Bundesverfassungsgericht

You are here:

Therapeutic Confinement Act is constitutional if interpreted in conformity with the Basic Law

Press Release No. 50/2013 of 08 August 2013

Order of 11 July 2013
2 BvR 2302/11

While the Therapeutic Confinement Act is consistent with the Basic Law, it must be interpreted in conformity with the Constitution. Confinement may only be ordered if specific circumstances which are directly related to the confined person or his conduct suggest a high risk that he will commit the most serious violent crimes or sexual offences. This was decided by the Second Senate of the Federal Constitutional Court in an order published today. Justice Huber submitted a dissenting opinion with regard to the legislative competence.

The Decision is Based on the Following Key Considerations:

1. The complainant challenges his confinement under a court order and, indirectly, the Therapeutic Confinement Act (Therapieunterbringungsgesetz – ThUG), which came into force on 1 January 2011. He committed several violent offences, mostly with a sexual component and under the influence of alcohol. In 1989, the Regional Court (Landgericht) ordered him to be confined in a psychiatric hospital because his criminal incapacity could not be ruled out. In 2005, the Regional Court declared that he was to be no longer confined; although he was still dangerous, his criminal capacity was no longer significantly impaired. In April 2007, before the complainant had completed his sentence, the Regional Court ordered for the first time his subsequent preventive detention. In May 2010, in light of the case-law of the European Court of Human Rights (ECtHR), the Federal Court of Justice (Bundesgerichtshof) ordered the immediate release of the complainant. Following this decision, the city of S. applied for his therapeutic confinement.

Subject-matter of the proceedings 2 BvR 2302/11 are orders concerning the complainant’s provisional therapeutic confinement for three months, issued by the Regional Court on 2 September 2011 and by the Higher Regional Court (Oberlandesgericht) on 30 September 2011. Subject-matter of the proceedings 2 BvR 1279/12 are the orders of the Regional Court (17 February 2012) and of the Higher Regional Court (14 May 2012), which concern the complainant’s confinement in the principal proceedings until 1 March 2013.

2. The constitutional complaints are unfounded to the extent that they indirectly challenge the provisions of the Therapeutic Confinement Act.

a) The federal legislature has concurrent legislative powers.

Historically, the competence for “criminal law” (Art. 74 sentence 1 no. 1 of the Basic Law, GrundgesetzGG) covers not only retributive sanctions to make amends for the crime, but also specific preventive reactions to a criminal act. This means that both primary preventive detention, established by pre-constitutional laws, and retrospective preventive detention can be seen as part of the existing body of criminal law. As far as legislative competences are concerned, the narrower meaning of punishment under Art. 103 sec. 2 GG does not oppose such a broad interpretation of the concept.

The purpose of therapeutic confinement, as of preventive detention, is to securely confine perpetrators who continue to threaten highly ranked legally protected interests after they have served their prison sentences, so as to protect the general public. Its inclusion under the same legislative competences is supported by the fact that the confinement is specifically linked to an act punished under criminal law, and the function of the Therapeutic Confinement Act, which is to close a gap in the available legal instruments. In terms of competences, the law enacted to fill the legislative gap cannot be assessed differently from the law containing the gap. Nor do the freedom-oriented therapy concept and the procedural setup of the Therapeutic Confinement Act stand in the way of it falling under the competences for criminal law.

b) Interpreted in conformity with the Constitution, confinement under the Therapeutic Confinement Act is consistent with the protection of legitimate expectations under the rule of law pursuant to Art. 2 sec. 2 sentence 2 in conjunction with Art. 20 sec. 3 GG.

aa) Therapeutic confinement is a deprivation of liberty that is ordered retrospectively. The intensity of this interference with fundamental rights corresponds to that of preventive detention. § 1 sec. 1 ThUG, too, allows for a potentially unlimited deprivation of liberty. § 2 ThUG prescribes confinement in a suitable therapeutic institution and a freedom-oriented therapeutic concept. The same applies to preventive detention, which – in clear contrast to prison sentences – must be freedom-oriented and have a clear therapeutic dimension.

bb) Thus, the principle of proportionality, taking into consideration the requirements under the European Convention on Human Rights (ECHR), demands that confinement only be ordered if specific circumstances in the person or conduct of the confined person suggest a high degree of risk that most serious crimes of violence or sexual offences will be committed.

