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Successful constitutional complaint against retrospective order of preventive detention

Press Release No. 39/2011 of 28 June 2011

Order of 08 June 2011
2 BvR 2846/09

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.