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Christopher Michaelsen, ‘From Strasbourg, with Love’—Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights, Human Rights Law Review, Volume 12, Issue 1, March 2012, Pages 148–167, https://doi.org/10.1093/hrlr/ngr046
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Extract
1. Introduction
Over the last two years, Germany’s Federal Constitutional Court, the Bundesverfassungsgericht (BVG), and the European Court of Human Rights (ECtHR) have handed down several decisions on the legality of the German practice of detaining serious criminal offenders for preventive purposes after their original prison sentence had expired. Preventive detention, so-called Sicherungsverwahrung, has been part of German criminal law for over 80 years. Over the last decade, however, the number of preventive detention orders in Germany has increased significantly, in part due to legislative changes enacted in 1998, 2002, and 2004. From 2001 to 2009, the number of offenders held in preventive detention rose from 257 to over 500. According to the Federal Ministry of Justice, 524 persons were held in preventive detention as of July 2010.1 Moreover, the issue has continually featured prominently in public and political discourse in Germany. Tabloid newspapers like Bild regularly publish sensationalist stories on re-offending ‘sex-monsters’ and other criminals who need to be kept locked up indefinitely. Unsurprisingly, then, politicians have sought to capitalise on the issue as well. For instance, commenting on a child abduction case in 2001, the former German Chancellor Gerhard Schröder called for serious child abusers to be ‘locked away, and that for good’.2 A decade later, the issue continues to polarise political debate in and outside of Parliament.3 This article will review recent legal challenges to the legislative arrangements governing preventive detention brought before the BVG and the ECtHR. It will briefly introduce the history and scope of the German legislation on preventive detention. It will then trace several cases where applicants have challenged their preventive detention, claiming that it was violating their rights under the German Constitution (‘the Basic Law’) and under the European Convention on Human Rights (ECHR). The article will conclude with some observations on the relationship between the BVG and the ECtHR, the domestic implementation of the European and German courts’ decisions and the overall significance of those decisions more generally.
