Germany’s Dialogue with Strasbourg: Extrapolating the Bundesverfassungsgericht’s Relationship with the European Court of Human Rights in the Preventive Detention Decision
In four judgements of 13 January 2011 the European Court of Human Rights (ECHR) in Strasbourg returned to the issues raised in its earlier jurisprudence regarding preventive detention (“Sicherungsverwahrung”) under German criminal law. In its decision of 17 December 2009, M. v. Germany, the Court had held that the German Criminal Law's retroactive extension of confinement in preventive detention failed to meet the requirement of lawful detention “after conviction” under Art. 5 § 1 (a) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”), and violates the prohibition of retroactivity (Art. 7 § 1 of the Convention). The articles read as follows:
AbstractThis article will give an overview of the idea and history of origins of preventive detention and the legal changes in the German Criminal Code that underlie the decision of the European Court of Human Rights (ECHR) (17 December 2009). It will attempt an outlook by considering the prospective outcome of future law suits against German legal statutes relating to preventive detention, and will also describe the present situation and current legal recommendations, including the much-discussed alternative of detention in psychiatric wards. The article will close with a brief comparative look at the related legal problems arising in countries with a criminal law which is based on the establishment of personal guilt of the offender while facing public pressure to detain persons for protective reasons.
Germany's System of Preventive Detention Considered Through the European Court of Human Rights and the German Federal Constitutional Court
