Until recently, some felons in Germany could be, quite literally, locked up in prison for life. In 1998, the government in Berlin lifted a 10-year maximum limit on preventative detention -- a law that was upheld by Germany's high court in 2005. But this May, the European Court of Human Rights in Strasbourg ruled that the law violated human rights.
The direct result was that a handful of serious offenders in German prisons were freed immediately with dozens more, including serial rapists and people who had committed multiple murders, up for release soon.
Additionally, the Strasbourg ruling triggered a political debate in Germany and created a huge problem for both politicians and members of the judiciary. They scrambled to come up with a solution that guarantees public safety, but which also takes the rights of offenders into account.
This week, German Justice Minister Sabine Leutheusser-Schnarrenberger, who has been criticized for acting too slowly on the issue, and the German Interior Minister Thomas de Maizière announced a proposal for solving the problem that de Maizière described as "unusually complicated."
Not a Jail, Not a Psych Ward
The two ministries are proposing changes to the preventive detention legislation that would see the creation of a new kind of institution where the criminals could be kept after their prison term if they were still deemed a threat to society. The institution would neither be a jail nor a psychiatric facility -- some are calling it "jail light." The facilities would be primarily used for prisoners deemed to be "mentally disturbed" in external assessments and an ongoing danger to the general public.
It would be "something other than imprisonment but also different from a psychiatric facility," Leutheusser-Schnarrenberger told reporters. "The main emphasis would be on therapy." In the proposed institution, freedom of the individuals involved would only be restricted to the degree required by the treatment, the justice minister said. An offender could eventually be released if deemed to be safe.
Germany's two largest police unions have welcomed the plan, saying it was long overdue. But not everyone has responded favorable. German commentators on Friday are divided over the issue.
Left-wing Die Tageszeitung writes:
"So who exactly will be affected by this new law? Offenders who are psychologically ill are already held in special facilities, not in preventive detention. If the administration is hoping that the courts will now redefine all those offenders in danger of recidivism, as psychologically ill, then it is laboring under powerful delusions. This kind of thing -- the labeling of disagreeable persons as mentally ill -- is something we know from political dictatorships. It is shameful that this is the promised 'legally binding solution'."
"When it becomes clear that there are almost no actual cases to which this new law on preventive detention applies, then the rest of this (political) compromise will also fall apart. Instead of making false promises, it should be said publicly that the most of those in preventive detention affected by this ruling will be released -- but that they are not half as dangerous as many believe them to be. Much of this pertains to old men who were once a danger. Now they need social services more than they need tighter controls."
Conservative Die Welt writes:
"In a constitutional state, one may only punish crimes that have been committed, not potential crimes. Everyone is innocent until proven guilty. But what does one do with violent criminals where one knows that they will almost certainly commit crimes again after they have served their sentence? The state's duty is to act in the interests of its citizens' safety, ensuring that those potential crimes can never be committed. There is no solution to this dilemma that will do justice to the need for safety and the right to liberty."
"This compromise ... is a step in the right direction. Above all, in the establishment of an institution for housing and therapeutic treatment, that would (conceptually) exist somewhere between prison and a psychiatric ward."
The center-left Süddeutsche Zeitung writes:
"Anyone who believes they can make political capital out of recidivist, serious offenders is mistaken. Former Chancellor Gerhard Schröder, who wanted to put sexual offenders away 'forever' had to learn this. It is possible that such populist promises might capture some voters. But in a constitutional state nobody should be kept behind bars after they have served their sentence, possibly for the rest of their lives. Anyone who tries to do this is guilty of serious infringements of human rights themselves -- and will be condemned for that."
"Whether this proposal is legal will have to be decided by the judges of the Federal Constitutional Court. Then, should they be considered psychologically disturbed, serious offenders are to be held in secured institutions after serving their sentences. But there are opportunities here for despotism. One should not define offenders as mentally disturbed just to be able to keep them locked up. That happened in the former Soviet Union, but it should not happen in a country where the rule of law is observed."
The center-right Frankfurter Allgemeine Zeitung writes:
"Politically speaking, and with regard to (Chancellor Angela Merkel's coalition government), the fact that Leutheusser-Schnarrenberger and de Maizière have been able to come up with a united, jurisprudent reaction to the judgment made by the European Court of Human Rights makes this look like a success. However, they could not -- and would not -- promise that all the risks posed by the release of these offenders ... will be negated."
"But if the situation with around 15 former offenders who have already been released, and who are now under police observation around the clock, is anything to go by, the populace won't be able to restrain their fears. They will want to know how many of the remaining 60 offenders, to whom the ruling also applies, will be released before the proposed law comes into effect. They will also have to accept that individual rights cannot be excessively infringed just to satisfy the desire for safety for everyone."