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Issue 5 - March 2013


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The European Court of Human Rights and German provisions on preventive detention
 
Prof. Dr. Martin Heger/Dr. Erol Pohlreich,
Humboldt-Universität zu Berlin
In order to deal with unlawful acts, the German Criminal Code provides a twin-track system of sanctions that consists of penalties (Strafen) – mainly imprisonment and fines, both being determined according to the defendant’s guilt (see Article 46 § 1 of the Criminal Code) – and measures of correction and prevention (Maßregeln der Besserung und Sicherung). As a measure of correction and prevention the offender can be placed in a psychiatric hospital (Article 63 of the Criminal Code), in a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Art. 66 of the Criminal Code). Being placed in preventive detention is tantamount to an additional imprisonment: The offender remains in prison after having served his prison sentence, albeit preventive detention is being executed in separate prison units.

The Criminal Code provides that the penalty is determined by the law that is in force at the time of the act unless the relevant criminal provision is amended before the court’s judgement in a way that is favourable to the offender (Article 2 §§ 1 und 3 of the Criminal Code). In contrast to this, decisions on measures of correction and prevention are based on the law that is in force at the time of the decision – regardless of the effects on the severity or the duration of the measure of correction and prevention – unless the law provides otherwise (Article 2 § 6 of the Criminal Code). In the interest of public safety, the German legislature has amended the provisions on preventive detention in two ways that – though unfavourable even to persons that were already convicted – were in conformity with domestic law.

B. Legal amendments and judgments of the Federal Constitutional Court of Germany
The first way was to prolong the duration of confinement in preventive detention without restriction ratione temporis: In 1998, the legislature lifted the maximum duration of ten years in favour of a potentially unlimited duration and by laying down that this amendment be applicable without restriction. Upon a constitutional complaint lodged by a detainee objecting to his placement in preventive detention being continued after the expiry of the ten-year maximum period provided at the time of his offence, the Federal Constitutional Court of Germany (FCCt) issued a judgment on 5 February 20041 considering the prolongation of preventive detention compatible with the Basic Law. Putting it in a nutshell, the FCCt found that there was no violation of the applicant’s right to liberty (Article 2 § 2 of the Basic Law) as the Criminal Code took into account the increased importance of the right to liberty of detainees after ten years in custody by requiring a proof of the detainee’s dangerousness for the victim’s physical or mental integrity by a duly substantiated report delivered by an experienced external psychiatrist and by requiring moreover that the courts responsible for the execution of sentences have to review the detention order regularly. As preventive detention only serves to prevent future offences, the FCCt stressed that the fundamental right to liberty requires a distance between preventive detention and prison sentences (“Abstandsgebot”): In assessing how to ensure the respect of the distance requirement, the regional administrations of justice dispose of a margin of appreciation, but they have to assure that the conditions of preventive detention are privileged to the maximum extent that is still compatible with prison requirements. Moreover, the FCCt found that the retrospective prolongation did not violate the absolute ban of retrospective punishment under Article 103 § 2 of the Basic Law, because it held that the notion of “punishment” in that provision does not cover measures of correction and prevention such as preventive detention. Furthermore, the Court held, insofar by six votes to two, that the prolongation did not violate the right to protection of legitimate expectations guaranteed in a state governed by the rule of law laid down in Article 2 § 2 in conjunction with Article 20 § 3 of the Basic Law.

Secondly, whereas hitherto the placement of an offender in preventive detention could be ordered or reserved by the sentencing court only at the time of the offender’s conviction, certain Länder – e.g. Bavaria in 20022 - adopted laws allowing the courts responsible for the execution of sentences to order retrospectively the confinement of offenders, that have served their prison sentence, in preventive detention. Five days after his judgment cited above, the FCCt partly allowed constitutional complaints lodged by two persons that objected to their confinement in retrospective preventive detention, holding unanimously that only the Federation had the power to enact the legislation in question; in spite of this, the FCCt, by a majority of five votes to three in this respect and pursuant to Article 31 § 2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz),3 merely declared the contested statutes incompatible with the Basic Law and ordered their continued application during a transitional period until 30 September 2004, as it appeared paramount to protect the public against offenders that have been found to pose a considerable danger to others.4 In the aftermath of that decision, the Federation, by amending Article 66b § 1 of the Criminal Code, allowed for preventive detention to be ordered retrospectively, again without any restriction ratione temporis.

C. Judgments of the European Court of Human Rights
Both judgments of the FCCt were object of a lively discussion not only amongst scholars of criminal law but also in the media,5 until ultimately, the European Court of Human Rights (ECtHR) decided that by prolonging preventive detention retrospectively as well as by allowing retrospective preventive punishment Germany had violated the right to liberty and the prohibition of retrospective punishment (Article 5 § 1 and Article 7 of the European Convention of Human Rights, hereinafter “the Convention”).6 
 
I. Violation of Article 5 of the Convention
According to the ECtHR, an offender’s confinement in preventive detention does not in itself constitute a violation of Article 5 of the Convention: Preventive detention that is ordered by the sentencing court at the time of the offender’s conviction is in accordance with Article 5 § 1 (a),7 since for the purposes of sub-paragraph of Article 5 § 1 of the Convention a detention must follow the “conviction” in point of time and it must, as the Court puts it, “result from, follow and depend upon or occur by virtue” of the “conviction”.8 However, the detention of persons, that were confined in preventive detention before the abolition of the maximum period of ten years and that thereby remained in preventive detention for more than ten years pursuant to orders by the courts responsible for the execution of sentences, was not justified under Article 5 § 1 (a) of the Convention, because it lacked a sufficient causal connection with these persons’ convictions by the respective sentencing courts.9 As far as retrospective preventive detention is concerned, the ECtHR considered that this kind of detention also lacked sufficient causal connection with the criminal conviction, as the retrospective order lacked the finding of guilt of a new offence and as retrospective preventive detention was not provided for and was not even possible at the time of the applicants’ conviction.10

Furthermore, neither the continued preventive detention nor the retrospective preventive detention did fall within the ambit of Article 5 § 1 (c) of the Convention, for the potential further offences, as the Court puts it, were not “sufficiently concrete and specific as required by the Court’s case-law (…) as regards, in particular, the place and time of their commission and their victims (…)” and for “persons kept in preventive detention are not to be brought promptly before a judge and tried for potential future offences” as Article 5 § 3 of the Convention requires.11 

The Court did not rule out that certain offenders’ continued detention may be justified under Article 5 § 1 (e) of the Convention, but observed that none of the domestic courts’ decisions did dwell upon the ground that the offender in question was a person of unsound mind; instead it was the offenders’ dangerousness that was decisive for the decision whether to place them in preventive detention.12 Concerning the question of the “lawfulness” of the detention, the Court expressed in an obiter dictum his “serious doubts” especially with regard to the aspect, whether the detainees could have foreseen that the legal provisions applicable at the time of their crimes would be amended with immediate effect afterwards.13  

II. Violation of Article 7 § 1 of the Convention
The ECtHR holds that the statutory amendment of 1998, that allowed a retrospective prolongation of preventive detention beyond the maximum period of ten years, also violated Article 7 § 1 of the Convention, as the Court characterises preventive detention, unlike the FCCt, as a penalty. Reiterating that the concept of “penalty” in this provision is autonomous in scope and that it is for the ECtHR alone to assess whether a measure should be qualified as a penalty and therefore falls within the ambit of Article 7 § 1 of the Convention,14 the ECtHR has professed a truism. The qualification of a measure under domestic law cannot be decisive for the assessment of a penalty by an international human rights court, because otherwise it might be too easy for states to undergo the ban of retrospective penalties simply by giving a measure another name. Moreover, the notion of “penalty” – in contrast to the notion “lawful” in Article 5 of the Convention – is open to an autonomous definition because it does not refer to an abstract concept but to a factual measure. The Court characterises preventive detention as a penalty by observing that preventive detention entails a deprivation of liberty for persons who have repeatedly been found guilty of criminal offences of a certain gravity, that such detention is executed without substantial difference from the execution of a prison sentence in ordinary prisons pursuant to decisions of courts responsible for the execution of sentences - courts belonging to the criminal justice system -, that there appear to be no special measures aimed at reducing the danger persons subject to preventive detention present and that pursuant to Articles 2 and 129 of the Execution of Sentences Act (Strafvollzugsgesetz) both penalties and measures of correction and prevention serve the same two objectives, namely to protect the public and to help the detainee to become capable of leading a socially responsible life outside prison. Ultimately, the ECtHR underlines that because of its virtually unlimited duration and because of the fact that a suspension of preventive detention on probation depends on the court’s finding that there is no danger that the detainee will commit further serious offences - a condition that may be difficult to fulfil - preventive detention appears to be among the most severe - if not the most severe - measures that may be imposed under the German Criminal Code.15

C. Reception of the judgments
The judgments of the ECtHR received a large - and mainly approving - echo within legal literature.16 There also has been some critique reproaching that the ECtHR has not paid enough attention to the fact that penalties under German Criminal Law are - compared to other member states of the European Council - rather lenient and that the Convention itself calls its member states for protecting individuals.17 This critique fails to understand that the ECtHR did not hold that preventive detention as such constitutes a violation of the Convention. And most evidently, the mere objective of preventive detention to avert serious crimes does not discharge the legislature of respecting fundamental principles that should govern a state of law.18 

Shortly after the first judgment of the ECtHR in the matter, the Therapy Placement Act (Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter) was adopted. As a reaction to the ECtHR’s brief allusion to the possibility of keeping persons in preventive detention under Article 5 § 1 (e) of the Convention as being persons “of unsound mind”, the Therapy Placement Act allows the placement of an individual with a “mental disorder” as long as he poses a serious threat to life, physical integrity, personal freedom or sexual self-determination of other individuals. 

