Federal Constitutional Court - Press office -
Press release no. 57/2012 of 19 July 2012
Order of 20 June 2012 – –
2 BvR 1048/11
Except where this would breach the duty to establish a distance between
preventive detention and imprisonment sentences (Abstandsgebot), it is
constitutional and in keeping with the European Convention on Human
Rights (ECHR) for a sentencing court to reserve its right to order
preventive detention at the time of sentencing
The option of reserving the right to order preventive detention, which
became available on 28 August 2002 as a result of the insertion of § 66a
in the Criminal Code (Strafgesetzbuch – StGB), enables the courts to
decide on the imposition of a preventive measure in a two-stage hearing.
The version of § 66a StGB then in force, which is the relevant version
in this case, allows a court to initially issue a sentencing order and
reserve its right to order preventive detention if the danger posed to
the public by the convicted person cannot be ascertained with sufficient
certainty at the time of sentencing, thereby making it impossible to
order primary preventive detention although the requirements for its
application pursuant to § 66.3 StGB (old) are otherwise present. At the
end of the convicted person’s term of imprisonment, the court of
decision then has the option of ruling in a second procedural step on an
order for preventive detention after conducting a (further) hearing. An
order of preventive detention is mandatory if an overall assessment of
the convicted person, his or her offences and development during penal
detention indicates that he or she can be expected to commit a grave
crime which would inflict serious psychological or bodily harm on his or
her victim (§ 66a.2 StGB (old); now § 66a.3 sentence 2 StGB). The reform
of the law on preventive detention which took effect on 1 January 2011
also involved the amendment of § 66a StGB; among other things, the
reform reduced the catalogue of criminal offences which constitute
grounds for ordering preventive detention.
The complainant, who had received various prison terms since the 1980s
for committing paedophile offences, was sentenced to a seven-year prison
term by the Regional Court (Landgericht) in February 2008 for, among
other things, several serious cases of sexual abuse of children and
attempted rape. At the same time, the court reserved the right to order
preventive detention. In November 2010, the Regional Court ordered in
the challenged judgment on the basis of a forensic-psychiatric opinion
that the complainant be placed in preventive detention pursuant to §
66a.2 StGB (old). His appeal against the order to the Federal Court of
Justice (Bundesgerichtshof) was unsuccessful. In essence, he alleges in
his constitutional complaint that the order violates his fundamental
right to liberty and bases this allegation on the Federal Constitutional
Court’s judgment of 4 May 2011.
The Second Senate of the Federal Constitutional Court found that the
challenged decisions violated the complainant’s fundamental right to
liberty under Article 2.2 sentence 2 in conjunction with Article 104.1
sentence 1 of the Basic Law (Grundgesetz – GG) because they were based
on the old version of § 66a StGB, which the Federal Constitutional Court
had declared unconstitutional in its judgment of 4 May 2011. The matter
has been remitted to the Federal Court of Justice for a new ruling. At
the same time, the Senate has made it clear that the provision in § 66a
StGB (old) reserving the right to order preventive detention does not
violate – with the exception of the violation of the fundamental right
to liberty ascertained in the Federal Constitutional Court’s judgment of
4 May 2011 – any provisions of the Basic Law.
In essence, the decision is based on the following considerations:
I. The Federal Constitutional Court held in its judgment of 4 May 2011
that all of the provisions in the Criminal Code and the Juvenile Court
Act (Jugendgerichtsgesetz) on the imposition and duration of preventive
detention, and thus § 66a StGB (old) as well, were incompatible with the
fundamental right to liberty because they did not satisfy the
constitutional requirement of establishing a distance between preventive
detention and prison sentences (see Press Release No. 31/2011 of 4 May
2011). The provision in § 66a StGB (old) does not, however, violate
provisions of the Basic Law for other reasons.
1. The option of reserving the right to order preventive detention does
not violate the guaranteed protection of human dignity entrenched in
Article 1.1 GG. The Senate has already decided that a person’s human
dignity will not be violated by placement in preventive detention if
this is necessary as a preventive measure to protect the general public
from such person’s continued dangerousness. An assessment of the
reservation of the right to order preventive detention does not lead to
a different conclusion. The person concerned is not degraded to an
object of state action. It is true that in the case of the reservation
of the right to order preventive detention such person is left in
uncertainty as to his or her fate at the time of sentencing and, as a
rule, at least during the largest part of his or her imprisonment. This
uncertainty does not, however, result in a special psychological or
physical burden which could be regarded as cruel, inhumane or degrading.
On the contrary, the person concerned has to a large extent control over
whether preventive detention is later ordered since he or she can
contribute to obtaining a favourable prediction of his or her
dangerousness by cooperating, for example, in therapy. Accordingly, the
reservation of the right to order preventive detention is in and of
itself suitable for making it clear to the person concerned that he or
she is not at the mercy of a course of events over which he or she has
no control.
