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European court rules preventive detention of sex offenders unjust

The Local · 13 Jan 2011, 12:47

Published: 13 Jan 2011 12:47 GMT+01:00

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The court upheld complaints by the convicts who, despite having served their original sentences, were being held in preventive custody because they are still considered dangerous.

The court also ordered Germany to pay compensation to three of the complainants – of €70,000, €30,000 and €25,000 respectively. The fourth had not made any application for compensation.

Preventive detention is a type of imprisonment that is not specifically a punishment for a particular crime but rather is used to stop a person from committing a future crime. In Germany, it can be added to an existing jail sentence if the offender is deemed still to pose a serious risk to society.

Before 1998, preventive detention was limited to 10 years but in that year a law was introduced scrapping the limit, meaning preventive detention could be imposed for an indefinite period.

However, that law has been applied retroactively to some prisoners who were originally sentenced while the 10-limit was still in place, including the four complainants in the current case.

The court ruled that the situation breached the offenders’ fundamental rights to freedom as well as the prohibition on retroactive application of laws known as “no penalty without a law.”

After the European court ruled in December 2009 against the retroactive application of the no-limit law, the government agreed to scrap the practice, effective on January 1 this year.

All four of the complainants are serious sex offenders. Two are serving backdated preventative sentences in Aachen, while another is now out of prison, though under police watch. The fourth is mentally ill and is in a psychiatric institution, from which he would not be released even if the European court ruling were applied.

Story continues below…

Germany’s Constitutional Court will examine complaints lodged by the four offenders on February 8.

DAPD/The Local/djw

The Local (news@thelocal.de)

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Your comments about this article

13:38 January 13, 2011 by marimay
It's more unjust for the future victims after they have been released.

But, that is a little too obvious, I guess.
14:04 January 13, 2011 by herpesfinder
Comment removed by The Local for breach of our terms.
14:22 January 13, 2011 by iseedaftpeople

FYI, the European Court did not say that preventive detention in itself is irreconcilable with human rights. The issue here is ex post facto law. Every modern Western nation has declared ex post facto provisions, e.g. retroactive punishment, unconstitutional. The U.S. constitution says so, same as the UK's and Germany's constitution. It is even demanded by Article 7 of the European Charter of Human Rights.

This does not mean that dangerous offenders cannot be kept in preventive detention after they have served their prison term. But like it or not, even the worst of the worst in Europe have inalienable rights. That does not mean they can't be - and shouldn't be - held accountable for their crimes to the full extent of the law. But if we decide to allow ex post facto penal law for one type of offender in the future, who is to say anymore when it should apply and when it shouldn't... that decision would not only become completely arbitrary, but in the long run, it would also threaten the constitutional rights of all Europeans.
14:29 January 13, 2011 by Gretl
That's why these crimes should be subject to the death penalty. You can't hold them indefinitely, and they are not curable. Life sentence or death penalty. It amounts to the same thing.
15:34 January 13, 2011 by tallady
I agree,,these are the bottom feeders,, lowest form of life,,they prey on children,,if you can not keep them incarcerated then they should be lobotomized ....
15:51 January 13, 2011 by iseedaftpeople

well not all of them prey on children. Yes, some of them do, which is horrible enough, but many of them committed sex offenses that did not involve children or even minors at all, and retroactive preventive detention has also been used for criminals in Germany who are very violent, but did not commit any sexual offenses.

I'm all for punishing these people, within the limits of the law and human rights, but it's no use making this just all about "saving the children" again. That seems to be the argument for everything and anything these days, and in most cases, it does not do the full scope of a social ill much justice.

As for the death penalty - nope, I don't believe that is ever the answer, and despite people doing horrible things to others, I am very glad I live in a part of the world where it has long been abolished. To me, the slippery slope argument that I mentioned in my first post about ex post facto punishment applies here the same way.
16:15 January 13, 2011 by Beachrider
In the USA, there are two key issues with pedophiles:

- Their victims statistically are dramatically more likely to become pedophiles or criminals of other stripes

- They themselves have a high rate of recidivism (they do it again).

