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All three configurations required a high probability of serious criminal offences which cause serious mental or physical injury to the victims.

Accordingly, until the judgment was final and non-appealable, the court was permitted to issue a committal order if there were urgent reasons to assume that a retrospective order of preventive detention would be made.

The judgment became final and non-appealable on 10 May upon the rejection of the Federal Government's application for referral to the seven-judge chamber under Article 43 of the European Convention on Human Rights.

The individual applicant M. Other courts competent for the execution of sentences refused to release the persons affected. The case-law of the competent Higher Regional Courts was also inconsistent [ However, the case-law of the criminal senates of the Federal Court of Justice also developed inconsistently [ However, Article e.

A further requirement for therapeutic committal is that the person suffers from a mental disorder, is highly likely to substantially injure the life, the physical integrity, the personal liberty or the sexual self-determination of another person and the committal is necessary for this reason to protect the public.

The original proceedings are based on the following facts:. The first complainant was born in and since the age of twenty he has only been in freedom for short periods of time.

Some of his repeated prison sentences were imposed for convictions for theft, which he committed by breaking and entering the homes of single women.

This order too was based on the fact that he had broken into the home of a single woman; in the case in question, he had found the woman at home and — after threatening her with a knife and undertaking several sexual acts on her — raped her.

In he escaped from confinement and committed another offence of theft with breaking and entering a home. His confinement was suspended on probation in June , and he was sentenced in November to one year and six months' imprisonment for this offence, which he served until January In April he committed three further offences of theft with breaking and entering a home; in July he was given a compound sentence of one year and three months' imprisonment for these offences, which he served until July At the beginning of August he again committed attempted theft and was sentenced to eight months' imprisonment for this, which he served until early summer In June he was also sentenced to two years and six months' imprisonment for sexual assault.

He served this sentence until the end of December In August he was initially sentenced to one year's imprisonment for one of these offences.

He found that unfavourable prognostic factors outweighed the anti-recidivist factors. In August he was released after serving the full six-year sentence.

On 6 March , he was given a compound sentence of nine years' imprisonment by judgment of Cologne Regional Court for rape committed together with aggravated robbery and sexual assault, for rape committed together with sexual assault and for sexual assault.

Since then, it has always been decided to continue this, essentially on the grounds that he has failed to process the criminal offences in therapy.

On 15 October , he had completed ten years of preventive detention. Germany [ In June — as a young adult aged 19 — he attacked and strangled a woman jogger in a wooded area.

After consultation of a judicially appointed independent expert, it was determined that the complainant still had a multiple disorder of sexual preference ICD F These mental disorders were said to have triggered the commission of the originating offence.

Just as in the case of the originating offence, there was then a high probability that his violent fantasies would again intensely increase and be discharged in the form of the commission of the most serious sexual offences, as serious as sex murder committed to satisfy his sex drive.

The provision violated neither the prohibition of retroactive effect of criminal law Article Nor was there a violation of the European Convention on Human Rights.

The fourth complainant was born in ; he has many previous convictions and since June — apart from a few months at liberty — he has continuously been in custody or subject to measures of correction and prevention.

For these offences, on 14 December Berlin Regional Court sentenced him to a compound sentence of twelve years' imprisonment for five cases of rape, two of these committed together with the sexual abuse of children, and in seven further cases to the sexual abuse of children committed together with sexual assault.

The suspension of his previous sentence on probation was revoked. He completed serving the custodial sentences imposed in December In April , the competent chamber for the execution of sentences declared that the confinement was terminated and ordered the remainder of the custodial sentences to be executed, on the grounds that the complainant was unamenable to therapy.

Following this, the remaining custodial sentences were served from June on. The complainant was then provisionally held in preventive detention. The court also stated that the complainant had a propensity to commit serious criminal offences, must still be classified as extremely dangerous and if he was released would shortly be drawn to commit serious sexual offences such as the sexual abuse of children or rape.

Germany did not need to be decided, since this judgment was not yet final. In essence, the complainants assert a violation of their rights under Article 2.

They state that according to this judgment, the German courts including the Federal Court of Justice have a duty, when applying German fundamental rights, to give precedence to an interpretation in compliance with the European Convention on Human Rights, insofar as there is latitude for interpretation and weighing of interests.

The fundamental rights and rights that are equivalent to fundamental rights named, they state, must therefore be interpreted in compliance with the Convention.

