1. Preventive Detention JUDr. Petr Škvain Institute of the State and Law Academy of Sciences Prague Department of the Criminal Law Faculty of Law University of West Bohemia Pilsen

2. Preventive Detention Contents Introduction Introduction Preventive detention – lack of terminological unity? Preventive detention – lack of terminological unity? Situation in the Czech Republic Situation in the Czech Republic Closing remarks Closing remarks

3. Preventive Detention Introduction IntroductionAims: To make an analysis of preventive detention with regard to selected foreign laws (Australia, Germany). To make an analysis of preventive detention with regard to selected foreign laws (Australia, Germany). Try to indentify the most problematic issues within the Czech preventive detention legislation. Try to indentify the most problematic issues within the Czech preventive detention legislation.

4. Terminology Preventive Detention Terminology Preventive detention – lack of terminological unity? The term of ‘preventive detention‘ is interpreted and used in a different way in foreign (other than Czech) literature and laws. With regard to this lack of terminological unity, the following interpretations can be considered in relation to ‘preventive detention’ in the broadest sense (Caianiello & Corrado, 2013, p. XXV):

5. Terminology Preventive Detention Terminology Preventive detention – lack of terminological unity? The term of ‘preventive detention‘ (broader sense): Ante delictum or praeter delictum detention. A person’s liberty is, in these cases, restricted not on the basis of a criminal charge, but merely on the basis of the person’s status following a political decision to identify individual persons as a ‘threat to society’. Examples are decisions made under the Military Commission Act 2006 (USA) or the Community Protection Act 2006, which governs immigration policy in the United States of America;

6. Terminology Preventive Detention Terminology Preventive detention – lack of terminological unity? The term of ‘preventive detention‘ (broader sense): A measure of a procedural nature whose purpose is to prevent the offender (when still a defendant) from committing further crimes. In most European countries this type of preventive detention is defined as the institution of custody (pre-trial detention) during criminal proceedings;

7. Terminology Preventive Detention Terminology Preventive detention – lack of terminological unity? The term of ‘preventive detention‘ (broader sense): Modalities within a custodial sentence. Typically this involves placing a convicted offender in a prison with a high-security regime (e.g. under Section 41 of the Italian law on custodial sentences). The stricter regime for serving the sentence is, in this case, based on the need to prevent the offender from committing further crimes;

8. Terminology Preventive Detention Terminology Preventive detention – lack of terminological unity? The term of ‘preventive detention‘ : A preventive measure taken in reaction to the offender committing a criminal offence or an offence that is otherwise punishable (i.e. in different circumstances, e.g. unless committed by persons not criminally liable). The offender’s danger to the public in terms of his or her potential for repeat offending must usually be proved. Here, the time when the preventive detention is imposed is decisive. If the preventive detention is imposed after a convicted offender has served a custodial sentence, we speak of post-sentence preventive detention.

9. as criminal sanction in the Czech Republic Preventive Detention as criminal sanction in the Czech Republic Preventive detention falls within the scope of criminal law. The main sources of law on preventive detention may be identified as: The main sources of law on preventive detention may be identified as: - Criminal Code of 2009 (Act no. 40/2009) – s. 100 CC - Criminal Code of 2009 (Act no. 40/2009) – s. 100 CC - Act on Execution of Preventive Detention (Act. no. 129/2008) - Act on Execution of Preventive Detention (Act. no. 129/2008) - Juvenile Justice Act (Act. no. 218/2003) - Juvenile Justice Act (Act. no. 218/2003) In a similar way to the German law, preventive detention is defined as a protective measure (very differently from e. g. Australia). preventive detention justified with necessity

10. as criminal sanction in the Czech Republic Preventive Detention as criminal sanction in the Czech Republic Imposing preventive detention: Preventive detention may be imposed beside a prison sentence or as a separate criminal sanction. Preventive detention may be imposed beside a prison sentence or as a separate criminal sanction. Leading principle for imposition of such a criminal sanction is the principle of proportionality (cf. s. 96 CC; s. 62 StGB) and the principle of subsidiarity to protective in- patient treatment. Preventive detention shall last as long as it takes to satisfy its purpose – to protect the society. The Court shall examine whether the grounds for its further continuation still remain at least once every twelve months, and in case of juveniles every six months. The Court shall examine whether the grounds for its further continuation still remain at least once every twelve months, and in case of juveniles every six months.

11. as criminal sanction in the Czech Republic Preventive Detention as criminal sanction in the Czech Republic Clinical or Protective Model ? A broader comparison with other laws suggests that the Czech model of preventive detention can be classified as a Clinical Model, because, besides the protection of the community, it also emphasises the therapeutic, rehabilitative and other effects on detained persons (Šámal & Škvain, 2005, 2011; Kuchta, Kalvodová & Škvain, 2014). A broader comparison with other laws suggests that the Czech model of preventive detention can be classified as a Clinical Model, because, besides the protection of the community, it also emphasises the therapeutic, rehabilitative and other effects on detained persons (Šámal & Škvain, 2005, 2011; Kuchta, Kalvodová & Škvain, 2014).

12. as criminal sanction in the Czech Republic Preventive Detention as criminal sanction in the Czech Republic From a general point of view, it is possible to state that the Czech legislator maintained the necessary ‘distance’ between preventive detention and custodial sentence. From a general point of view, it is possible to state that the Czech legislator maintained the necessary ‘distance’ between preventive detention and custodial sentence. The Czech legislation on preventive detention also fulfils the other minimum requirements defined in the decision of the German Federal Constitutional Court on 4 May 2011. In these basic respects it is possible to regard the Czech legislation on preventive detention as satisfactory. The Czech legislation on preventive detention also fulfils the other minimum requirements defined in the decision of the German Federal Constitutional Court on 4 May 2011. In these basic respects it is possible to regard the Czech legislation on preventive detention as satisfactory.

13. Execution of Preventive Detention The Prison Service of the Czech Republic

16. Preventive Detention Closing remarks Closing remarks The most problematic part of preventive detention was introduced by the novelty of the criminal code in 2011 (act no. 330/2011). The most problematic part of preventive detention was introduced by the novelty of the criminal code in 2011 (act no. 330/2011). Modification of the formal condition for imposition of preventive detention by unifying the category of criminal offences as CRIMES (v. Serious crimes). Another fundamental change is the alternative of changing the protective in patient treatment in a psychiatric hospital to preventive detention, in accordance with Section 99 par. 5 CC, without satisfying the general conditions stated in Section 100 par. 1 or 2 CC.

17. Preventive Detention Thank you for your attention pskvain@ktr.zcu.cz