Some of the most effective mechanisms used so far:

- Inmates HATE pedophiles, possibly because of reason #1,above.

- Mandatory chemical-castration treatments

- TV shows like "To catch a Predator" that shine a bright light on the situation

I suppose that there are more, but this is REALLY dark stuff. I am not sure how to have a polite conversation about some of the things being done about pedophiles in the USA.
16:25 January 13, 2011 by tallady
iseedaftpeople thanks for enlightened opinion,but I will stay with my darkened one.
16:43 January 13, 2011 by maxbrando
Say what you want, but is is YOU left-wing social do-gooders (mostly females)who created this problem. If society thinks they continue to be dangerous after their sentences are served, why did the judges only sentence them to a few years? Either sentence them to life imprisonment or the death penalty. This is a gross failure of the left to look in the mirror and accept that it has made a mistake. Their solution is literally to "lock 'em up and throw the key away" without benefit of what the law stipulates about their release. This is justice??
16:49 January 13, 2011 by storymann
It is nice to be politically liberal about these people, if you are childless it is even easier. I assume the powers that kept these monsters there new they would be back after another sexual assault towards a child or women,, would not want this to be all about saving the children, the social ill you speak about certainly has not been cured by the present legal system,,maybe it is time for a change, maybe a more conservative approach is needed,
17:18 January 13, 2011 by tallady
@ Logic Guy,,can you make any sense out of this ???
18:29 January 13, 2011 by mixxim
One has to wonder about those Judges.... A look at their expenses might show their morals to be as bad as UK politicians.
19:12 January 13, 2011 by iseedaftpeople

"It is nice to be politically liberal about these people, if you are childless it is even easier"

There we go again. First of all, I don't think my stance is exactly bleeding-heart liberal, if you read what I said again. Violent and/or sex offenders must be punished, there is nothing principally wrong with that. Secondly, again, it's NOT JUST ABOUT CHILDREN. Like I said, quite a number of these dangerous offenders did in fact sexually violate children, and that is incredibly horrible, but by far not all of them. I am not making this up, it is fact. Hence it is not just something that people with children can have an opinion about with some degree of authority. The question of ex post facto penal law affects all of us equally.

"would not want this to be all about saving the children"

Yes, part of it is in fact about saving children from harm that these released offenders can still do to them. But that's only half the story!

What I have a problem with is the fact that these days, in penal law, EVERYTHING is lumped together under the mantra "think of the children". And that can only lead to poor politics, because the story always goes "we're doing this to protect the children... what, you disagree with us?? How horrible of you, just think of the children!!!".

"Protecting the children" has become a cure-all blanket catchphrase to push through legislative measures without questioning, regardless if they are going to work or not, and what unintended damage they do. If we really want to protect the children, that must go first of all, and we must think sensibly about what really helps keep all of society safe, and yes, children too - but not resort to political grandstanding, hysteria, and empty catchphrases.

I know there's an orthodox school of thought that claims that to "protect children", anything goes. If it saves one child, yada yada... but in reality, 90% of that is an excuse for poor politics and slipshod legislation. If you really want to make a difference, in fact, any laws you pass to "save the children" must be developed with much greater discernment and skill than in any other field of politics. But no, to "protect the children", sense goes out the window all too often.
03:34 January 14, 2011 by Gretl
@maxbrando - I am a liberal, and a woman, and I'd be the first in line to throw the switch. Somethings cannot be fixed with a prison sentence. Unlike vilent criminal offenders, you can't just wait out the drop in their testosterone levels. Their sexual imprinting was wrong and there is no way to fix it. Liberal does not equate to stupid.

