FEDERAL CONSTITUTIONAL COURT

– 2 BvR 2122/11 –

– 2 BvR 2705/11 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

– 2 BvR 2122/11 –,

1. § 66b sec. 3 of the Criminal Code (Strafgesetzbuch – StGB)

– 2 BvR 2705/11 –

the Federal Constitutional Court – Second Senate –

with the participation of Justices

President Voßkuhle,

Lübbe-Wolff,

Gerhardt,

Landau,

Huber,

Hermanns,

Müller,

Kessal-Wulf

held on 6 February 2013:

1. The constitutional complaints are combined for joint decision.

2. a) The order of the Frankfurt am Main Higher Regional Court of 22 August 2011 – 3 Ws 761-762/11 – and the order of the Marburg Regional Court of 15 July 2011 – 7 StVK 190/11 + 267/11 – violate the first complainant’s fundamental right under Article 2 section 2 sentence 2 in conjunction with Article 104 section 1 and Article 20 section 3 of the Basic Law. The order of the Frankfurt am Main Higher Regional Court of 22 August 2011 – 3 Ws 761-762/11 – is hereby reversed. The case is remanded to the Frankfurt am Main Higher Regional Court.

2. b) The order of the Frankfurt am Main Higher Regional Court of 15 November 2011 – 3 Ws 970/11 – and the order of the Marburg Regional Court of 30 August 2011 – 7 StVK 266/11 – violate the second complainant’s fundamental right under Article 2 section 2 sentence 2 in conjunction with Article 104 section 1 and Article 20 section 3 of the Basic Law. The order of the Frankfurt am Main Higher Regional Court of 15 November 2011 – 3 Ws 970/11 – is hereby reversed. The case is remanded to the Frankfurt am Main Higher Regional Court.

3. […]

Reasons:

A.

[…]

[Excerpt from press release no. 13/2013 ]

1. § 66b StGB regulates the retrospective placement in preventive detention in cases, in which it is ascertained during a person’s confinement in a psychiatric hospital that the condition that excluded or diminished criminal responsibility is not, or no longer, met. In its judgment of 4 May 2011, the Federal Constitutional Court declared this 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, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 128, 326 <329 et seq.>). At the same time, the Federal Constitutional Court ordered that the provision would remain in force until the legislature enacted new legislation – at the latest, however, until 31 May 2013. While this provision remains in force, it may, however, only be applied subject to a strict review of proportionality.

2. With their constitutional complaints, the complainants challenge the continuance of their preventive detention, which had been ordered retrospectively after their confinement in a psychiatric hospital had been terminated.

a) The complainant in the proceedings 2 BvR 2122/11 was confined in a psychiatric hospital after having served a full prison sentence for several sexually motivated violent offences. In April 2007, the Regional Court’s Strafvollstreckungskammer [translator’s note: 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 that excluded or diminished his criminal responsibility. In March 2008, the Regional Court ordered the complainant’s retrospective preventive detention because it considered him highly dangerous. With the challenged order of 15 July 2011, the Strafvollstreckungskammer rejected the complainant’s application to suspend the preventive detention for probation. It held that imposing preventive detention only replaced one measure of correction and prevention of indefinite duration that deprived the detainee of his liberty with another such measure; in effect, this did not change matters for the worse for the complainant. With its order of 22 August 2011, which is also challenged in 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 violent offences. After two experts had stated that the complainant did not have a personality disorder, the Regional Court’s Strafvollstreckungskammer 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 this 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. With its order of 30 August 2011, the Regional Court’s Strafvollstreckungskammer rejected the complainant’s application 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 awarded them compensation for a violation of Art. 7 sec. 1 ECHR (Judgment of 7 June 2012, Applications nos. 65210/09 and 61827/09).

[End of excerpt ]

B.

The constitutional complaints are well-founded. The retrospective order of confinement in preventive detention, based on § 66b sec. 3 in the version of the Act Introducing Retrospective Preventive Detention (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung ) of 23 July 2004 (Federal Law Gazette, Bundesgesetzblatt – BGBl  I p. 1838), violates the complainants’ fundamental rights under Art. 2 sec. 2 sentence 2 in conjunction with Art. 20 sec. 3 GG.

I.

