ILNSEHER v. GERMANY - 10211/12 (Judgment : Right to liberty and security - Lawful arrest or detention - Persons of unsound mind : Grand Chamber) [2018] ECHR 991 (04 December 2018)

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You are here: BAILII >> Databases >> European Court of Human Rights >> ILNSEHER v. GERMANY - 10211/12 (Judgment : Right to liberty and security - Lawful arrest or detention - Persons of unsound mind : Grand Chamber) [2018] ECHR 991 (04 December 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/991.html Cite as: [2018] ECHR 991, CE:ECHR:2018:1204JUD001021112, ECLI:CE:ECHR:2018:1204JUD001021112

DISSENTING OPINION
OF JUDGE PINTO DE ALBUQUERQUE
JOINED BY JUDGE DEDOV

Table of contents

I. Introduction (§ 1) ................................................................................ 85

First Part – Testing preventive detention under domestic law (§§ 2-55) ... 86

II. The history of preventive detention (§§ 2-35) .................................... 86

A. Forgetting the dark past (§§ 2-20) ............................................................................. 86

(i) Fighting the “parasites in the people’s body” (§§ 2-11) ................................. 86

(ii) “Lock up - and forever” (§§ 12-18) ................................................................. 90

(iii) Going beyond Hitler (§§ 19-20) ....................................................................... 94

B. The slick response to M. (§§ 21-31) .......................................................................... 95

(i) The legislative response (§§ 21-24) ................................................................... 95

(ii) The judicial response (§§ 25-28) ....................................................................... 99

(iii) The Government’s response (§§ 29-31) ....................................................... 103

C. Preliminary conclusion (§§ 32-35) .......................................................................... 104

III. The dogmatic of preventive detention (§§ 36-55) ........................... 106

A. Adult and young adult offenders (§§ 36-48) ........................................................ 106

(i) Back to the “purposeless majesty” of prison (§§ 36-41) ............................ 106

(ii) The manipulation of psychiatry (§§ 42-44) ................................................. 109

(iii) Frustrating legitimate expectations (§§ 45-48) ........................................... 110

B. Juvenile and young adult offenders (§§ 49-52) ................................................... 112

(i) No proportionality-based policy (§ 49) .......................................................... 112

(ii) Failing the educational purpose (§ 50) .......................................................... 113

(iii) The inequality of treatment vis-a-vis adults (§§ 51-52) ............................ 113

C. Preliminary conclusion (§§ 53-55) .......................................................................... 114

Second part – Testing preventive detention under international law (§§ 56-129) 116

IV. The context of the dialogue between Strasbourg and Karlsruhe (§§ 56-89) 116

A. The constitutional law context (§§ 56-74) ............................................................ 116

(i) The international-law-friendliness of the Basic Law (§§ 56-59) ............... 116

(ii) The caveat of multipolar human rights’ relations (§§ 60-61) ................... 118

(iii) The Convention-unfriendly interpretation of preventive detention (§§ 62-74) 119

B. The international and comparative law context (§§ 75-85) .............................. 124

(i) The United Nations standards (§§ 75-79) ...................................................... 124

(ii) The Council of Europe standards (§§ 80-83) ................................................ 126

(iii) The comparative law standards (§§ 84-86) ................................................ 127

C. Preliminary conclusion (§§ 87-89) ........................................................................... 129

V. The Strasbourg Court on a slippery slope (§§ 90-129) ..................... 131

A. The new illiberal criminal-law standards (§§ 90-110) ......................................... 131

(i) The minimalist understanding of the principle of legality (§§ 90-94) ....... 131

(ii) The “erasure” of the autonomous meaning of “penalty” (§§ 95-107) .... 133

(iii) The catch-all construction of “person of unsound mind” (§§ 108-110) . 138

B. The overly repressive approach to the present case (§§ 111-127) ................... 139

(i) The biased determination of the applicant’s “mental illness” (§§ 111-115) 139

(ii) The unlawfulness of the applicant’s detention order (§§ 116-121) .......... 141

(iii) The “special sacrifice” of the applicant’s preventive detention (§§ 122-126) 145

C. Preliminary conclusion (§§ 127-128) ..................................................................... 147

VI. Final conclusion (§§ 129-130) ........................................................ 149

I. Introduction (§ 1)

1. I voted for a violation of Article 5 § 1 (on account of the applicant’s preventive detention from 20 June 2013 onwards), Article 6 § 1 (on account of the lack of impartiality of Judge P.) and Article 7 § 1 (on account of the applicant’s mentioned preventive detention) and for no violation of Article 5 § 4 of the European Convention on Human Rights (“the Convention”) (on account of the duration of the proceedings for review of the applicant’s provisional preventive detention).

