The German Model of Long-Term Detention: Roundtable on 'Actual Life Sentence'

The German modelof long-term detention Roundtable on 'Actual life sentence'Organized by the Hungarian Helsinki Committee in Budapest Prof. Dr. Joerg Kinzig University of Tuebingen/Germany

I Introduction: The case of Heinrich Pommerenke Heinrich Pommerenke • Germany‘s longest prisoner • Served a sentence of 49 years • Died in a prison hospital at the age of 71. • Terms as long as this one are not the rule but possible.

Outline • Introduction: The case of Heinrich Pommerenke • Brief overview of the German sanction systemand the use of prison sentences

Outline • Introduction: The case of Heinrich Pommerenke • Brief overview of the German sanction systemand the use of prison sentences • Imposition and execution of life imprisonment in Germany • 1. The 1977 Ruling of the Federal Constitutional Court • 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code)

Outline • Introduction: The case of Heinrich Pommerenke • Brief overview of the German sanction systemand the use of prison sentences • Imposition and execution of life imprisonment in Germany • 1. The 1977 Ruling of the Federal Constitutional Court • 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) • Other indefinite sanctions: Measures of rehabilitation and incapacitation • 1. Overview • 2. Preventive Detention • 3. Main results of an empirical study of preventive detention • V. Conclusion

II Brief overview of Imprisonment in Germany Types of Sanctions in the German Penal Code

II Brief overview of Imprisonment in Germany Different Types of Imprisonment 2008

II Brief overview of Imprisonment in Germany Duration of Prison Terms

II Brief overview of Imprisonment in Germany Sentences of Life Imprisonment

III Imposition and execution of life imprisonment in Germany Mandatory Punishment for Murder § 211 of the Penal Code Murder under specific aggravating circumstances (1) Whosoever commits murder under the conditions of this provision shall be liable to imprisonment for life. (2) A murderer under this provision is any person who kills a person for pleasure, for sexual gratification, out of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence.

1. The 1977 Ruling of the Federal Constitutional Court Challenge from State Court of Verden

1. The 1977 Ruling of the Federal Constitutional Court • Challenge from State Court of Verden • Constitutional issues brought forward by the Verden Court • Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution.

1. The 1977 Ruling of the Federal Constitutional Court • Challenge from State Court of Verden • Constitutional issues brought forward by the Verden Court • Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution. • The constitutional right of freedom cannot be taken away for life.

1. The 1977 Ruling of the Federal Constitutional Court • Challenge from State Court of Verden • Constitutional issues brought forward by the Verden Court • Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution. • The constitutional right of freedom cannot be taken away for life. • The mandatory life sentence in section 211 makes it impossible to consider mitigating circumstances which is a violation of the principle of equality before the law.

1. The 1977 Ruling of the Federal Constitutional Court • Challenge from State Court of Verden • Constitutional issues brought forward by the Verden Court • Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution. • The constitutional right of freedom cannot be taken away for life. • The mandatory life sentence in section 211 makes it impossible to consider mitigating circumstances which is a violation of the principle of equality before the law. • The concept of life sentence violates the most important goal of a punishment to reintegrate the offender into the community.

1. The 1977 Ruling of the Federal Constitutional Court • Challenge from State Court of Verden • Constitutional issues brought forward by the Verden Court • Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution. • The constitutional right of freedom cannot be taken away for life. • The mandatory life sentence in section 211 makes it impossible to consider mitigating circumstances which is a violation of the principle of equality before the law. • The concept of life sentence violates the most important goal of a punishment to reintegrate the offender into the community. • The existing system of pardons for lifers is not regulated by law.

1. The 1977 Ruling of the Federal Constitutional Court Reasoning .

1. The 1977 Ruling of the Federal Constitutional Court Reasoning • Freedom to introduce legislation is limited • - by the inviolability of the dignity of man (article 1) • - by the principle of equality (article 3), • - the rule-of-law principle and • - the principle of a welfare state. .

1. The 1977 Ruling of the Federal Constitutional Court Reasoning • Freedom to introduce legislation is limited • - by the inviolability of the dignity of man (article 1) • - by the principle of equality (article 3), • - the rule-of-law principle and • - the principle of a welfare state. • Principle of proportionality: • Every punishment has to be in reasonable proportion • - to the gravity of the offence and • - personal guilt of the offender. • Inhumane and degrading punishments have to be • forbidden. .

1. The 1977 Ruling of the Federal Constitutional Court Reasoning „It is […] the duty of the state to maintain the fundamental requirements of the individual that account for a humane living. Thus, it would be incompatible with human dignity if the state took away a person‘s freedom without there being at least the chance of that person ever regaining his freedom.“

1. The 1977 Ruling of the Federal Constitutional Court Reasoning „It is […] the duty of the state to maintain the fundamental requirements of the individual that account for a humane living. Thus, it would be incompatible with human dignity if the state took away a person‘s freedom without there being at least the chance of that person ever regaining his freedom.“ „(This chance, has to be) concrete and realizable in principle. For it is a violation of human dignity if the prisoner has to give up all hope of ever regaining his freedom regardless of any developments of his personality.”