@Iseedaftpeople - normally I would agree the life in prison is more of a punishment than death, as the torturing of someone by confinement, boredom and bad company is extended for longer. However, it costs money, a lot of money. I really don't see the need for the expense. Somethings are broken and you cannot fix them. I am gardener. I pull weeds. I kill them in the process. I pull up plants that are damaged and will not ever be the way they are supposed to be. I throw them on the compost pile for recycling. Some human being are just compost to be.
10:39 January 14, 2011 by storymann
iseedaftpeople you can babble on with all this rhetoric you want, pontificate until the moon is full buuut...I don't agree with you......are you sure prufroc didn't write this for you?
11:00 January 14, 2011 by tallady
iseedaftpeople,,or you are daft,,,do you have issues with children?? ,or are we reading this to be impressed with your legal points of view well how about sharing some of those solutions that require greater discernment and skill that I am sure you posses in abundance.. I am thinking about keeping the children safe,, I still want to lobotomize the child molesters .
11:12 January 14, 2011 by michael4096
@iseedaftpeople - well I do agree with you

The law is based on a few very simple principles such as punishment proportional to the crime, another chance following punishment and that the law applies to all equally including crime preventers. Even as it is, it gets horribly complex and not always just. Allowing individuals or committees to make up their own laws on the basis of their "feeling that someone is still dangerous" is a recipe for further injustice.

I understand that these guys are already guilty of a crime but the argument that this means they forfeit their rights is silly. It was the argument that hung young kids for stealing a loaf of bread. You can argue that the sentences these guys received do not match the crime and should be longer - that is subjective. However, once sentence is served, that should be it.
11:31 January 14, 2011 by storymann
It is controversial,,and I don't like it...maybe in some circles it is considered a form of art,,,but I think it's obscene.
11:44 January 14, 2011 by marimay
I understand what you are saying iseedarfpeople and I would agree with you but then you turn on the news to see a young girl raped and killed by someone who had just recently been let out of prison with a history of child molestation. It happens all the time.

It is pretty easy to stay out of prison,and if one knows they are doing something as wrong and disgusting as being a child molesting predator, they should know life in prison is waiting for them when they are caught.

It is all up to them really.
11:50 January 14, 2011 by storymann
post # 18 was not for this thread...obviously .....
13:27 January 14, 2011 by marimay
Oh, sorry, I thought this was the catholic church thread.

What are you talking about?
14:49 January 14, 2011 by William Thirteen
an excellent example as to why constitutions and courts stand between civilization and mob rule.
14:57 January 14, 2011 by tallady
maimay,,I think storymann meant his comment but mixed up the number as I read his comment about the art exhibit with the Police women. To err is Human to forgive is divine...
15:15 January 14, 2011 by storymann
thanks tallady,, that is correct I wrote the wrong post number about my comment being in the wrong thread...sorry marimay
15:37 January 14, 2011 by tallady
iseedaftpeople ,all snarky remarks aside, snarky ,is a remark from Prufroc,,are you Prufroc ????

What you have written is a good point,,legislation should not be rammed through at the heat of moment ,when a child has been victimized,as many of our laws are the result of passion and not thought. I do hope a better system can be put in place to protect the innocent.

Sex offenders in the US must register with the police where they live and everyone is suppose to be notified when there is a convicted pedophile in the neighbor hood.

Therefore in these cases it dose not end when the jail term is finished.
18:11 January 14, 2011 by lselondon
i have two words for all the child molestors et al.. snip snip .. heheheh
19:34 January 14, 2011 by michael4096
everyone is suppose to be notified when there is a convicted pedophile in the neighbor hood
and, when they mysteriously wake up dead, which happens rather often - nobody need care

all we are missing is a burning cross and white cloaks
23:28 January 14, 2011 by teutonic-knight
Germany should rely on its own principles and foundations. European court which perhaps represents many different countries in Europe could have different principles that might damage the society. Germany should rely on its own courts. The sex offenders are devil's own image, and they should be in prison for rest of their life because they are danger to the community, and they are poison for society.
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