Federal Constitutional Court - Press office -
Press release no. 31/2011 of 4 May 2011
Judgment of 4 May 2011
Preventive Detention I
2 BvR 2365/09, 2 BvR 740/10
Preventive Detention II
2 BvR 2333/08, 2 BvR 1152/10, 2 BvR 571/10
Provisions on Preventive Detention Unconstitutional
Today, the Federal Constitutional Court pronounced its judgment on the
constitutional complaints lodged by four detainees under preventive
detention. They object to their placement in preventive detention being
continued after the expiry of the ten-year maximum period provided by
the former legislation (Preventive Detention I case) and respectively,
to preventive detention being imposed retrospectively (Preventive
Detention II case).
Information on the facts of the cases is given in Press Release no.
117/2010 of 16 December 2010. It can be accessed on the Federal
Constitutional Court’s website (in German).
The Second Senate of the Federal Constitutional Court decided that all
provisions of the Criminal Code (Strafgesetzbuch) and of the Juvenile
Court Act (Jugendgerichtsgesetz) on the imposition and duration of
preventive detention are not compatible with the fundamental right to
liberty of the detainees under preventive detention from Article 2.2
sentence 2 in conjunction with Article 104.1 of the Basic Law
(Grundgesetz – GG) because the provisions do not satisfy the
constitutional requirement of establishing a distance between preventive
detention and prison sentences (Abstandsgebot).
Furthermore, the Federal Constitutional Court held that the provisions
on the retrospective prolongation of preventive detention beyond the
former ten-year maximum period and on the retrospective imposition of
preventive detention in criminal law relating to adult and to juvenile
offenders infringe the rule-of-law precept of the protection of
legitimate expectations under Article 2.2 sentence 2 in conjunction with
Article 20.3 GG.
The Federal Constitutional Court ordered the continued applicability of
the provisions that were declared unconstitutional until the entry into
force of new legislation, at the latest until 31 May 2013. In essence,
it made the following transitional arrangements:
1. In the so-called old cases, i.e. cases in which preventive detention
continues beyond the former ten-year maximum period, and in cases of
retrospective preventive detention, placement in preventive detention or
its continuance may only be imposed if a high risk of the detainee’s
committing most serious crimes of violence or sexual offences can be
inferred from specific circumstances of the detainee’s person or conduct
and where the detainee suffers from a mental disorder within the meaning
of § 1.1 no. 1 of the Therapy Placement Act
(Therapieunterbringungsgesetz). The executing courts must immediately
examine whether these prerequisites of continued preventive detention
exist; where they do not exist, the courts are to order the release of
the detainees under preventive detention affected until 31 December 2011
at the latest.
2. In the transitional period, the other provisions on the imposition
and duration of preventive detention may only be applied subject to the
proviso of a strict review of proportionality; as a general rule,
proportionality is only respected where there is a danger of the person
affected committing serious crimes of violence or sexual offences in the
future.
The Senate rescinded the court rulings challenged by the constitutional
complaints and based on the unconstitutional provisions because they
infringe the complainants’ fundamental right to liberty and their
constitutional concerns relating to the protection of legitimate
expectations and referred the matters back to the non-constitutional
courts for new rulings.
In essence, the decision is based on the following considerations:
I. Interpretation of the Basic Law in a manner that is open to
international law
1. The final and binding effect of the Federal Constitutional Court’s
decision of 5 February 2004 (2 BvR 2029/01), which declared the
elimination of the ten-year maximum period for preventive detention that
had applied previously and the application of the new legislation to the
so-called old cases constitutional, does not constitute a procedural bar
against the admissibility of the constitutional complaints. This is
because the decisions of the European Court of Human Rights (ECtHR),
which contain new aspects for the interpretation of the Basic Law, are
equivalent to legally relevant changes, which may lead to the final and
binding effect of a Federal Constitutional Court decision being
transcended.
This is the case here with regard to the judgment of the ECtHR of 17
December 2009 by which the Court held that the retrospective
prolongation of preventive detention infringes the right to liberty from
Article 5 of the European Convention on Human Rights (ECHR) and the ban
on retrospective punishment provided in Article 7 ECHR.