My separate opinion concerns only the dissenting vote. It consists of two parts. The first part is devoted to the study of preventive detention under domestic law, with regard to adults, young adults ( Heranwachsenden ) [2] and juveniles ( Jugendlichen ), [3] since it seems to me that the majority judgment has not fully taken into account the historical background (II.) and the dogmatic framework (III.) of this measure and therefore misunderstood its nature and purposes and underestimated its theoretical shortcomings and practical deficiencies.

The second part of the opinion presents the context of the dialogue between the European Court on Human Rights (“the Court”) and the Federal Constitutional Court of Germany (“the Constitutional Court” or “the Karlsruhe court”) on preventive detention (IV.A.), discussing the latter’s Convention-unfriendly interpretation of preventive detention, as well as the international- and comparative-law context of that dialogue (IV.B.). Special emphasis is placed on the contribution of the United Nations and the Council of Europe to this dialogue and, most importantly, to their formal positions on the German preventive detention system. Against the background of the Court’s minimalist understanding of the principle of legality, the opinion then assesses how the majority erase the autonomous meaning of the “penalty” notion set out in Article 7 of the Convention and instead put forward a catch-all construction of the Article 5 concept of “person of unsound mind” (V.A.). Finally, on the basis of the collected international, comparative and constitutional law materials, the opinion analyses the domestic authorities’ overly repressive approach to the proceedings concerning the applicant’s retrospective ^{^[4]} preventive detention order, which the majority confirmed by large (V.B.). In my view, the complaint under Article 7 logically precedes that under Article 5, because the former pertains to the nature and purpose of the applicant’s preventive detention in the Straubing Prison preventive detention centre from 20 June 2013 onwards, while the latter refers to the execution of that detention in an adequate facility and in a proper manner. [5] At all events, this opinion maintains that there was a violation of both provisions (VI.).

First Part – Testing preventive detention under domestic law (§§ 2-55)

II. The history of preventive detention (§§ 2-35)

A. Forgetting the dark past (§§ 2-20)

(i) Fighting the “parasites in the people’s body” (§§ 2-11)

2. Introduced in 1933, ^{^[6]} preventive detention of “habitual offenders” [7] was one of the two main instruments of the national socialist “criminal law of the enemy” ( Feindstrafrecht) , alongside with “defensive detention” ( Schutzhaft ). The crucial difference between these instruments of Nazi criminal policy was that preventive detention could be imposed by the courts in addition to a prison sentence while “defensive detention” was imposed by the SA, [8] the SS [9] and the Gestapo, [10] independently of any pending or future criminal procedure and without any judicial oversight or time limitation.

In the new framework of the German two-track system ( zweispurigen System ) of criminal sanctions, preventive detention was considered as a “custodial measure of correction and prevention” ( freiheitsentziehende Maßregel der Besserung und Sicherung ) applicable whenever the offender’s conduct could be perceived as an “act symptomatic of dangerousness” ( Symptomtat für die Gefährlichkeit ). The measure was therefore built upon the offender’s “tendency to commit criminal offences” ( Hang, Straftaten zu begehen ).

3. The Nazi Act on Habitual Offenders also introduced retrospective preventive detention, in two types of cases: first, when an offence had been committed before 1 January 1934 and the conditions for preventive detention were met, the court should impose it when public safety so required, [11] and second, the court could retrospectively order ( nachträglich anordnen ) preventive detention for specific recidivists who were serving a prison sentence as of 1 January 1934, when public safety so required. ^{^[12]}

4. Preventive detention was widely applied to adults, even retrospectively. [13] People in preventive detention (the so-called Sicherungsverwahrten ) were “unworthy life in the highest potency” ( unwertes Leben in höchster Potenz ), according to Hitler’s Minister of Justice Otto Georg Thierack, ^{^[14]} who also considered them as “parasites on the people’s body” ( Parasit am Volkskörper ) in his famous Richterbrief no. 4 and called for “the extermination of these foreign bodies of the community” ( Vernichtung dieser Fremdkörper der Gemeinschaft ). [15] In 1942, Minister Thierack and the SS leader Heinrich Himmler agreed to the handover of “anti-social elements” in the prison system, including those in preventive detention ( Sicherungsverwahrten ), to the police for “extermination by work” ( Auslieferung asozialer Elemente aus dem Strafvollzug an den Reichsführer SS zur Vernichtung durch Arbeit ) [16] . In the concentration camp Mauthausen alone 6 736 people in preventive detention ( SV-Häftlinge ) died in the years leading up to February 1944. [17] The introduction of the preventive detention by the Nazi regime was also closely linked to its infamous euthanasia programme which targeted such criminals, among other groups of people. [18]

