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Except where this would breach the duty to establish a distance between preventive detention and imprisonment sentences (Abstandsgebot), it is constitutional and in keeping with the European Convention on Human Rights (ECHR) for a sentencing court to reserve its right to order preventive detention at the time of sentencing
Press Release No. 57/2012 of 19 July 2012
Order of 20 June 2012
2 BvR 1048/11
The option of reserving the right to order preventive detention, which became available on 28 August 2002 as a result of the insertion of § 66a in the Criminal Code (Strafgesetzbuch - StGB), enables the courts to decide on the imposition of a preventive measure in a two-stage hearing. The version of § 66a StGB then in force, which is the relevant version in this case, allows a court to initially issue a sentencing order and reserve its right to order preventive detention if the danger posed to the public by the convicted person cannot be ascertained with sufficient certainty at the time of sentencing, thereby making it impossible to order primary preventive detention although the requirements for its application pursuant to § 66.3 StGB (old) are otherwise present. At the end of the convicted person's term of imprisonment, the court of decision then has the option of ruling in a second procedural step on an order for preventive detention after conducting a (further) hearing. An order of preventive detention is mandatory if an overall assessment of the convicted person, his or her offences and development during penal detention indicates that he or she can be expected to commit a grave crime which would inflict serious psychological or bodily harm on his or her victim (§ 66a.2 StGB (old); now § 66a.3 sentence 2 StGB). The reform of the law on preventive detention which took effect on 1 January 2011 also involved the amendment of § 66a StGB; among other things, the reform reduced the catalogue of criminal offences which constitute grounds for ordering preventive detention.
The complainant, who had received various prison terms since the 1980s for committing paedophile offences, was sentenced to a seven-year prison term by the Regional Court (Landgericht) in February 2008 for, among other things, several serious cases of sexual abuse of children and attempted rape. At the same time, the court reserved the right to order preventive detention. In November 2010, the Regional Court ordered in the challenged judgment on the basis of a forensic-psychiatric opinion that the complainant be placed in preventive detention pursuant to § 66a.2 StGB (old). His appeal against the order to the Federal Court of Justice (Bundesgerichtshof) was unsuccessful. In essence, he alleges in his constitutional complaint that the order violates his fundamental right to liberty and bases this allegation on the Federal Constitutional Court's judgment of 4 May 2011.
The Second Senate of the Federal Constitutional Court found that the challenged decisions violated the complainant's fundamental right to liberty under Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 of the Basic Law (Grundgesetz - GG) because they were based on the old version of § 66a StGB, which the Federal Constitutional Court had declared unconstitutional in its judgment of 4 May 2011. The matter has been remitted to the Federal Court of Justice for a new ruling. At the same time, the Senate has made it clear that the provision in § 66a StGB (old) reserving the right to order preventive detention does not violate - with the exception of the violation of the fundamental right to liberty ascertained in the Federal Constitutional Court's judgment of 4 May 2011 - any provisions of the Basic Law.
In essence, the decision is based on the following considerations:
I. The Federal Constitutional Court held in its judgment of 4 May 2011 that all of the provisions in the Criminal Code and the Juvenile Court Act (Jugendgerichtsgesetz) on the imposition and duration of preventive detention, and thus § 66a StGB (old) as well, were incompatible with the fundamental right to liberty because they did not satisfy the constitutional requirement of establishing a distance between preventive detention and prison sentences (see Press Release No. 31/2011 of 4 May 2011). The provision in § 66a StGB (old) does not, however, violate provisions of the Basic Law for other reasons.
1. The option of reserving the right to order preventive detention does not violate the guaranteed protection of human dignity entrenched in Article 1.1 GG. The Senate has already decided that a person's human dignity will not be violated by placement in preventive detention if this is necessary as a preventive measure to protect the general public from such person's continued dangerousness. An assessment of the reservation of the right to order preventive detention does not lead to a different conclusion. The person concerned is not degraded to an object of state action. It is true that in the case of the reservation of the right to order preventive detention such person is left in uncertainty as to his or her fate at the time of sentencing and, as a rule, at least during the largest part of his or her imprisonment. This uncertainty does not, however, result in a special psychological or physical burden which could be regarded as cruel, inhumane or degrading. On the contrary, the person concerned has to a large extent control over whether preventive detention is later ordered since he or she can contribute to obtaining a favourable prediction of his or her dangerousness by cooperating, for example, in therapy. Accordingly, the reservation of the right to order preventive detention is in and of itself suitable for making it clear to the person concerned that he or she is not at the mercy of a course of events over which he or she has no control.
