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Types of preventive detention
There is no universally agreed definition of preventive detention, and multiple types of detention are sometimes considered a form of preventive detention.
Usually, “preventive detention” is the detention of a convicted criminal who has served their sentence, but is considered too dangerous to release. In that case, the detention is considered “preventive” in that it is not intended to punish or deter the criminal, but to prevent the criminal from committing further crimes. This article focuses on this type of preventive detention.
Remand or pre-trial detention (detention of a suspected criminal prior to trial) and involuntary commitment (detention of people considered a risk to themselves or others due to mental illness) are sometimes considered a form of preventive detention. For example, in Peru, remand is called “prisión preventiva”, literally “preventive prison (detention)”.
Australia laws authorize preventive detention in a variety of circumstances. For example, mandatory detention in Australia (a form of immigration detention) is applied to asylum seekers who arrive in Australian territorial waters or territory, until their status as an asylum seeker is established.
In Australia's most populous State, New South Wales, preventive detention regimes have established powers to detain or to continuously monitor and limit particular activities of those who were once convicted of various serious sexual and violent offences. Recently, this has been extended, with the State government now able to control the free movement, speech, association and work of individuals and businesses via Serious Crime Prevention Orders (‘SCPOs’). Based on provisions in the United Kingdom, a range of state officials may apply to the NSW District or Supreme Courts to create an SCPO consisting of any conditions they consider appropriate. These conditions may include positive obligations - such as an obligation to report to a police station - or negative ‘prohibitions’ or ‘restrictions’, for instance, a prohibition on travelling beyond a certain location. Failure to comply with the SCPO, carries with it a maximum penalty of five years’ imprisonment.
SCPOs have been described as a "watershed extension of state power in New South Wales" by legal academics, and were strongly opposed by the legal community when they were introduced and passed into with less than two weeks' consideration by the Parliament of NSW.
In Costa Rica, the 1998 Criminal Proceedings Code allows for a normal pre-trial "prisión preventiva" or remand 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. As of 23 May 2013, over 3,000 people were in pre-trial detention.
In connection to riots or other situations where there is a safety risk to the general public, the police can detain a person for up to twelve hours without involving the courts. Until 2009, the limit was six hours. This change was part of the so-called Lømmelpakke (da), a law package that also included other changes, notably a higher punishment for preventing the work of the police.
In Germany, "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. Sicherungsverwahrung can only be imposed as part of a criminal sentence, and it is handed down to individuals who have committed a grave offence and are considered a danger to public safety. It is an indeterminate 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 Sicherungsverwahrung is usually imposed in the original verdict, but can be imposed later under certain circumstances. 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 Sicherungsverwahrung in May 2011, deeming it unconstitutional. In response, a new law regulating Sicherungsverwahrung was passed in November 2012.
In India, preventive detention can be extended for up to six months. After three months, such a case is brought before an advisory board for review.
Preventive detention in India dates from British rule in the early 1800s, and continued with such laws as the Defence of India Act 1939 and the Preventive Detention Act 1950.
The controversial Maintenance of Internal Security Act was originally enacted by the Indian parliament early during Indira Gandhi's prime ministership in 1971. However it was amended several times during "The Emergency" (1975–1977), leading to human rights violations. It was subsequently repealed after Indira Gandhi lost the election in 1977, and the new government took over.
In Japan, pre-trial detention of a suspect can be for up to 23 days without charge. The length of detention, up to the maximum period, is at the discretion of the public prosecutor and subject to the approval of local courts. It can also be further extended.
In Malaysia the Internal Security Act 1960 (ISA) was a preventive detention law that was enacted after Malaysia gained independence from Britain in 1957. The ISA allowed for detention without trial or criminal charges under limited, legally defined circumstances. The ISA was invoked against terrorism activity and against anyone deemed a threat to national security. On 15 September 2011, Najib Razak, the then Prime Minister of Malaysia, said that this legislation would be repealed and replaced by two new laws.
On 17 April 2012, the Security Offences (Special Measures) Act 2012 (SOSMA) was approved by the Malaysian Parliament as a replacement for the ISA. It was given the Royal Assent on 18 June 2012 and gazetted on 22 June 2012.
In New Zealand, "preventive detention" is an indeterminate sentence of imprisonment, second only to life imprisonment in terms of seriousness. It may be given to offenders aged 18 or over who are convicted of a qualifying sexual or violent offence, and the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if they were given a determinate sentence of imprisonment. 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. A total of 314 people were serving terms of preventive detention in 2013, of whom 34 were on parole.
