has its own protective purpose and objective.
Who decides on the imposition of a preventive measure and how does the procedure work?
The imposition of a preventive measure is decided exclusively by the court in the context of criminal proceedings, usually in the so-called main proceedings. The decisive factor is the judge’s conviction of the necessity and lawfulness of the measure, whereby in cases requiring medical or psychological assessments, an expert is regularly involved. The judicial procedure follows the principles of a fair criminal process; the affected person has comprehensive defense rights. The measure is explicitly ordered in the judgment and, unlike ancillary penalties or legal consequences, can be appealed independently.
How does the imposition of a preventive measure differ from sentencing?
Preventive measures differ fundamentally from the penalty itself, as they are not primarily aimed at retribution, but at prevention and averting danger. While sentencing focuses on individual culpability and the seriousness of the offense, the focus of preventive measures is on protecting the public from potential future offenses by the perpetrator. The imposition occurs regardless of the question of guilt, for example in cases of criminal incapacity or diminished criminal responsibility, and can also be ordered alongside a custodial sentence.
How long do preventive measures last and can they be lifted?
The duration of a preventive measure depends on its type and the statutory provisions. Some measures, such as a driving ban, are limited in time, while others, such as placement in a psychiatric hospital or preventive detention, can in principle be indefinite. In such cases, it must be regularly reviewed whether the prerequisites for the continued order still exist. The review is conducted at intervals prescribed by law, for example at least once a year. If there is no longer any reason for the measure, it must be lifted.
What legal protection and complaint mechanisms are available to those affected?
Individuals affected by a preventive measure have various legal remedies at their disposal both during the investigation proceedings and after the measure has become legally binding. Appeals (by way of appeal or revision) can be lodged against the order. In addition, the affected individuals are entitled to regularly request judicial review of the continuation of the measure (for example, under Section 67e StGB). Regardless of this, institutions such as psychiatric hospitals and detoxification facilities are subject to judicial oversight under the Law on the Detention and Care of People with Mental Illnesses (PsychKG) as well as other special regulations.
What role does the risk assessment play in ordering preventive measures?
The risk assessment is a central criterion for ordering almost all preventive measures. It involves an evaluation of whether and to what extent future significant offenses can be expected from the perpetrator. This assessment must be based on specific indications and is generally supported by forensic psychiatric or psychological expert opinions. The court is obliged to critically assess the prognosis and can only adopt it if the legal requirements are clearly met. If a viable prognosis is lacking, the order is unlawful.
