Preventive detention
Encyclopedia
Preventive detention is an imprisonment
that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime.
In most democracies
, no one can be arrested without being told the grounds for such an arrest, except under rare and special circumstances (usually anti-terrorism legislation
). An arrested citizen has certain rights: He or she must be subject to and informed of a criminal charge
and brought before the nearest magistrate within a certain amount of time, and has the right to defend himself by a lawyer of his choice. Depending on the laws, this lawyer can be called for as soon as the detention starts, or sometimes days or weeks later.
In contrast to this, under preventive detention the government can imprison a person for some time without a criminal charge. It means that if the government feels that a person being at liberty can be a threat to the law and order or the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. Some jurisdictions allow preventive detention only in specific cases, for example only for persons who have already been sentenced for a serious crime.
A related, but different form of detention is detention of suspects
. In contrast to preventive detention, detention of suspects must quickly be followed by a criminal charge (or happen after the charge).
In most jurisdictions, people suffering from serious mental illness may be subject to involuntary commitment
under mental health legislation. This is undertaken on health grounds or in order to protect the person or others. It does not strictly speaking constitute a form of preventive detention, because the person is detained for treatment and released once this has proved effective.
, anyone declared a dangerous offender
by the courts is subject to an indefinite period of detention.
a new set of emergency laws
was introduced allowing the police to detain people for up to 12 hours without charging them for a crime. Critics fear that they will remain as permanent laws when the summit is over.
, "preventive detention" (German: Sicherungsverwahrung, http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#StGBengl_000P66§66 Strafgesetzbuch
] has a similar meaning to that in New Zealand. The sentence has to be imposed by a judge, and it is handed down to individuals who have commited a grave offence and is considered a danger to public safety. It is an indeterminate life sentence that follows a regular jail sentence. To assure the suitability of the preventive detention, it has to be reviewed every two years to determine the ongoing threat posed by the individual. Preventive detention is typically served in regular prisons, though separated from regular prisoners and with certain privileges. The Sicherheitsverwahrung is usually imposed in the original verdict. But it could also be imposed later. This practice of subsequent incapacitation orders was ruled a violation of Art 7 of the European Convention on Human Rights
by the European Court of Human Rights
. Subsequently a huge discussion in Germany over the handling of this verdict occurred. In reaction to this the Federal Constitutional Court of Germany
issued a verdict on Sicherheitsverwahrung in May 2011.
, preventive detention can be extended for only three months. After three months, such a case is brought before an advisory board for review. In India, this is given in the Constitution of India
under Right to Freedom, a Fundamental Right.
or ISA (Malay: Akta Keselamatan Dalam Negeri) is a preventive detention law in force. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances. The ISA is invoked against terrorism activity and against anyone deemed a threat to National security. On 15 September 2011, the Prime Minister of Malaysia, Najib Razak said that this legislation will be repealed and replaced by two new laws. The ISA would only be repealed in March 2012.
, "preventive detention" is an indeterminate life sentence, and is handed down to individuals convicted of violent and/or sexual crimes (such as sociopathic murderers, serial rapists or recidivist pedophiles) where it is likely that the offender will reoffend if released. Such individuals will only receive parole if they can demonstrate they no longer pose a threat to the community. In October 2010, a total of 269 prisoners in New Zealand were serving terms of preventive detention.
Preventive detention has a minimum non-parole period of five years in prison, but the sentencing judge can extend this if they believe that the prisoner's history warrants it. Prisoners on preventive detention are very rarely, if ever, released, and generally persons given the sentence are kept in prison for life. Currently only 16 of the 269 persons serving sentences of preventive detention are on parole.
The longest non-parole period on a sentence of preventive detention is one of 26 years, being served by sadistic killer Graeme William Burton, who shot dead two people and injured four others between 1992-2007.
Currently, New Zealand's longest serving inmate, Alfred Thomas Vincent, who became eligible for parole in 1975, is still serving a sentence of preventive detention after 43 years.
has provisions to deal with dangerous offender
s similar to what is used in Canada.
, the Sixth Amendment to the United States Constitution
guarantees the right to "a speedy and public trial". Thus, arrested persons may not be held for extended periods of time without trial.