2. It is true that at national level, the European Convention on Human
Rights ranks below the Basic Law. However, the provisions of the Basic
Law are to be interpreted in a manner that is open to international law
(völkerrechtsfreundlich). At the level of constitutional law, the text
of the Convention and the case-law of the European Court of Human Rights
serve as interpretation aids for the determination of the contents and
scope of the fundamental rights and of rule-of-law principles enshrined
in the Basic Law.
An interpretation that is open to international law does not require the
Basic Law’s statements to be schematically aligned with those of the
European Convention on Human Rights but requires its valuations to be
taken on to the extent that this is methodically justifiable and
compatible with the Basic Law’s standards.
II. Liberty right infringement – distance requirement
The serious encroachment upon the right to liberty which preventive
detention constitutes can only be justified if it is subject to a strict
review of proportionality and if strict requirements placed on the
decisions on which it is based and on the organisation of its execution
are satisfied. The existing provisions regarding preventive detention do
not satisfy the constitutional (minimum) requirements with regard to the
arrangement of the execution of preventive detention.
Due to the fundamentally different objectives and bases of legitimation
of prison sentences and preventive detention, the deprivation of liberty
effected by preventive detention must keep a marked distance from the
execution of a prison sentence (so-called distance requirement
(Abstandsgebot)). While a prison sentence serves the retribution of
culpably committed offences, the deprivation of liberty of a detainee
under preventive detention solely pursues preventive objectives, namely
the prevention of criminal offences in the future. It is exclusively
based on a prognosis of future dangerousness and in the interest of the
general public’s safety it imposes a special sacrifice, so to speak, on
the person affected. Therefore, preventive detention is only justifiable
if with regard to its arrangement, the legislature takes due account of
the special character of the encroachment that it constitutes and
ensures that further burdens beyond the indispensable deprivation of
“external” liberty are avoided. This must be taken account of by a
liberty-oriented execution aimed at therapy which clearly shows to the
detainee under preventive detention and to the general public the purely
preventive character of the measure. What is required for this is an
overall concept of preventive detention with a clear therapeutic
orientation towards the objective of minimising the danger emanating
from the detainee and of thus reducing the duration of the deprivation
of liberty to what is absolutely necessary. The placement in preventive
detention must be visibly determined by the perspective of regaining
liberty. The liberty-oriented adherence to the distance requirement also
takes account of the valuations made by the European Court of Human
Rights with regard to Article 7.1 ECHR, which already held in its
judgment of 17 December 2009 that preventive detention was a penalty by
its nature due to its lack of distance from the execution of prison
sentences, and emphasised the necessity of special individual support of
the detainee under preventive detention.
The distance requirement, which is enshrined in constitutional law,
binds all state authority and is primarily directed at the legislature,
which is required to develop an overall concept of preventive detention
in line with this requirement and to lay it down in corresponding
legislation. The legislation must at minimum comprise the following
aspects: preventive detention may only be ordered and executed as the
ultima ratio. Where therapeutic treatment is necessary, it must begin so
early during the preceding execution of the prison sentence, and must be
carried out so intensively, that it will be terminated, whenever
possible, before the end of the prison sentence. At the beginning of the
execution of preventive detention at the latest, an examination with a
view to treatment must be conducted which complies with state-of-the-art
scientific requirements; on the basis of the examination, an execution
plan is to be drawn up and intensive therapeutic care of the detainee by
qualified personnel must be conducted which opens up a realistic
perspective of release. The cooperation of the person concerned in this
process is to be encouraged by targeted motivational work. To take
account of the preventive detention’s character of special crime
prevention, life in preventive detention must be adapted to the general
living conditions to the extent that there are no conflicting security
concerns. This does not require the complete spatial detachment of
preventive detention from the execution of prison sentences; detainees
under preventive detention must, however, be accommodated separately
from the prison regime in special buildings and wards which comply with
the therapeutic requirements, in which family and social contacts with
the outside world are possible and which have sufficient personnel
resources. Moreover, the legal concept of preventive detention must
contain standards for the relaxation of the execution rules and for the
preparation of release. Furthermore, the detainee must be granted an
effectively enforceable legal claim to the measures reducing his
dangerousness being implemented. Finally, the continuation of the
preventive detention is to be judicially reviewed at least once a year.