By judgment of 4 of May 2011 the FCCt19 declared all legal provisions on the imposition and duration of preventive detention incompatible with the fundamental right to liberty under Article 2 § 2 in conjunction with Article 104 § 1 of the Basic Law for not satisfying the distance requirement. In this context, it emphasized especially the need of a high level of individualised and intensified offer of therapy and care by a multi-disciplinary staff and, if necessary, to treat detainees individually.

Furthermore the FCCt confirmed its former position that the retrospective prolongation beyond the ten-year period did not violate the absolute ban of retrospective punishment under Article 103 § 2 of the Basic Law because preventive detention does not constitute a penalty within the meaning of that constitutional provision. But instead, the FCCt held that there was violation of the rule-of-law precept of the protection of legitimate expectations under Article 2 § 2 sentence 2 in conjunction with Article 20 § 3 of the Basic Law. Taking into account the judgment of the ECtHR in the case of M. vs. Germany and that the Convention is binding upon the states party to it, one might be inclined to wonder why the FCCt denied to adopt the ECtHR’s interpretation of preventive detention as a punishment by holding that the retrospective prolongation of preventive detention violates the absolute ban of retrospective punishment under Article 103 § 2 of the Basic Law. But the Convention is silent in the question of how member states have to secure that its organs will observe its guarantees. Accordingly, the Conventions imperatives are output-orientated and the member states can choose different internal mechanisms to secure their respect. In its Görgülü decision, the FCCt has stated that the Convention and its protocols are not endowed with the status of constitutional law or an even higher status, but that they rather have the status of a federal statute. But as the Basic Law is being open to international law, the Convention and the case-law of the ECtHR serve as guides to interpretation in determining the content and scope of fundamental rights and constitutional principles of the Basic Law and German courts must favour an interpretation in accordance with the Convention as long as applicable methodological standards leave scope for interpretation and weighing of interests.20 The FCCt affirmed his jurisprudence on the relationship between the Convention and the Basic Law. Pursuant to Article 31 § 2 of the Federal Constitutional Court Act, the FCCt ordered the continued application of the provisions until the entry into force of new legislation on preventive detention, at the latest until 31 May 2013. However, for the time being the FCCt required transitional arrangements for those cases in which preventive detention exceeded the ten-year maximum period because of the retrospective prolongation as well as in cases of retrospective preventive detention. The FCCt especially required that the continuance of the detention may be ordered only if specific circumstances show that there is a high risk that the detainee will commit a serious crime of violence or a sexual offence and if the detainee suffers from a “mental disorder” within the meaning of § 1.1 no. 1 of the Therapy Placement Act.21 

Does the requirement of a “mental disorder” meet the requirement of an “unsound mind” within the meaning of Article 5 § 1 (e) of the Convention? In fact, the use of the term “mental disorder” (rather than “mental illness”) has aroused particular criticism. According to the critics, the FCCt’s understanding of the notion of “person of unsound mind” is too wide: To fall within the ambit of Article 5 § 1 of the Convention, the offender’s state of mental health must exclude criminal responsibility, because the relevant provision in Article 63 of the Criminal Code allows a mental hospital order only if a person has committed an unlawful act in a state of insanity or diminished responsibility.22 

In our view, this critique is unfounded. In the first place, it must be noted that the Convention itself does not define the notion of “persons of unsound mind”, and the ECtHR has since stressed that it is actually impossible to give a definitive interpretation of this notion.23 According to the ECtHR, Article 5 § 1 (e) of the Convention does not permit detention because a person’s views or behaviour deviate from the norms prevailing within a society.24 Yet, the state of mind of the person in question must not necessarily amount to mental illness. In fact, the ECtHR has put three prerequisites that need to be satisfied for the purposes of a deprivation of liberty under Article 5 § 1 (e) of the Convention: Firstly, the person “must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder“.25  However, the national authorities enjoy a certain margin of appreciation when assessing whether a person is to be detained as of unsound mind.26 The relevant time at which a person must be reliably established to be of unsound mind is the date of the adoption of the measure depriving that person of his liberty as a result of that condition.27

Please note that, in order to be “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Article 5 § 1 of the Convention, there must, as the ECtHR puts it, “be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention”. Therefore, the detention of a person of “unsound mind” is, in principle, only lawful “if effected in a hospital, clinic or other appropriate institution”.28 Confinement of offenders of “unsound mind” can thus be effected in prisons as well, as long as the detainees are offered the therapeutic environment appropriate for a person as being of unsound mind. The mere fact that, in its judgments, the ECtHR dismissed the idea that the respective applicant had been confined in preventive detention for being a person of “unsound mind” because the confinement did not take place in a psychiatric hospital does not mean that any confinement of a person of unsound mind must meet the prerequisites of Article 63 of the Criminal Code. The ECtHR rather underlined the fact that, at the relevant time, the German provisions on preventive detention did not require the proof of a mental disorder – as do the provisions on confinement in a psychiatric hospital – but rather the dangerousness of the offender. Therefore, even though in some cases the courts responsible for the execution of sentences did regard the offender as being a person of “unsound mind”, their decisions could not have dwelled on this consideration as it was not decisive for their order.29 As a matter of fact, the ECtHR subscribed in some of his later judgments to the reasoning of the FCCt in its judgment of 4 May 2011 in respect of the suitable institutions for persons in preventive detention,30 and it must be noted that the FCCt did not require that preventive detention be executed in psychiatric hospitals.31  At any rate, Article 5 § 1 (e) of the Convention does not require that the detainees mind is amenable to medical treatment;32 such confinement may be necessary not only where a person of unsound mind needs medical treatment to cure or alleviate his condition, “but also where it needs control and supervision to prevent him, for example, causing harm to himself or other persons”.33
 