5. The 1939 Order on Protection against Dangerous Juvenile Criminals ( Verordnung zum Schutz gegen jugendliche Schwerverbrecher ) and the 1943 Order on the Simplification and Harmonisation of the Criminal Law relating to Juvenile Offenders ( Verordnung über die Vereinfachung und Vereinheitlichung des Jugendstrafrechts ) made it possible to apply the general criminal law to juvenile offenders and therefore also to impose preventive detention.

6. After the end of the Second World War, the Allied Control Council did not revoke preventive detention, ^{^[19]} in spite of the repeated criticisms of “fraudulent labelling” ( Etikettenschwindel ) levelled against it, in view of its severity and the difficulty of distinguishing it from a prison sentence. [20] In the German Democratic Republic, preventive detention was repealed and replaced by other provisions, [21] whereas the Federal Republic of Germany kept it.

7. In January 1953, ^{^[22]} the Constitutional Court decided that the Basic Law was not breached by the lack of differentiation between the execution of punishment in a penitentiary for penal servitude ( Zuchthaus ) and preventive detention, despite the different legal purpose of the two sanctions. For security reasons it accepted this lack of differentiation as an exception to the general obligation of treating different cases differently, in accordance with the principle of equal treatment (Article 3 of the Basic Law).

8. The Juvenile Courts Act of 4 August 1953 prohibited the imposition of preventive detention on juveniles ^{^[23]} and on young adults being dealt with under the criminal law relating to juvenile offenders [24] , but it remained permissible for young adults who were convicted under the general criminal law, [25] until the First Act to Reform Criminal Law ( Erstes Gesetz zur Reform des Strafrechts ), of 25 June 1969, also prohibited this form.

9. In the Second Act to Reform Criminal Law ( Zweiten Gesetz zur Reform des Strafrechts ), of 4 July 1969, preventive detention became a measure of last resort ( ultima ratio ) in the German two-track system of sanctions, and a maximum of 10 years was introduced. ^{^[26]}

10. Following a memorable decision of the Constitutional Court of 14 March 1972, [27] the Act on the Execution of Detention and the Custodial Measures of Correction and Prevention ( Gesetz über den Vollzug der Freiheitsstrafe und der freiheitsentziehenden Maßregeln der Besserung und Sicherung ) entered into force on 1 January 1977. It included only seven special provisions on preventive detention (sections 129-135), which, moreover, were subject to a reservation as regards feasibility. When drafting the Act, the legislator justified the paucity of those special provisions with the 1953 decision of the Constitutional Court, mentioned above. [28] According to the legislator, preventive detention lacked any therapeutic purpose, unlike other custodial measures of correction and prevention (Articles 63 and 64 of the Criminal Code), which should be executed outside a prison environment, in view of their therapeutic nature.

11. An attempt to replace preventive detention by an autonomous, compulsory, freedom-limiting social therapy measure for the treatment of offenders with severe personality disorders, enshrined in the new Article 65 of the Criminal Code, was discontinued in 1984, the provision being deleted and the solution downgraded to an “optional mode of execution” ( Vollzugslösung ). [29] In addition to the financial costs that such alternative would entail, the main objection raised was the problematic nature of compulsory therapy for offenders who had been declared sane and therefore criminally responsible.

(ii) “Lock up - and forever” (§§ 12-18)

12. Following a series of high-profile murder cases, the formal requirements of preventive detention were softened and the former 10-year limit was removed in 1998, which meant that preventive detention became effectively an order of indefinite duration. ^{^[30]} The legislator justified that removal on the grounds that the new law did not impact the measure itself, but only its duration, and therefore the constitutional protection against retrospective legislation was not applicable with the same degree of cogency. [31] In the following few years, five German Federal Länder enacted laws to detain prospective recidivists in prison. [32]

