Further constitutional complaints against orders for confinement under the Therapeutic Confinement Act for disturbed violent offenders meet with partial success

Press Release No. 15/2014 of 27 February 2014

Order of 23 January 2014, Order of 23 January 2014, Order of 23 January 2014, Order of 23 January 2014, Order of 22 January 2014, Order of 23 January 2014, Order of 5 February 2014
2 BvR 119/12
2 BvR 565/12
2 BvR 923/12
2 BvR 1020/12
2 BvR 1100/12
2 BvR 1239/12
2 BvR 953/12

By an order dated 11 July 2013 – 2 BvR 2301/11 and 2 BvR 1279/12 – the Second Senate of the Federal Constitutional Court ruled that while the Act on the Therapeutic Treatment and Institutionalisation of Mentally Disturbed Violent Offenders (Therapieunterbringungsgesetz; hereinafter the Therapeutic Confinement Act) is compatible with the Basic Law (Grundgesetz – GG), it must be interpreted in conformity with the Constitution (see Press Release No. 50/2013 of 8 August 2013). 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. The Second Senate reversed decisions by the regular courts in the specific proceedings concerned because those courts had not founded their decisions on the standard of proportionality required by the Constitution.

Subsequently, in seven further proceedings, the Third Chamber of the Second Senate partially affirmed complainants’ constitutional complaints against institutionalisations that had been ordered under the Therapeutic Confinement Act.

In those proceedings as well, the regular courts’ decisions violated the complainants’ constitutional right under Art. 2 sec. 2 sentence 2 in conjunction with Art. 20 sec. 3 GG because they were not based on the principle of proportionality required by the Constitution. The sole relevant consideration here is objective unconstitutionality; it is immaterial, by contrast, whether the regular courts are at fault for violating constitutional rights. To the extent that the constitutional complaints indirectly challenged the Therapeutic Confinement Act itself, the Court did not admit them for decision, referring to the Order of 11 July 2013.