In late June 2009, United States President
Barack Obama
was reported to have been considering indefinite preventive detention for some Guantanamo captives.
Imprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....
that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime.
In most democracies
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
, no one can be arrested without being told the grounds for such an arrest, except under rare and special circumstances (usually anti-terrorism legislation
Anti-terrorism legislation
Anti-terrorism legislation designs various types of laws passed in the aim of fighting terrorism. They usually, if not always, follow specific bombings or assassinations...
). An arrested citizen has certain rights: He or she must be subject to and informed of a criminal charge
Criminal charge
A criminal charge is a formal accusation made by a governmental authority asserting that somebody has committed a crime. A charging document, which contains one or more criminal charges or counts, can take several forms, including:* complaint...
and brought before the nearest magistrate within a certain amount of time, and has the right to defend himself by a lawyer of his choice. Depending on the laws, this lawyer can be called for as soon as the detention starts, or sometimes days or weeks later.
In contrast to this, under preventive detention the government can imprison a person for some time without a criminal charge. It means that if the government feels that a person being at liberty can be a threat to the law and order or the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. Some jurisdictions allow preventive detention only in specific cases, for example only for persons who have already been sentenced for a serious crime.
A related, but different form of detention is detention of suspects
Detention of suspects
The detention of suspects is the process of keeping a person who has been arrested in a police-cell, remand prison or other detention centre before trial or sentencing. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to...
. In contrast to preventive detention, detention of suspects must quickly be followed by a criminal charge (or happen after the charge).
In most jurisdictions, people suffering from serious mental illness may be subject to involuntary commitment
Involuntary commitment
Involuntary commitment or civil commitment is a legal process through which an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital or in the community ....
under mental health legislation. This is undertaken on health grounds or in order to protect the person or others. It does not strictly speaking constitute a form of preventive detention, because the person is detained for treatment and released once this has proved effective.
Australia
In Australia the legislation differs depending on the state, but the bulk of the preventive detention laws have been aimed at dangerous sex offenders. Some academics argue that this is fair, because of the dangerous offender's prior fault. Dennis J. Baker, ‘Punishment Without A Crime: Is Preventive Detention Reconcilable With Justice?’ (2009) 34 Australian Journal of Legal Philosophy 120.Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, anyone declared a dangerous offender
Dangerous offender
In Canada and England and Wales, certain convicted persons may be designated as dangerous offenders and subject to a longer, or indefinite, term of preventive detention in order to protect the public.-Canada:...
by the courts is subject to an indefinite period of detention.
Costa Rica
The Republic of Costa Rica, where the 1998 Criminal Proceedings Code allows for a normal "preventive" imprisonment of 12 months if the person is considered a "flight risk", but if the case is declared "complex", it can be increased to up to three years and a half of imprisonment without conviction, or even more in some cases. In fact, in Costa Rica, as of 2006, over 4,000 people were serving terms of preventive detention.Denmark
The police can detain people for 6 hours without involving the courts or pay compensation for wrongful arrest. In relation to the ongoing gang war in Copenhagen between the biker gangs and second generation youth gangs it has been suggested to extend the 6 hour limit to several weeks. Before the Copenhagen Climate CouncilCopenhagen Climate Council
The Copenhagen Climate Council is a global collaboration between international business and science founded by the leading independent think tank in Scandinavia, , based in Copenhagen...
a new set of emergency laws
State of emergency
A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
was introduced allowing the police to detain people for up to 12 hours without charging them for a crime. Critics fear that they will remain as permanent laws when the summit is over.
Germany
In GermanyGermany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, "preventive detention" (German: Sicherungsverwahrung, http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#StGBengl_000P66§66 Strafgesetzbuch
Strafgesetzbuch
Strafgesetzbuch is the German name for Penal Code and is abbreviated to StGB.- History :In Germany the Strafgesetzbuch goes back to the Penal Code of the German Empire passed in the year 1871 which was largely identical to the Penal Code of the North German Confederation.This Reichsstrafgesetzbuch ...