Article In addition, the first complainant submits that despite his motivation to undergo therapy he was removed from the psychiatric hospital against his will.

Apart from prison work, which he is engaged in, no further specific forms of treatment have been offered, although he is still willing to work on himself and his future.

The second complainant submits in addition that the prison in which he is confined does not comply with the distance requirement introduced by the Federal Constitutional Court in its decision pronounced on 5 February and the measure of rehabilitation and prevention is being executed in the same way as a punishment.

In the oral hearing, the Senate heard the judicially appointed independent expert Prof. Dittmann, senior consultant of the Forensic and Psychiatric Clinic at the Universitäre Psychiatrische Kliniken in Basel, on the possibilities and limits of forensic and psychiatric prognosis of offenders and the treatment of violent and sexual offenders.

The independent experts Prof. Dessecker, Deputy Director of the Kriminologische Zentralstelle in Wiesbaden, and Leitender Regierungsdirektor Rösch, Director of Freiburg prison, described the statistical development and practical design of preventive detention.

The independent expert Prof. Radtke, Director of the Criminological Institute of Hannover University, spoke on the principle of blameworthiness and the two-track system of sanctions of German criminal law, and the independent expert Prof.

Tak, emeritus professor of law at Nijmegen university, explained the treatment of dangerous offenders in the Netherlands. The authorised representatives of the complainants and representatives of the Federal Government and the Länder states involved made submissions on the constitutionality of preventive detention, on the compatibility of this measure with the European Convention on Human Rights and on the most recent reform of the law.

The constitutional complaints are largely admissible. Even if decisions of the European Court of Human Rights, as declaratory case-law, do not lead to a direct change of the legal position, particularly on the level of constitutional law, they may nevertheless have legal significance for the interpretation of the Basic Law.

Against this background, decisions of the European Court of Human Rights may be equivalent to a legally relevant change. To the extent that they are admissible, the constitutional complaints are well-founded.

The provisions on which the challenged decisions are based are incompatible with Article 2. The incompatibility with Article 2.

The provisions affected by incompatibility with the Basic Law will continue in force until the legislature reforms the law, and at the latest until 31 May The permissibly challenged decisions violate the rights of the first to fourth complainants under Article 2.

The fundamental rights in Article 2. It is true that in national law the European Convention on Human Rights has the status of a Federal statute and is therefore subordinate to the Basic Law a.

However, it must be relied on as an interpretation aid in the interpretation of the fundamental rights and rule-of-law principles of the Basic Law b.

This constitutional significance of the European Convention on Human Rights and thus also of the case-law of the European Court of Human Rights is based on the openness of the Basic Law to international law and its substantive orientation towards human rights d.

However, relying on this as an aid to interpretation does not require the statements of the Basic Law to be schematically parallel to those of the European Convention on Human Rights; instead, there must be a reception of the provisions of the European Convention on Human Rights e , where this is methodically justifiable and compatible with the terms of reference of the Basic Law f.

The European Convention on Human Rights and its protocols are agreements under international law. In doing this, the legislature made an order on the application of the law to this effect.

The effects in national law of the decisions of the European Court of Human Rights are therefore not restricted to a duty to take them into consideration, derived from Article The openness to international law of the Basic Law is thus the expression of an understanding of sovereignty which is not only not in conflict with an integration into international and supranational contexts and their further development, but actively presumes and expects them.

The substantive orientation of the Basic Law to human rights is expressed in particular in the German people's profession of inviolable and inalienable human rights in Article 1.

In Article 1. This protection, in conjunction with Article Article 1. It does not aim at a schematic parallelisation of individual constitutional concepts, but serves to avoid violations of international law.

It is true that the removal or avoidance of a violation of international law will often be easier to achieve if national law is harmonised with the Convention.

Italy , marginal no. II, 2nd ed. However, they do not comply with the principle of proportionality. Preventive detention constitutes a serious encroachment upon the right to liberty, and this can only be justified in compliance with a strict review of proportionality and if the decisions on which it is based and the organisation of its execution satisfy strict requirements a.

The existing provisions on preventive detention do not structurally guarantee that the minimum constitutional requirements of the design of the execution of preventive detention are satisfied b.

This is shown in the fact that Article 2. Preventive encroachments upon the fundamental right to liberty which — like preventive detention — do not serve as compensation for wrongdoing are permissible only if the protection of legal interests of high value requires this under strict compliance with the principle of proportionality.

