This is a really difficult subject and article, to be honest. It is about how things never are black and white and reminds me that I in some situations would struggle incredebly to find the right solution. Because in this case, what is the right solution? The human rights of a single person or the safety of society? What is the state’s responsibility? What is right?
There is currently a case at the European Court of Human Rights about prisoners’ rights in Germany. The cases are about preventive detention. Preventive detention has caused many discussions in the country. Until 1998, it was possible to sentence a person to prison for their crime and max. 10 years of preventive detention, if the crimes were extreme and if the person was declared a threat for society, i.e. if it was very likely that they would commit extreme crime (e.g. murder, rape) again after their release.
The law for preventive detention underwent some changes after that. First, it was decided that the that it should not be limited to 10 years ““ now, a person could be sentenced to unlimited preventive detention, even if the original conviction was a prison sentence and 10 years preventive detention. Another addition meant, that that a prisenor also can be sentenced to unlimitid preventive detention after the actual trial. This addition was supposed to give the state the possibibility to keep people in detained, who turn out to be incredibly dangerous after they have been sentenced for the initial crime.
Part of the preventive detention are check-ups every two years. Here, it is determined, if the prisenor still poses a threat. Also, the rules for these individuals are slightly more “loose” ““ they are not treated quite like normal prisenors.
However, all of this is highy questionable. Is it right to do this? Three prisoners, who are affected by the law ““ and especially the changes ““ have brought their cases to the European Court of Human Rights:
“The applicants, RÃ¼diger Kallweit, Manuel Mautes and Martin Schummer, are three German nationals who were born in 1955, 1960 and 1959 respectively. The first two applicants are currently detained in Aachen Prison (Germany) and the third applicant lives in Freiburg (Germany). All three of them were given prison sentences by the courts for different serious offences including sexual coercion and rape. At the same time, the courts ordered their placement in preventive detention. Relying on Article 5 § 1 (right to liberty and security), all three applicants complain that their preventive detention after having served their full sentences was unlawful. They further complain that the retrospective extension of their preventive detention from a period of ten years, which was the maximum for such detention under the legal provisions applicable at the time of their offences, to an unlimited period of time violated Article 7 § 1 (no punishment without law). The third applicant also relies on Articles 3 (prohibition of inhuman or degrading treatment).”*
Today, the court announced its decision and it says that the prisoners are right (the court only disagreed with the applicant, who relied on Article 3). Already in 2009, the court had announced a similar judgemnet. And I agree. You cannot sentence a prisoner, make a new law and then say “Hey, I’m going to use this brand new law to lock you up forever!”. That is why we have Article 7 § 1 (no punishment without law).
But. Yes, here comes the “˜but’. The “˜but’ that makes it all so difficult for me. We are talking about extremely dangerous people here. One of the men, who was released after the 2009 judgement, attacked a 10-year-old girl shortly after his release. He was a serial sex offender. The authorities were sure that he would commit another crime upon a release. Which is why the sentenced him to preventive detention in the first place. After todays judgment, 100 seriously dangerous prisoners can demand their release from unlimited preventive detention. Which sounds very scary to me.
But is that reason enough to violate human rights?
*Quote from court documents.