In addition to the other provisions on the imposition and duration of preventive detention, the Federal Constitutional Court has also declared § 66b sec. 3 StGB in the version of the Act Introducing Retrospective Preventive Detention of 23 July 2004 (Federal Law Gazette I p. 1838) to be incompatible with Art. 2 sec. 2 sentence 2 in conjunction with Art. 104 sec. 1 GG (cf. BVerfGE 128, 326 <330>), because it violates what is known as “Abstandsgebot ” [translator’s note: the constitutional requirement to differentiate between preventive detention and prison sentences ]. At the same time, it ordered, according to § 35 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), that the provisions would remain in force until the legislature enacted new legislation – at the latest, however, until 31 May 2013 (cf. BVerfGE 128, 326 <332>). While § 66b sec. 3 StGB thus remains in force, it may only be applied subject to a strict review of proportionality – in particular with regard to the legal interests at stake and the requirements of a risk assessment (cf. BVerfGE 128, 326 <405 and 406.>; 129, 37 <45 and 46>).

1. As a rule, preventive detention will only meet the requirements of the principle of proportionality if specific circumstances in the detainee’s person or conduct suggest a risk that he or she will commit serious violent or sexual offences (cf. BVerfGE 128, 326 <406>). During a proportionality review, the courts must examine what possibilities a supervision of conduct could provide, and whether and to what degree it could reduce the danger emanating from the person concerned (cf. BVerfGE 128, 326 <408>; 129, 37 <46>).

2. If, apart from this, legitimate expectations according to Art. 2 sec. 2 sentence 2 in conjunction with Art. 20 sec. 3 GG that there will be no imposition of preventive detention are interfered with, to still do so is only constitutionally permissible in order to protect the highest values of the Constitution, because the individual’s right to liberty is affected. The weight of the affected protection of legitimate expectations is increased by the values enshrined in Art. 5 and Art. 7 ECHR. To retrospectively order preventive detention constitutes an interference with the concerned person’s legitimate expectations that there will be no such imposition; this interference is only proportionate if specific circumstances in the detainee’s person or conduct suggest a high risk that he or she will commit highly serious violent or sexual offences, and if the conditions of Art. 5 sec. 1 sentence 2 letter e ECHR met. It is primarily the legislature’s task to determine the requirements for a mental disorder within the meaning of Art. 5 sec. 1 sentence 2 letter e ECHR. Until new legislation is enacted, and while the provisions on preventive detention continue to be in effect, the Act on Therapy and Confinement of Violent Offenders with Mental Disorders (Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter, Therapieunterbringungsgesetz – ThUG), which entered into force on 1 January 2011, is thus to be applied to these matters (BVerfGE 128, 326 <388 et seq.>; 129, 37 <46 and 47>).

Until new legislation on preventive detention is enacted, the courts are required to only impose or maintain preventive detention where the above-mentioned heightened proportionality requirements are met (cf. BVerfGE 129, 37 <47>). In addition to the cases cited in the Federal Constitutional Court’s judgment of 4 May 2011 (cf. BVerfGE 128, 326 <332>), this also applies to cases in which the application of a provision (according to the judgment’s reasons, cf. BVerfGE 128, 326 <388 et seq.>) interferes with expectations that are protected by fundamental rights and increased by the values contained in Art. 5 and Art. 7 ECHR.

3. § 66b sec. 3 StGB allows for the retrospective imposition of confinement in preventive detention in cases where the confinement in a psychiatric hospital has been terminated in accordance with § 67d sec. 6 StGB for the following reasons: The condition that excluded or diminished criminal responsibility, and on which the imposition of the measure of correction and prevention according to § 63 StGB was based, is not, or no longer, met. Thus, this provision [translator’s note: § 66b sec. 3 StGB ] interferes with legitimate expectations that are protected by fundamental rights. This applies especially to cases in which the persons concerned were convicted for the criminal offences that prompted their preventive detention before the respective new legislation entered into force. This means all cases in which the ten-year period was retrospectively extended according to § 67d sec. 3 sentence 1 in conjunction with § 2 sec. 6 StGB, as well as all cases of retrospective, subsequent imposition of preventive detention (so-called old cases – cf. BVerfGE 128, 326 <395>). The protection of legitimate expectations is of particular importance when, as in the case of preventive detention, the imposition of a measure leads to an indefinite deprivation of liberty and hence to a serious – if not the most serious – interference with the fundamental right to personal liberty (cf. BVerfGE 128, 326 <390>).

