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=== Excursus on Priciples for Preventive Detention === | === Excursus on Priciples for Preventive Detention === | ||
Shifting from prison-as-punishment to preventive detention of the dangerous may be dangerous too. It may open a Pandora's box of hitherto unknown reasons for confining people, who have not broken any laws. While criminal law provides some safeguards and guarantees against arbitrary imprisonment, this is not necessarily the case in the field of civil and administrative detentions. It is therefore mandatory to develop a body of restraining principles applicable to coercive preventive endeavour by the state. | Shifting from prison-as-punishment to preventive detention of the dangerous may be dangerous too. It may open a Pandora's box of hitherto unknown reasons for confining people, who have not broken any laws. While criminal law provides some safeguards and guarantees against arbitrary imprisonment, this is not necessarily the case in the field of civil and administrative detentions. It is therefore mandatory to develop a body of restraining principles applicable to coercive preventive endeavour by the state. | ||
*"1. In principle, every citizen has the right to be presumed harmless, and this presumption of harmlessness can be rebutted only in exceptional circumstances".... | *"1. In principle, every citizen has the right to be presumed harmless, and this presumption of harmlessness can be rebutted only in exceptional circumstances".... | ||
* 2. the state's duty to protect people from serious harm may justify depriving a person of liberty if that person has lost the presumption of harmlessness by virtue of committing a serious violent offence and is classified as dangerous. | * 2. the state's duty to protect people from serious harm may justify depriving a person of liberty if that person has lost the presumption of harmlessness by virtue of committing a serious violent offence and is classified as dangerous. | ||
* 3. deprivation of liberty should not be considered unless it is the least restrictice appropriate alternative. | * 3. deprivation of liberty should not be considered unless it is the least restrictice appropriate alternative. | ||
* 4. Any judgement of dangerousness in this context must be approched with strong caution. It should be a judgement of this person as an individual. not simply as a member of a group with certain characteristics and with an overall probability rating. The state should bear the burden of proving that the person presents a significant risk of serious harm to others and the required level of risk should vary according to the seriousness of the predicted harm. Decision-makers should bear in mind the contestability of judgements of dangerousness and the scope for interpretation that they leave and individuals should have rights of challenge and appeal. | * 4. Any judgement of dangerousness in this context must be approched with strong caution. It should be a judgement of this person as an individual. not simply as a member of a group with certain characteristics and with an overall probability rating. The state should bear the burden of proving that the person presents a significant risk of serious harm to others and the required level of risk should vary according to the seriousness of the predicted harm. Decision-makers should bear in mind the contestability of judgements of dangerousness and the scope for interpretation that they leave and individuals should have rights of challenge and appeal.... | ||
... | * 9. Any preventive detention going beyond the proportionate sentence should be served in non-punitive conditions with restraints no greater than those required by the imperatives of security. Where possible, detention that is purely preventive and not punitive should take place in a separate facility, not part of the prison system" (Ashworth/Zedner (2014, 167/168). | ||
* 9. Any preventive detention going beyond the proportionate sentence should be served in non-punitive conditions with restraints no greater than those required by the imperatives of security. Where possible, detention that is purely preventive and not punitive should take place in a separate facility, not part of the prison system" (Ashworth/Zedner (2014). | |||
Aktuelle Version vom 18. August 2016, 17:27 Uhr
Excursus on Priciples for Preventive Detention
Shifting from prison-as-punishment to preventive detention of the dangerous may be dangerous too. It may open a Pandora's box of hitherto unknown reasons for confining people, who have not broken any laws. While criminal law provides some safeguards and guarantees against arbitrary imprisonment, this is not necessarily the case in the field of civil and administrative detentions. It is therefore mandatory to develop a body of restraining principles applicable to coercive preventive endeavour by the state.
- "1. In principle, every citizen has the right to be presumed harmless, and this presumption of harmlessness can be rebutted only in exceptional circumstances"....
- 2. the state's duty to protect people from serious harm may justify depriving a person of liberty if that person has lost the presumption of harmlessness by virtue of committing a serious violent offence and is classified as dangerous.
- 3. deprivation of liberty should not be considered unless it is the least restrictice appropriate alternative.
- 4. Any judgement of dangerousness in this context must be approched with strong caution. It should be a judgement of this person as an individual. not simply as a member of a group with certain characteristics and with an overall probability rating. The state should bear the burden of proving that the person presents a significant risk of serious harm to others and the required level of risk should vary according to the seriousness of the predicted harm. Decision-makers should bear in mind the contestability of judgements of dangerousness and the scope for interpretation that they leave and individuals should have rights of challenge and appeal....
- 9. Any preventive detention going beyond the proportionate sentence should be served in non-punitive conditions with restraints no greater than those required by the imperatives of security. Where possible, detention that is purely preventive and not punitive should take place in a separate facility, not part of the prison system" (Ashworth/Zedner (2014, 167/168).