Federal Constitutional Court - Press office -
Press release no. 23/2012 of 17 April 2012
Order of 27 March 2012 – 2 BvR 2258/09 –
Exclusion of crediting periods of detention under measures of correction
and prevention unconstitutional in part
The Second Senate of the Federal Constitutional Court has held § 67.4 of
the Criminal Code (Strafgesetzbuch - StGB) unconstitutional to the
extent that it excludes, even in cases of hardship, the crediting of a
period of time spent in detention under measures of correction and
prevention towards what are known as custodial sentences unrelated to
the proceedings.
German criminal law has a two-track system of sanctions, characterised
by parallel criminal sentences and measures of correction and
prevention. A deprivation of liberty may consist either in imposing and
enforcing a custodial sentence (§§ 38, 39 StGB) or in ordering a
custodial measure of correction and prevention (§§ 63, 64, 66 et seq.
StGB). If both a custodial sentence and a custodial measure of
correction and prevention are to be served, the relationship of the two
custodial orders to each other is governed by § 67 StGB. § 67.1 StGB
provides that the measure of correction and prevention is enforced
before the criminal sentence if there are both an order of committal to
an institution under §§ 63, 64 StGB and a criminal sentence.
Supplementing this, § 67.4 StGB provides that the period of enforcement
of the measure of correction and prevention is credited towards the
criminal sentence until two-thirds of the sentence have been served.
However, this only applies if the custodial sentence and the measure of
correction and prevention are imposed in the same judgment, or if
further custodial sentences are capable of forming a compound sentence.
The complainant was diagnosed when he was a juvenile with a mental
illness needing treatment. In the years 1992, 1993 and 2000 he received
several custodial sentences. Inter alia, in the year 1993 Hanau Regional
Court (Landgericht) convicted him of aggravated theft and use of force
to retain stolen goods committed together with aggravated causing of
bodily harm by dangerous means and awarded him a custodial sentence of
three years and six months. The enforcement proceedings following this
conviction and sentencing were protracted. The public prosecutor’s
office, which is the competent enforcement authority, repeatedly
postponed the enforcement of the sentence after consultation with
experts, by reason of the complainant’s continuing mental illness, and
therefore until mid-2004 it was impossible for any of the sentences
imposed to be enforced. Finally, in June 2004, Frankfurt am Main
Regional Court convicted the complainant of the theft of low-value items
and intentional bodily harm, sentenced him to a total custodial sentence
of six months and ordered him to be confined in a psychiatric hospital.
From 5 August 2004 to 15 January 2009, on the basis of this judgment,
the complainant was detained under measures of correction and
prevention. Here, his treatment was so successful that the last expert
involved recommended preparations for his release. An obstacle to this
was that the criminal sentences not yet served were still outstanding.
The complainant therefore made a petition for clemency, which the
competent authorities rejected at the end of the year 2007. The
institution where the complainant was detained under the measure of
correction and prevention then moved him to a secure ward on grounds of
danger of absconding. With effect from 15 January 2009, on the
complainant’s application, the enforcement of the measure of correction
and prevention was interrupted and the enforcement of the criminal
sentence under the judgment of Hanau Regional Court commenced. The
complainant then applied for a corrected calculation of the period of
sentence, crediting the period of detention during the enforcement of
the measure of correction and prevention towards the total period of
enforcement. This application was refused both by the public
prosecutor’s office and by the courts competent for enforcement, with
reference to the unambiguous provision of § 67.4 StGB.
The Second Senate of the Federal Constitutional Court granted the relief
against this sought in the constitutional complaint and held that § 67.4
StGB is incompatible with Article 2.2 sentence 2 of the Basic Law
(Grundgesetz - GG) to the extent that it excludes without exception the
crediting of the period of enforcement of a custodial measure of
correction and prevention against criminal custodial sentences unrelated
to the proceedings. At the same time, under § 35 of the Federal
Constitutional Court Act (Gesetz über das Bundesverfassungsgericht -
BVerfGG), the Senate ordered that until the legislature reforms the law,
in cases of hardship, depending on the grounds of judgment, the period
of enforcement of a measure of correction and prevention must also be
credited towards criminal custodial sentences which are unrelated to the
proceedings.
In essence, the decision is based on the following considerations:
1. The “personal freedom” guaranteed by Article 2.2 sentence 2 GG may
only be restricted for particularly good reasons. The authorisation for
the state to impose and enforce custodial criminal sentences is based on
the culpable commission of the criminal offence. In contrast, committal
under a measure of correction and prevention is justified by the danger
caused by the person concerned and the corresponding need for security
of the general public. Since the disturbance or illness for which the
measure of correction and prevention is imposed is decided by fate and
the danger derived from it is not a personality characteristic which the
detainee can control, the detainee is subjected to a special sacrifice
by the enforcement of the measure of correction and prevention. It
follows from this circumstance and from human dignity, from the
principle of the social welfare state and from the principle of
proportionality that detention under measures of correction and
prevention must especially be directed to the objective of
resocialisation.
2. The state’s right to punish and, following from this, the requirement
that sentences which have been finally and non-appealably imposed and
which are appropriate to the act and the culpability of the person
involved are enforced lie in the public interest. However, the gravity
of the encroachment associated with the realisation of this right must
not ultimately be disproportionate to the weight of the grounds
justifying it. In this connection, several encroachments which, seen in
themselves, may possibly be appropriate or reasonable encroachments, may
in their overall effect result in serious detriment which exceeds the
degree of what is constitutionally tolerable.
Custodial criminal sentences and custodial measures of correction and
prevention must therefore be put in relation to each other in such a way
that the objectives of both procedures are achieved as far as possible
without this causing a greater encroachment than necessary upon the
right of freedom of the person concerned under Article 2.2 sentence 2
GG. Only good reasons can justify endangering therapeutic successes
achieved in detention under measures of correction and prevention by a
subsequent enforcement of a criminal sentence. Since a custodial prison
sentence and a measure of correction and prevention are fundamentally
parallel, however, Article. 2.2 sentence 2 GG does not require one to be
credited against the other in all circumstances.
3. As a result of the non-crediting of periods of detention under
measures of correction and prevention towards custodial criminal
sentences unrelated to the proceedings of § 67.4 StGB, an accumulation
of periods of detention under both systems may arise. The associated
burdens may only be influenced to a limited extent by the instruments of
enforcement law provided by the legislature, for they are not adequately
coordinated with each other either in themselves or with regard to their
mutual relation to each other and are therefore insufficient to avoid
cases of hardship.
4. As a result of the application of § 67.4 StGB, the challenged
decisions result in an accumulation of encroachments upon the
complainant’s right of freedom; in view of the unusual circumstances of
the case in issue, these exceed the constitutionally acceptable degree.
As a result of the failure to credit the periods of detention under
measures of correction and prevention towards the custodial criminal
sentences not yet served, the complainant must either suffer a
subsequent enforcement of sentence lasting many years or interrupt the
enforcement of measures of correction and prevention for a long period.
In both cases there is a danger that the success in treatment already
achieved may be completely reversed, the successful resocialisation of
the complainant to be frustrated and the special sacrifice imposed on
him to become meaningless.
This press release is also available in the original german version.
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