Zur Entscheidung des Europäischen Gerichtshofs für Menschenrechte vom 17.12.2009: Über die Sicherungsverwahrung in Deutschland

Zur Entscheidung des Europischen Gerichtshofs fr Menschenrechte vom 17.12.2009: ber die Sicherungsverwahrung in Deutschland


Vortrag von Rechtsanwältin Anke Müller-Jacobsen im Rahmen der Tagung der European Criminal Bar Association vom 23.-24.04.2010 in Antwerpen/Belgien.


s.a. www.ecba.org

Abstract for the conference of ECBA in Antwerp on 23./24.04.2010   

Ladies and Gentlemen,

dear colleagues, 

A judgement of Dec. 2009 case of M v. Germany delivered by the European Court of Human Rights left the German Federal Government speechless – it even hit the headlines in the German press.  

What happened? 

The European Court of Human Rights (ECHR) attested that German legislators and the German adjudication of all things had breached several provisions of the European Convention on Human Rights. Germany! Homeland of the constitutional state and human rights!  

What was it about? 

It is about a person convicted of a serious crime. He was successful in ascertaining in Strasbourg – naturally with the help of his criminal defence lawyer – that he had been unfairly kept imprisoned for over eight years. The judgement is also a slap in the face for the German Federal Constitutional Court, that had reached an opposite result in the very same matter in 2004, namely, that the continued preventive detention of the person in question was compatible with the German Basic Law. In particular - according to the Federal Constitutional Court - the continued detention did not breach the prohibition of retrospective criminal laws. (A principle that is constitutionally protected in Germany as well).   

But first let me briefly outline the facts: 

The 52-year old person concerned, who has been convicted several times for violent acts, had last been sentenced to five years in prison in 1986 for attempted murder and robbery. At the same time the court – based on corresponding psychiatric and neurological expert opinions, which labelled him a dangerous criminal – ordered that he be detained in so-called preventive detention. According to the legal situation at the time a maximum period of ten years in total was stipulated.  After he had served his full prison sentence, the person in question applied on many occasions in vain to have his preventive detention conviction suspended on probation. The courts responsible for the execution of sentences refused this, particularly in view of his violent conduct which had come to light in prison.  In the meantime the regulations on preventive detention changed in one decisive point. In the year 1998 German legislation abolished the maximum sentence of ten years, which had been valid until then, since then preventive detention is ordered for an indefinite period of time – in extreme cases the detention last for ever.  On the basis of this change in law the Marburg Regional Court (Landgericht Marburg) last refused the application for release in 2001, although at the time of his conviction, thus in the year 1986, the preventive detention was only able to be ordered for a maximum of 10 years and the person in question would consequently have had to be released at the latest in September 2001. The Higher Regional Court Frankfurt (Oberlandesgericht Frankfurt) confirmed the rejection decision and the person in question remained in prison. The German Federal Constitutional Court (Bundesverfassungsgericht) rejected his complaint against this decision in 2004. The most important reason of the court was that the prohibition of retrospective criminal laws was not affected. The absolute ban on the retrospective application of criminal laws imposed by the German Basic Law did not cover the measures of correction and prevention, to which preventive detention belongs. Penalties (or punishment) in the meaning of this principle were only those legal consequences of the act, that are to punish the guilt of the offender according to the intention of the legislator. Preventive detention in contrast was also indeed a legal consequence of the criminal offence, however solely pursued preventive purposes.   

The reason for that decision has now been rejected by the European Court of Human Rights: Firstly: breach of article 5, paragraph 1 of the European Convention of Human Rights        The Right to Freedom Article 5, paragraph 1 European Convention of Human Rights determines conclusively the cases that justify taking away the freedom of a person via legal channels. This includes the imprisonment by the responsible court after a lawful conviction has been passed.  In this respect the ECHR found: up until the completion of the ten-year period the preventive detention of the person in question was permissible as imprisonment after sentencing by a responsible court but not after this period has been completed. Article 5, paragraph 1 lit a) of the Convention requires sufficient causation between the conviction and the imprisonment. This is missing here in view of the continued detention. When the court at the time ordered preventive detention, this decision meant that the person in question – after having served the sentence - could only stay in prison for a maximum period of ten years. Without the change in law imprisonment going beyond this time wouldn’t have been possible. This is therefore based not on the initial conviction but on the subsequent decisions on the basis of the change in law.  Furthermore: breach of article 7, paragraph 1 of the European Convention of Human Rights  Prohibition of retrospective criminal penalties Article 7, paragraph 1 of the Convention concerns on the one hand the prohibition to convict somebody due to an act - or failure to act - which was not a criminal offence at that time. In addition no heavier penalty can be imposed than that which was provided at the time of the act.  The decree of preventive detention beyond the ten-year period in the decisive case breached this very fundamental principle – according to the ruling of the ECHR. Because the preventive detention was extended according to a law that came into force after he had committed the criminal offence and when he had already spent over six years in preventive detention for this criminal offence. The preventive detention had consequently been retrospectively extended. The view of the German Federal Constitutional Court, according to which the prohibition of retrospective penalties is not applicable to preventive detention since this was no penalty in the strict sense but only a measure to correct and prevent, was not shared by the ECHR.  According to the court German preventive detention is essentially a penalty in the meaning of Art. 7 ECHR. It is executed like a prison sentence, namely in the same penal institutions without an essential difference being made to the penal system and on the basis of the same law (criminal code). In view of this actual situation it could also not be said that only preventive and no purposes of punishment were being pursued with this. Because there are no measures especially offered for prisoners in preventive detention that aim at reducing the risks for the general public posed by the prisoners in preventive detention. In total the ECHR could only reach the conclusion that German preventive detention is one of the most serious – if not the most serious – measure that could be passed according to the Criminal Code.   Consequences and outlook after the decision by the ECHR The decision is convincing because of its clarity of argumentation. The reality of preventive detention in Germany shows there is not a sufficiently clear difference from enforcing a long-term prison sentence to the effect that it would be justified to negate its punitive character and with this to justify an exception from the prohibition to apply retrospective criminal laws. It can therefore be hoped that the decision, should it stand, will contribute in the long term towards reforming preventive detention in its present form in Germany. Further complaints with similar problems are pending at the ECHR, namely subsequent preventive detention. The German criminal code provides the subsequent order of preventive detention, if during the imprisonment new facts justify the danger posed by the offender to the general public. However, if the retrospective removal of the maximum period of an ordered preventive detention of ten years already violated the convention due to a lack of causal connection with the initial conviction, then this is more than ever the case if the measures are ordered completely independent by the initial sentence. The ECHR did not in fact fundamentally reject preventive detention. But the German argument that it thereby does not refer to a “punishment” at all in terms of Article 7 of the Convention of Human Rights, for which reason the prohibition was not valid, is unfounded. The regulations on preventive detention should therefore be reconsidered in the light of the decision and, if need be, recast.  Germany had always considered its standards higher than those of Strasbourg. And so it should be. But in This case it wasn’t. 

Thank you for your attention.  

Anke Müller-Jacobsen

April 2010