Continuous observation of criminal offenders - risk management in legal limbo of Germany's constitutional democracy

Dealing with high-risk criminals after release from preventive detention puts the constitutional state, governed by the rule of law, to a tough test. Balancing fundamental rights of former inmates with the public's right to protection is governed by the states' provisions concerning police powers, by the requirements of the rule of law and the federal constitution's provisions on legislative powers. Thus, constant observation of former inmates by state police officers is in breach of Germany's constitution. A extensive interpretation of federal legislative power deriving from Art. 74 1 No. 1 GG by the constitutional court leaves the state's remaining legislative power to govern constant observations as merely theoretical. More likely will be a provision in the federal penal code respectively the penal procedure code concerning the supervision of conduct (Fahrungsaufsicht) that would allow for measures of constant observation.