] has a similar meaning to that in New Zealand. The sentence has to be imposed by a judge, and it is handed down to individuals who have commited a grave offence and is considered a danger to public safety. It is an indeterminate life sentence that follows a regular jail sentence. To assure the suitability of the preventive detention, it has to be reviewed every two years to determine the ongoing threat posed by the individual. Preventive detention is typically served in regular prisons, though separated from regular prisoners and with certain privileges. The Sicherheitsverwahrung is usually imposed in the original verdict. But it could also be imposed later. This practice of subsequent incapacitation orders was ruled a violation of Art 7 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
by the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
. Subsequently a huge discussion in Germany over the handling of this verdict occurred. In reaction to this the Federal Constitutional Court of Germany
Federal Constitutional Court of Germany
The Federal Constitutional Court is a special court established by the Grundgesetz, the German basic law...
issued a verdict on Sicherheitsverwahrung in May 2011.
India
In IndiaIndia
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, preventive detention can be extended for only three months. After three months, such a case is brought before an advisory board for review. In India, this is given in the Constitution of India
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
under Right to Freedom, a Fundamental Right.
Malaysia
In Malaysia the Internal Security Act 1960Internal Security Act (Malaysia)
The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...
or ISA (Malay: Akta Keselamatan Dalam Negeri) is a preventive detention law in force. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances. The ISA is invoked against terrorism activity and against anyone deemed a threat to National security. On 15 September 2011, the Prime Minister of Malaysia, Najib Razak said that this legislation will be repealed and replaced by two new laws. The ISA would only be repealed in March 2012.
New Zealand
In New ZealandNew Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, "preventive detention" is an indeterminate life sentence, and is handed down to individuals convicted of violent and/or sexual crimes (such as sociopathic murderers, serial rapists or recidivist pedophiles) where it is likely that the offender will reoffend if released. Such individuals will only receive parole if they can demonstrate they no longer pose a threat to the community. In October 2010, a total of 269 prisoners in New Zealand were serving terms of preventive detention.
Preventive detention has a minimum non-parole period of five years in prison, but the sentencing judge can extend this if they believe that the prisoner's history warrants it. Prisoners on preventive detention are very rarely, if ever, released, and generally persons given the sentence are kept in prison for life. Currently only 16 of the 269 persons serving sentences of preventive detention are on parole.
The longest non-parole period on a sentence of preventive detention is one of 26 years, being served by sadistic killer Graeme William Burton, who shot dead two people and injured four others between 1992-2007.
Currently, New Zealand's longest serving inmate, Alfred Thomas Vincent, who became eligible for parole in 1975, is still serving a sentence of preventive detention after 43 years.
United Kingdom
England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
has provisions to deal with dangerous offender
Dangerous offender
In Canada and England and Wales, certain convicted persons may be designated as dangerous offenders and subject to a longer, or indefinite, term of preventive detention in order to protect the public.-Canada:...
s similar to what is used in Canada.
United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the Sixth Amendment to the United States Constitution
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
guarantees the right to "a speedy and public trial". Thus, arrested persons may not be held for extended periods of time without trial.
In late June 2009, United States President
Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
was reported to have been considering indefinite preventive detention for some Guantanamo captives.
See also
- Australian Anti-Terrorism Act 2005Australian Anti-Terrorism Act 2005The Anti-Terrorism Act 2005 is legislation intended to hamper the activities of any potential terrorists in Australia. It was passed by the Commonwealth Parliament on 6 December 2005.- Chronology :...
- Arbitrary arrest and detentionArbitrary arrest and detentionArbitrary arrest and arbitrary detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law...
- Criminal Law (Temporary Provisions) Act (Singapore)
- Internal Security Act (Singapore)Internal Security Act (Singapore)The Internal Security Act of Singapore is a law that allows the Singapore government to investigate security threats like international terrorism, foreign subversion, espionage and acts of violence or hatred using race or religion...
- Internal Security Act (Malaysia)Internal Security Act (Malaysia)The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...
- Civil confinementCivil confinementCivil confinement is a controversial procedure permitted by a law passed in New York, advocated by the former governor, Eliot Spitzer, allowing the civil commitment of sex offenders because they are deemed by a court to be a danger to themselves or to society. One political commentator on the topic...