Footnotes:
1. Judgement of the Second Senate of 5 February 2004, reg. no. 2 BvR 2029/01, http://www.bverfg.de/entscheidungen/rs20040205_2bvr202901.html, for a printed version see BVerfGE 109, 133 et seq. All published decisions of the FCCt made after 1 January 1998 can be accessed on the Court’s website (http://www.bundesverfassungsgericht.de/entscheidungen). Whilst most decisions are available in German only, more important ones are available in English as well. 
2. Bavarian Dangerous Offenders’ Placement Act (Bayerisches Gesetz zur Unterbringung von besonders rückfallgefährdeten hochgefährlichen Straftätern) of 24 December 2001, BayGVBl. P. 978 et seq., that entered into force on 1 January 2002.
3. In the event that a statute is unconstitutional, the FCCt can declare it either incompatible with the Basic Law or none and void. In the first case, the FCCt can order the continued application of the statute and make transitional arrangements.
4. Judgment of the Second Senate of 10 February 2004, reg. no. 2 BvR 834/03 and 2 BvR 1588/02, http://www.bverfg.de/entscheidungen/rs20040210_2bvr083402.html, BVerfGE 109, 190 et seq.
5. See Jörg Kinzig, An den Grenzen des Strafrechts – Die Sicherungsverwahrung nach den Urteilen des BVerfG, in: Neue Juristische Wochenschrift 2004, 911 et seq.; Ruth Rissing-van Saan/Jens Peglau, in: Leipziger Kommentar zum StGB, 12th Ed. (2008), Art. 66 Margin Note 23-24.
6. ECHR, M. v. Germany, no. 19359/04, 17 December 2009. This was confirmed by later judgments, cf. ECHR, Kallweit v. Germany, no. 17792/07, 13 January 2011; Mautes v. Germany, no. 200008/07, 13 January 2011; Schummer v. Germany, nos. 27360/04 and 42225/07, 13 January 2011; Jendrowiak v. Germany, no. 30060/04, 14 April 2011; O.H. v. Germany, no. 4646/08, 24 November 2011; Kronfeldner v. Germany, no. 21906/09, 19 January 2012¸ Ostermünchner v. Germany, no. 36035/04,  22 March 2012. As far as retrospective preventive punishment is concerned, the Court first held that there was violation of Article 5 § 1 of the Convention, cf. ECHR, Haidn v. Germany, no. 6587/04, 13 January 2011; B. v. Germany, no. 61272/09, 19 April 2012; S. v. Germany, no. 3300/10, 28 June 2012; in other judgments, the Court held that allowing retrospective preventive detention without any limits ratione temporis violated Article 7 § 1 of the Convention as well, cf. G. v. Germany, no. 65210/09, 7 June 2012; K. v. Germany, no. 61827/09, 7 June 2012.
7. See ECHR, Schmitz v. Germany, no. 30493/04, 9 June 2011, §§ 37 et seq.; Mork v. Germany, nos. 31047/04 and 43386/08, 9 June 2011, §§ 51 et seq.
8. ECHR, M. v. Germany, cited above, § 96; Kallweit v. Germany, cited above, § 44; Mautes v. Germany, cited above, § 37; Schummer v. Germany, cited above, § 51; Haidn v. Germany, cited above, § 84 et seq.; Jendrowiak v. Germany, cited above, § 31; O.H. v. Germany, cited above, § 76;  Reiner v. Germany, cited above, § 77; Kronfeldner v. Germany, cited above, § 66; Rangelov v. Germany, no. 5123/07, 22 March 2012; Ostermünchner v. Germany, cited above, § 69; Mork v. Germany, nos. 31047/04 and 43386/08, 9 June 2011; S. v. Germany, cited above, § 79; B. v. Germany, cited above, § 66. Please note that one consequence of this prerequisite is that the decision of a court responsible for the execution of sentences not to release the offender from preventive detention must be consistent with the objectives of the sentencing court’s judgment, cf. ECHR, Reiner v. Germany, cited above, § 94; Ostermünchner v. Germany, cited above, § 71; Schönbrod v. Germany, no. 48038/06, 24 November 2011, § 90; for instance, “a decision not to release a detainee as he still posed a threat to the public may be inconsistent with the objectives of the sentencing court’s order for preventive detention if the person concerned is placed and remanded in detention as there was a risk that he would reoffend, but is, at the same time, deprived of the necessary means, such as a suitable therapy, to demonstrate that he was no longer dangerous.”, Ostermünchner v. Germany, cited above, § 74.
9. ECHR, M. v. Germany, cited above, § 99; Kallweit v. Germany, cited above, § 51; Mautes v. Germany, cited above, § 44; Schummer v. Germany, cited above, § 55; Jendrowiak v. Germany, cited above, § 34; O.H. v. Germany, cited above, § 82; Reiner v. Germany, no. 28527/08, 19 January 2012; Kronfeldner v. Germany, cited above, § 75;
10. ECHR, Haidn v. Germany, cited above, § 88; S. v. Germany, cited above, § 86 et seq.; B. v. Germany, cited above, § 75.
11. ECHR, M. v. Germany, cited above, § 102; Kallweit v. Germany, cited above, § 44; Mautes v. Germany, cited above, § 37; Schummer v. Germany, cited above, § 51; Haidn v. Germany, cited above, § 90; Jendrowiak v. Germany, cited above, § 35; O.H. v. Germany, cited above, § 83; Kronfeldner v. Germany, cited above, § 76;
12. ECHR, M. v. Germany, cited above, § 103; Kallweit v. Germany, cited above, § 44; Mautes v. Germany, cited above, § 37; Schummer v. Germany, cited above, § 51; Haidn v. Germany, cited above, § 93; Jendrowiak v. Germany, cited above, § 35; B. v. Germany, cited above, § 79; S. v. Germany, cited above, § 94; Kronfeldner v. Germany, cited above, § 79; O.H. v. Germany, cited above, § 86.
13. M. v. Germany, cited above, § 104.
14. ECHR, M. v. Germany, cited above, § 126; Kallweit v. Germany, cited above, § 65; Mautes v. Germany, cited above, § 52; Schummer v. Germany, cited above, § 64; Jendrowiak v. Germany, cited above, § 45.
15. ECHR, M. c. Germany, cited above, §§ 127 et seq.; Kallweit v. Germany, cited above, §§ 66 et seq.; Mautes v. Germany, cited above, §§ 53 et seq.; Schummer v. Germany, cited above, §§ 65 et seq.; Jendrowiak v. Germany, cited above, §§ 46 et seq.; K. v. Germany, cited above, §§ 81 et seq.; G. v. Germany, cited above, §§ 72 et seq.
16. Jörg Kinzig, Das Recht der Sicherungsverwahrung nach dem Urteil des EGMR in Sachen M. gegen Deutschland, in: Neue Zeitschrift für Strafrecht 2010, p. 233 et seq.; Diethelm Klesczewski, Strafen statt Verwahren!, in: Höchstrichterliche Rechtsprechung im Strafrecht 2010, p. 394 et seq. (can be retrieved under http://www.hrr-strafrecht.de); Mario Bachmann/ Ferdinand Goeck, Das Urteil des EGMR zur Sicherungsverwahrung und seine Folgen, in: Neue Justiz 2010, p. 457 et seq.; Robert Esser/ Karsten Gaede/ Michael Tsambikakis, Übersicht zur Rechtsprechung des EGMR in den Jahren 2008 bis Mitte 2010 - Teil I, in: Neue Zeitschrift für Strafrecht 2011, p. 78 (79 et seq.); Grischa Merkel, Incompatible Contrasts? – Preventive Detention in Germany and the European Convention on Human Rights, German Law Journal 11 (2010), pp. 1046 et seq.
17. Cf. Michael Grosse-Brömer / Oliver Klein, Sicherungsverwahrung als Verfassungsauftrag, in: Zeitschrift für Rechtspolitik 2010, pp. 172 et seq.
18. Cf. Claus Roxin, Strafrecht, Allgemeiner Teil, Vol. 1, 4th Ed. 2006, § 5 Rn. 56.
19. FCCt, judgement of the Second Senate of 4 May 2011, reg. no. 2 BvR 2365/09 et al., BVerfGE 128, 326 et seq.
20. FCCt, Decision of the Second Senate of 14 October 2004, reg. no. 2 BvR 1481/04, BVerfGE 111, 307 et seq. (especially §§ 32, 61). For a more detailed account on the FCCt’s decisions on the relationship oft he ECtHR and German Courts see Gertrude Lübbe-Wolff, ECtHR and national jurisdiction – the Görgülü Case, in: HFR 2006, p. 138 et seq.; Birgit Peters, Germany’s Dialogue with Strasbourg: Extrapolating the Bundesverfassungsgericht’s Relationship with the European Court of Human Rights in the Preventive Detention Decision, in: German Law Journal 13 (2012), p. 757 et seq.; Christoph Grabenwarter, Wirkungen eines Urteils des Europäischen Gerichtshofs für Menschenrechte - am Beispiel des Falls M. gegen Deutschland, in: JuristenZeitung 2010, p. 857 (861 et seq.).
21. FCCt, judgement of the Second Senate of 4 May 2011, reg. no. 2 BvR 2365/09 et al., BVerfGE 128, 326 et seq. (especially § 173); decision of the Second Senate of 28 June 2011, reg. no. 2 BvR 2846/09, BVerfGE 129, pp. 37 et seq.; Cf. FCCt, decision of the 3rd Chamber of the Second Senate of 15 September 2011, reg. no. 1516/11.
22. Cf. Katrin Höffler and Cornelis Stadtland, Mad or bad? Der Begriff “psychische Störung” des ThUG im Lichte der Rechtsprechung des BVerfG und des EGMR, in: Strafverteidiger 2012, p. 239 et seq.; Arthur Kreuzer, Neuordnung der Sicherungsverwahrung: Fragmentarisch und fragwürdig trotz sinnvoller Ansätze, in: Strafverteidiger 2011, p. 122 (131); Jörg Kinzig, Die Neuordnung des Rechts der Sicherungsverwahrung, in: Neue Juristische Wochenschrift 2011, p. 177 (181 et seq.); Tatjana Hörnle, Der Streit um die Sicherungsverwahrung, in: Neue Zeitschrift für Strafrecht 2011, p. 488 (491); Kirstin Drenkhahn/ Christine Morgenstern, Dabei soll es uns auf den Namen nicht ankommen – Der Streit um die Sicherungsverwahrung, in: Zeitschrift für die gesamte Strafrechtswissenschaft 124 (2012), p. 132 (185 et seq.); Grischa Merkel, Retrospective Preventive Detention in Germany: A Comment on the ECHR Decision Haidn v. Germany of 13 January 2011, German Law Journal 12 (2011), p. 968 (975).
23. Cf. ECtHR, Winterwerp vs. The Netherlands, judgment of 24 October 1979, Series A no. 33, p. 17, § 37.
24. ECtHR, Winterwerp vs. The Netherlands, judgment of 24 October 1979, Series A no. 33, p. 17, § 37.
25. See ECtHR, Winterwerp vs. The Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 17-18, § 39; Johnson v. the United Kingdom, judgment of 24 October 1997, Reports 1997-VII, p. 2409, § 60; Varbanov v. Bulgaria, no. 31365/96, § 45, ECHR 2000-X; Hutchinson Reid v. the United Kingdom, judgment of 20 February 2003, § 48, ECHR 2003-IV.
26. See ECtHR, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 18, §§ 39 et seq.; Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 11, § 25; Herczegfalvy v. Austria, judgment of 24 September 1992, § 63, Series A no. 244.
27. See ECHR, Luberty v. Italy, 23 February 1984, § 28, Series A no. 75; B. v. Germany, cites above, § 68; S. v. Germany, cited above, § 81; Kronfeldner v. Germany, cited above, § 71; O.H. v. Germany, cited above, § 78.
28. See ECtHR, Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, p. 21, § 44; Aerts v. Belgium, judgment of 30 July 1998, § 46, Reports 1998-V; Hutchinson Reid v. the United Kingdom, judgment of 20 February 2003, § 49, ECHR 2003-IV.
29. ECHR, M. v. Germany, cited above, § 103; Kallweit v. Germany, cited above, § 44; Mautes v. Germany, cited above, § 37; Schummer v. Germany, cited above, § 51; Haidn v. Germany, cited above, § 93; Jendrowiak v. Germany, cited above, § 35; B. v. Germany, cited above, § 79; S. v. Germany, cited above, § 94; Kronfeldner v. Germany, cited above, § 79; O.H. v. Germany, cited above, § 86.
30. ECtHR, B. v. Germany, cited above, § 83; S. v. Germany, cited above, § 98; Kronfeldner v. Germany, cited above, § 82; O.H. v. Germany, cited above, § 89.
31. Cf. FCCt, judgement of the Second Senate of 4 May 2011, reg. no. 2 BvR 2365/09 et al., BVerfGE 128, 326 et seq. (especially § 115).
32. See ECtHR, Koniarska v. the United Kingdom (dec.), no. 33670/96, 12 October 2000.
33. See ECtHR, Witold Litwa v. Poland, no. 26629/95, § 60, ECHR 2000-III; Hutchinson Reid v. the United Kingdom, judgment of 20 February 2003, § 52, ECHR 2003-IV.
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#The Federal Constitutional Court and the German concept of preventive detention
 
Prof. Dr. Kirstin Drenkhahn,
Freie Universität Berlin
 
In the course of the debate about the German concept of preventive detention, the Federal Constitutional Court (Bundesverfassungsgericht, FCC) seemed to be the oracle everybody was waiting for to pronounce the answer. The question, by the way, was ‘how can Germany keep the status quo and at the same time not be convicted for human rights violations by the European Court of Human Rights again?’ Therefore, it is not surprising that the Court’s judgment of May 2011 is beyond the scope of mere jurisdiction and highlights the Court’s political role.
 