As the oral hearing showed, in determining the usefulness of prognoses of dangerousness for juveniles and young adults it is impossible to determine a definite age limit below which a prognostic decision could be ruled out from the outset.

Despite the particular difficulties entailed, therefore, it is in principle possible to prepare prognoses of dangerousness which constitute a useful basis for the decision on the retrospective imposition of preventive detention for juvenile and young adult offenders too, taking account of their development potential; in particular, specific mental disorders can be diagnosed at a relatively young age.

Thus in the oral hearing, the expert Prof. Dittmann set out that in particular serious sexual deviances can be diagnosed even at a comparatively young age.

Under the scheme on which the two-track sanctions system of the Criminal Code is based, the deprivation of liberty of the detainee in preventive detention does not serve retribution for past violations of legal interests, but the prevention of future offences, which may be seen as likely to occur, but which cannot generally be predicted with certainty.

The encroachment upon the fundamental right to liberty constituted by preventive detention is therefore extremely serious in part because it has exclusively preventive purposes and, in the interest of the general public, as it were imposes a special sacrifice on the person affected — since deprivation of liberty is always based only on a prognosis of dangerousness, but not on the evidence of past offences.

This must be taken account of by a liberty-oriented execution aimed at therapy which makes the purely preventive character of the measure plain both to the detainee under preventive detention and to the general public.

What is required for this is a freedom-oriented overall concept of preventive detention with a clear therapeutic orientation towards the objective of minimising the danger emanating from the detainee and of thus reducing the duration of deprivation of liberty to what is absolutely necessary.

Under Article 7. To justify the finding that preventive detention has the character of a penalty, the Chamber of the Fifth Section of the European Court of Human Rights refers inter alia to the fact that preventive detention, like a custodial sentence, results in deprivation of liberty and is executed in regular prisons.

In addition, with regard to the de facto situation of the detainee under preventive detention the Chamber states that it is not apparent that preventive detention has merely a preventive function and serves no punitive purpose.

It is established in particular that apparently there are no particular measures, instruments or facilities aimed at detainees in preventive detention which have the purpose of making them less dangerous and thus restricting their confinement to the period absolutely necessary to deter them from committing further offences.

The Chamber also refers to further criteria, for example the procedure for imposing confinement and the severity of the measure, although this severity, it holds, is not the sole deciding factor European Court of Human Rights, loc.

This assessment influences not only the interpretation of the requirement of the protection of legitimate expectations on this, see 3 below but also the general constitutional requirements placed on the proportionality of a deprivation of liberty by preventive detention.

The authorisation for the state to impose and execute prison sentences is essentially based on the culpable commission of the criminal offence.

The offender may only be sentenced to imprisonment and subjected to its execution for the culpable commission of a wrong.

In its function of controlling the determination of penalties, the principle of blameworthiness restricts the duration of imprisonment to what is appropriate to the blameworthiness of the offence.

Blameworthiness is one of the legitimating factors and the extreme limit of the imposition and execution of prison sentences. The authorisation to impose and to execute custodial measures such as preventive detention, on the other hand, follows from the principle of predominant interest see Radtke, in: Münchener Kommentar zum StGB , vol.

In contrast, the purpose of preventive detention is solely the future protection of society and its members against individual offenders who on the basis of their previous conduct are assessed as highly dangerous.

In this connection, the state has the duty to provide suitable concepts in the execution of preventive detention from the outset to remove the dangerousness of the detainee if possible.

The modalities of execution must also be oriented to the guideline that life in preventive detention may be subject only to such restrictions as are necessary to reduce dangerousness.

This may impose certain de facto limits on the details of the distance requirement, but it does not alter the fact that imprisonment and preventive detention have different objectives.

The whole system of preventive detention must be designed in such a way that the practice of confinement is clearly determined by the prospect of regaining liberty.

In this connection, the Court has pointed out that in view of the indeterminate length of preventive detention particular exertions are necessary to support the detainees, who are generally not in a position to achieve progress towards release by their own efforts.

The Court stated the need for a high degree of support by a multidisciplinary team and intensive and individual work with the detainees on the basis of individual plans which must be prepared without delay.

This must take place within a coherent framework which facilitates progress towards release, and release should be a realistic possibility European Court of Human Rights, judgment of 17 December , Application no.

Germany , marginal no. In this connection, the legislature is not constitutionally bound to follow a particular legislative concept; instead, it has legislative discretion, which it must exercise by using all the knowledge at its disposal see Federal Constitutional Court, loc.