2. The reservation of the right to order preventive detention does not
violate the fundamental right to liberty for any reasons beyond the
violation of the duty to establish a distance between preventive
detention and imprisonment, which was determined in the judgment of 4
May 2011.
a) It satisfies the requirements of the principle of proportionality. If
one weighs the imposition of the reservation against the general
public’s need for safety, the imposition does not constitute an
unreasonable impairment of the person concerned’s rights. According to
the statutory provisions that regulate an order reserving the right to
impose preventive detention, such an order may not be issued merely as a
precaution, but requires, in addition to the other preconditions for
preventive detention, a strong and obvious likelihood that the offender
poses a danger to the general public and that this will still be the
case at the time of a possible release. Furthermore, the reservation
does not involve any legal disadvantages for the execution of the
penalty.
The reservation of the right to order preventive detention and the
execution of the order at a later time is also not disproportionate to
the seriousness of the encroachment of fundamental rights in view of the
prior offences and offences which constitute grounds for such an order.
Preventive detention satisfies the ultima ratio principle since the
reservation can only be imposed where the necessary strong and obvious
likelihood that the offender poses a danger to the general public only
relates to threatened criminal offences which could lead to serious
psychological or bodily harm to the potential victim. As a rule, this
approach precludes the imposition of the reservation and the later order
for preventive detention in practice when the preceding criminal
offences did not inflict psychological or bodily harm on the victim and
were not suitable for causing such injury.
Moreover, the fact that the court bases its decision on whether to order
preventive detention on a prediction of the person concerned’s
dangerousness which relies on his or her behaviour in prison also does
not make the reservation of the right to impose preventive detention
disproportionate. The limited meaningfulness of the person concerned’s
behaviour in prison means that such behaviour has to be evaluated with
particular caution. The decisions of the courts already take this
sufficiently into account in that they do not simply conclude that
behaviour that is generally widespread and typical for prisons, such as
unfriendliness or rebelliousness, is an indication that the convicted
person is dangerous.
b) The reservation of the right to impose preventive detention also does
not constitute a disproportionate encroachment on the fundamental right
to liberty if measured against the standards of the European Convention
on Human Rights (ECHR) and the rulings of the European Court of Human
Rights (ECtHR). Such encroachment is justified by Article 5.1 sentence 2
letter (a) ECHR, which permits “lawful detention of a person after
conviction by a competent court”. The Article requires that there be a
sufficient causal link between the conviction determining guilt and the
detention at issue. According to the case law of the European Court of
Human Rights, the fact that the order for detention is not made at the
time of conviction does not prevent an assumption that such a causal
link exists. What is far more important is that a subsequent order for
detention complies with the legislation prevailing at the time of the
conviction and the boundaries created by the conviction.
This requirement is satisfied here because the decision to reserve the
right to order preventive detention lays the foundation for its
subsequent imposition. The sense and purpose of the reservation is to
create a wider factual basis for the decision as to whether it is
necessary to place the offender in preventive detention in order to
protect the general public and thus to obtain a more exact prediction of
his or her dangerousness. Therefore, the decision as to whether or not
to order preventive detention is founded on reasons that were already
laid down in the judgment containing the reservation.
c) The reservation of the right to order preventive detention also does
not violate the principle of nulla poena sine lege or the requirement of
legal certainty. In particular, there is no general principle to the
effect that persons who are deprived of their liberty through
encroachment by the state are entitled to certainty as to the actual
duration of their detention at the time of their conviction. The legal
certainty requirement merely provides the persons concerned with a right
to certainty as to the duration of detention at the time at which the
basic structure of the proceedings selected by the legislature allows
such a decision to be made. It is an inherent aspect of the reservation
of the right to order preventive detention that a decision to make such
an order can first be made at a subsequent point in time.
II. The challenged decisions violate the complainant’s fundamental right
to liberty because they are based on § 66a StGB (old), which is
unconstitutional. According to the transitional guidelines laid down by
the Federal Constitutional Court in its judgment of 4 May 2011, § 66a
StGB (old) – like all of the provisions on preventive detention that are
unconstitutional because they violate the fundamental right to liberty –
may only be applied in compliance with a strict proportionality test. As
a rule, the proportionality principle will only be satisfied where there
are specific indications in the personality or conduct of the person
concerned from which a risk that he or she will commit a serious violent
or sexual crime can be inferred. The courts have not examined whether
the order for placement in preventive detention was permissible
according to this standard. It is necessary for the Federal Court of
Justice to examine in its new appellate decision whether the findings
which were made at first instance were sufficient for a final decision
on an order for placement of the complainant in preventive detention or
whether additional findings are required for this purpose.
This press release is also available in the original german version.
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