13. In July 2001, Bundeskanzler Gerard Schröder reacted to the murder of an eight-year-old and the burning of its dead body with these words: “there can only be the maximum penalty for a person who puts himself outside the human community in such a way” ( Wer sich so außerhalb der menschlichen Gemeinschaft stellt, für den kann es nur die Höchststrafe geben ). [33] The solution was clear for the politician: “lock up - and forever” ( wegschließen - und zwar für immer ), because such conduct showed in itself that the offender was “not recoverable” ( nicht therapierbar ). The punitive mind-set of the Chancellor could not be more transparent. The legislator very quickly followed suit. Accordingly, in 2002, the German Parliament introduced a deferred order of preventive detention, under which the sentencing court may defer the application of a future order of preventive detention, when at the time of the judgment it is probable that the convicted person poses a danger to the general public due to his or her tendency to commit serious offences. [34] Under the Act in question, the final decision as to whether preventive detention is imposed or not is made by the end of the prison term, and furthermore, preventive detention could now be imposed in addition to life-long imprisonment.

14. The following year, deferred preventive detention was extended to young adults who were sentenced under general criminal law. [35] Like the general measure for adults, the new measure could be applied on the basis of the offender’s dangerousness at the time of the judgment.

15. By judgment of 5 February 2004, ^{^[36]} the Constitutional Court confirmed this policy trend by deciding that removing the 10-year limit with retrospective effect was not unconstitutional, since it breached neither the principle of human dignity (Article 1 (1) of the Basic Law), [37] nor the right to liberty (Article 2 (2) of the Basic Law), ^{^[38]} or the principle of prohibition of absolute retroactivity ( absolute Rückwirkungsverbot ) (Article 103 (2) of the Basic Law), ^{^[39]} or the principle of protection of legitimate trust ( Vertrauensgrundsatz ) (Article 2 (2) of the Basic Law). In the court’s view, measures of correction and prevention, like preventive detention, were not penalties ( Strafen ) within the meaning of Article 103 (2) of the Basic Law and its predecessor, Article 116 of the Weimar Constitution, and could therefore be applied retrospectively. [40] The basic assumption was that the preventive detention was “linked” ( verknüpft ) to unlawful and reproachable conduct on the part of a sane person, but this “link” ( Verknüpfung ) did not give preventive detention the character of a penalty ( Strafe ). [41] The intra-systematic constitutional incoherence that Article 74 (1) No. 1 of the Basic Law subsumed measures of correction and prevention under the concept of “criminal law” ( Strafrecht ), while those same measures were not considered as “penalties” for the purposes of Article 103 (2) of the same Basic law, was dismissed with the argument that the former provision concerned the distribution of legislative competences between the Federal State and the Federate States and had no “liberty-guaranteeing function” ( freiheitsgewährleistende Funktion ). [42]

Yet the Karlsruhe court formulated a caveat: despite the fact that a preventive detention order must be executed in accordance with the general prison rules, as determined by section 130 of the Act on the Execution of Detention and the Custodial Measures of Correction and Prevention (cited above), there should be a “distance” ( Abstand ) between the execution of the preventive detention and that of a prison sentence, “which makes the special prevention purpose of preventive detention clear for the detained person and society at large”. [43] This is the so-called “distance requirement” ( Abstandsgebot ). Although the constitutional judges found that it was not for the court to determine the practical features of such principle, they expressed the view that in case of “specially prolonged” preventive detention the “hopeless” detainee should be provided with “additional facilities” in order to guarantee “minimum quality of life”. [44]

16. A few days later, on 10 February, [45] another judgment of the same court decided that preventive detention comes under criminal law for the purposes of Article 74 (1) No. 1 of the Basic Law, and is consequently a matter for Federal legislation. Yet the Constitutional Court declared the impugned Länder laws regarding preventive detention, namely the Bavarian Straftäterunterbringungsgesetz ^{^[46]} and the Saxony-Anhalt Unterbringungsgesetz [47] , as merely incompatible ( unvereinbar ) with the Basic Law, according to section 31 (2)(3) of the Federal Constitutional Court Act, and not as null and void ( nichtig ), according to section 95 (3)(1) of the same Act, in order to avoid the immediate release of all detained persons under the impugned laws. [48] Furthermore, the court determined that the said laws could remain in force until 30 September 2004 with a view to allowing the competent Federal organ to repeal and replace them by other constitutionally compatible legislation. [49] Adopting a proactive stance on the matter, the Constitutional Court instructed the Federal legislator to consider, within a prescribed deadline, the possibility of taking a retrospective decision on the continued detention of the dangerous offenders still detained. [50]