The present provisions on preventive detention, and consequently their
actual execution, do not satisfy these requirements. Instead, the
legislature has expanded preventive detention more and more without
taking into account the distance requirement, which was put into
concrete terms by the Federal Constitutional Court’s judgment of 5
February 2004. Without complying with the distance requirement, the
institution of preventive detention on the whole cannot be reconciled
with the fundamental right to liberty of the detainees under preventive
detention. The Federal and the Land (state) legislatures together are
under the duty to develop a liberty-oriented overall concept of
preventive detention aimed at therapy which does not leave decisive
issues to the executive’s and the judiciary’s decision-making power but
determines their action in all relevant areas.
III. Infringement of the principle of the protection of legitimate
expectations
Furthermore, the provisions regarding the retrospective prolongation of
preventive detention beyond the former ten-year maximum period and
regarding the retrospective imposition of preventive detention infringe
the rule-of-law principle of the protection of legitimate expectations
under Article 2.2 sentence 2 in conjunction with Article 20.3 GG.
The provisions contain a serious encroachment on the confidence of the
group of persons concerned in preventive detention ending after ten
years (regarding the so-called old cases) or in preventive detention not
being imposed (regarding the cases in which preventive detention was
imposed retrospectively). In view of the serious encroachment on the
right to liberty involved with preventive detention, the concerns
regarding the protection of legitimate expectations affected carry
particular weight under constitutional law, which is further increased
by the valuations of the European Convention on Human Rights. According
to the valuation of Article 7.1 ECHR, the result of the insufficient
distance of the execution of preventive detention from that of prison
sentences is that the weight of the confidence of the persons affected
comes close to an absolute protection of legitimate expectations.
Furthermore, the valuations of Article 5 ECHR are to be taken into
account on the part of the persons affected who are placed in preventive
detention. According to this provision, and taking into account the
case-law of the ECtHR, in the cases of preventive detention having been
prolonged or ordered retrospectively that are at issue here, a
justification of the deprivation of liberty can only be considered in
practice if an unsound mind within the meaning of Article 5.1 sentence 2
lit e ECHR exists. The provision requires the existence of a mental
disorder that has been reliably ascertained and is continuing. The legal
provisions must provide the diagnosis of such disorder as an explicit
constituent element. Furthermore, to be justified, the deprivation of
liberty requires that the placement in preventive detention of the
person affected be organised in a way that takes into account the fact
that the person is under preventive detention due to a mental disorder.
Taking these valuations into account, and with a view to the
considerable encroachment on the confidence of the detainees under
preventive detention whose right to liberty is affected, the legitimate
legislative objective of the challenged provisions, namely to protect
the general public from dangerous offenders, to a large extent takes
second place to the confidence, protected by fundamental rights, of the
group of persons affected. A deprivation of liberty through preventive
detention which is ordered or prolonged retrospectively can therefore
only be regarded as still proportionate if the required distance from
punishment is kept, if a high danger of most serious crimes of violence
or sexual offences can be inferred from specific circumstances of the
detainee’s person or conduct and if the requirements of Article 5.1
sentence 2 ECHR are satisfied. Only in such exceptional cases can a
predominance of public safety interests still be assumed.
The provisions at issue here do not satisfy these requirements. They
also cannot be interpreted in such a way that they are still
constitutional.
IV. Transitional arrangement
To avoid a "legal vacuum", the Federal Constitutional Court did not
declare the unconstitutional provisions void but ordered their continued
applicability for a limited period of time. This is because the
declaration of nullity of the relevant provisions would have the
consequence that a legal basis for continuing preventive detention would
be lacking; all persons placed in preventive detention would have to be
released immediately, which would cause almost insoluble problems to the
courts, the administration and the police.
With a view to the extent of the overall concept of preventive detention
which must be developed by the legislature, to the necessary creation of
additional personnel resources and to the implementation of the measures
necessary to spatially separate preventive detention and imprisonment,
continued applicability must be ordered for a period of two years.
However, with regard to the encroachment on fundamental rights resulting
from preventive detention, a transitional arrangement is required to
ensure that the minimum constitutional requirements are satisfied.
Regarding the provisions that are incompatible with the requirement of
the protection of legitimate expectations (III.), the Therapy Placement
Act, which entered into force on 1 January 2011, must be drawn upon for
this. With this Act, the German legislature, taking into account the
special requirements of the European Convention on Human Rights, has
created another category for the placement of persons with mental
disorders who are potentially dangerous due to their criminal offences
which focuses on the present mental situation of the persons affected
and their dangerousness resulting therefrom.
This press release is also available in the original german version.
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