I. Background of the decision
The practice of preventive detention did not seem to bother the FCC until a few years ago and this sanction’s legal nature was seen as self-evident. In a decision of 19531 – 20 years before the Lebach judgment2 where the Court developed the constitutional principle of resocialisation – the FCC held that it was in line with the German constitution to detain a person in preventive detention under the same conditions as prisoners sentenced to ‘Zuchthaus’, the most severe form of imprisonment as punishment,3 even though these two sanctions served different purposes. As the target group of both sanctions was deemed to be the same, living conditions should also be the same, especially concerning strictness in discipline and good order as well as compulsory labour and a most frugal lifestyle (‘sparsamste Lebensführung’). Later decisions concerned judicial rights of detainees, the legal prerequisites of an order of preventive detention and procedural questions.4 In 1995, the FCC rejected an application where the applicant raised the issue of double jeopardy with regard to the combination of a sentence of imprisonment as a punishment and an order of preventive detention.5 The Court dismissed this argument rather tersely by stating that the prohibition of double jeopardy in Article 103(3) of the German constitution only applied to punishments which preventive detention was not. So it was quite clear for a long time that preventive detention was a measure of correction and security and within this system was meant to serve the security aspect.6

This certainty about the purpose of preventive detention started to change with the judgment on a retroactive amendment of the Penal Code of 19987 that abolished the 10-year time limit for the first order of this measure.8 As in German penal law the point of reference for retroactivity is the time of the judicial decision in the case of measures of correction and security (s. 2(6) of the Penal Code) and not the time of the act as for punishments, the FCC had to substantiate the claim that preventive detention was a measure and not – in the case at hand – a constitutionally prohibited retroactive punishment. The Court confirmed this doctrinal position and based its theoretical argument on the different purposes of punishments and preventive measures. Without much empirical evidence, it also stated that there were – and had to be – significant differences in the implementation of imprisonment as a punishment and preventive detention that clearly showed the preventive purpose of the measure. For this aspect, the Court coined the term ‘Abstandsgebot’, literally a requirement of distance that should be maintained between the two forms of deprivation of liberty. In addition, the FCC stated that persons in preventive detention like prisoners serving a life sentence must have a realistic prospect of release and that therefore the regime in prison must be designed to prepare detainees for a ‘responsible life’ in the community.9

In 2009, the European Court of Human Rights (ECtHR) raised the same issues in its decision in this very same case, M v. Germany (see Esser & Heger in this issue),10 but came to the opposite conclusion: because of the striking similarities between imprisonment as a punishment and preventive detention not only, but most obviously in the implementation of both forms of incarceration, this Court held that preventive detention was a penalty in the sense of Article 7 of the European Convention on Human Rights (ECHR) and that the prohibition of retroactivity applied. The ECtHR also decided that M’s detention beyond ten years was not covered by Article 5 of the ECHR because it didn’t fit any of the grounds for lawful detention. As the 10-year time limit for the first order of preventive detention was abolished after M had received his first order of preventive detention in a criminal conviction, the causal link between the conviction and the prolonged detention was broken and therefore, it wasn’t justified as a lawful detention after conviction (Article 5(1)(a) of the ECHR). It also wasn’t covered by Article 5(1)(c) of the ECHR as the necessary detention to prevent further offences, because such potential offences have to be concrete and specific which was not the case with M. In addition, he was not detained as a person of unsound mind in the sense of Article 5(1)(e) of the ECHR; on the contrary, one of the courts involved in the case had decided in 2001 that an order for M’s placement in a psychiatric hospital dating from 1979 was devoid of purpose. As a consequence of the ECtHR’s decision, the applicant had to be released. From the perspective of German legal doctrine and jurisprudence the decision threatened the two-track system of sanctions with on the one hand penalties relating to the guilt that the offender has incurred and carrying moral censure and on the other hand measures of correction and security relating only to future dangerousness.

When the ECtHR judgment became final in May 2010, there was a widespread media coverage that lasted all summer as well as a fierce political debate and uncertainty in German courts.11 Apart from indignation about the ECtHR daring to convict Germany of human rights violations when the relevant domestic regulations were considered to be essential for public security and protection against crime, there was concern about what should be done in cases similar to that of the applicant: Should all these dangerous criminals be released immediately? The legal dispute about this question even reached the Federal Court of Justice where disagreement of the criminal chambers led to a procedure before the Grand Criminal Chamber in order to find a uniform answer to this question.12 This procedure effectively brought jurisdiction in this regard to a stand until the FCC’s judgment in May 2011.

In the meantime, new legislation on preventive detention was introduced that limited the scope of application and established with the Therapy Placement Act a new form of detention for cases like M.13 These regulations came into effect on 1 January 2011.
 
II. The decision of 4 May 2011
The FCC’s judgment of 4 May 201114 comprises almost all legal aspects of preventive detention. In order to be able to render such a comprehensive decision, the Court combined four cases concerning different forms of the measure: two cases were similar to that of M and thus concerned the retroactive abolition of the 10-year time limit, in the other two cases preventive detention had not been ordered in the same judgment as the criminal conviction, but towards the end of the prison term. This possibility had been introduced as subsequent preventive detention for adults in 2004 (section 66b of the Penal Code) and for juveniles up to 17 years of age in 2008 (section 7(2) of the Juvenile Justice Act).15

The Court declared all forms of preventive detention and the relevant old and new regulations as unconstitutional, but did not nullify them. Instead it set a deadline until 31 May 2013 to pass new legislation and for the meantime restricted the scope of the measure. So the very idea to detain criminally responsible persons because of an alleged dangerousness after they have served their punishment was not outlawed and persons who were already in preventive detention didn’t have to be released automatically.16

The Court’s main arguments were the confidence in the legal order in general (‘Vertrauensschutzgedanke’) and the requirement of distance that it had introduced in the 2004 judgment. For both aspects, the Court used the ECtHR’s assessment of preventive detention as a penalty in the sense of Article 7 of the ECHR to strengthen its own arguments. In the new decision, the FCC developed a set of seven requirements that serve as benchmarks for the distance between imprisonment as punishment and preventive detention as a measure of correction and security. These are:

• the ultima ratio principle: preventive detention should only be used as a last resort with narrow preconditions for the order, and the regime of the preceding prison sentence has to be designed as to reduce the dangerousness of offenders and render further detention superfluous;

• the individualization and intensification principle means that individual state of the art sentence plans have to be designed at the beginning of detention and implemented promptly and it calls for a multi-disciplinary approach that uses all available therapeutic possibilities and develops new individualized treatment even at high cost if standardized therapies are shown to be ineffective;

• the principle of motivation requires staff to counteract passivity and lethargy in detainees;

• the principle of separation means that persons in preventive detention have to be separated from the ordinary prison population with regard to accommodation and regime activities;

• the minimisation principle requires prison authorities to prepare detainees for release and therefore provide a regime that is as relaxed as possible and aims at counteracting the damaging effects of long-term custody;

• the principle of judicial review and support means that procedures for effective judicial review of decisions concerning the execution of the measure and especially the regime have to be implemented; and

• there has to be a guarantee of effective legal control of the duration of detention ensuring that it is not continued for longer than necessary.

With the requirement of distance and its seven principles, the FCC tries to establish a clear distinction between preventive and punishing detention. It is not only the key argument for preventive detention being a measure of correction and security meant to counter the ECtHR’s view that preventive detention ‘is to be qualified as a “penalty” for the purposes of Article 7 § 1 of the Convention’17, but also the constitutional justification18 for this infringement of the right to liberty (Articles 2(2)(2) and 104(2)(1) of the German Constitution). It binds both Federal and State legislations as well as prison administrations.