17. Still in 2004, the German Parliament diligently complied with the instruction and approved the retrospective applicability of preventive detention without a previous deferred order when new facts ( nova ) are disclosed before the custodial sentence has been fully served demonstrating that the prisoner poses a danger to the public. ^{^[51]} The new law entered into force one month before the deadline set by the Constitutional Court. The new measure was extended to both adults and young adults sentenced under the general criminal law. It could be applied to multiple offenders (first constellation of cases: Article 66b § 1 of the Criminal Code) as well as to first offenders (second constellation of cases: Article 66b § 2 of the same Code), and when confinement in a psychiatric hospital was terminated because the condition which excluded or reduced the defendant’s criminal responsibility and on which the confinement was based did not exist or no longer existed (third constellation of cases: Article 66b § 3 of the same Code).

18. By decision of 23 August 2006, ^{^[52]} the Constitutional Court considered that Article 66b § 2 of the Criminal Code (the second constellation of cases) did not violate the ban on the retrospective application of criminal laws and was in conformity with the protection of legitimate expectations guaranteed in a State governed by the rule of law. The legislator’s decision, to the effect that the paramount public interest in effective protection of the public from very dangerous offenders outweighed the reliance of the convicted offender on the fact that the law would not be changed to his or her detriment so as to allow his or her continued detention, was compatible with the Basic Law. The Constitutional Court further considered that the said provision did not violate the right to liberty of the person concerned. The legislator was authorised by the Basic Law to deprive of his or her liberty a person who is expected to commit offences against life or limb or the liberty of citizens, having regard to the principle of proportionality. As Article 66b § 2 of the Criminal Code applied only in very exceptional cases, that provision had to be considered as a proportionate restriction on the right to liberty.

With similar arguments, the constitutionality of the provision on the first constellation of cases was confirmed by a decision of Constitutional Court of 22 October 2008 [53] and that on the third constellation of cases was confirmed by a decision of 5 August of 2009. [54]

(iii) Going beyond Hitler (§§ 19-20)

19. In July 2008 retrospective preventive detention was further extended to juveniles aged between fourteen and eighteen, [55] including when confinement in a psychiatric hospital had been terminated because the condition which excluded or reduced the defendant’s criminal responsibility and on which the confinement was based did not exist or no longer existed. [56] Contrary to the legislation on adults, the juvenile regime lost any connection to “habitual offenders”, since the “tendency” ( Hang ) to commit offences was not required. In addition, the juvenile regime departed from the adults’ law which required that before the end of the execution of the prison sentence facts “have become known” ( werden ... vor Ende des Vollzugs dieser Freiheitsstrafe Tatsachen erkennbar ) which are indicative of the prisoner’s dangerousness. In the Juvenile Courts Law the wording was changed to “facts are known ... before the end of youth custody ...” ( Sind ... vor Ende des Vollzugs dieser Jugendstrafe Tatsachen erkennbar ). The important difference is that, according to juveniles’ law, the facts had to be known before the end of the time in prison, but did not have to be new at that point in time. [57]

20. Among the many criticisms levelled at the governmental proposal during the debate before the competent parliamentary commission of the Bundestag, [58] one expert pointed out that, if adopted, this measure would go even further than Nazi legislation had. [59] Others called it a “legislative trick” ( legislativer Kunstgriff ) [60] and an “absurdity” ( Unding ). [61]

B. The slick response to M. (§§ 21-31)

(i) The legislative response (§§ 21-24)

21. As a beacon of liberal criminal law reform, the Court reacted to this trend. In M. v. Germany, ^{^[62]} the Court put an end to Germany’s criminal law policy trend of never-ending expansion of preventive detention, by holding that the removal of the 10-year limit with retrospective effect breached Article 7 § 1 of the Convention. The argument was simple: preventive detention was, in the “law in the books”, about punishing convicted offenders on the basis of their criminal past and, in the “law in action”, its execution was not very different from that of a prison sentence. [63] Therefore, it should be considered as a penalty for the purposes of Article 7 of the Convention and could not be applied retrospectively. ^{^[64]} Looking back in time, the judges delivered a strong rebuke to the legislator for having failed to implement the distance requirement, set out in the constitutional judgment delivered five years before.

