Placement of criminals in detention under Land law (known as subsequent preventive detention) unconstitutional

Press Release No. 11/2004 of 10 February 2004

Judgment of 10 February 2004
2 BvR 834/02

The laws of the Länder (states) Bavaria and Saxony-Anhalt regulating the placement of criminals with a special propensity to recidivism are incompatible with the Basic Law because they violate the concurrent legislative power of the Federation for criminal law. This was ruled by the Federal Constitutional Court’s Second Senate in its judgment pronounced today.

The Land (state) laws continue to be applicable until 30 September 2004, taking into account the provisos that are contained in the grounds. The constitutional complaints lodged by two criminals detained on the basis of the Land laws, which were predominantly successful on the merits, were therefore ultimately rejected. The decision concerning the legal consequences of the ruling that the statutes under Land law on the placement of criminals were contrary to the competences of the Länder was reached by a majority of 5 votes to 3, the rest unanimously.

The Facts:

One of the complainants had been sentenced twice for sexual offences. In 2002 the penal execution chamber made an order that he be placed in preventive detention for an unlimited period of time pursuant to the Bavarian Placement of Criminals in Detention Act (Bayerisches Straftäterunterberingungsgesetz) because a considerable danger to the sexual self-determination of others emanated from the complainant. The complainant’s appeal was unsuccessful. By means of his constitutional complaint, he challenges the violation of his rights under Article 1 [human dignity], Article 2.2 [personal freedom], Article 3 [equality before the law], Article 19.4 [recourse to a court], Art 20.3 [legislature’s commitment to the constitutional order, executive’s and judiciary’s commitment to law and justice] and Article 103.2 [ban on retroactivity] of the Basic Law (Grundgesetz – GG). In particular, he alleges that the Land legislature does not have jurisdiction.

The other complainant had been sentenced twice for homicide offences. In March 2002 he was placed in preventive detention on the basis of the Placement in Detention Act of Saxony-Anhalt (Unterbringungsgesetz des Landes Sachsen-Anhalt), initially for six months. In August 2002 the penal execution chamber extended the placement by another twelve months. Experts had reached the conclusion that due to his serious personality disorder, a considerable danger for others currently emanated from the convicted person. This complainant also alleges that the Land legislature does not have jurisdiction and challenges the violation of his right under Article 2.2 sentence 2 GG in conjunction with Article 20.3 and Article 103.2 and 103.3 [ne bis in idem] GG.

The Court’s reasoning is as follows:

1. The area covered by the statutes regulating the placement of criminals in detention is one subject matter of the concurrent legislative powers of the Federation. It involves criminal law within the meaning of Article 74.1 no. 1 GG. The term “criminal law” in connection with the question of jurisdiction to legislate covers the regulation of all, even subsequent, repressive or preventive state reactions to crimes which use the crime as a connecting factor, which apply exclusively to criminals and which draw their factual justification also from the original offence. This is evident if one interprets the statutory provisions in accordance with their wording, legislative history, structure and purpose.

Already the Weimar Constitution (Weimarer Reichsverfassung) used the term “criminal law” also to make reference to guarding and preventive consequences of wrongdoing. The legislature that adopted the Basic Law already found the dual structure of sanctions (sentencing and measures of correction and prevention) in the Criminal Code; the dual structure was maintained. Structurally, the fact that all sanctions which apply exclusively to criminals and which draw their justification from the offence are classified with the competence provision of Article 74.1 no. 1 GG follows from the idea of the factual context. The factual context between the sentence and the purely preventive sanction has the following reason: Both types of sanctions relate to the original offence. The ruling depends on the finding of facts concerning the particulars of the offence, the genesis of the offence and the perpetrator’s behaviour after the offence not only as regards the question of guilt and of the sentence but also as regards the prognosis of future dangerousness. Such a factual connection is lacking, however, if measures can be taken not only vis-à-vis criminals but also vis-à-vis other persons or if the original offence is not the necessary precondition of a preventive measure.

2. The placement of criminals in detention pursuant to the Bavarian Placement of Criminals in Detention Act and the Placement in Detention Act of Saxony-Anhalt relates to criminal law within the meaning of Article 74.1 no. 1 GG. The placement of criminals in detention under Land law is a subsequent preventive sanction which applies exclusively to criminals and draws its factual justification from the original offence. The original offence continues to be a determining factor for the prognosis of future dangerousness as a prerequisite for placement in detention. This understanding of the enabling laws does not conflict with their wording. It is in keeping with the intention of the legislature, the purpose of the statute and an interpretation in conformity with the constitution, which is unavoidable for reasons of substantive constitutional law. After all, only a basis of prognosis which includes the original offence as a factor in the prognosis could justify the far-reaching encroachment of unlimited detention from the aspect of proportionality. This classification is confirmed upon a comparison with the preventive detention provisions contained in the Criminal Code (Strafgesetzbuch). The placement of criminals in detention has far-reaching similarities both procedurally and in its content with preventive detention. The close connection prescribes a uniform classification under the law regulating competences.