2. The reservation of the right to order preventive detention does not violate the fundamental right to liberty for any reasons beyond the violation of the duty to establish a distance between preventive detention and imprisonment, which was determined in the judgment of 4 May 2011.
a) It satisfies the requirements of the principle of proportionality. If one weighs the imposition of the reservation against the general public's need for safety, the imposition does not constitute an unreasonable impairment of the person concerned's rights. According to the statutory provisions that regulate an order reserving the right to impose preventive detention, such an order may not be issued merely as a precaution, but requires, in addition to the other preconditions for preventive detention, a strong and obvious likelihood that the offender poses a danger to the general public and that this will still be the case at the time of a possible release. Furthermore, the reservation does not involve any legal disadvantages for the execution of the penalty.
The reservation of the right to order preventive detention and the execution of the order at a later time is also not disproportionate to the seriousness of the encroachment of fundamental rights in view of the prior offences and offences which constitute grounds for such an order. Preventive detention satisfies the ultima ratio principle since the reservation can only be imposed where the necessary strong and obvious likelihood that the offender poses a danger to the general public only relates to threatened criminal offences which could lead to serious psychological or bodily harm to the potential victim. As a rule, this approach precludes the imposition of the reservation and the later order for preventive detention in practice when the preceding criminal offences did not inflict psychological or bodily harm on the victim and were not suitable for causing such injury.
Moreover, the fact that the court bases its decision on whether to order preventive detention on a prediction of the person concerned's dangerousness which relies on his or her behaviour in prison also does not make the reservation of the right to impose preventive detention disproportionate. The limited meaningfulness of the person concerned's behaviour in prison means that such behaviour has to be evaluated with particular caution. The decisions of the courts already take this sufficiently into account in that they do not simply conclude that behaviour that is generally widespread and typical for prisons, such as unfriendliness or rebelliousness, is an indication that the convicted person is dangerous.
b) The reservation of the right to impose preventive detention also does not constitute a disproportionate encroachment on the fundamental right to liberty if measured against the standards of the European Convention on Human Rights (ECHR) and the rulings of the European Court of Human Rights (ECtHR). Such encroachment is justified by Article 5.1 sentence 2 letter (a) ECHR, which permits "lawful detention of a person after conviction by a competent court". The Article requires that there be a sufficient causal link between the conviction determining guilt and the detention at issue. According to the case law of the European Court of Human Rights, the fact that the order for detention is not made at the time of conviction does not prevent an assumption that such a causal link exists. What is far more important is that a subsequent order for detention complies with the legislation prevailing at the time of the conviction and the boundaries created by the conviction.
This requirement is satisfied here because the decision to reserve the right to order preventive detention lays the foundation for its subsequent imposition. The sense and purpose of the reservation is to create a wider factual basis for the decision as to whether it is necessary to place the offender in preventive detention in order to protect the general public and thus to obtain a more exact prediction of his or her dangerousness. Therefore, the decision as to whether or not to order preventive detention is founded on reasons that were already laid down in the judgment containing the reservation.
c) The reservation of the right to order preventive detention also does not violate the principle of nulla poena sine lege or the requirement of legal certainty. In particular, there is no general principle to the effect that persons who are deprived of their liberty through encroachment by the state are entitled to certainty as to the actual duration of their detention at the time of their conviction. The legal certainty requirement merely provides the persons concerned with a right to certainty as to the duration of detention at the time at which the basic structure of the proceedings selected by the legislature allows such a decision to be made. It is an inherent aspect of the reservation of the right to order preventive detention that a decision to make such an order can first be made at a subsequent point in time.
II. The challenged decisions violate the complainant's fundamental right to liberty because they are based on § 66a StGB (old), which is unconstitutional. According to the transitional guidelines laid down by the Federal Constitutional Court in its judgment of 4 May 2011, § 66a StGB (old) - like all of the provisions on preventive detention that are unconstitutional because they violate the fundamental right to liberty - may only be applied in compliance with a strict proportionality test. As a rule, the proportionality principle will only be satisfied where there are specific indications in the personality or conduct of the person concerned from which a risk that he or she will commit a serious violent or sexual crime can be inferred. The courts have not examined whether the order for placement in preventive detention was permissible according to this standard. It is necessary for the Federal Court of Justice to examine in its new appellate decision whether the findings which were made at first instance were sufficient for a final decision on an order for placement of the complainant in preventive detention or whether additional findings are required for this purpose.