In addition, there was no sufficient causal connection between the applicant’s conviction by the sentencing court and his continued deprivation of liberty beyond the ten-year period in preventive detention. His continued detention was therefore not justified under sub-paragraph (a) of Article 5 § 1 of the Convention. Nor was the applicant’s preventive detention beyond the ten-year point justified under sub-paragraph (c) of Article 5 § 1, because the applicant’s potential future offences were not sufficiently concrete and specific as regards, in particular, the place and time of their commission and their victims. [65] Finally, paragraph (e) could not make the detention lawful either, because the applicant did not have a mental disorder and the domestic courts did not refer to any such disorder. [66]

22. The response of the German authorities was threefold. The legislative response aimed at an overhaul reform of preventive detention. [67] The main changes were as follows. Firstly, the application of primary preventive detention under Article § 66 of the Criminal Code was substantially narrowed. Secondly, the deferred preventive detention system was expanded. Under certain circumstances, deferred preventive detention under Article 66a of the Criminal Code became possible for offenders who are only sentenced to a five-year prison term. Thirdly, retrospective preventive detention under Article 66b of the Criminal Code and section 106 of the Juvenile Courts Act was removed, with the exception of cases where committal to a psychiatric hospital was terminated because the condition which excluded or reduced the defendant’s criminal responsibility and on which the confinement was based did not exist or no longer existed. However, section 316(e)(1) of the Introductory Act to the Criminal Code laid down that the new provisions were to apply only if the offence, or at least one of the offences, for the commission of which preventive detention was to be imposed or deferred had been committed after the Act entered into force on 1 January 2011. Offences committed before this time were still subject to the earlier law.

23. Additionally, a new measure of “therapy placement” ( Therapieunterbringung ) [68] was introduced with the explicit aim of keeping people in detention who would otherwise be released from preventive detention under the Court’s case-law. As can be deduced from the wording of the law itself, the aim of this legislation was to continue the deprivation of liberty for more serious offenders with an order of preventive detention, which could no longer be maintained under Article 5 § 1 (a) of the Convention in the wake of M. v. Germany . [69] Since referring to Article 5 § 1 (e) did not seem to pose the same problem with respect to retrospective legislation, the German legislator decided to ground the confinement of the very same population (except for the release of some minor cases) on the legal purpose of providing therapy for “persons of unsound mind”, seemingly detaching it from the offences that were the original basis for their detention. When drafting the law, the legislator was aware of the fact that by no means all the offenders whom he intended to keep behind bars suffer from a real mental disorder in the strict forensic-psychiatric sense [70] , and that, even if they did, there was by no means a serious reason in all cases to believe they could be cured by therapy. [71]

The competent court – which according to this law was a civil law court – could order confinement for therapy if the person suffered from a “mental disorder” ( psychische Störung ), a high probability of certain serious crimes was established and the confinement was necessary for protecting the public. This could take place independent from the fact whether the person was still detained in preventive detention or had been released already.

24. In other words, the Therapy Placement Act engaged in a pure exercise of mislabelling ( Umetikettierung ) of the Convention-incompatible retrospective preventive detention as an allegedly non-criminal, non-punitive measure of therapeutic placement. ^{^[72]} Although applicable by civil courts, the non-criminal nature of the internment was unclear, as was its concept of “mental disorder” ( psychische Störung ). The artifice used was the intensification of the “magic formula” [73] of the distance requirement. In other words, the legislator doubled down on the distance requirement with a view to making the practical features of the execution of preventive detention as a non-punitive therapeutic internment appear distinct from the service of a prison sentence and therefore save retrospective preventive detention from Strasbourg reprobation. The political move was risky, but turned out to be quite successful, since the reaction of the national judiciary was supportive.

(ii) The judicial response (§§ 25-28)

25. The judicial response to M. was no less dexterous. [74] On 4 May 2011, [75] the Constitutional Court declared the incompatibility of the provisions on the imposition and duration of preventive detention with the fundamental right to liberty, because they did not satisfy the constitutional requirements of the distance requirement. [76] Going further than its 2004 judgment, the court insisted on the “release- and therapy-oriented execution” ( freiheitsorientierte und therapiegerichteten Vollzug ) of preventive detention and its “solely preventive character” ( den allein präventiven Charakter ). [77] According to the Karlsruhe judges, the distance requirement was imperative for all public authorities and should be specified by the legislator alone, who should develop a “release-oriented global concept of preventive detention” ( freiheitsorientiertes Gesamtkonzept der Sicherungsverwahrung ) [78] with such a plethora of norms that it determined the executive’s and the judiciary’s conduct in “all important fields” ( allen wesentlichen Bereichen ). [79] Acting as a “substitute legislator” ( Ersatzgesetzgeber ), the court set out the required “minimum constitutional standards” ( verfassungsrechtlichen Mindestanforderungen ) [80] for the legislative implementation of the distance requirement and, in addition, set the deadline of 31 May 2013 for the unconstitutional provisions to be replaced by new regulations based on these standards. ^{^[81]}