As the Court still doesn’t consider preventive detention as a penalty, it couldn’t and wouldn’t apply the prohibition of retroactive punishment. Still, it had to address the problem of retroactivity not only for the parallel cases of M, but also for subsequent preventive detention which had been applicable to cases where detainees had been convicted before the law was introduced. In the latter cases, there was also the question of double jeopardy. For both problems, the FCC used the idea that citizens need to have confidence in the legal order in general (deduced from Articles 2(2)(2) and 20(3) of the German Constitution) and in the continuing validity of for ex. provisions in the criminal law in particular. As this is not a strict principle but has a margin of appreciation, aspects like the human rights of third parties who need to be protected from crime may be introduced into the equation. Again, this idea had also been used in the 2004 decision when the court had argued that the common good – the human rights of third parties – outweighed the detainees’ confidence to be released after ten years in preventive detention. In the new decision, however, the FCC held that the confidence of persons in preventive detention outweighed public interest. The result was achieved by introducing the judgment of the ECtHR and its line of argument into the process of balancing conflicting interests. Although the FCC didn’t adopt the opinion that preventive detention was a penalty, this assessment of the ECtHR narrowed the margin of appreciation down to an almost absolute protection of the detainees’ confidence in the legal order in general. In these cases, deprivation of liberty could only be justified as detention of a person of unsound mind in the sense of Article 5(1)(e) of the ECHR and would only meet the principle of proportionality if the detainee posed a high risk of the most serious violent or sexual offenses.

As a result, the FCC differentiates between different levels of a proportionality test that detainees have to meet in order to be kept in prison. All regulations on preventive detention were assessed as violating the requirement of distance. (Further) Detention would then only be proportional and thus allowed during the interim period until new legislation was passed if the person posed a risk of serious violent or sexual offenses. For the regulations that also violated the confidence in the legal order in general the requirements were even stricter: (further) detention would only be allowed during the interim period if the person posed a high risk of the most serious violent or sexual offenses and suffered from a mental disorder.

III. Comment
‘Everything needs to change, so everything can stay the same’19 – this is in brief the oracle’s answer. The security measure has to be given up for a new correctional measure; the trick is to keep the name ‘Sicherungsverwahrung’. This need for a new measure under the old label explains why the Court addressed Federal legislation with the seven requirements, although the legislative competency for the execution of prison sentences had been devolved unto the States a few years ago – the competency for penal law and procedure including the range and content of sanctions remained with the Federal legislator (for details on the new legislation see Zimmermann in this issue).20 In the light of the ECtHR judgment in M vs Germany, only this redefinition or even reinvention of preventive detention can save its status quo as a non-penalty.

According to the judgment, only strict compliance with the requirement of distance is going to make the difference. But is this true? Do the seven principles describe a deprivation of liberty that is not similar to imprisonment as a punishment? A quick look into the Federal Prison Law might help. There, one finds

• in s. 2 the overarching aim of resocialisation as well as a range of regulations aiming at preparation for release (in particular s. 15, but also for ex. work release and furlough); this and the system of sanctions in the Penal Code that prefers community sanctions over deprivation of liberty show that the ultima ratio principle governs the application and implementation of imprisonment as a punishment as well;

• s. 6 and 7 calling for an individual dynamic risk/needs assessment and an individual dynamic sentence plan covering all aspects of the individual implementation of the prison sentence (individualisation principle);

• s. 4(1) according to which prisoners are not passively resocialised, but take an active part in the process and have to be motivated by prison staff (motivation principle);

• s. 141 with the requirement to create places in special units or institutions in order to meet prisoners’ needs and to ensure an individualised treatment; this is a weaker version of the principle of separation;

• s. 10 on placement in open institutions, s. 11 and 13 on different forms of prison leave and furlough, s. 15 on release preparations, s. 23 ff. on contacts with the outside worldand s. 71 ff. on support in case of personal problems are some examples for regulations that aim at counteracting the damaging effects of imprisonment;

• finally s. 109 ff. on judicial review of decisions concerning the execution of imprisonment.

So most of the ideas that the FCC used to clarify the requirement of distance have already been relevant for the execution of imprisonment as a punishment before and via s. 130 of the Federal Prison Law that refers to the regulations for prison sentences, for preventive detention as well.21 What will probably make the difference in practice is the implicit threat that if these requirements are not implemented thoroughly for preventive detention, the measure will not pass constitutional muster again. To avoid this consequence, a lot of money will have to be spent on specialised prisons and qualified staff. Such a threat, by the way, has never been uttered with respect to imprisonment as a punishment and therefore, there is a considerable difference between imprisonment as it should be according to the law and as it is in practice.
 
Another problem is the introduction of mental disorders into the context of preventive detention.22 As an order of preventive detention traditionally was only possible if the defendant was assessed as criminally responsible (diminished responsibility was sufficient), mental disorders of these persons were not a problem for the courts. Now that the FCC has introduced this criterion at least for some cases, some sort of threshold needs to be defined because the psychiatric concept of a mental disorder covers a broad range of impairments with a great variance in the degree of severity. In short, not all mental disorders would fit with the old idea of a mental illness.23 In German criminal law, mental illnesses have so far been relevant only for the question of criminal responsibility, but the FCC clarified in a later decision24 its opinion that it was not necessary to use the same concept for the mental disorder in the context of preventive detention. Indeed, the Court seems to prefer a broader notion of mental disorder including personality disorders especially of the antisocial type that would usually not lead to granting a defendant diminished or no criminal responsibility, and even ‘continuous abnormally aggressive and seriously irresponsible behaviour of a convicted offender’.25 This relates to the unclear explanation provided in the draft of the Therapy Placement Act where this term was used for the first time in German law.26 The draft refers to psychiatric diagnostic systems that require a degree of suffering and disturbance, but the Act is meant to also include abnormalities that are often not experienced as disturbing by affected persons, such as antisocial personality disorders. That there is a debate in psychiatry about this terminology, categorical vs. dimensional concepts of mental disorder and diagnostic criteria is blocked out entirely.27 In addition, if continuous abnormally aggressive and seriously irresponsible behaviour is included in this legal concept of mental disorder, this is very close to considering criminal behaviour in itself as pathological.28

With this unclear concept, the FCC introduces the problematic case law on the ‘unsound mind’ (Article 5(1)(e) of the ECHR) of the ECtHR into German jurisprudence. The ECtHR has never developed a concept of the unsound mind in substance; the Winterwerp criteria29 that the Court uses are merely formal and include the existence of an expert opinion that the person suffers a mental disorder of a kind or degree warranting compulsory treatment as well as – seemingly most important – the place of detention that must be a psychiatric hospital or other appropriate institution.30 So the only insight that the ECtHR case law provides in this regard is that persons who are detained under one of the retroactive alternatives of preventive detention need to be placed in an institution that offers psychiatric treatment.31

IV. Conclusion
The judgment of the Federal Constitutional Court of 4 May 2011 met the expectations of the public insofar as it showed a solution for the problem that seems to be quite elegant at first glance. A closer look shows that this solution leads to further problems that should not be underestimated because they concern the design of a specialised prison for a new sanction and the funding of its implementation by the German States most of which are heavily indebted.
 
Footnotes:
 
