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Germany: Continuing Detention of Sex Offender

(Dec. 2, 2007) On October 19, 2007, the Federal Court of Justice (Bundesgerichtshof) (FCJ) of Germany issued a decision that led to the release of a still dangerous sex offender after he had served his prison sentence (Docket No. 3 StR 378/07, available at http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/list.py?Gericht=bgh&
Art=en&client=3&client=3&sid=c04b4f1c4cc54c4cd5d3b53a243a9613
(last visited Nov. 16, 2007). The case involved a 60-year-old repeat sex offender who had always committed new violent offenses soon after being released from prison. For his latest series of break-ins and rapes, the Regional Court of Hanover had sentenced him to 14 years in prison but did not impose continuing detention for the time after his release. In 2006, when the convict had served his prison sentence, the Regional Court of Hanover placed him under continuing detention on account of his propensity to commit further violent sex offenses, which, according to the Court, had only become apparent while he served his prison sentence.

The FCJ reversed by holding that the placement of an offender under continuing detention had to be expressed at the time of sentencing if it was then apparent that the offender would continue to be dangerous after release from prison (Strafgesetzbuch (StGB), re-promulgated Nov. 13, 1998, BUNDESGESETZBLATT I at 3322, as amended, § 66)); only if new circumstances developed while the convict served his prison sentence was it permissible to impose post-sentencing detention (StGB § 66 b paras. 1 & 2). In the case at hand, the FCJ ruled, the Regional Court of Hanover had made a mistake at the time of sentencing, and detaining the offender through a later decision would have subjected him to constitutionally prohibited double jeopardy (Grundgesetz, May 23, 1949, BUNDESGESETZBLATT 1, art. 103, para. 3). Although the detained offender had to be released, the Regional Court of Hanover imposed protective measures by requiring him to report to the police three times a week, subjecting him to therapy, and placing him under the supervision of a probation officer (BGH hebt Sicherungsverwahrung für Sexualstraftäter auf, SPIEGEL ONLINE, Oct. 19, 2007).