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Hans-Joerg Albrecht
burden proof down from the beyond reasonable doubt standard to a balance
of probability (www.guardian.co.uk/terrorism/story/). The German Federal
Minister of the Interior also thought loudely about a need to introduce
legislation which allows to detain individuals deemed to be dangerous
although past crimes cannot be proven (www.bmi.bund.de/). Here, it is
considered to create special police detention laws that provide for the power
to incapacitate individuals by way of detaining them (as long as
dangerousness prevails, see also the statement of the Federal Minister of
Interior, Spiegel Online, August 2, 2005; preventative detention (although
restricted to 48 hours) has been introduced also through the Australian Anti-
Terrorism Bill, 2005) .
In fact, the first trial related to the WTC attacks which was held in Germany
and resulted in the first instance conviction of Motassadeq (allegedely
conspiring with those directly involved in the attacks and supporting the
whole enterprise by channelling funds from Hamburg to North-America, see
also the case Mzoudi who was also acquitted) demonstrates the type of
problems that have to be encountered when applying due process standards
in terrorist cases. The conviction was thrown out by the Supreme Court
which argued that the standard of proof beyond reasonable doubt was in this
case not fulfilled which in turn then led to the question whether such a
system is able to deal effectively with terrorism (Safferling, 2004).
Current legislation that responds to dangerous individuals through
preventive (or pre-emptive) detention is based upon rationales which have
been accepted already in the 19 th century. One form of preventive detention
addresses psychiatric conditions which are assessed to create severe dangers
for the individual him or herself or for others. Another form of preventive
detention refers to the two track system of criminal sanctions which
developed in many continental European systems of criminal justice. Here,
the preventive track of criminal sanctions responds to dangerousness that,
however, must be linked to past crimes and must be justified by an
individual displaying the characteristics of an habitual offender. A third
form of preventive detention is found in police (or public order) laws which
allow for (short term) detention if an individual is assessed to present an
immediate danger. Such detention is limited to rather short periods of time
(in Germany for example up to two weeks) and must be justified by an
imminent danger (e.g. prediction of violent behaviour at the occasion of a
soccer game).
Current developments in incapacitative sentencing laws point to a trend
towards lowering the thresholds established either through diagnosis of a
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