Based on the philosophy of the Therapy Placement Act, which was not under review in the constitutional appeal, the Constitutional Court justified confinement in cases where preventive detention was not possible because of the prohibition of retrospective legislation, with the emergence of a “mental disorder” ( psychische Störung ). ^{^[82]} Since it would be impossible for the future to justify any kind of retrospective preventive detention on the basis of Article 5 § 1 (a) of the Convention, the Constitutional Court explicitly looked for a different justification for retrospective preventive detention in its Article 5 § 1 (e). ^{^[83]} With this justification, the court accepted the perpetuation of retrospective preventive detention under section 316e of the Introductory Act to the Criminal Code in the “old cases”, [84] using a strict proportionality test ( strikten Verhältnismäßigkeitsprüfung ). [85]

Hence, the legislator’s rhetoric of the “therapy-orientation” ( Therapieorientierung ) as a means to distinguish the execution of preventive detention from the service of a prison sentence received explicit constitutional approval from Karlsruhe, [86] which imposed an understanding of the distance requirement “with even clearer contours” (noch deutlicher zu konturieren ). ^{^[87]} It stressed, in particular, that the constitutional requirement to establish a difference between preventive detention and the service of a prison sentence warranted an individualised and intensified offer of therapy and care by a team of multi-disciplinary staff to those in preventive detention if the standard therapies available in the institution had no prospects of success. [88] At the end of the day, the Karlsruhe court confirmed its own understanding of a penalty as being different from that of the Strasbourg Court, ^{^[89]} but insisted that the two notions did not have to be aligned, because what matters is the consideration of the value judgments of the Court in a result-oriented manner. [90] Ultimately, the “matured” ( gewachsene ) German constitutional order should prevail over the “flexibility and lack of precision” ( Flexibilität und Unschärfe ) of the Court’s concept formation. ^{^[91]}

26. In 2012, the German Parliament passed the Prevention Detention (Distinction) Act, [92] inserting a new Article 66c into the Criminal Code. ^{^[93]} This Act converted the Constitutional Court’s standards for the execution of preventive detention into national law, and oddly enough into a provision of the Criminal Code, while keeping intact the old-fashioned Article 129 of the Act on the Execution of Detention and the Custodial Measures of Correction and Prevention (cited above). Given that the Länder hold authority for the execution of prison sentences, each Land enacted new legislation in order to implement the distance requirement in practice. ^{^[94]} Deferred preventive detention remained applicable to juveniles, ^{^[95]} but retrospective preventive detention was removed from Article 7 of the Juvenile Courts Act, with the exception of cases where confinement in a psychiatric hospital was terminated because the condition which excluded or reduced the defendant’s criminal responsibility and on which the confinement was based did not exist or no longer existed. [96]

27. The legislator established an important transitional provision, namely Article 316f of the Introductory Act to the Criminal Code, which provided for the application of the retrospective provisions on preventive detention whenever the triggering offence ( Anlasstat ), that is to say the offence or at least one of the offences for the commission of which preventive detention is to be imposed or deferred, had been committed before 31 May 2013. This provision was explicitly designed to enable the courts to make use of the old provisions until the protection of public safety was made possible by deferred preventive detention orders, in other words, for decades to come, in spite of the confessed factually and legally problematic character of the former. [97] Put simply, the new provision of Article 316f, like its predecessor, Article 316d, prolonged the transitional period of the Constitutional Court’s judgment for an indefinite period of time.

28. On 11 July 2013, ^{^[98]} the Constitutional Court declared the Therapy Placement Act constitutional provided that it was interpreted strictly, in the sense that internment under the Act had to observe the same restrictive conditions under which retrospective preventive detention could be imposed [99] , because the Act was to be considered as “criminal law” for the purposes of Article 74 (1) No. 1 of the Basic Law [100] and the intensity of its intervention in the interned person’s right to freedom corresponded to that of preventive detention. ^{^[101]} In particular, detention under the Therapy Placement Act would only be lawful if the concrete facts suggested that there was a high risk that the person concerned would commit extremely serious crimes. Nevertheless, the concept of “mental disorder” was interpreted broadly, including not only mental illnesses that needed clinical treatment, but also personality disorders of sufficient severity. [102]