1. Judgment of 30 January 1953, Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 2, 118.
2. Judgment of 5 June 1973, BVerfGE 35, 202.
3. According to s. 15 of the Penal Code in the version valid until 30 March 1970, this was the punishment for felonies and its principal feature was forced labour. It was thus a modern form of penal servitude.
4. Decision of 24 March 1965, BVerfGE 18, 419; decision of 15 October 1963, BVerfGE 17, 139; decision of 9 March 1976, BVerfGE 42, 1; decision of 29 January 1992 – 2 BvR 1037/91; decisions of 15 March 1993 – 2 BvR 1037/91 and 2 BvR 2062/92; decision of 21 August 2001 – 2 BvR 2290/00.
5. Decision of 27 September 1995, NStZ-RR 1996, 122.
6. Hanack, in LK-StGB, § 66 no. 1 (10th ed. 1985); critical comments in Böllinger& Pollähne, in NK-StGB, § 66 no. 30 ff.(3rd ed. 2010); Ullenbruch, Drenkhahn & Morgenstern, in Münchener Kommentar zum StGB § 66 no. 4 ff. (2nd ed. 2012).
7. Act for the Prevention of Sexual Offences and other Dangerous Criminal Acts, BGBl. I. 1998, pp. 160 ff.
8. Judgment of 5 February 2004, BVerfGE 109, 133; Dünkel & van Zyl Smit, Preventive Detention of Dangerous Offenders Re-examined, German Law Journal 2004, 619; Kinzig,An den Grenzen des Strafrechts, NJW 2004, 911; Laubenthal, Die Renaissance der Sicherungsverwahrung, ZStW 116 (2004), 703; Hörnle, Verteidigung und Sicherungsverwahrung, StV 2006, 383.
9. See also Drenkhahn, Morgenstern & van Zyl Smit, What is in a name?, Criminal Law Review 2012, 167.
10. M. v. Germany, App. No. 19359/04, Eur. Ct. H.R. decision of 17 December 2009; Baltzer, Ein (verspäteter?) Vorschlag zur Reform der Sicherungsverwahrung, KritV 2011, 38; Drenkhahn & Morgenstern, Dabei soll es uns auf den Namen nicht ankommen, ZStW 124 (2012),132; Gaede, Rückwirkende Sicherungsverwahrung, HRRS 2010, 329; Hörnle, Der Streit um die Sicherungsverwahrung, NStZ 2011, 488; Kinzig, Das Recht der Sicherungsverwahrung nach dem Urteil des EGMR in Sachen M. gegen Deutschland, NStZ 2010, 233; idem. Die Neuordnung des Rechts der Sicherungsverwahrung, NJW 2011, 177; Müller, Die Sicherungsverwahrung, das Grundgesetz und die Europäische Menschenrechtskonvention, StV 2010, 207.
11. See Drenkhahn, Morgenstern & van Zyl Smit, What is in a name?, Criminal Law Review 2012, 167; Drenkhahn & Morgenstern, Dabei soll es uns auf den Namen nicht ankommen, ZStW 124 (2012),132.
12. Fourth Chamber, decision of 12 May 2010 – 4 StR 577/09, NStZ 2010, 567; Fifth Chamber, decision of 9 November 2010 – 5 StR 394/10, 5 StR 440/10 and 5 StR 474/10, NStZ 2011, 149, starting the procedure before the Grand Criminal Chamber and the other Criminal Chambers’ statements: 1 ARs 22/10 of 15 December 2010; 2 ARs 456/10 of 22 December 2010; 4 ARs 27/10 of 18 January 2011; 3 ARs 35/10 of 17 February 2011.
13. Act on the Reorganization of Preventive Detention and Related Measures, BGBl. I (2010), p. 2300; cf. Drenkhahn, Secure preventive detention in Germany: Incapacitation or treatment intervention?, Behavioral Sciences & the Law 2013 (forthcoming).
14. BVerfGE 128, 326-409; Dessecker, Die Sicherungsverwahrung in der Rechtsprechung des Bundesverfassungsgerichts, ZIS 2011, 706; Drenkhahn, Morgenstern & van Zyl Smit, What is in a name?, Criminal Law Review 2012, 167; Eisenberg,Anmerkung zu einer Entscheidung des BVerfG, Urteil vom 04.05.2011 (2 BvR 2365/09; StV 2011, 470), StV 2011, 480; Hörnle, Der Streit um die Sicherungsverwahrung, NStZ 2011, 488; Kreuzer & Bartsch,Anmerkung zu einer Entscheidung des BVerfG, Urteil vom 04.05.2011 (2 BvR 2365/09; StV 2011, 470), StV 2011, 472; Peglau, Das BVerfG und die Sicherungsverwahrung – Konsequenzen für Praxis und Gesetzgebung, NJW 2011, 1924.
15. Act for the Introduction of Subsequent Preventive Detention, BGBl. I (2004), p. 1838; Kinzig,Umfassender Schutz vor dem gefährlichen Straftäter?,NStZ 2004, 655; Peglau, Die nachträgliche Sicherungsverwahrung, das Rechtsmittelverfahren und das Verschlechterungsverbot, NJW 2004, 3599; Act for the Introduction of Subsequent Preventive Detention into Juvenile Justice, BGBl. I (2008), p. 1212; Eisenberg,Nachträgliche Sicherungsverwahrung bei zur Tatzeit Jugendlichen bzw. Heranwachsenden?, JZ 2007, 1143; Ostendorf,Nachträgliche Sicherungsverwahrung bei jungen Menschen auf dem internationalen und verfassungsrechtlichen Prüfstand, ZRP 2007, 146; Ullenbruch, Das „Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht“ – ein Unding?, NJW 2008, 2609.
16. The Court didn’t rule on the Therapy Placement Act. For the Court’s reasoning to overturn its decisions of 2004 (BVerfGE 109, 133 and BVerfGE 109, 190) see Drenkhahn, Morgenstern & van Zyl Smit, What is in a name?, Criminal Law Review 2012, 167, 175 ff.
17. M. v. Germany, App. No. 19359/04, Eur. Ct. H.R. decision of 17 December 2009, § 133.
18. Headnote 3(b) of the FCC judgment.
19. Tomasi di Lampedusa, Il Gattopardo.
20. Drenkhahn, Secure preventive detention in Germany: Incapacitation or treatment intervention, Behavioral Sciences & the Law 2013 (forthcoming).
21. Prison administrations share this view as a discussion at a conference on latest developments in the prison system in September 2012 in Wiesbaden showed. See also Höffler & Kaspar, Warum das Abstandsgebot die Probleme der Sicherungsverwahrung nicht lösen kann, ZStW 124 (2012), 87, 115 ff.
22. Hörnle, Der Streit um die Sicherungsverwahrung, NStZ 2011, 488, 490: “Verlegenheitslösung”.
23. Morgenstern, Krank – gestört – gefährlich: Wer fällt unter § 1 Therapieunterbringungsgesetz und Art. 5 Abs. 1 lit. e EMRK?, ZIS 2011, 974; Streng, Die Zukunft der Sicherungsverwahrung nach der Entscheidung des Bundesverfassungsgerichts, Juristenzeitung 2011, 827, 828 f.
24. Decision of 15 September 2011, StV 2012, 25.
25. Decision of 15 September 2011, StV 2012, 25, 26 f.; Höffler & Stadtland, Mad or bad?, StV 2012, 239; Morgenstern, Krank – gestört – gefährlich: Wer fällt unter § 1 Therapieunterbringungsgesetz und Art. 5 Abs. 1 lit. e EMRK?, ZIS 2011, 974.
26. See BT-Drucks 17/3403, 54.
27. See Morgenstern,Bestrafen, Verwahren und danach Therapieren? – Das neue Therapie-Unterbringungsgesetz in der Kritik, Neue Kriminalpolitik 2011, 55, 56; idem, Krank – gestört – gefährlich: Wer fällt unter § 1 Therapieunterbringungsgesetz und Art. 5 Abs. 1 lit. e EMRK?, ZIS 2011, 974, 977; Höffler & Stadtland, Mad or bad?, StV 2012, 239.
28. Höffler & Stadtland, Mad or bad?, StV 2012, 239, 245 f.; Morgenstern, Krank – gestört – gefährlich: Wer fällt unter § 1 Therapieunterbringungsgesetz und Art. 5 Abs. 1 lit. e EMRK?, ZIS 2011, 974; Ullenbruch, Drenkhahn & Morgenstern, in Münchener Kommentar zum StGB § 66 no. 45 (2nd ed. 2012).
29. Winterwerp v. the Netherlands, App. No. 6301/73, Eur. Ct. H.R (ser. A 33), decision of 24 October 1979, § 39.
30. Ashingdane v. the United Kingdom, App. No. 8225/78, Eur. Ct. H.R. (ser. A 93), decision of 28 May 1985, § 44; Aerts v. Belgium, App. No. 25357/94, Eur. Ct. H.R., Rep. 1998-V, decision of 30 July 1998, § 46; Hutchison Reid v. the United Kingdom, App. No. 50272/99, Eur. Ct. H.R., Rep. 2003-IV, decision of 20 February 2003, § 48.
31. See in detail Drenkhahn, Secure preventive detention in Germany: Incapacitation or treatment intervention, Behavioral Sciences and the Law 2013 (forthcoming).
 
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#Criminal Sanctions under Human Rights’ Pressure
“Reserved” Preventive Detention and Aspects of Discrimination
 
 
Robert Esser
Chair of German, European and International Criminal Law, Criminal Procedure Law and Economic Criminal Law at the University of Passau (Germany)
Director of the Research Centre “Human Rights in Criminal Proceedings” (HRCP) – www.uni-passau.de/hrcp; robert.esser@uni-passau.de.
 
Helmut Krickl
Academic Assistant at HRCP
 
 
 
I. Introduction1
According to German Criminal Law there are two different kinds of sanctions: penalties (“Strafen”) and measures of rehabilitation and incapacitation (“Maßregeln der Besserung und Sicherung”). As penalties are pronounced according to the defendant’s guilt they do not always provide adequate protection from the risk of reoffending. Therefore, there can be ordered, under certain circumstances, the measure referred to as preventive detention (“Sicherungsverwahrung”) against dangerous defendants which would be executed after the penalty has been fully served.
 
Traditionally German law distinguishes between ordinary preventive detention (“Sicherungsverwahrung”, § 66 German Criminal Code) that is ordered as a part of the initial judgment going along with the conviction, retrospective preventive detention (“nachträgliche Sicherungsverwahrung”, § 66b German Criminal Code, introduced in 2004) that was not ordered initially but only later on when the individual concerned turned out to be dangerous before he had fully served his sentence, and reserved preventive detention (“vorbehaltene Sicherungsverwahrung”, § 66a German Criminal Code) that is, as such, a part of the initial judgment though not ordered stricto sensu at that time but later on instead as the initial judgment reserved the possibility to make such an order.
 
In the last 15 years the legislation related to preventive detention has undergone considerable changes. Among others, the maximum period of 10 years which applied to any defendant against whom preventive detention was ordered for the first time was repealed in 1998.2 As from that moment on preventive detention could be executed without any limit in time provided that the person concerned was still considered to be dangerous. This new piece of legislation applied to all cases, including to those where the relevant criminal offence had already been committed as well as to those where the persons concerned were already kept in preventive detention or where preventive detention had already been ordered and where the period of detention therefore was, as the case may be, subsequently prolonged (“prolonged preventive detention”).
 
The European Court of Human Rights (ECtHR) in Strasbourg interprets preventive detention as regulated by German law as a penalty within the meaning of Article 7 of the Convention. Therefore, both retrospective preventive detention and prolonged preventive detention beyond the maximum length that was possible according to the law applicable at the time of the relevant criminal offence violate Article 7 of the Convention.3 Furthermore, the ECtHR unsurprisingly decided that both retrospective order and retrospective prolongation lacked the causal connection to the conviction which Article 5 § 1 (a) of the Convention requires for a justification of the detention (“after conviction”) so that Article 5 § 1 of the Convention usually will also be violated.4  The ordinary preventive detention ordered within the initial judgment does not violate the Convention.
 