This principle of the imposition of preventive detention as a last resort leads to the consideration that its execution must satisfy this principle too.

If preventive detention comes into consideration, then during the execution of the custodial sentence all possibilities must already be exhausted to reduce the dangerousness of the detainee.

In particular it must be guaranteed that any necessary psychiatric, psychotherapeutic or socio-therapeutic treatments, which often last for several years even if they are successful, begin at an early date, are carried out with the necessary high intensity, and are if possible completed before the end of punishment last resort principle.

This must analyse in detail the individual factors which determine the dangerousness of the detainee. On this basis, an execution plan is to be drawn up showing in detail whether and if so what measures are capable of minimising risk factors, or of compensating them by reinforcing antirecidivist factors, in order to reduce the detainee's dangerousness, as a result to enable progress towards release and to give the detainee a realistic prospect of regaining liberty.

Consideration should be given to any measures of vocational training and advanced training, psychiatric, psychotherapeutic or socio-therapeutic treatment and measures for the organisation of the detainee's financial and family circumstances and for the preparation of a suitable social environment after detention.

The execution plan must be continuously updated and adapted to the detainee's development. The measures required under the plan are to be promptly and systematically implemented.

For this purpose, the detainee must be individually and intensively supported by a multidisciplinary team of qualified personnel thus held also by the European Court of Human Rights, judgment of 17 December , Application no.

In particular in the therapeutic area, all possibilities must be exhausted. If standardised therapy methods are found to be unpromising, an individually tailored therapy programme must be developed.

In this connection — especially as the duration of the execution increases — it must be ensured that possible therapies are not dispensed with merely because they entail more effort and expense than the institutions' standardised programme requirement of individualisation and intensification.

This must in the first instance be prevented by offering a range of treatment and support which, as far as possible, gives a realistic prospect of release thus held also by the European Court of Human Rights, loc.

In addition, the detainee must be encouraged and assisted to cooperate in treatment by targeted motivational work. A possible supporting element could be a system of incentives which rewards active cooperation with particular privileges or liberties or removes these in order to achieve motivation and cooperation requirement of motivation.

Life in detention under measures of correction and prevention must be adapted to general living conditions, provided security concerns do not prevent this.

Admittedly, this requires detainees to be accommodated separately from the prison regime in special buildings or wards, but not a complete spatial detachment from the execution of custodial sentences requirement of separation.

As the expert Mr. Rösch explained in the oral hearing, it may be advisable for these to be connected to large institutions, in order to make use of their infrastructure and safety management and to guarantee a varied range of work and leisure opportunities which takes account of the detainees' individual abilities and inclinations.

The circumstances inside the facility must satisfy the therapeutic requirements and offer sufficient possibilities for visits in order to maintain family and social contacts.

It must also be ensured that sufficient personnel are available to satisfy in practice the demands of a liberty-oriented overall concept of preventive detention that is aimed at therapy.

The preventive detention scheme must provide for relaxations of execution and contain requirements to prepare for release; account should be taken as extensively as possible of an orientation to liberty.

If unsupervised relaxations such as work release, short leave or leave are nevertheless impossible, escorted leave must be granted; this may only be refused if despite the supervision of the detainee it leads to dangers which it would plainly be irresponsible to risk.

To ensure that decisions on the relaxation of execution are made on the basis of objective, realistic risk assessments and to forestall the danger of over-cautious or prejudiced evaluations, the establishment of independent bodies of experts with experience of execution may, for example, be valuable; these can provide advice and make recommendations — possibly modelled on the Swiss expert commissions for the review of the public danger of offenders see Article 62d.

The preparation for release must be interlinked with systematic assistance for the post-release phase. In particular, a sufficient variety of institutions forensic outpatient clinics, institutions for assisted living and so on must be guaranteed which take in detainees after release, and ensure the necessary care and thus a suitable social environment after detention minimisation requirement.

The detainee must be offered a suitable legal advisor or other assistance to give support in exercising rights and interests requirement of legal protection and assistance.

The execution authority must provide the competent chamber for the execution of sentences with a regular status report. If there are indications that the preventive detention is ready to be terminated, then ex officio a special review must be carried out without delay requirement of monitoring.

The stricter supervision by the courts takes account of the purely preventive nature of the measure. It must be intensified as the execution proceeds.

But the old legal position continues to apply if the originating offence in question was committed before 1 January Article e.