4. In such situations one cannot argue that an order of preventive detention according to § 66b sec. 3 StGB is merely a “transfer” from one measure entailing an indefinite deprivation of liberty to another (cf. BVerfGK 16, 98 <111>), and that the protection of legitimate expectations thus has a lower priority.

a) Ordering the confinement in preventive detention according to § 66b sec. 3 StGB after a confinement in a psychiatric hospital according to § 63 StGB does not merely continue the previous measure on a different legal basis, but constitutes a new, independent interference with a fundamental right.

[…]

b) Ordering confinement in preventive detention according to § 66b sec. 3 StGB is an independent measure; its procedure corresponds to this fact. While the declaration that terminates confinement in the psychiatric hospital according to § 67d sec. 6 StGB is made by the Strafvollstreckungskammer at the place of the confinement, it is the trial court that imposes the preventive detention according to § 74f sec. 1 of the Courts Constitution Act (Gerichtsverfassungsgesetz –GVG). […]

c) Furthermore, there is a qualitative difference between the two measures. According to § 72 sec. 2 StGB, both measures can be ordered next to each other, if the desired result cannot be achieved through one of them alone (§ 72 sec. 1 StGB). Confinement in a psychiatric hospital is not a lesser, but a different evil in comparison to preventive detention (cf. BVerfGK 2, 55 <63>; 16, 98 <111 and 112>; cf. also Federal Court of Justice (Bundesgerichtshof – BGH), judgment of 19 February 2002 – 1 StR 546/01 –, Neue Zeitschrift für Strafrecht – NStZ 2002, pp. 533 <534>).

d) Against this background, the retrospective imposition of preventive detention according to § 66b sec. 3 StGB constitutes an interference with the legitimate expectations of the person concerned. Its extent corresponds to the interference through the retrospective imposition of preventive detention according to § 66b sec. 2 StGB in the version of the Act Reforming Supervision and Amending Provisions on Retrospective Preventive Detention (Gesetz zur Reform der Führungsaufsicht und zur Änderung der Vorschriften über die nachträgliche Sicherungsverwahrung ) of 13 April 2007 (Federal Law Gazette I p. 513), on which the Federal Constitutional Court ruled in its judgment of 4 May 2011 (cf. BVerfGE 128, 326 <388 and 389>). If the judgment of the trial court neither ordered, nor left open the possibility of, preventive detention, and if there is no provision at the time of the judgment which allows for the retrospective imposition of confinement in preventive detention, the person concerned can generally rely on never having to face this measure of correction and prevention. This applies regardless of whether the judgment imposed a prison sentence or another measure that deprived the detainee of his or her liberty in addition to, or in place of, a prison sentence. It also makes no difference with regard to the protection of legitimate expectations whether the facts on which the convict’s danger is based did not occur, or become known, until later (§ 66b sec. 2 StGB), or whether confinement in preventive detention was not ordered although these facts were already known at the time of the judgment (§ 66b sec. 3 StGB). Even if the sole reason for not imposing confinement in preventive detention is that the trial court erroneously presumes that the conditions of § 63 StGB are met (erroneous committal), the legitimate expectation that the measure of correction and prevention will never be carried out is protected by fundamental rights – at least if there is no statutory provision that allows for a retrospective imposition of preventive detention.

5. In the case of retrospective imposition of confinement in preventive detention according to § 66b sec. 3 StGB, the weight of the affected protection of legitimate expectations is increased by the values contained in Art. 5 and Art. 7 ECHR.

a) The European Court of Human Rights held in its judgments of 7 June 2012 that the complainants’ retrospective confinement in preventive detention violated Art. 7 sec. 1 ECHR. Since, according to the established case-law of the domestic Strafvollstreckungsgerichte [translator’s note: courts with jurisdiction over the execution of sentences ], the complainants should have been released prior to the legal amendment that took place in 2004, the retrospective imposition of preventive detention constituted a new, additional and hence heavier penalty within the meaning of Art. 7 sec. 1 ECHR (European Court of Human Rights, judgments of 7 June 2012, Application nos. 61827/09, K. v. Germany, paras. 84 et seq., and 65210/09, G. v. Germany, paras. 75 et seq.). This clarification of Art. 7 ECHR by the European Court of Human Rights is to be taken into account when reviewing the violation of legitimate expectations according to Art. 2 sec. 2 sentence 2 in conjunction with Art. 20 sec. 3 GG (cf. BVerfGE 128, 326 <392>).