In a landmark decision in 2011,5 the FCCt (Federal Constitutional Court of Germany – Bundesverfassungsgericht) reversed its previous case law on the constitutionality of preventive detention and implemented large parts of the ECtHR’s case law into German law. One year later the FCCt addressed explicitly the issue of reserved preventive detention.6
 
The present article will expose the issue whether the reserved preventive detention is conform to the Convention and will draw the reader΄s attention to discrimination issues in preventive detention and in ECtHR΄s judgments.
 
II. Reserved Preventive Detention
By provision of Article 66a of the German Criminal Code, a provision which came into force in 2002, the sentencing court can reserve the possibility to put the defendant in preventive detention if his or her dangerousness cannot be established with certainty yet with likelihood only. This measure can be referred to as “reserved preventive detention”, a quite literal translation from German, or “deferred preventive detention”, the latter expression emphasizing the fact that the detention order has not been made yet but is deferred to a latter stage.
 
The ECtHR has not decided yet on a case of a confinement resulting from a reserved detention order whereas the Federal Constitutional Court (FCCt), one year after its abovementioned landmark decision from May 2011, declared the reserved detention order not only compatible with constitutional law but also with the Convention.7
 
The FCCt makes it clear that the preventive detention cannot last longer than the law at the time of the conviction had provided.8 However, this is only a minimum condition; it should not be overlooked that the ECtHR΄s case law related to Article 7 of the Convention does not allow to apply a new law which extended the periods of placement in preventive detention if the new law came into force before the conviction but after the committed criminal offence. As the wording of the FCCt΄s decision may suggest otherwise it should be emphasized that according to the Convention and the ECtHR΄s case law the relevant point in time is not the time of the conviction but the time of the committed criminal offence instead: If preventive detention is seen as a penalty it cannot last longer than the law at the time of the committed criminal offence provided or else Article 7 of the Convention is violated.
 
It seems, however, that the FCCt did not mean to breach the Convention but was just not drafting its decision carefully enough. In another paragraph the FCCt portrays the ECtHR΄s case law as applying the justification of Article 5 § 1 (a) of the Convention to preventive detentions which “do not exceed the maximum period as prescribed by law at the time of the act committed and the conviction”.9 This wording seems to suggest that the FCCt is aware of the fact that the time of the act committed is actually the relevant point in time although the FCCt refers here to Article 5 and not to Article 7. Oddly enough, however, it is not even clear whether, in addition to a violation of Article 7 of the Convention, a preventive detention based on the law at the time of the conviction and lasting longer than provided by the law in force at the time of the criminal offence would also constitute a violation of Article 5 § 1 of the Convention.10 But whatever the exact reasoning of the FCCt, it seems highly unlikely that this specific issue will give rise to a conflict between the FCCt and the ECtHR.
 
Such harmony between the two Courts is less certain as far as the whole idea of the reserved preventive detention is concerned. As stated above, orders of a reserved preventive detention are usually made where at the time the judgment is delivered it cannot be established with certainty but only with likelihood that the defendant is dangerous.11 Such certainty is necessary for actually imposing and executing the preventive detention but would be established only later on while the defendant serves his or her prison term. It seems doubtful whether there would be a causal connection in the sense of Article 5 § 1 (a) of the Convention between the conviction and the actual order of preventive detention if, at the time of the conviction, it is not sure whether the legal conditions for preventive detention, especially the dangerousness of the person concerned, are actually met.12 The FCCt, however, is satisfied that the latter decision is linked to the (first) judgment where the likelihood of dangerousness is established and which goes along with the conviction.13
 
It is certainly true that the order of a reserved preventive detention requires a likelihood that the person concerned is dangerous; German law does not allow for such reserves to be pronounced based on a “you never know” thinking. It has further to be conceded that the FCCt is right insofar as it puts in perspective the differences between an ordinary order and a reserved order of preventive detention. Preventive detention following an ordinary order does not start automatically and inevitably; the FCCt correctly points out that Article 67c of the Criminal Code requires that the dangerousness of the person concerned be re-examined before the end of the prison term and before the possible beginning of preventive detention – not much difference to a reserved preventive detention where the dangerousness will also be examined at that stage.14
 
Furthermore, the FCCt gratefully relies on recent obiter dicta in the ECtHR΄s case law where retrospective preventive detention in Germany was considered to violate the Convention.15 As a matter of fact, the ECtHR notes “that in the […] sentencing court’s judgment, no order had been made for the applicant’s preventive detention in addition to his prison sentence [and] that the applicant’s conviction at that time did not even involve a possibility that he would be placed in preventive detention retrospectively”16  (emphasis ours). This wording can arguably mean that the mere possibility in a judgment for the person concerned to be placed in preventive detention at a later stage constitutes a sufficient link between the conviction and the preventive detention in the sense of Article 5 § 1 (a) of the Convention.
 
However, the FCCt develops a rather flawed argumentation when relying on two other ECtHR judgments.17 In the Weeks case, a person who had received a life sentence was released and re-detained later on.18 The original life sentence clearly distinguishes that case from the conception of reserved preventive detention where detention has not really been ordered but only been made possible. The circumstances of the Van Droogenbroeck case have at least as much resemblance to the ordinary preventive detention as to the reserved preventive detention: The person concerned was sentenced to a prison term and then placed at the (Belgian) “Government΄s disposal” which meant that the Minister of Justice would have to assess the degree of danger the person concerned would present and decide thereupon on what to do with the individual.19
 
It is therefore uncertain whether the ECtHR will regard the reserved preventive detention as being covered by Article 5 § 1 (a) of the Convention.
 
III. Preventive Detention Ordered against Foreigners and Article 14 of the Convention
Whereas Strasbourg has not yet decided on the reserved preventive detention, the ECtHR had the opportunity to address the question related to a possible discrimination when preventive detention is ordered against a foreigner. It thus found in the Rangelov case20 a violation of Article 14 read together with Article 5 § 1 of the Convention.
 
The applicant had been kept in preventive detention for four and a half years after he had fully served his penalty.21 There was no retrospective application of German law about preventive detention (this issue was not even raised by the applicant) and the preventive detention was based on the initial judgment in accordance with Article 5 § 1 (a) of the Convention. The preventive detention against the applicant did therefore in principle not violate the Convention.22 However, the ECtHR found that the applicant, a citizen from Bulgaria, had been discriminated against for his nationality.
 
The German authorities had refused to offer and provide a social therapy to the applicant. The social therapy could have made it possible for the applicant not to be considered as “dangerous” any longer, an essential condition for having the preventive detention suspended.
 
The authorities had founded their stance on the fact that the applicant’s expulsion order had already been issued; in furtherance, they had claimed to be unable to prepare the applicant for a life in Bulgaria as the therapists in Germany did not know the living conditions there.23
 
The ECtHR, however, saw an unjustified difference of treatment which amounted to discrimination.24 The difference of treatment was clearly due to the applicant΄s nationality and Germany had not provided adequate compensation such as carrying out the expulsion order and actually expelling the applicant when the full penalty had been served – and not four and a half years later.25
 
It is easy to subscribe to this judgment yet quite striking that the same day a largely identically composed Chamber (six judges out of seven) did not see such discrimination in the Ostermünchner case which had very similar facts.26 Again, the relevant period of the applicant΄s preventive detention was in principle covered by Article 5 § 1 (a) of the Convention27 as it was in the Rangelov case. The applicant, a sexual offender of Austrian nationality, was not offered the appropriate treatment. Likewise, a reason for this was the expulsion order; this reason is explicitly stated several times throughout the Court΄s judgment28 and can, along the reasoning of the Rangelov case, constitute discrimination on the grounds of the applicant΄s nationality.
 
However, the Court saw as “decisive” for the refusal of a therapy in a specialized institution that the applicant had refused to start a social therapy in the prison where he was confined.29 This initial therapy was considered to be a condition for a successful further therapy in a specialized institution.30 According to the applicant, however, he was unwilling to undergo this initial therapy as the other detainees would thus find out that he was a sexual offender so that he feared that they would harass him.31 A Regional Court had therefore attested the applicant to have a “good cause” for his refusal; without arguing further, the ECtHR dismissed this because other German courts had seen otherwise.32 Yet thinking about it, it does not make sense that the applicant was not ready for a “small” therapy albeit seriously longing for a “big” one – unless he had a good reason for these apparently contradictory wishes. It does indeed seem reasonable to hide the committed sexual offences from the fellow prison inmates and one cannot but regret the ECtHR΄s quick acceptance of the German courts΄ dismissal of this reason.
 
