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Retrospective Preventive Detention in Germany: A Comment on the ECHR Decision Haidn v. Germany of 13 January 2011
Journal
German Law Jounal
Volume
12
Number
3
Pages / Article-Number
968-977
Abstract
In four judgements of 13 January 2011 the European Court of Human Rights (ECHR) in Strasbourg returned to the issues raised in its earlier jurisprudence regarding preventive detention ("Sicherungsverwahrung") under German criminal law. In its decision of 17 December 2009, M. v. Germany (ECHR, 5 th Section, App. no. 19359/04), the Court had held that the German Criminal Law's retroactive extension of confinement in preventive detention failed to meet the requirement of lawful detention "after conviction" under Art. 5 § 1 (a) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "the Convention"), and violates the prohibition of retroactivity (Art. 7 § 1 of the Convention). In its most recent decisions, the Court confirmed this earlier judgement in three cases (ECHR, judgement of 13 January 2011, 5 th Section, App. nos. 17792/07 (Kallweit v. Germany) , 20008/07 (Mautes v. Germany) , 27360/04 and 42225/07 (Schummer v. Germany) . The applicants, Kallweit, Mautes and Schummer, were convicted before 1998. Their conviction included a specific prison time and subsequent preventive detention, which was limited by law ten years at the time of their conviction. So, after they served their sentence, they retained in preventive detention, which basically means they stayed in prison under similar conditions. However, they had not been released from preventive detention after ten years, but were retained with an unlimited duration under a Federal Act conceived to fight sex offences and other severe criminality that abolished the 10-year restriction of preventive detention in 1998. As in M. v. Germany the ECHR found a violation of the Convention by the retroactive extension of the applicants' placement in preventive detention, awarded a total of 125.000 EUR of compensation to the applicants, and criticised that the German administration and courts disrespected the concerned prisoner's rights of liberty guaranteed under the Convention. The German Government tries to avoid the affected release of approximately 100 potentially dangerous prisoners, and has therefore only partly transferred the Court's judgement M. v. Germany into the German Law. This leaves the problem of how to deal with the situation to the German Courts and has led to a highly arbitrary legal situation that we will return to after a closer look on the fourth applicant's case. In the case Haidn v. Germany ( Judgement of 13 January 2011. 5 th Section, App. no. 6587/04) the ECHR extended its judgement by finding that retrospective preventive detention ("nachträgliche Sicherungsverwahrung") does not meet the requirements of Art. 5 § 1 (a) of the Convention either, and that detention under a corresponding law therefore as well violates the prisoner's right of liberty and freedom. Retrospective preventive detention (Article 66b of the German Criminal Code) enables courts to subject adult prisoners to preventive detention after their sentence served with no prior notification in trial and without any further conviction, if new evidence regarding the dangerousness of the prisoner becomes available during the prison term that is seen to support an extension of the detention. Since the facts of Haidn's case quite well bring into light the legislators' and courts' handling of sex-offenders in Germany in the recent years, it seems worse mentioning them in more detail.
