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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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