These provisions are unsuitable to satisfy the criteria of the constitutional distance requirement. Essentially, they provide excessively broad scope for assessment and discretion in fundamental core areas — with regard to treatment, care and motivation of the detainee and granting of relaxations of execution — without effectively obliging the prisons by clear legislative conditions to pursue a liberty-oriented execution of preventive detention aimed at therapy.

With regard to the preceding execution of a custodial sentence, there are no provisions to avoid preventive detention.

Neither a spatial separation of confinement in preventive detention from imprisonment nor the appointment of a legal adviser is laid down.

In addition there are other normative shortcomings. The overall normative concept must contain qualitative standards for the personnel and the material equipment for the execution of preventive detention; these standards must be respected by the Land legislature in the budget and do not leave any substantial room for interpretation to the executive.

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The execution plan must be continuously updated and adapted to the detainee's development. The measures required under the plan are to be promptly and systematically implemented.

For this purpose, the detainee must be individually and intensively supported by a multidisciplinary team of qualified personnel thus held also by the European Court of Human Rights, judgment of 17 December , Application no.

In particular in the therapeutic area, all possibilities must be exhausted. If standardised therapy methods are found to be unpromising, an individually tailored therapy programme must be developed.

In this connection — especially as the duration of the execution increases — it must be ensured that possible therapies are not dispensed with merely because they entail more effort and expense than the institutions' standardised programme requirement of individualisation and intensification.

This must in the first instance be prevented by offering a range of treatment and support which, as far as possible, gives a realistic prospect of release thus held also by the European Court of Human Rights, loc.

In addition, the detainee must be encouraged and assisted to cooperate in treatment by targeted motivational work.

A possible supporting element could be a system of incentives which rewards active cooperation with particular privileges or liberties or removes these in order to achieve motivation and cooperation requirement of motivation.

Life in detention under measures of correction and prevention must be adapted to general living conditions, provided security concerns do not prevent this.

Admittedly, this requires detainees to be accommodated separately from the prison regime in special buildings or wards, but not a complete spatial detachment from the execution of custodial sentences requirement of separation.

As the expert Mr. Rösch explained in the oral hearing, it may be advisable for these to be connected to large institutions, in order to make use of their infrastructure and safety management and to guarantee a varied range of work and leisure opportunities which takes account of the detainees' individual abilities and inclinations.

The circumstances inside the facility must satisfy the therapeutic requirements and offer sufficient possibilities for visits in order to maintain family and social contacts.

It must also be ensured that sufficient personnel are available to satisfy in practice the demands of a liberty-oriented overall concept of preventive detention that is aimed at therapy.

The preventive detention scheme must provide for relaxations of execution and contain requirements to prepare for release; account should be taken as extensively as possible of an orientation to liberty.

If unsupervised relaxations such as work release, short leave or leave are nevertheless impossible, escorted leave must be granted; this may only be refused if despite the supervision of the detainee it leads to dangers which it would plainly be irresponsible to risk.

To ensure that decisions on the relaxation of execution are made on the basis of objective, realistic risk assessments and to forestall the danger of over-cautious or prejudiced evaluations, the establishment of independent bodies of experts with experience of execution may, for example, be valuable; these can provide advice and make recommendations — possibly modelled on the Swiss expert commissions for the review of the public danger of offenders see Article 62d.

The preparation for release must be interlinked with systematic assistance for the post-release phase. In particular, a sufficient variety of institutions forensic outpatient clinics, institutions for assisted living and so on must be guaranteed which take in detainees after release, and ensure the necessary care and thus a suitable social environment after detention minimisation requirement.

The detainee must be offered a suitable legal advisor or other assistance to give support in exercising rights and interests requirement of legal protection and assistance.

The execution authority must provide the competent chamber for the execution of sentences with a regular status report.

If there are indications that the preventive detention is ready to be terminated, then ex officio a special review must be carried out without delay requirement of monitoring.

The stricter supervision by the courts takes account of the purely preventive nature of the measure. It must be intensified as the execution proceeds.

But the old legal position continues to apply if the originating offence in question was committed before 1 January Article e.

These provisions are unsuitable to satisfy the criteria of the constitutional distance requirement. Essentially, they provide excessively broad scope for assessment and discretion in fundamental core areas — with regard to treatment, care and motivation of the detainee and granting of relaxations of execution — without effectively obliging the prisons by clear legislative conditions to pursue a liberty-oriented execution of preventive detention aimed at therapy.