While the wording of § 1 sec. 1 ThUG does not provide for such a narrow risk assessment, a – restrictive – interpretation in conformity with the Constitution is possible. The wording and purpose of the provision do not conflict with this.

Nor can it be argued that the Therapeutic Confinement Act is left without any area of application if it is interpreted according to the Federal Constitutional Court’s strict standards on retrospective preventive detention. Therapeutic confinement is a subsidiary arrangement to preventive detention, as is stipulated in the Act itself. One should also take into consideration that the Therapeutic Confinement Act was passed at a time when the crucial questions had not yet been clarified in the case-law of the Federal Court of Justice, and the Federal Constitutional Court had not yet spoken on the matter. The legislature’s concern at the time was to create a narrowly defined transitional arrangement until the new arrangements for preventive detention came into effect.

cc) § 2 ThUG contains the constitutionally mandated differentiation from the serving of a prison sentence. The Act sets qualitative criteria for the institutions and provides for their spatial and organisational separation from penal institutions. Moreover, as little strain as possible is to be put on the persons under such confinement, while taking into account their therapeutic needs and the safety interests of the general public. With these provisions, the Act ensures compliance with the requirement for clear differentiation between prison sentences and therapeutic confinement, and it creates a necessary condition to ensure that therapeutic confinement is not classified as punishment within the meaning of Art. 7 sec. 1 ECHR.

dd) The requirement of a “mental disorder” within the meaning of § 1 sec. 1 ThUG does not conflict with the values of the ECHR.

(1) The Therapeutic Confinement Act does not provide a definition of “mental disorder”. However, the meaning of the words and the history of the Act’s genesis provide a sufficiently clear indication of how it should be understood. According to the Act’s explanatory memorandum, the intention is to follow the case-law of the ECtHR on Art. 5 sec. 1 sentence 2 letter e ECHR, which permits “persons of unsound mind” to be deprived of their liberty, and to also follow the diagnostic classification systems of the ICD-10 and the DSM-IV. The disorder need not be of a kind that excludes criminal responsibility of the perpetrator or is assessed as a mental illness in psychiatric-forensic assessment practice. However, there must be a noticeable clinically recognisable complex of such symptoms or disturbed behaviours, accompanied by stress and impairment at the individual level, as well as – not always, but frequently – at the collective or social level.

(2) From the perspective of legal systematics, therapeutic confinement differs from the previous two-track system of confinement in a psychiatric hospital on the one hand, and preventive detention on the other. The legislature has installed a “third way”, which cannot be distinguished on the basis of criminal responsibility. Not requiring a lack of criminal responsibility does not conflict with the values under Art. 5 sec. 1 sentence 2 letter e ECHR, or the case-law of the ECtHR. To the extent that the ECtHR also places qualitative requirements on national law, the Therapeutic Confinement Act satisfies these, especially with regard to foreseeability.

c) The requirement of clarity of the law, or definiteness (Bestimmtheitsgebot) is satisfied.

The Therapeutic Confinement Act’s explanatory memorandum refers to and follows the ECtHR’s restrictive interpretation of the indefinite legal concept “mental disorder”. Moreover, it follows the classification systems ICD-10 and DSM-IV, which are recognised in psychiatry. Further limits on the interference with fundamental rights are created by the requirement of a causal link between the mental disorder and the risk, and by the other constituent elements of § 1 ThUG.

Different views on whether the person concerned needs to personally suffer from his or her condition in order to be placed in therapeutic confinement does not lead to insufficient clarity or definiteness either. Such a requirement would not be compatible with the legislature’s aim of achieving maximum protection of the population. Nor does the wording of the provision does not suggest such an interpretation.

d) In the version relevant for this case, the Therapeutic Confinement Act does not violate the prohibition of laws that are merely applicable to a single case (Verbot des Einzelfallgesetzes) under Art. 19 sec. 1 sentence 1 GG.