In Peru, "preventive prison" has been used extensively by local courts and the National Court of Peru. Such uses have imprisoned and led to the sentencing of various prominent political figures perceived to have committed illicit acts of corruption in Peru. Over 30 prominent political figures in Peru have been detained as per order of preventive detention, including five presidents and one presidential candidate.
The continuation of using preventive detention as a means of justice is currently being debated amongst the legislative and executive powers of Peru.
Under Apartheid, the government of South Africa used preventive detention laws to target its political opponents. These included, notably, the Terrorism Act of 1967, which gave police commanders the power to detain terrorists—or people with information about terrorists—without warrant.
England and Wales used to have provisions, introduced by the Labour Government in 2003, to deal with dangerous offenders similar to what is used in Canada. However, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished what was called Imprisonment for Public Protection (IPP) without replacement, although offences committed prior to the coming into force of the 2012 Act may still trigger IPP.
In the United States, 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. However, since the passage of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), controversy has broken out as to whether or not the U.S. government now has the power to indefinitely detain citizens. Section 1021 and 1022 of the legislation enacted policies described by The Guardian as allowing indefinite detention "without trial [of] American terrorism suspects arrested on U.S. soil who could then be shipped to Guantánamo Bay".
Convicted persons can be held indefinitely as a "dangerous offender".
- Administrative detention
- Anti-Terrorism Act 2005 (Australia)
- Arbitrary arrest and detention
- Civil confinement
- Criminal Law (Temporary Provisions) Act (Singapore)
- Indefinite imprisonment
- Internal Security Act (Singapore)
- Preemptive arrest
- Dangerous People. doi:10.4324/9780203807774.
- Crimes (Serious Crime Prevention Orders) Act 2016 (NSW)
- Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) ss 5-7
- Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) s 8
- Methven, Elyse; Carter, David J. (2016). "Serious Crime Prevention Orders". Current Issues in Criminal Justice. 28 (2): 223–234.
- "In Costa Rica 17 persons ordered daily to preventive detention". QCostarica.com. Q Media. 30 June 2013. Retrieved 2 May 2015.
- "L 49 Forslag til lov om ændring af straffeloven og lov om politiets virksomhed" [L 49 Proposal for a law amending the penal code and the law concerning police activities] (in Danish). Folketinget (the Danish Parliament). 26 November 2009. Retrieved 21 July 2019.
- "Frihedsberøvelse inden dom" [Detention before judgment] (in Danish). Systime. 2019. ISBN 9788761647702. Retrieved 21 July 2019.
- Ringberg, J. (26 November 2009). "Hårdt politisk opgør før Folketinget sagde ja til lømmelpakken" [Political showdown before the Danish Parliament said yes to the lømmelpakke law] (in Danish). DR. Retrieved 21 July 2019.
- "HUDOC - European Court of Human Rights". Retrieved 1 February 2017.
- (www.dw.com), Deutsche Welle. "German court rules preventive detention unconstitutional - Germany - DW.COM - 04.05.2011". Retrieved 1 February 2017.
- Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung (BR-Drs. 689/12) "Archived copy" (PDF). Archived from the original (PDF) on 2013-10-19. Retrieved 2012-11-25.CS1 maint: archived copy as title (link) (PDF; 266 kB)
- A. Faizur Rahman, "Preventive detention an anachronism", The Hindu, 7 September 2004.
- Saxena, Priti (1 January 2007). Preventive Detention and Human Rights. Deep & Deep Publications. pp. 99–. ISBN 978-81-7629-992-3.
- Code of Criminal Procedure (Act No. 131 of July 10, 1948, as amended in 2006)
- Internal Security Act to be abolished, says Najib, 15 September 2011, Bernama.com.
- Security Offences (Special Measures) Act 2012
- "Sentencing Act 2002 No 9 (as at 22 December 2016), Public Act 87 Sentence of preventive detention – New Zealand Legislation". Retrieved 1 February 2017.
- Sharpe, Marty (17 July 2013). "A third of Kiwi life termers are out on parole". Stuff.co.nz. Retrieved 25 May 2015.
- Mussen, Deidre (11 October 2015). "New Zealand's longest serving prisoner gets half a century behind bars". Stuff. Retrieved 11 October 2015.
- "NZ's longest serving inmate will do some more time". Stuff. Retrieved 16 December 2018.
- Jonathan Cohen, "1967 Terrorism Act, No. 83 of 1967", South African History Online.
- McGreal, C., "Military given go-ahead to detain US terrorist suspects without trial", The Guardian, 14 December 2011: .