b) Additionally, in another “old case”, the European Court of Human Rights held that the retrospective imposition of preventive detention according to § 66b sec. 3 StGB violated Art. 5 sec. 1 sentence 2 letters a, c and e ECHR (European Court of Human Rights, judgment of 28 June 2012, Application no. 3300/10, S. v. Germany, paras. 84 et seq.). The Court found that the deprivation of liberty was not justified under Article 5 sec. 1 letter a, since there was no sufficient causal connection between the conviction and the sanction. The conviction did not even contain the option of later placing the complainant in that case in preventive detention. Under the former jurisprudence of the domestic courts, he would have had to be released if he no longer suffered from a disorder excluding or diminishing his criminal responsibility, even if he was still dangerous. There was also no justification according to Article 5 sec. 1 sentence 2 letters c and e ECHR (European Court of Human Rights, judgment of 28 June 2012, loc. cit., paras. 84 et seq. and 91 et seq.).

Given that Article 5 sec. 1 contains an exhaustive list of permissible grounds for deprivation of liberty (cf. European Court of Human Rights, judgment of 17 December 2009, Application no. 19359/04, M. v. Germany, para. 86; European Court of Human Rights, judgment of 19 April 2012, Application no. 61272/09, B. v. Germany, para. 66 with further references), a justification of the retrospective imposition of preventive detention under the Convention according to § 66b sec. 3 StGB in “old cases” can only be considered under the requirements set out in Art. 5 sec. 1 sentence 2 letter e ECHR (cf. BVerfGE 128, 316 <396>).

c) Whether these considerations can also be transferred to “new cases”, as has been affirmed by the Federal Constitutional Court with regard to § 66b sec. 2 StGB (cf. BVerfGE 128, 326 <395>), is not to be ruled on in the case at hand. […]

d) When the retrospective imposition of preventive detention takes place in cases in which the persons concerned had already been sentenced for their original criminal offences before § 66b sec. 3 StGB in the version of the Act Introducing Retrospective Preventive Detention of 23 July 2004 (Federal Law Gazette I p. 1838) came into force, the values contained in Art. 7 sec. 1 and Art. 5 sec. 1 ECHR lead to a situation in which the weight of their legitimate expectations approaches that of an absolute protection of legitimate expectations (cf. BVerfGE 128, 326 <391>). Retrospective imposition or continuance of preventive detention according to § 66b sec. 3 StGB may hence only be imposed in cases where specific circumstances in the detainee’s person or conduct suggest a high risk that the detainee will commit highly serious violent or sexual offences, and if he or she suffers from a mental disorder within the meaning of § 1 sec. 1 No. 1 of the Act on Therapy and Confinement of Violent Offenders with Mental Disorders (Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter, Therapieunterbringungsgesetz – ThUG) (BVerfGE 128, 326 <388 et seq., 406 and 407>; 129, 37 <46 and 47>).

II.

The challenged decisions violate the complainants’ fundamental rights under Art. 2 sec. 2 sentence 2 in conjunction with Art. 104 sec. 1 and Art. 20 sec. 3 GG. They are hence to be reversed and the case is to be remanded for a new ruling (§ 95 sec. 2 BVerfGG).

The continuance of the complainants’ retrospectively ordered confinement in preventive detention does not satisfy the requirements for a constitutional ruling on the basis of § 66b sec. 3 StGB in the version of the Act Introducing Retrospective Preventive Detention of 23 July 2004 (Federal Law Gazette I p. 1838) that derive from the judgment of 4 May 2011. The courts do not recognise that, in “old cases”, because of the interference with constitutionally protected legitimate expectations, the interference with the complainants’ right to liberty is only permissible subject to a strict review of proportionality and in order to protect the highest values of the Constitution. By not using such a standard of review – which is primarily their obligation, and not the obligation of the Federal Constitutional Court – they violate the complainants’ legitimate expectations protected by the right to liberty to not have confinement in preventive detention retrospectively imposed on them.

The Higher Regional Court will therefore have to decide again on the continuance of the complainants’ retrospective preventive detention, and heed in this decision the requirements of the transitional arrangements that the Senate set out, in accordance with § 35 BVerfGG, in its judgment of 4 May 2011 (BVerfGE 128, 326 <332 et seq.>); or the Higher Regional Court will have to order the complainants’ release, if necessary, subject to conditions.

C.

[…]