Federal Constitutional Court - Press office -

Press release no. 39/2011 of 28 June 2011

Order of 8 June 2011 – 2 BvR 2846/09 –

Successful constitutional complaint against 
retrospective order of preventive detention 


The Second Senate of the Federal Constitutional Court has now, in a 
further case, reversed a retrospective order of preventive detention on 
the grounds of violation of the fundamental right to liberty and of the 
constitutional requirement of the protection of legitimate expectations 
and referred the matter back to the Regional Court (Landgericht) for 
retrial. 

The complainant was sentenced to twelve years' imprisonment for 
attempted murder in 1987 and to eight years' imprisonment for voluntary 
manslaughter in 1997. At the time of the second sentence it was not 
(yet) legally possible to order preventive detention, because the law at 
that time required a minimum of three intentional criminal offences for 
this. It was only § 66 (3) of the Criminal Code (Strafgesetzbuch), 
introduced from 1 April 1998, that permitted preventive detention to be 
ordered after only two intentional criminal offences. The possibility of 
a retrospective order of preventive detention was introduced in 2004, 
and the amendment of § 66b (1) sentence 1 of 2007 and the introduction 
of § 66b (1) sentence 2 of the Criminal Code extended this possibility 
with the effect that preventive detention could now be ordered 
retrospectively even if at the time of sentencing for the originating 
criminal offence, for legal reasons, no primary preventive detention 
could be ordered. This new statutory basis was applied in the year 2009 
when the complainant was retrospectively ordered to be held in 
preventive detention. 

In its judgment of 4 May 2011, the Federal Constitutional Court held 
that all the provisions of the Criminal Code and the Juvenile Court Act 
(Jugendgerichtsgesetz) on the imposition and duration of preventive 
detention are incompatible with the fundamental right to liberty because 
they do not satisfy the constitutional requirement of establishing a 
distance between preventive detention and prison sentences 
(Abstandsgebot). The constitutional complaints in that matter 
specifically challenged provisions on the retrospective extension of 
preventive detention beyond the maximum term that had formerly applied 
and on the retrospective imposition of preventive detention; these did 
not include § 66b (1) sentences 1 and 2 of the Criminal Code. The Court 
also held that these provisions are incompatible with the constitutional 
requirement of the protection of legitimate expectations. Under the 
transitional provisions made in the judgment of 4 May 2011, preventive 
detention or the continuation of preventive detention may still be 
ordered on the basis of these provisions, which were also found to be 
unconstitutional for violation of the requirements of the protection of 
legitimate expectations; however, this must be subject to strict 
requirements of proportionality; specifically, if specific circumstances 
in the detainee's person or conduct suggest a high risk that the 
detainee will commit the most serious offences of violence or sexual 
offences and the detainee suffers from a mental disorder within the 
meaning of § 1 (1) no. 1 of the Therapeutic Confinement Act 
(Therapieunterbringungsgesetz). 

The details of the judgment of 4 May 2011 are given in press release 
31/2011 of 4 May 2011. It can be accessed on the Federal Constitutional 
Court's website. 

In the decision now made, the Second Senate has made it clear that the 
higher requirements for retrospective imposition of preventive detention 
established in the judgment of 4 May 2011 always apply if - as in the 
present case - there is an encroachment upon the reliance of the person 
affected, which merits protection, that he or she will not be placed in 
preventive detention. Until a reform of the law of preventive detention, 
therefore, the courts are required, over and above the situations on 
which the decision of the Federal Constitutional Court of 4 May 2011 was 
based, also in the other situations of an adverse effect on the 
reliance, which merits protection, that preventive detention will not be 
imposed, only to order or continue preventive detention if the 
particular requirements of proportionality are satisfied. The Regional 
Court will need to consider whether these requirements are given in the 
case of the complainant. 


This press release is also available in the original german version.