Germany’s Federal Constitutional Court in Karlsruhe has struck down the rules governing "supplementary preventive custody" as unconstitutional.

The court ruled that the practice of extending the prison terms of offenders deemed a threat to public safety, even after the sentence had expired, went against the basic right to freedom by not differentiating itself from normal imprisonment.

The German parliament, the Bundestag, has to reform the current rules by 2013 with "a freedom orientated and therapy focused concept."

The European Court for Human Rights in Strasbourg had already struck down the practice on more than one occasion.

The Strasbourg justices called the practice of "post-punishment punishment" a violation of human rights and sent the German law back to Berlin for revision.

Germany originally responded to the criticism by changing the law to allow for the inclusion of the option of supplementary preventive custody into the initial verdict for a criminal offense.

This would mean that a court could decide after a trial and sentencing, at some point during a prison term, that the offender had made no progress toward rehabilitation and therefore represented a danger to society.

The pros and cons of prolonged detention

The issue of prolonged detention for people viewed as incurable repeat offenders - in most cases sex offenders and murderers - has been controversial.

Those opposed to the practice argue that once a criminal has served out a sentence, he must be released. Those in favor argue that repeat offenders who have not seen the error of their ways still pose a threat to society.

A critic of preventive detention, law professor Arthur Kreuzer, argues that the practice violates the concept of double jeopardy, or being punished for the same offense twice.

"It is a punishment; one of the hardest punishments. Such a law cannot be retroactive. It is unbearable for someone to have served their sentence and then find out that they are going to stay in jail."

Kreuzer says the revised law would have affected between 7,000 and 10,000 offenders in German jails. He also emphasizes that someone stamped as a candidate for supplementary preventive custody would have little or no access to therapy and early release programs.

Public fears vs. prisoner rights

Karl Schwers, the deputy director of Aachen penitentiary, near the Belgian border, disagrees.

"Any decision to impose preventive custody must be reviewed every two years," he said. "On an individual basis, each prisoner is assessed as to how dangerous they still are and whether or not they should be kept longer."

Schwers pointed out that department heads and psychologists, as well as prison guards and other personnel who deal with prisoners every day, play a role in the assessment in an attempt to find some sort of thread in prisoner's behavior.

"In what direction is this person going? How were they two years ago when they were assessed negatively? Are they still quick-tempered, or can they talk about their situation?" he said.

In order to protect citizens concerned about repeat offenders while respecting the rights of prisoners, lawmakers introduced the revised idea of "reserve" detention.

This means that during the sentencing of a criminal, the possibility of an extension must be included in the original verdict. This way prisoners are aware from the beginning that, depending on behavior, they could spend more time under lock and key.

Author: Daphne Grathwohl / gb, slk
Editor: Michael Lawton