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Preventive Detention of Dangerous Offenders Re-examined: A Comment on two decisions of the German Federal Constitutional Court (BVerfG – 2 BvR 2029/01 of 5 February 2004 and BVerfG – 2 BvR 834/02 – 2 BvR 1588/02 of 10 February 2004) and the Federal Draft Bill on Preventive Detention of 9 March 2004

Published online by Cambridge University Press:  06 March 2019

Frieder Dünkel  and
Dirk van Zyl Smit

Extract

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Preventive detention is, together with life imprisonment, the harshest sanction in German criminal law. In the form of a “measure for improvement and security” of indeterminate duration, preventive detention potentially may be enforced until the death of the offender. Such a measure may be imposed together with a term of imprisonment on offenders regarded as dangerous and implemented after the fixed term of imprisonment has been served. The history of this provision goes back to a Nazi law against habitual criminals that was enacted in 1933 and retained after the end of the Second World War. In the context of the debate about the new criminal laws in the 1960s preventive detention was severely criticised. The result was that in 1969 both the formal and material requirements for the imposition of preventive detention were made more restrictive. This led, in turn, to it being imposed far less frequently. While in the 1960s more than 200 people were sentenced to preventive detention annually, by the early 1990s this figure was fewer than 40 a year. There was an equivalent reduction of the number of people in prison on preventive detention on a given day, from around 1500 at the beginning of the 1960s to fewer than 200 in the 1980s, that is, about 0.3 per cent of the total prison population.

Type
Public Law
Information
German Law Journal , Volume 5 , Issue 6 , 01 June 2004 , pp. 619 - 637
Copyright
Copyright © 2004 by German Law Journal GbR 

References

1 A “Maßregel der Besserung und Sicherung”; see § 61 StGB.Google Scholar

2 For the circumstances under which this can be done, see § 66 StGB.Google Scholar

3 § 67 of the Penal Code.Google Scholar

4 The figure was 31 in 1990, see Bundesamt für Statistik (Wiesbaden, Strafverfolgungsstatistik 1990).Google Scholar

5 See Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten, v. 26.1.1998 (BGBl. I S. 160).Google Scholar

6 See § 66a of the Penal Code, v.21.8.2002 (BGBL I S. 3344).Google Scholar

7 See article 70 of the Grundgesetz.Google Scholar

8 See article 74(1) No.1 of the Grundgesetz.Google Scholar

9 See article 72(1) of the Grundgesetz.Google Scholar

10 See § 67d(1) of the Penal Code prior to its 1998 amendment.Google Scholar

11 In terms of § 67d(3) of the Penal Code.Google Scholar

12 In terms of § 67d(2) of the Penal Code.Google Scholar

13 For details and citations, see Dünkel in Nomos-Kommentar § 57 Rn 14.Google Scholar

14 § 67d(2) of the Penal Code.Google Scholar

15 See article 103(2) of the Grundgesetz.Google Scholar

16 See the early (1977) decision of the Federal Constitutional Court in the leading case on the principles governing life imprisonment, (BVerfGE 45, 187) discussed in detail in Dirk van Zyl Smit, Taking Life Imprisonment Seriously 145 (2002).Google Scholar

17 Leitsatz 1a: As is customary, the Court spells out the principles (Leitsätze) that are to be derived from the decision at the beginning of the judgment.Google Scholar

18 Leitsatz 1b.Google Scholar

19 Leitsätze 2a and 2b. In this instance to the doctrine of proportionality as applied to the implementation of sentences of life imprisonment (see BVerfGE 70, 297 (311)) is adopted.Google Scholar

20 See in this regard Streng, Festschrift für Lampe 611, 633 and the further sources cited there.Google Scholar

21 Cf. § 67d(1) of the Penal Code prior to its amendment.Google Scholar

22 Cf. BVerfG NJW 1998, 1133 (1134); NStZ 1998, 373 (374).Google Scholar

23 On relaxations of prison regimes, see D. van Zyl Smit, Leave of Absence for West German prisoners. Legal Principle and Administrative Practice, 28 British Journal of Criminology 1, 1-18 (1988).Google Scholar