Although the applicant΄s attitude towards the start of a social therapy may admittedly serve as an argument to come to another conclusion than in the Rangelov case the real reason may well be that the ECtHR apparently did not examine the Ostermünchner case for forbidden discrimination; as a matter of fact, Article 14 of the Convention is not mentioned throughout the whole Ostermünchner judgment. Obviously the ECtHR did not take Article 14 of the Convention into consideration which can only be due to the fact that the ECtHR did not consider that the applicant had claimed to be a victim of discrimination. This can be deducted from the ECtHR’s finding according to which the applicant “complained […] about his preventive detention without offering him treatment because of the expulsion order against him only under Article 5 of the Convention” whereas in the proceedings before the Federal Constitutional Court of Germany the applicant had “brought a separate complaint alleging discrimination”.33 As the ECtHR correctly reports the applicant had, at the very least, mentioned the “expulsion order”, an order which could only be issued because the applicant was a foreigner. The Ostermünchner judgment thus leads to the conclusion that it is not enough for an applicant to bring all relevant facts to the ECtHR΄s attention but that it is furthermore essential to state clearly and explicitly the human right which the state allegedly violated – an advice which should be given to all future applicants. Mentioning both a key word such as “discrimination” and the according Article of the Convention seems to be of primordial importance. It is most unfortunate that the ECtHR seemingly does not apply its own principles which it had previously set down in relation to such matters; the ECtHR has stated many times that it considers “of its own motion complaints under Articles or paragraphs not relied on by those appearing before it” and that “a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on”. This case law is not new and it should be noted that the ECtHR does not hesitate to refer to it when it finds convenient to do so.34
 
IV. Concluding Remarks
The ECtHR has turned upside down the German legal framework on the measure of preventive detention. The present article deals with two particular aspects that have not been yet at the very centre of the ongoing debate in Germany. It becomes clear therefore that the need to adjust German legislation and jurisprudence to European human rights has many facets. Whether the FCCt properly addressed the relevant issues in its decision from 20 June 2012 on the reserved preventive detention remains to be seen. The latest legislative changes passed in December 2012 implement the FCCt’s requirements from May 2011 to provide appropriate therapy and care for the persons concerned in order to give them a real chance to lose the stigma of being dangerous and to have the preventive detention lifted. The question of whether these measures are open to nationals and foreigners alike will thus rather increase in the future. In a country which proudly thinks of itself as an avid follower of the rule of law being applied on an indiscriminate basis it should be beyond debate that, whatever their respective nationality, all delinquents are treated equally.
 
Footnotes:
1. For a comprehensive introduction to the topic please also refer to the articles of Heger/Pohlreich and Drenkhahn.
2. BGBl. I p. 160; Ullenbruch/Drenkhahn/Morgenstern, in: Münchener Kommentar Strafgesetzbuch, 2nd Edition 2012, § 66 Rn. 20.
3. ECtHR, M. v. Germany, no. 19359/04, 17 December 2009, §§ 117 et seq., for the prolongation; K. v. Germany, no. 61827/09, 7 June 2012, §§ 78 et seq., and G. vs. Germany, no. 65210/09, 7 June 2012, §§ 69 et seq., for retrospective detention. See: Esser, in: Löwe-Rosenberg, StPO, Vol. 11, 26th Edition 2011, Art. 7 EMRK Rn. 34 ff.
4. ECtHR, M. v. Germany, no. 19359/04, 17 December 2009, §§ 86 et seq., for the prolongation; B. v. Germany, no. 61272/09, 19 April 2012, §§ 66 et seq., for the retrospective detention. See: Esser, in: Löwe-Rosenberg, StPO, Vol. 11, 26th Edition 2011, Art. 5 EMRK Rn. 80 ff.
5. Decision of the Second Senate of 4 May 2011, reg. no. 2 BvR 2365/09, 740/10, 2333/08, 1152/10, 571/10, http://www.bundesverfassungsgericht.de/entscheidungen/rs20110504_2bvr236509.html, printed in the official collection of FCCt decisions (BVerfGE), nr 128, p. 326 et seq., or Neue Juristische Wochenschrift, 2011, p. 1931 et seq., or Europäische Grundrechte-Zeitschrift, 2011, p. 297 et seq.
6. Decision of the Second Senate of 20 June 2012, reg. no. 2 BvR 1048/11, hereinafter referred to as “FCCt 2012”, http://www.bundesverfassungsgericht.de/entscheidungen/rs20120620_2bvr104811.html, printed in Neue Juristische Wochenschrift, 2012, p. 3357 et seq., or Europäische Grundrechte-Zeitschrift, 2012, p. 458 et seq.
7. FCCt 2012.
8. FCCt 2012, §§ 101, 108.
9. FCCt 2012, § 100.
10. ECtHR, M. v. Germany, no. 19359/04, 17 December 2009, § 104, raises “serious doubts” about the lawfulness of such an order conviction but does not decide this matter.
11. Article 66a § 2 of the Criminal Code meanwhile (since 2011) also provides to make an order of reserved preventive detention in some cases where the certainty of the delinquent΄s dangerousness is established. This particular issue shall not be addressed here.
12. See the critical note to the FCCt΄s decision by Merkel, published online in Zeitschrift für internationale Strafrechtsdogmatik, 2012, p. 521 et seq., http://www.zis-online.com/dat/artikel/2012_10_708.pdf.
13. FCCt 2012, § 112.
14. FCCt 2012, § 77.
15. FCCt 2012, §§ 106, 107.
16. ECtHR, B. v. Germany, no. 61272/09, 19 April 2012, § 75. Along the same line, see Haidn v. Germany, no. 6587/04, 13 January 2011, § 86; S. v. Germany, no. 3300/10, 7 June 2012, § 86.
17. FCCt 2012, § 108.
18. ECtHR, Weeks v. United Kingdom, no. 9787/82, 2 March 1987, §§ 42, 43, 49, 50.
19. ECtHR, Van Droogenbroeck v. Belgium, no. 7906/77, 24 June 1982. See also Merkel, op. cit., p. 522.
20.  ECtHR, Rangelov v. Germany, no. 5127/07, 22 March 2012.
21.  ECtHR, Rangelov v. Germany, §§ 13, 37, 103.
22. ECtHR, Rangelov v. Germany, § 84.
23.  ECtHR, Rangelov v. Germany, §§ 12, 27.
24. ECtHR, Rangelov v. Germany, §§ 95, 98, 100-103.
25. ECtHR, Rangelov v. Germany, § 103.
26. ECtHR, Ostermünchner v. Germany, no. 36035/04, 22 March 2012.
27. ECtHR, Ostermünchner v. Germany, § 70.
28. ECtHR, Ostermünchner v. Germany, §§ 13, 14, 63, 79, 81. Unlike in the Rangelov case it was not claimed that the therapists did not know the living conditions in Austria.
29. ECtHR, Ostermünchner v. Germany, § 82; see also §§ 75-76, 80-81.
30. ECtHR, Ostermünchner v. Germany, §§ 73, 75, 78; see also §§ 24, 62, 64.
31. ECtHR, Ostermünchner v. Germany, §§ 11, 17.
32. ECtHR, Ostermünchner v. Germany, §§ 14, 77, 78.
33. ECtHR, Ostermünchner v. Germany, § 46; see also §§ 44, 68.
34. See, among others, ECtHR, Camilleri v. Malta, no. 42931/10, 22 January 2013, §§ 3, 19, 33 (the complaint’s exact content is somehow unclear but apparently the applicant had relied on Article 6 § 1 of the Convention alone whereas the ECtHR considered and found a violation of Article 7 of the Convention); Csoma v. Romania, no. 8759/05, 15 January 2013, §§ 27 et seq. (applicant had relied on Articles 2, 6 and 13 of the Convention; ECtHR examined the complaint under Article 8 of the Convention; violation found); (Grand Chamber) Serife Yigit v. Turkey, no. 3976/05, 2 November 2010, § 53 (applicant had relied on Article 8 of the Convention; “the Grand Chamber invited the parties, in their observations and pleadings before it, to also adress the issue of compliance in the instant case with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1”; no violation found); Anusca v. Moldova, no. 24034/07, 18 May 2010, § 26 (applicant had relied on Article 6 of the Convention; ECtHR examined the complaint under Article 2 of the Convention; violation found); Eugenia Lazar v. Romania, no. 32146/05, 16 February 2010, § 60 (applicant had relied on Article 6 § 1 of the Convention; ECtHR examined the complaint under Article 2 of the Convention; violation found); Zehentner v. Austria, no. 20082/02, 16 July 2009, §§ 34 et seq. (applicant had relied on Article 1 of Protocol No. 1 to the Convention only; ECtHR also examined the complaint under Articles 6, 8, 13 of the Convention; violation of Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention found); ECtHR, Gardel v. France, no. 16428/05, 17 December 2009, § 57 (applicant had relied on Article 7 of the Convention; ECtHR also examined the complaint under Article 8 of the Convention; no violation found); Modarca v. Moldova, 10 May 2007, 14437/05, § 44 (applicant had relied on Article 8 of the Convention; ECtHR examined the complaint under Article 5 § 4 of the Convention; violation found); (Grand Chamber) Guerra and others v. Italy, no. 14967/89, 19 February 1998, § 44 (applicant had relied on Article 10 of the Convention; ECtHR also examined the complaint under Articles 2 and 8 of the Convention; violation of Article 8 of the Convention found); similarly, see also ECtHR, Akdeniz v. Turkey, 31 May 2005, 25165/94, §§ 88 et seq., and Gatt v. Malta, no. 28221/08, 27 July 2010, § 19; however, see also ECtHR Anusca v. Moldova, no. 24034/07, 18 May 2010, § 37 (“The applicant did not complain of a substantive violation of Article 2. The Court will therefore consider the procedural aspect of Article 2 only); similarly, ECtHR, Saso Gorgiev v. “The Former Yugoslav Republic of Macedonia”, no. 49382/06, 19 April 2012, §§ 54 et seq.; “(…) there has been a violation of Article 2 of the Convention under its substantive limb. (…) In the absence of an explicit complaint by the applicant, the Court need not assess whether the State complied with the procedural obligation under Article 2 of the Convention.”.
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