Federal Constitutional Court - Press office -
Press release no. 13/2013 of 27 February 2013
Order of 6 February 2013
2 BvR 2122/11
2 BvR 2705/11
Retrospective imposition of preventive detention following confinement
in a psychiatric hospital is subject to strict prerequisites
In an order published today, the Second Senate of the Federal
Constitutional Court confirmed its jurisprudence on preventive detention
imposed retrospectively, i.e. at the end of the detainee’s detention.
Until the new legislation which has become necessary enters into force,
at the latest, however, until 31 May 2013, preventive detention may only
be imposed retrospectively if specific circumstances in the detainee’s
person or conduct suggest a high risk that the detainee will commit most
serious offences of violence or sexual offences and if the detainee
suffers from a mental disorder. These principles also apply if the
person concerned had been confined in a psychiatric hospital before. In
these cases, preventive detention does not merely replace one measure of
correction and prevention with another; it is a new, independent
infringement of a fundamental right. If the infringement takes place
based on legislation which had not entered into force at time of the
sentencing for the original criminal offences, the protection of
legitimate expectations carries a particularly high weight.
The decision is essentially based on the following considerations:
1. § 66b of the Criminal Code (Strafgesetzbuch – StGB) provides for
preventive detention being imposed retrospectively in cases in which it
is ascertained during the confinement in a psychiatric hospital that the
condition which excludes or diminishes criminal responsibility is not,
or no longer, met. In its judgment of 4 May 2011, the Federal
Constitutional Court declared the provision incompatible with the Basic
Law because it does not satisfy the constitutional requirement of
establishing a difference between preventive detention and prison
sentences (Abstandsgebot, cf. Decisions of the Federal Constitutional
Court – BVerfGE 128, 326 <329 et seq.>). At the same time, the Federal
Constitutional Court ordered that the provision would continue in effect
until the legislature enacted new legislation, at the latest, however,
until 31 May 2013. While it continues in effect, however, it may only be
applied subject to a strict review of proportionality.
2. In their constitutional complaint, the complainants challenge the
continuance of their preventive detention, which had been ordered
retrospectively when their confinement in a psychiatric hospital had
been terminated.
a) The complainant of proceedings 2 BvR 2122/11 was confined in a
psychiatric hospital after having served a full prison sentence imposed
because of several offences of violence he had committed for sexual
motives. In April 2007, the Regional Court’s criminal division with
jurisdiction over the execution of sentences declared the confinement
terminated because – contrary to what had been assumed in the original
judgment – the complainant was not in a condition which excluded or
diminished his criminal responsibility. In March 2008, the Regional
Court ordered the complainant’s retrospective preventive detention
because, it held, he was highly dangerous. By the challenged order of 15
July 2011, the division rejected an application made by the complainant
to suspend the preventive detention for probation. It held that ordering
preventive detention only replaced one measure of correction and
prevention of indefinite duration that deprived the detainee of his
liberty with another, which would therefore, in effect, not mean a
change for the worse to the complainant. By its order of 22 August 2011,
which has also been challenged by the constitutional complaint, the
Higher Regional Court rejected the immediate objection raised against
the judgment.
b) The complainant in the proceedings 2 BvR 2705/11 was also confined in
a psychiatric hospital due to several sexually motivated offences of
violence. After two experts had stated that the complainant did not have
a personality disorder, the Regional Court’s criminal division with
jurisdiction over the execution of sentences declared his confinement
terminated in July 2007. At the same time, it ordered his temporary
confinement in preventive detention. The Higher Regional Court, however,
reversed the temporary confinement order; as a result, the complainant
was out of prison for two weeks. In April 2008, the Regional Court
ordered the complainant’s retrospective preventive detention. By its
order of 30 August 2011, the Regional Court’s criminal division with
jurisdiction over the execution of sentences rejected the application
made by the complainant to suspend the preventive detention for
probation. The Higher Regional Court rejected the immediate objection
raised against the judgment on 15 November 2011. The reasoning of the
two challenged orders corresponds to that of the proceedings 2 BvR
2122/11.
c) A constitutional complaint that the two complainants had previously
lodged against the original order of retrospective preventive detention
had not been admitted for decision (Chamber decisions of the Federal
Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts
– BVerfGK 16, 98). Both complainants thereupon filed an application with
the European Court of Human Rights, which had awarded them compensation
for a violation of Art. 7 sec. 1 ECHR (Judgment of 7 June 2012,
Applications nos. 65210/09 and 61827/09).
3. The constitutional complaints are well-founded. The challenged orders
violate the complainants’ fundamental right to liberty (Art. 2 sec. 2
sentence 2 of the Basic Law, Grundgesetz – GG) in conjunction with the
principle of protection of legitimate expectations (Art. 20 sec. 3 GG).
a) Retrospective preventive detention, which is made possible by § 66b
StGB, interferes with legitimate expectations that are protected by
fundamental rights. This especially applies if the persons concerned
were convicted for the criminal offences giving rise to preventive
detention before the provision entered into force (so-called old cases).
As preventive detention leads to deprivation of liberty of indefinite
duration, the interests affected concerning the protection of legitimate
expectations are of especially high weight.
b) In contrast, it cannot be argued that with a retrospective order of
preventive detention, interests concerning the protection of confidence
have lower priority because it is merely a “transfer” from one measure
entailing a deprivation of liberty of indefinite duration to another.
Preventive detention that follows confinement in a psychiatric hospital
does not merely continue the previous measure on a different legal basis
but is a new, independent infringement of a fundamental right. This
already results from the fact that preventive detention can only be
ordered if confinement in a psychiatric hospital has been declared
terminated before. Moreover, the organisation of the proceedings in
which the order is made shows that it is an independent measure. The
declaration that terminates confinement in the psychiatric hospital is
made by the division with jurisdiction over the execution of sentences
at the place of confinement, while preventive detention is ordered by
the trial court. In addition, there is a qualitative difference between
both measures. c) The weight of the interests affected concerning the
protection of legitimate interests is increased by the valuations
contained in the European Convention on Human Rights. In its judgment of
7 June 2012, the European Court of Human Rights held that the
complainants’ retrospective preventive detention violates Art. 7 sec. 1
ECHR. Moreover, it results from the Court’s further case-law that in old
cases, retrospective preventive detention can only be justified under
the Convention under the condition of Art. 5 sec. 1 sentence 2 letter e
EECHR (i.e. for persons of unsound mind).
Thus, the valuations of the European Convention on Human Rights confirm
that the trust of the persons affected in preventive detention not being
imposed in old cases comes close to an absolute protection of legitimate
expectations. Therefore, preventive detention may only be imposed
retrospectively in these cases if specific circumstances in the
detainee’s person or conduct suggest a high risk that the detainee will
commit most serious offences of violence or sexual offences and if the
detainee suffers from a mental disorder within the meaning of § 1 sec. 1
no. 1 of the Therapeutic Committal Act (Therapieunterbringungsgesetz).
d) The Higher Regional Court will therefore have to render a new
judgment on the continuance of retrospective preventive detention
according to the transitional arrangement resulting from the Federal
Constitutional Court’s judgment of 4 May 2011.
This press release is also available in the original german version.
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