24 As contained in article 103(2) of the Grundgesetz.Google Scholar

25 Leitsatz 3.Google Scholar

26 See in this regard Jung, Was ist Strafe? Ein Essay 33 (2002).Google Scholar

27 Leitsatz 4.Google Scholar

28 This provision must be read in contrast with § 2(1) of the same Code, which provides that punishment is governed by the law that was in force at time of the commission of the offence.Google Scholar

29 The prohibition on the State using excessive power or intervening more widely in the lives of its citizens than it is constitutionally allowed to do.Google Scholar

30 See Kinzig, Die Sicherungsverwahrung auf dem Prufstand (1996).Google Scholar

31 BVerfG ZfStrVo 1998, 180; NStZ 1998, 373; NStZ 1998, 430; NJW 1998, 1133; NStZ-RR 1998, 121 See, however, also the decisions of the Federal Constitutional Court that exclude relaxations in specific cases: NStZ 2002, 202 for a lifer who was not prepared to co-operate in meeting the purpose of imprisonment but who had served 26 years; and BVerfG 2 BvR 116/02 for a person in preventive detention for longer than ten years.Google Scholar

32 That is, detention in terms of § 66(1)1 and 2 and (2) to (4) of the Penal Code.Google Scholar

33 Article 1(1) of the BayStrUBG. Art1(1) of the UBG LSA is almost identical. In Bavaria a three judge chamber of the court for the implementation of prison sentences can impose such preventive detention for a period which in principle has no maximum, while in Saxony-Anhalt such preventive detention is initially for a period of six months which be may extended by an additional twelve months.Google Scholar

34 Dünkel, & Kunkat, , Neue Kriminalpolitik 16 (2001); Kinzig NJW 1455 (2001); Ullenbruch NZtS 291 (2001).Google Scholar

35 The prohibition on the State failing to use its authority in order to protect its citizens.Google Scholar

36 See § 67d(2) and (3) of the Penal Code.Google Scholar

37 See § 145a of the Penal Code.Google Scholar

38 Bundesgerichtshof, the highest Court dealing with civil and penal matters.Google Scholar

39 Frankfurter Rundschau of 25 February 2004.Google Scholar

40 By the law on the law on the alteration of the provisions on criminal offences against sexual integrity of 91 December 2003 (BGBl. I S. 3007); See in this regard Frommel, Neue Kriminalpolitik 6 (2004).Google Scholar

41 See § 106(3) of the Juvenile Justice Act (JGG).Google Scholar

42 Offenders under the jurisdiction of the Juvenile Courts, sentenced for offences committed at the age between 18 and 21 years.Google Scholar

43 See § 106(5) and (6) of the Juvenile Justice Act as amended by the proposed bill.Google Scholar

44 See the new § 275a of the Criminal Procedure Act proposed by the draft bill.Google Scholar

45 For a general critique, see Dünkel, Neue Kriminalpolitik 2 (2003).Google Scholar

46 Cf. Dünkel, in Nomos-Kommentar § 57 Rn 110, 123 (2003); Jehle, Heinz & Sutterer, Legalbewährung nach strafrechtlichen Sanktionen 69 ((2003).Google Scholar

47 In terms of § 57 of the Penal Code.Google Scholar

48 Cf. Peglau 2000 ZRP 150.Google Scholar

49 In terms of § 66a of the Penal Code.Google Scholar

50 See the critical comments in a different context of Schoch, in Festschrift für Kaiser; Nedopi, Forensiche Pscyhiatrie 248 (2000); Dünkel, , Nomos-Kommentar § 57 Rn 118 (2003).Google Scholar

51 See Dünkel & Kunkat, Neue Kriminalpolitik 16 (2001).Google Scholar

52 Kinzig NJW 1457 (2001).Google Scholar

53 See motivation 20.Google Scholar

54 See Dünkel & Drenkhahn, in Forschungsthema Strafvollzug 387 (Bereswill & Greve eds., 2001).Google Scholar

55 See § 68f of the Penal Code.Google Scholar

56 § 145 of the Penal Code.Google Scholar

57 See, e.g., the Bundesrat draft BR-Drs 507/02.Google Scholar