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Germany high court rules preventive detention unconstitutional

The German Federal Constitutional Court [official website, in German] ruled [press release] Wednesday that the preventive detention of prisoners beyond the maximum sentences for their crimes is unconstitutional. The court held [judgment, in German] that the laws governing the practice of extending prison terms for prisoners deemed to be a public safety threat violates provisions of the German constitution [text, PDF, in German]. "[T]he provisions on the retrospective prolongation of preventive detention beyond the former ten-year maximum period and on the retrospective imposition of preventive detention in criminal law relating to adult and to juvenile offenders infringe the rule-of-law precept of the protection of legitimate expectations." The court said that the country's current preventive detention laws infringe the constitutional minimum distance requirement for preventative detentions in that they are not sufficiently distinguished from normal prison terms. The distance requirement mandates that "the deprivation of liberty effected by preventive detention must keep a marked distance from the execution of a prison sentence." The court did not impose an outright ban on all preventative detention, but rather set narrow guidelines for the German parliament, the Bundestag [official website, in German], to follow in designing a law which emphasizes the "liberty-oriented execution aimed at therapy [and] which clearly shows to the detainee under preventive detention and to the general public the purely preventive character of the measure." The current preventative detention laws will remain in place until parliament passes new legislation. The court set a deadline of May 2013 by which the legislature must enact new legislation.

In other countries, controversial laws pertaining to the preventative detention of prisoners deemed a threat to public safety have also come under fire. Last month, rights groups called for reform [JURIST report] of a Kashmir law they allege is being used to detain people despite the absence of sufficient evidence for a trial. Last year, the US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] unanimously that a federal law allowing for the indefinite detention of mentally ill sex offenders was constitutional [JURIST report].

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