Preventive Detention and Human Rights

Abstract

Abstract This chapter turns to consider the legal framework that governs ‘dangerous’ offenders with personality disorders. It evaluates how the jurisprudence of the European Court of Human Rights responds to the risks that preventive detention poses to the human rights of offenders who are labelled as ‘dangerous’. It focuses on the Court’s jurisprudence on two rights that mirror those underlying the DSPD proposals: the offender’s right to rehabilitation and the public’s right to security. The analysis demonstrates that human rights law takes for granted many of the problematic assumptions that underlie recourse to preventive detention measures for ‘dangerous’ offenders. As a result, human rights law does not provide an adequate response to the risk of excessive punishment posed by coercive rehabilitative interventions that are linked to a chance of release from detention. This chapter further identifies that the European Court of Human Rights deploys two rather different conceptual frameworks for understanding what rehabilitation requires of life-sentenced prisoners: rehabilitation as risk reduction and rehabilitation as redemption. Both frameworks place the onus on the prisoner to demonstrate that he has achieved rehabilitation and is eligible for release. The character-based concept of risk underlying the concept of rehabilitation as redemption poses a particular challenge for offenders who are diagnosed with personality disorders that are associated with unpredictability and untrustworthiness.