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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 8 November 2012, 1 BvR 22/12 [CODICES]
Abstract
First Chamber of the First Senate
Order of 8 November 2012
1 BvR 22/12

Headnotes:

In interim legal protection proceedings, as elsewhere, the administrative court’s examination as to whether the permanent observation of a man released from preventive detention is lawful must rely on a sufficiently current factual basis to assess how dangerous he is.

Summary:

I.

Following his release from preventive detention, the applicant is subject to long-term observation. His constitutional complaint is directed against decisions in administrative court interim legal protection proceedings relating to this observation.

 

In 1985, the Regional Court (Landgericht) sentenced the applicant to five years’ imprisonment followed by preventive detention for two offences of rape. In a decision of 10 September 2010, the Higher Regional Court (Oberlandesgericht) – following the case-law of the European Court of Human Rights – held that the preventive detention was terminated. When the applicant was released from preventive detention, the Police Directorate ordered that the applicant should initially be subject to long-term observation for a period of four weeks, and following this extended this period regularly, that is, for a period of two years to date.

 

According to the particulars which he gave in the original proceedings, which remain undisputed, the applicant lives in one room in lodgings in a rear building. In the courtyard in front of this rear building, a police car containing three police officers is permanently parked. Two more police officers remain in the kitchen of the lodgings when the applicant is in his room. There is no direct observation of the applicant in his private living quarters. Outside his home, the applicant is constantly accompanied by police officers. The officers have instructions to keep a distance when the applicant is talking to doctors, lawyers and civil servants at government authorities. If the applicant enters into contact with women apart from this, the police officers inform them of the reason for the observation in what is known as a warning to persons endangered.

 

The applicant applied for his observation to be terminated by interim injunction; this was refused by an Administrative Court (Verwaltungsgericht) in the Land (state) Baden-Württemberg by an order of 16 August 2011. The appeal against this was dismissed by the Baden-Württemberg Higher Administrative Court (Oberverwaltungsgericht) by an order of 8 November 2011.

 

II.

The Chamber accepts the constitutional complaint challenging these two orders for decision and grants the relief sought by it.

 

The Federal Constitutional Court has already developed the constitutional principles which govern the assessment of the constitutional complaint: The courts are required to grant interim relief if the applicant is otherwise threatened by a substantial injury of his rights, extending beyond marginal areas, which cannot later be removed by the decision in the principal proceedings. An exception applies if overriding and particularly important reasons conflict with this. In addition, the examination must be thorough enough to effectively protect the applicant against substantial and unreasonable disadvantages which cannot otherwise be averted or repaired. In the case of such disadvantages, the courts may only limit themselves to a summary review of the factual and legal situation, such as would be sufficient in other circumstances, where this is justified by special reasons, inter alia with regard to the disadvantages in question. They must also include questions of the protection of fundamental rights.

 

The decisions in the original proceedings do not satisfy these requirements in every respect. Initially, the administrative courts rightly recognised that the permanent observation of the applicant is a serious encroachment upon fundamental rights. However, they did not pay sufficient consideration to the special constitutional weight of the applicant’s application.

 

However, it is unobjectionable that the administrative courts, in the interim legal protection proceedings, regarded the general police provision in Baden-Württemberg police law as an adequate legal basis for the permanent observation of the applicant. Admittedly, it is doubtful whether the current legal position provides a sufficiently refined legal basis to support the conduct of such observation in the long term. Instead, this is most probably a new form of a police measure which has not yet been specifically defined by the Land legislator and by reason of its far-reaching effects possibly needs an express and detailed enabling statute. However, there are no well-founded constitutional objections, in view of the weight of the legal interests involved, to the courts in interim legal protection proceedings regarding the existing legal basis as adequate and postponing the final determination of a legal basis until the principal proceedings. In doing this, they interpret the general police provision as making it possible for the authorities to provisionally react to unforeseen situations of danger even with measures which essentially require more specific legislation. In this way the courts enable the legislator to close any gaps in the law. If one observes strict requirements of proportionality, this is constitutionally unobjectionable. It is then the responsibility of the legislator to react to this or to accept the risk that such measures are in the long term regarded by the courts as not covered by the current legal position.

 

However, there is another reason why the decisions challenged do not satisfy the requirements of the necessary intensity of examination in the area of constitutionally relevant interim legal protection. The courts based their decision conclusively on a psychiatric report of 5 March 2010. The report was made at a time when the applicant was still in preventive detention. The expert could at most make assumptions as to how the applicant would behave in freedom after decades of imprisonment and preventive detention. But the applicant has now lived for a considerable time in completely changed circumstances. A decision on the continuation of almost uninterrupted police observation is a far-reaching decision, and these circumstances suggest that it is not appropriate to base such a decision on out-of-date assumptions.

Further information can be found in the CODICES database, as soon as it has been processed.

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Additional Information

ECLI:DE:BVerfG:2012:rk20121108.1bvr002212

Reference

BVerfGK 20, 128 - 135

Please note that only the German version is authoritative. Translations are generally abriged.