Art 19 sec. 1 GG prohibits laws that restrict fundamental rights, and which apply not generally but merely to a single case. A law is “general” if, due to its abstract constituent elements, one cannot tell to how many and which cases it applies. This does not, however, exclude the possibility that it applies only to a single case, if the facts are such that there is just one case of this kind and there are objective reasons for regulating this single case.

In its wording, § 1 sec. 1 ThUG is phrased in an abstract way and thus complies with the requirement of generality. While the area of application of the Act covers a closely limited group of persons, this abstract limitation does not constitute an individualisation of the affected persons.

3. The decisions by the regular courts that are challenged in the constitutional complaints are not consistent with the requirements set by the Basic Law for the application of the Therapeutic Confinement Act. They violate the complainant’s fundamental right under Art. 2 sec. 2 sentence 2 in conjunction with Art. 20 sec. 3 GG, because the regular courts did not base their decisions on the required proportionality criteria as warranted by the Constitution. What is decisive is the mere objective unconstitutionality; it is irrelevant whether the regular courts can be blamed for the violation of the fundamental rights. However, not objectionable under constitutional law is the Higher Regional Court’s approach, according to which no fixed percentage can be used for determining the required degree of probability, and which states that the weight of the predicted offences must be part of the assessment.

Dissenting Opinion of Justice Huber:

To the extent that the Senate majority affirms the competence of the Federal Government for enacting the Therapeutic Confinement Act, I agree with this finding. However, the legislative competence of the Federal Government cannot be derived directly from its competence in the matter of “criminal law” (Art. 74 sec. 1 no. 1 GG), but merely from the objective connection to criminal law.

1. The view of the Senate majority overstretches the concept of criminal law under Art. 74 sec. 1 no. 1 GG.

a) The only objective of the Therapeutic Confinement Act is to avert extreme dangers of the most serious violent crimes or sexual offences, to the extent that they are caused by mental disorders of the persons to be confined. When the Act entered into force, it differed strongly from the law governing preventive detention. They result from the requirements for imposing the measure and the legal terms of reference for its execution. Moreover, the procedural law is modelled after the provisions of the Act on Procedural Issues in Family Matters and Matters of Non-Contentious Litigation (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) and establishes exclusive jurisdiction of the Regional Courts’ civil divisions. If the legislature explicitly refrains from synchronising an area of law with the law of criminal procedure, the assessment under constitutional law must not disregard this. The mere fact that therapeutic confinement is also linked to an initial offence does not make it a reaction to wrongdoing committed under criminal law. Instead, the link to an initial offence ensures that this instrument, which constitutes a serious interference with fundamental rights, is restricted to what is absolutely necessary.

b) It is recognised that the measures of correction and prevention are part of criminal law. As the Senate majority emphasises, such a wide understanding of competence for criminal law is both a result of historical reasons and suggests itself for substantive reasons. Moreover, the (partial) interlocking of punishment and measures of correction and prevention in the German two-track system of sanctions results in the preservation of freedoms. However, the genesis and the effectiveness of the two-track system of sanctions do not justify assigning the Federation the competence to establish other pillars in the field of criminal law. Already with regard to retrospective preventive detention, the link to the initial offence was so weak that it was feared to entail an excessive interpretation of Art. 74 sec. 1 no. 1 GG to the detriment of the Laender. This applies all the more to therapeutic confinement.

2. Nevertheless, the Federation has legislative competence arising from a factual connection.

a) Competence arising from a factual link supports and complements an assigned competence if the respective matter cannot be regulated without regulating at the same time another matter that has not been explicitly been assigned. In other words, to encroach on an area of competence originally assigned to the Laender must be an essential condition for the effective regulation of the assigned matter.

b) The Therapeutic Confinement Act shows strong connections to the confinement laws of the Laender. However, due to its link to an initial offence, it is only directed at offenders. This fact can establish a link to criminal law. The regulation of therapeutic confinement is essential for the federal legislature’s concept of protection. With regard to its content, the regulation resembles the measures of correction and prevention. Apart from this, it fills a legislative gap. The Federation thus has the legislative competence arising from a factual connection.

c) This assignment of competences better meets the requirements of the fundamental concept of Arts. 70 et seq. GG than the view of the Senate majority and contributes to protecting the legislative competences of the Laender.