With regard to the preceding execution of a custodial sentence, there are no provisions to avoid preventive detention.

Neither a spatial separation of confinement in preventive detention from imprisonment nor the appointment of a legal adviser is laid down.

In addition there are other normative shortcomings. The overall normative concept must contain qualitative standards for the personnel and the material equipment for the execution of preventive detention; these standards must be respected by the Land legislature in the budget and do not leave any substantial room for interpretation to the executive.

Rösch and Prof. Dessecker in the oral hearing confirmed. There are shortcomings not only during preventive detention as such.

Even in the custodial sentence which precedes preventive detention there are considerable defects which have effects on the execution and duration of preventive detention and thus on the chance of regaining liberty.

In addition, in many places there is neither adequate preparation for release nor creation of a suitable social environment to receive the detainee after release.

The psychological or psychiatric support of the detainees is inadequate in practice. The cause of this may only to a limited extent be attributed to the sphere of the persons affected.

The small number of detainees under preventive detention who are in therapeutic treatment is also specifically attributable to insufficient staff and equipment of the institutions.

In this connection it should be taken into account that successful liberty-oriented therapeutic treatment will generally require a greater number of personnel, for example also to motivate those unwilling to undergo therapy Bartsch, loc.

Although prison service practitioners see great potential in the therapy possibilities of socio-therapeutic institutions to give detainees under preventive detention the opportunity to regain their freedom and to prevent life detention, there are considerable problems in accommodating these detainees in socio-therapeutic institutions.

One reason for this is that the socio-therapeutic institutions often do not have enough places for preventive detention detainees.

At the same time, in many places socio-therapeutic institutions are extremely unwilling to take in such detainees Bartsch, loc. This is particularly clearly shown by the small number of persons affected who are in a socio-therapeutic institution: in March , of a total of persons who were ordered to be placed in preventive detention, only 83 were in social therapy Niemz, Kriminologische Zentralstelle e.

In addition, joint socio-therapeutic treatment of detainees in preventive detention and prisoners is often not tailored to the special needs of the former and therefore frequently results in undesirable developments Bartsch, loc.

What is more, during the period of imprisonment of those who were given an order of subsequent preventive detention when they were convicted there is insufficient work towards a suspension of the detention on probation.

Thus, for example, the persons affected are on the one hand generally not permitted relaxations of execution such as short leave and leave or detention in an open institution.

At the same time, the prisoners whose custodial sentences are followed by preventive detention are often not given access to the necessary therapy, or only given access in a secondary capacity, by the institutions Bartsch, loc.

But early commencement of therapy — during the custodial sentence — is the crucial deciding factor to avoid subsequent preventive detention or at least to make it as short as possible.

Above all, only in the rarest cases are unescorted measures such as short leave, work release and leave granted Bartsch, loc.

Finally, another obstacle to the release of the detainee under preventive detention is the frequent lack of structured cooperation between the institutions and institutions of post-detention care, and the failure to create a secured social environment to receive the detainee after release from preventive detention.

Thus, for example, there is a particular lack of places in facilities for assisted living which are able to accept the detainee after release Bartsch, loc.

In addition, there are problems in the transition of treatment from detention to later outpatient therapies. As the oral hearing showed, therefore, there is a particular need for the creation of networks and suitable organisational structures in order to ensure consistent post-detention care of the detainee released after preventive detention.

The legislature may constitutionally draft provisions on the imposition and duration of this measure only as integral parts of a liberty-oriented overall concept aimed at therapy.

In particular, justice is not done to the high status of the right to liberty if the imposition of preventive detention is granted in isolation, although the constitutional requirements of the design of this measure are not structurally guaranteed because of normative shortcomings.

The persons affected are as it were subjected to an unconstitutional deprivation of liberty in full awareness of the situation.

From the perspective of the protection of liberty, it is irrelevant in this connection that since the federalism reform in the year the Federal legislature has no longer been competent to legislate on imprisonment.

If, under its legislative competence for criminal law under Article The Federal and Land legislatures have a joint duty to create a legislative concept which satisfies the requirements set out above.

It is their task, taking account of the constitutional system of competences, to develop a liberty-oriented overall concept of preventive detention aimed at therapy.

In addition, the Federal legislature is competent for the provisions on judicial review of the continuance of preventive detention and for procedural provisions.

