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Retrospective imposition of preventive detention following confinement in a psychiatric hospital is subject to strict prerequisites
Press Release No. 13/2013 of 27 February 2013
Order of 6 February 2013
2 BvR 2122/11
In an order published today, the Second Senate of the Federal Constitutional Court confirmed its jurisprudence on preventive detention imposed retrospectively, i.e. at the end of the detainee's detention. Until the new legislation which has become necessary enters into force, at the latest, however, until 31 May 2013, preventive detention may only be imposed retrospectively if specific circumstances in the detainee's person or conduct suggest a high risk that the detainee will commit most serious offences of violence or sexual offences and if the detainee suffers from a mental disorder. These principles also apply if the person concerned had been confined in a psychiatric hospital before. In these cases, preventive detention does not merely replace one measure of correction and prevention with another; it is a new, independent infringement of a fundamental right. If the infringement takes place based on legislation which had not entered into force at time of the sentencing for the original criminal offences, the protection of legitimate expectations carries a particularly high weight.
The decision is essentially based on the following considerations:
1. § 66b of the Criminal Code (Strafgesetzbuch - StGB) provides for preventive detention being imposed retrospectively in cases in which it is ascertained during the confinement in a psychiatric hospital that the condition which excludes or diminishes criminal responsibility is not, or no longer, met. In its judgment of 4 May 2011, the Federal Constitutional Court declared the provision incompatible with the Basic Law because it does not satisfy the constitutional requirement of establishing a difference between preventive detention and prison sentences (Abstandsgebot, cf. Decisions of the Federal Constitutional Court - BVerfGE 128, 326 ). At the same time, the Federal Constitutional Court ordered that the provision would continue in effect until the legislature enacted new legislation, at the latest, however, until 31 May 2013. While it continues in effect, however, it may only be applied subject to a strict review of proportionality.
2. In their constitutional complaint, the complainants challenge the continuance of their preventive detention, which had been ordered retrospectively when their confinement in a psychiatric hospital had been terminated.
a) The complainant of proceedings 2 BvR 2122/11 was confined in a psychiatric hospital after having served a full prison sentence imposed because of several offences of violence he had committed for sexual motives. In April 2007, the Regional Court's criminal division with jurisdiction over the execution of sentences declared the confinement terminated because - contrary to what had been assumed in the original judgment - the complainant was not in a condition which excluded or diminished his criminal responsibility. In March 2008, the Regional Court ordered the complainant's retrospective preventive detention because, it held, he was highly dangerous. By the challenged order of 15 July 2011, the division rejected an application made by the complainant to suspend the preventive detention for probation. It held that ordering preventive detention only replaced one measure of correction and prevention of indefinite duration that deprived the detainee of his liberty with another, which would therefore, in effect, not mean a change for the worse to the complainant. By its order of 22 August 2011, which has also been challenged by the constitutional complaint, the Higher Regional Court rejected the immediate objection raised against the judgment.
b) The complainant in the proceedings 2 BvR 2705/11 was also confined in a psychiatric hospital due to several sexually motivated offences of violence. After two experts had stated that the complainant did not have a personality disorder, the Regional Court's criminal division with jurisdiction over the execution of sentences declared his confinement terminated in July 2007. At the same time, it ordered his temporary confinement in preventive detention. The Higher Regional Court, however, reversed the temporary confinement order; as a result, the complainant was out of prison for two weeks. In April 2008, the Regional Court ordered the complainant's retrospective preventive detention. By its order of 30 August 2011, the Regional Court's criminal division with jurisdiction over the execution of sentences rejected the application made by the complainant to suspend the preventive detention for probation. The Higher Regional Court rejected the immediate objection raised against the judgment on 15 November 2011. The reasoning of the two challenged orders corresponds to that of the proceedings 2 BvR 2122/11.
c) A constitutional complaint that the two complainants had previously lodged against the original order of retrospective preventive detention had not been admitted for decision (Chamber decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts - BVerfGK 16, 98). Both complainants thereupon filed an application with the European Court of Human Rights, which had awarded them compensation for a violation of Art. 7 sec. 1 ECHR (Judgment of 7 June 2012, Applications nos. 65210/09 and 61827/09).
3. The constitutional complaints are well-founded. The challenged orders violate the complainants' fundamental right to liberty (Art. 2 sec. 2 sentence 2 of the Basic Law, Grundgesetz - GG) in conjunction with the principle of protection of legitimate expectations (Art. 20 sec. 3 GG).
a) Retrospective preventive detention, which is made possible by § 66b StGB, interferes with legitimate expectations that are protected by fundamental rights. This especially applies if the persons concerned were convicted for the criminal offences giving rise to preventive detention before the provision entered into force (so-called old cases). As preventive detention leads to deprivation of liberty of indefinite duration, the interests affected concerning the protection of legitimate expectations are of especially high weight.
b) In contrast, it cannot be argued that with a retrospective order of preventive detention, interests concerning the protection of confidence have lower priority because it is merely a "transfer" from one measure entailing a deprivation of liberty of indefinite duration to another. Preventive detention that follows confinement in a psychiatric hospital does not merely continue the previous measure on a different legal basis but is a new, independent infringement of a fundamental right. This already results from the fact that preventive detention can only be ordered if confinement in a psychiatric hospital has been declared terminated before. Moreover, the organisation of the proceedings in which the order is made shows that it is an independent measure. The declaration that terminates confinement in the psychiatric hospital is made by the division with jurisdiction over the execution of sentences at the place of confinement, while preventive detention is ordered by the trial court. In addition, there is a qualitative difference between both measures. c) The weight of the interests affected concerning the protection of legitimate interests is increased by the valuations contained in the European Convention on Human Rights. In its judgment of 7 June 2012, the European Court of Human Rights held that the complainants' retrospective preventive detention violates Art. 7 sec. 1 ECHR. Moreover, it results from the Court's further case-law that in old cases, retrospective preventive detention can only be justified under the Convention under the condition of Art. 5 sec. 1 sentence 2 letter e EECHR (i.e. for persons of unsound mind).
Thus, the valuations of the European Convention on Human Rights confirm that the trust of the persons affected in preventive detention not being imposed in old cases comes close to an absolute protection of legitimate expectations. Therefore, preventive detention may only be imposed retrospectively in these cases if specific circumstances in the detainee's person or conduct suggest a high risk that the detainee will commit most serious offences of violence or sexual offences and if the detainee suffers from a mental disorder within the meaning of § 1 sec. 1 no. 1 of the Therapeutic Committal Act (Therapieunterbringungsgesetz).
d) The Higher Regional Court will therefore have to render a new judgment on the continuance of retrospective preventive detention according to the transitional arrangement resulting from the Federal Constitutional Court's judgment of 4 May 2011.