Bill Introducing Retroactive Orders of Preventive Detention for Sentences Under Juvenile Criminal Law
Entwurf eines Gesetzes zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht (Juli 2007)

On 18 July 2007, the Cabinet adopted a bill by the Federal Ministry of Justice on the preventive detention of youth offenders. In future, youth offenders who have committed the most serious criminal offences and are regarded as very dangerous even after their custodial sentence may be taken into preventive custody.

Preventive custody is one of the severest sanctions provided by German criminal law. It prevents the release of an offender after a custodial sentence, even though the offender has completed the custody term imposed by the court. Against this background, preven-tive detention must always be a last resort, i. e. it may only be applied when there is no other means of protecting the general public. This applies even more in case of young persons whose personality is not yet completely developed and whose entire life is still before them.

The bill is intended for rare and exceptional cases in which young offenders commit serious crimes even after they have completed a long custodial sentence. In the past, it was not possible to order pre-ventive custody in such cases. When these offenders are a serious threat to the public, the court may retroactively order their preventive custody in the same way as is done in case of adult offenders.

The legal prerequisites prescribed in the bill introduce new provi-sions in section 7 of the Juvenile Courts Act (JGG) which stipulate that 

• a young offender must have been convicted of the most serious criminal offences against another person’s life, physical integrity or sexual self-determination or for robbery and blackmail, if they result in death,
• a juvenile criminal law sentence of no less than seven years must have been imposed on the offender,
• the criminal offence resulted in serious mental or physical damage or risks to the victim,
• the court, based on a full assessment including two expert opinions, is of the opinion that the probability is high for the offender to be a threat in future.

For such criminal offences, the bill creates an opportunity for a retro-active order of preventive custody under juvenile criminal law in cases in which committal to a psychiatric hospital is about to end, but it is assumed that the offender’s high level of risk will persist. In such cases the prerequisites are generally identical to the existing rules for adult and adolescent offenders who are sentenced under the general Criminal Code.