Preventive detention can be ordered under four different conditions (each of which has its own additional requirements, as detailed below):
- Order after two prior convictions for serious offenses such as sexual crimes, murder, bodily harm, or drug-related crimes.
- Order without prior conviction if three such crimes were committed at present.
- Order after committing one of the aforementioned crimes, if the current offense is of the same nature.
- Order without prior conviction if two such crimes were committed at present (Section 3(2)).
Preventive detention is imposed in addition to the sentence. This means that the offender must first serve their prison sentence and, even though they have technically served their punishment and should be released, they are still not set free. Preventive detention is therefore not a punishment but serves solely to protect the public. In this respect, the focus is not on the offender’s rehabilitation but on public safety.
For this reason, the original intention of the legislature was that preventive detention should only be imposed under very strict conditions:
- The court MUST order preventive detention under the following conditions:
- If someone is sentenced to at least two years for a sexual offense (e.g., someone convicted of groping for more than two years can be placed in preventive detention, just like someone who abuses and then kills a child).
- Furthermore, the offender must have already been convicted twice for a sexual offense (or another crime listed in the preventive detention law, such as murder, drug-related crimes, bodily harm, etc.) with at least one-year prison sentences (foreign convictions also count). However, if these offenses were sexual crimes, they must not date back more than 15 years (for other crimes, not more than five years).
- For at least one of these prior offenses, the offender must have served at least two years in prison.
- And now the vague clause: Additionally, a comprehensive assessment of the offender and their crimes must indicate that, due to a tendency towards serious crimes, especially those that cause significant psychological or physical harm to victims, the offender is considered a public danger at the time of sentencing.
All these four points must be met; otherwise, preventive detention cannot be imposed.
Example: In 2018, Erwin sexually abused a child and was sentenced to two years in prison. However, he had already been convicted in 2017 for sexual abuse (one year probation) and in 2013 for aggravated bodily harm (two years). An expert report concludes that Erwin will continue committing serious offenses, severely disturbing public order.
Now comes the exception: The judge MAY (but does not have to) impose preventive detention
(to also apply preventive detention to dangerous serial offenders whose crimes have so far remained undetected) if:
- The offender is currently convicted of three separate sexual offenses*.
- Each of these convictions carries a prison sentence of at least one year.
- At least one of these sentences is three years.
- And again, a comprehensive assessment determines that the offender, due to a tendency towards serious crimes, especially those causing severe harm to victims, is a public danger at the time of sentencing.
Example: A father sexually abused his daughter on three different occasions over five years. Legally, these are considered three separate crimes (even though they involved the same victim). The judge sentences him to one year for the first two offenses and three years for the third due to its severity. Again, an expert report finds that he will continue committing serious crimes.
The judge MAY also impose preventive detention
- If someone is sentenced to at least two years for a sexual offense*.
- If they have previously been sentenced to at least three years for such an offense.
- And once again, a comprehensive assessment finds the offender to be a public danger due to their tendency towards serious crimes.
Example: A priest attempted to rape an altar boy and was sentenced to 2.5 years in prison. The same priest had previously been sentenced to three years for sexually abusing his niece. Again, an expert report determines that he remains a danger to society.
Additionally, the judge MAY impose preventive detention if:
- Someone is convicted of two separate sexual offenses (or other offenses listed in the preventive detention law, such as murder, drug-related crimes, bodily harm, etc.) with at least two years for each offense.
- For at least one of these offenses, they receive a prison sentence of at least three years.
- And once again, a comprehensive assessment finds the offender to be a public danger due to their tendency towards serious crimes.
Example: As in the previous case, but the father abused his daughter twice instead of three times. The judge sentences him to two years for one offense and three years for the other. Again, an expert report concludes that he remains a serious risk.
* Of course, this applies not only to sexual offenses but also to crimes such as murder, bodily harm, and severe drug-related offenses.
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