3. The Länder do not have the power to legislate on the placement of criminals in detention because the Federation has exhausted its concurrent legislative power in this area. In doing so, the Federation has assumed complete responsibility for this legal area. The federal legislature has legislated exhaustively in the Criminal Code on the law of preventive detention within the meaning of Article 72.1 GG. It also had the power to do so within the framework of Article 72.2 GG. Consequently, the effect of the provisions of the Criminal Code is to block the enactment of further legislation; they stand in the way of a Land enacting legislation in this area. The federal legislature’s statutory intention was most recently manifested in the Act for Combating Sexual Offences and other Dangerous Offences (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten) of 26 January 1998. This Act was intended to take into account the entire need for reform that was expressed at the time and it deliberately refrained from a further extension of preventive detention as a measure of correction and prevention. The federal legislature did not wish to include subsequent preventive detention in the reform because it incorrectly assumed that the Länder had jurisdiction to legislate. The Federation has also not subsequently opened the law of preventive detention for amendment by the Länder. An opening of such kind would have required federal legislation as its basis.

4. The fact that the Länder did not have jurisdiction to legislate does not result in the contested statutes being void. Instead they are incompatible with the Basic Law. The Second Senate ordered the continued application of the Land statutes until 30 September 2004. This kind of legal consequence is possible if the immediate invalidity of the contested law would remove the basis for protection of paramount interests related to the public good and if the result of weighing those interests against the fundamental rights affected is that the encroachment can be accepted for a transitional period. This is the case here.

If the statutes were declared void, the release of all those detained on the basis of those statutes would be unavoidable. Persons would have to be released in whose cases a court had determined on the basis of two expert opinions that they currently pose a considerable danger to the life, physical integrity, freedom of the person or self-determination of others. The court rulings ordering detention lent concrete shape to the dangers ascertained on the basis of specific individual cases. Therefore the state’s duty to protect the citizens against such dangers has been lent concrete and individual shape beyond the state’s general obligation to combat crime, which is largely left to political discretion. In the event of the statutes being declared void, persons who are actually extremely dangerous at the present time would have to be released without the federal legislature’s having made the decision incumbent upon it (because it mistakenly assumed it had no jurisdiction to do so) as to whether it is necessary to enact federal legislation. This would be to deprive the federal legislature of the chance to decide – on the basis of its jurisdiction which has been clearly established now – on the necessity for federal legislation to protect against the further commission of crimes by the persons affected and to enact the legislation it considers necessary.

Personal freedom has a high position among the fundamental rights. The statutes concerning the placement of criminals in detention which are the subject of review must withstand being measured against the principle of proportionality. This leads to an interpretation in conformity with the constitution of the prerequisites for an order which must be complied with during the continued application of the legislation. In addition, the persons concerned may not already be put in a worse position during the transitional period than those criminals who are subject to preventive detention on the basis of the Criminal Code. The details of the requirements for an interpretation in conformity with the constitution are listed individually in the decision. The courts responsible for enforcing the sentences will have to examine immediately whether the orders for placement in detention based on the Land statutes can also be upheld if the bases of the orders are interpreted in conformity with the constitution. To this extent, the discretion to review the necessity for continued placement in detention at any time, which the courts were given by the Land enabling laws, has developed into a duty to review.

5. Judges Broß, Osterloh and Gerhardt have attached a dissenting opinion to the decision. They hold the view that the incompatibility of the Land laws with the Basic Law should have led to their being declared void and thus to the success of the constitutional complaints. They put forward the following arguments:

Fundamental rule-of-law objections exist against the standard of review applied by the Senate majority. An order of continued applicability that overcomes the block on application which is the consequence of the declaration of unconstitutionality may only be considered for compelling reasons of constitutional law. Over and above this, the Federal Constitutional Court must be entitled to make such an order in the first place. Both requirements are not satisfied.

Reasons under constitutional law for a continued application of the contested statutes could only be found in the violation of the prohibition on too little protection. Not even the Senate majority assumes a violation of the state’s duty to protect other people against extremely dangerous criminals. Even without the continued applicability of the unconstitutional statutes regulating the placement of criminals in detention the Länder have suitable instruments at their disposal for effectively averting danger even in particularly problematic individual cases, if necessary with increased expenditure on personnel.

The Senate majority holds the view that the state’s duty to protect has been lent concrete and individual shape beyond the state’s general obligation to combat crime. The need for action which is thus suggested does not exist from a constitutional point of view and cannot justify measures of deprivation of liberty to be continued. The federal legislature, which has jurisdiction and is therefore the only democratically legitimised instance, has exhaustively and unequivocally decided to accept the known risks which result from the release of criminals after many years of detention in a few specific combinations of circumstances. The Senate majority ignores this decision, which is also binding on the Federal Constitutional Court, by adopting the Land legislatures’ divergent political risk assessment, which “corrects” the federal legislature.

The order that the Land statutes continue to apply is incompatible with Article 104.1 sentence 1 GG. According to that Article, a person’s liberty can only be restricted by virtue of a formal statute and only in compliance with the forms prescribed therein. The order that the statutes continue to apply is based on customary law and does not justify the deprivation of liberty at all. Under no circumstances can the continued application of the Länder statutes regulating the placement of criminals in detention be considered valid because the federal legislature has legislated exhaustively on the deprivation of liberty as a consequence for the commission of crimes.

Finally there is a violation of the general ban on retroactivity. If the person affected has served his or her prison sentence, and if a possible measure of prevention and correction that entails the deprivation of liberty has finished, the fact that has been set by the original offence has ended. The Länder have encroached on facts that have terminated. The retroactive encroachment was impermissible, and it could not be justified by the assumption that the persons affected continued to be dangerous. The order of continued applicability continues the encroachment, albeit for a limited period of time.