The Land legislatures, in turn, must in the exercise of their legislative competence draft provisions for the execution of preventive detention which ensure compliance with the distance requirement and are effective, and which guarantee liberty-oriented execution aimed at therapy.

Here, it is necessary above all to ensure that the requirements set out above cannot be circumvented in practice as a result of granting too much latitude, and that the distance requirement thus de facto comes to nothing.

Without complying with the distance requirement, the institution of preventive detention is incompatible with the fundamental right to liberty of detainees under preventive detention.

The weight of the affected concerns regarding the protection of legitimate expectations is also reinforced by the principles of the European Convention on Human Rights b with the result that a deprivation of liberty which is ordered or prolonged retrospectively can only be regarded as permissible if the required distance from punishment is preserved, if a high risk of the most serious offences of violence or sexual offences can be inferred from specific circumstances in the person or conduct of the detainee and if the requirements of Article 5.

Each of the provisions constitutes a considerable encroachment on the fundamental right to liberty on Article 2.

On this basis, a particularly great weight may be attributed to the concerns of the protection of legitimate expectations, for the provisions in question, in that they authorise the imposition or extension of an indeterminate deprivation of liberty by preventive detention, contain a serious — and possibly the most serious conceivable — encroachment upon the objectively affected fundamental right to liberty Article 2.

The encroachment made by preventive detention upon the fundamental right under Article 2. In this respect it should be taken into account that the violation of the distance requirement see 2 above , according to the principles of Article 7.

The constitutional classification of preventive detention is based inter alia on the fact that, like a custodial sentence, it results in deprivation of liberty and is served in regular prisons.

In addition, according to the Chamber of the Fifth Section of the European Court of Human Rights, with regard to the de facto situation of the detainee under preventive detention it is not apparent that preventive detention has merely a preventive function and serves no punitive purpose.

In this regard, the Chamber points out that there are no particular measures, instruments or facilities aimed at detainees in preventive detention which have the purpose of making them less dangerous and thus restricting their confinement to the period absolutely necessary to deter them from committing further offences.

The Chamber also refers to further criteria, for example the procedure for imposing detention and the severity of the measure, although this severity, it holds, is not the sole deciding factor European Court of Human Rights, loc.

As long ago as , the Federal Constitutional Court, in its decision of 4 February , discussed the aspect of the de facto effect of a measure of correction and prevention; although it did not find this to be conceptually relevant for the element of punishment in Article However, according to the Senate's case-law, even the Basic Law itself, in connection with a review of a violation of Article 2.

There is therefore no occasion to adapt the constitutional concept of punishment in Article This method followed by the European Court of Human Rights in creating concepts has its justification for the purposes of the European Convention on Human Rights.

The independence of the concept formation of the European Court of Human Rights and the necessarily entailed flexibility and lack of precision take account of the legal, linguistic and cultural variety of the Member States of the Council of Europe see Grabenwarter, Europäische Menschenrechtskonvention , 4th ed.

Article 5. To justify the configurations in the present case, Article 5. Germany and the judgments of 13 January , Application no.

Germany and Applications nos. Germany , marginal nos. In addition, the Chamber of the Fifth Section, in a further judgment of 13 January Application no.

Germany , found there was no justification under Article 5. The second judgment, however, contains no new finding of criminal responsibility, but presupposes one.

Nevertheless, the existence of Article 5. However, in the cases under consideration here such a danger is likely to be found only in quite exceptional circumstances.

United Kingdom , marginal no. Former Yugoslav Republic of Macedonia , marginal no. Netherlands , marginal no. United Kingdom, marginal no. Conduct which is merely socially deviant, however, is not a disorder within the meaning of this provision see European Court of Human Rights, loc.

An anti-social personality or a psychopathic disorder may be included, however see European Court of Human Rights, judgment of 20 February , Application no.

In the consideration of the question as to whether the requirement of mental disorder within the meaning of Article 5. Furthermore, the additional requirement of lawfulness of the deprivation of liberty contained in Article 5.

The requirements of the prohibition of arbitrariness depend on the nature of the deprivation of liberty or the relevant ground of justification within the system of Article 5.

According to this, the authoritative date to be considered for the foreseeability of deprivation of liberty under Article 5. In contrast, under Article 5.

The requirement that the deprivation of liberty should be lawful also leads to the need for a connection between the purpose of the deprivation of liberty and the institution in which the person involved is accommodated see, most recently, European Court of Human Rights, judgment of the seven-judge chamber of 29 January , Application no.

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