1. The 1977 Ruling of the Federal Constitutional Court Reasoning • The Court accepted the notion of a treatment-oriented imprisonment. • Aim of the imprisonment: Principle of resocialization. • “To enable the prisoner to lead a life without crime in the future” (section 2 of the New Prison Act from 1976) .

1. The 1977 Ruling of the Federal Constitutional Court Reasoning • The Court accepted the notion of a treatment-oriented imprisonment. • Aim of the imprisonment: Principle of resocialization. • “To enable the prisoner to lead a life without crime in the future” (section 2 of the New Prison Act from 1976) • It is made clear by the Court that those rules also apply to prisoners sentenced to life: .

1. The 1977 Ruling of the Federal Constitutional Court Reasoning • The Court accepted the notion of a treatment-oriented imprisonment. • Aim of the imprisonment: Principle of resocialization. • “To enable the prisoner to lead a life without crime in the future” (section 2 of the New Prison Act from 1976) • It is made clear by the Court that those rules also apply to prisoners sentenced to life: • “The prison institutions have the duty to strive towards the • resocialization, to preserve the prisoners’ ability to cope with • life and to counteract the negative effects of incarceration and • destructive personality changes that go with it.” .

2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) § 57 a 1) The court shall grant conditional early release from a sentence of imprisonment for life under an operational period of probation, if fifteen years of the sentence have been served; the particular seriousness of the convicted persons guilt does not require its continued enforcement; and the requirements of § 57(1) 1st sentence Nos 2 and 3 are met. The conditions to which reference is made in No. 3 are that 2 the release is appropriate considering public security interests; and 3 the convicted person consents.

2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) 2007 Ruling of the Federal Constitutional Court “(If fifteen years of the sentence have been served) and the particular seriousness of the convicted person’s guilt does not require its continued enforcement, it adds weight to the claim of the prisoner to guarantee his human dignity and his personality. Higher demands are to be made on the reliability of the prognosis (of his dangerousness) […]”.

Measures of rehabilitation and incapacitation 1. Overview

1. Overview Persons in Mental Hospitals & Custodial Addiction Treatments

2. Preventive Detention German Law prior to 1998 Initial Crime Previous Conviction 1 Previous Conviction 2 End of full prison sentence After 10 years: Automatic release Imprisonment Preventive detention Possibility of second preventive detention Imprisonment Prognosis of dangerousness Prognosis of dangerousness Ordering of preventive detention

2. Preventive Detention German Law today (simplified) Initial Crime End of full prison sentence Imprisonment Preventive detention Prognosis of dangerousness Ordering of preventive detention

2. Preventive Detention Only a Vision? Preventive detention Prognosis of dangerousness Ordering of preventive detention

2. Preventive Detention Only a Vision? • Minority Report – 2002 science fiction movie by Steven Spielberg

2. Preventive Detention Orderings of Preventive Detention 1980-2005

2. Preventive Detention People in Preventive Detention

Reconviction of Dangerous Recidivists:Study Design and Methods Original Study: „Preventive Detention Put to Test“ (published in 1996) Data Collection : Summer 1993 318 persons sentenced to preventive detention in 1981-1990 in threeGerman states

Reconviction of Dangerous Recidivists:Study Design and Methods Original Study: „Preventive Detention Put to Test“ (published in 1996) Data Collection : Summer 1993 318 persons sentenced to preventive detention in 1981-1990 in threeGerman states 183 persons convicted in 1988-1990 (severe sexual or violent offences),although they fulfilled the formal requirements not sentenced to preventive detention

Reconviction of Dangerous Recidivists:Study Design and Methods Original Study: „Preventive Detention Put to Test“ (published in 1996) Data Collection : Summer 1993 318 persons sentenced to preventive detention in 1981-1990 in threeGerman states 183 persons convicted in 1988-1990 (severe sexual or violent offences),although they fulfilled the formal requirements not sentenced to preventive detention Follow-Up Study analysis of their actual criminal career (2002 and later on) Source: Federal Criminal Records Bureau

The German Model of Long-Term Detention: Roundtable on 'Actual Life Sentence'

The German Model of Long-Term Detention: Roundtable on 'Actual Life Sentence'

Presentation Transcript

PROF DR. ÇİĞDEM ÖZKARA

Supervisors: Prof. Dr. Rui Rebelo Prof. Dr. Almeida Guissamulo

Dr. Joerg Hartmann WWF Dams Initiative Leader

Prof. Dr. Hans Geeroms*

DIRECTORS: PROF. DR.G. LOHNERT, PROF. DR. E. LAURIEN, PROF. DR. M. SCHMIDT

Prof. Dr. Joerg Kinzig

Prof. Dr. Reimelt