Following this decision, all the remaining cases of detention under the Therapy Placement Act were reassessed by the relevant authorities and those concerned were gradually released. At the time of the Committee for the Prevention of Torture (“the CPT”) visit in November 2013, only one person in the country was still being subjected to a detention order under the Act in question. The delegation was informed that the aforementioned person was also expected to be released at some stage and that thereafter the Therapy Placement Act would become “obsolete” de facto . [103]

Since Article 316 f § 2 allowed for the continuation of preventive detention in cases of its formerly retrospective ordering or prolongation if a mental disorder on the part of the offender was expected to result in extremely serious violent or sexual offences, there was almost no room left for the application of the Therapy Placement Act. Hence, it was not necessary to use this civil-law option of detention because the targeted people could simply be kept in preventive detention by using a similar criminal-law option. This was evidently made possible by the Constitutional Court’s May 2011 judgment, which had decided, shortly after the Therapy Detention Act had entered into force on 1 January 2011, that under the very conditions stated by this Act, offenders could be kept in preventive detention.

(iii) The Government’s response (§§ 29-31)

29. The Government’s response in Strasbourg was ingenious. They insisted before the Court on the need to admit under the Convention not only the unlimited retrospective preventive detention of offenders with “mental disorder” ( psychische Störung ), but even the pre-crime detention of allegedly dangerous people for preventive purposes. The tactic paid off. Just two years after Schwabe and M. G., [104] the Court backtracked, in Ostendorf, [105] from its previous position, conceding that the obligation to keep the peace by not committing a criminal offence can be considered as sufficiently “specific and concrete” for the purposes of Article 5 § 1 (b) of the Convention “if the place and time of the imminent commission of the offence and its potential victim(s) have been sufficiently specified” [106] . In that same year, the Court delivered judgment in Bergmann, [107] reviewing M . The present judgment confirms the Court’s conceding stance.

30. If an interpretation of Article 5 § 1 (e) of the Convention were accepted that supported the German model of preventive detention as detention of a person of “unsound mind” independent from the criminal law system, this would open the door to preventive detention without a prior offence. The Government’s reasoning perceives the connection between the prior offence and the detention as rather loose, because otherwise the detention would have been subsumed as one under Article 5 § 1 (a). This opens up a wide door to detaining someone because of nothing more than a prediction of dangerousness.

31. The Government’s success has resonated in some Federal Länder which have not shied away from introducing new drastic forms of preventive detention, such as unlimited preventive detention ordered under police regulations (for example, Article 20 of the Bavarian Polizeiaufgabengesetz and § 18 of the Bremen Polizeigesetz ). Although they are imposed under judicial supervision, these are detention measures based on the mere suspicion of future criminal conduct, independently of any pending or future criminal procedure and without any time-limit. [108] Schutzhaft is back again, albeit with judicial backing this time.

C. Preliminary conclusion (§§ 32-35)

32. In the logic of the German criminal law system, preventive detention had no therapeutic purpose. An offender of unsound mind is sent, under a hospital detention order, to a forensic psychiatric hospital (Article 63 of the Criminal Code) after an expert concludes that there is a danger of further offences as a consequence of a mental disorder. An offender is sent into preventive detention (Article 66 of the Criminal Code) when there is no underlying mental disorder, only a vicious tendency which could lead to the commission of future offences. Article 63 was aimed at the “mad” offender (that is to say an insane dangerous offender who has committed a criminal offence owing to a mental illness), while Article 66 targeted the “bad” offender (namely a sane dangerous offender who repeatedly commits serious offences ( Gewohnheitsverbrecher ) and is considered as “untreatable” ( unverbesserlich ). [109] This is still the case today: while Article 67d § 6 of the Criminal Code determines that the Article 63 security measure based on a hospital detention order should be terminated ( erledigt ) when the respective requirements no longer prevail, Article 66b of the Criminal Code and section 7(4) of the Juvenile Courts Act still provide for retrospective preventive detention in that situation, which would not be possible if this measure had a therapeutic purpose. Furthermore, Article 67 of the Criminal Code lays down the so-called vicarious system. In case of a mental hospital order or an addiction treatment order, the measure as a rule has to be executed before the prison sentence. When a measure is executed while a prison sentence is still open for execution, the time spent in the clinic in execution of the measure will be counted as prison time up to a total of two-thirds of the prison sentence. Preventive detention is excluded from the vicarious system, ^{^[110]} obviously because it is not perceived as treatment, but rather as punishment. The Feindstrafrecht is still very much alive.

33. In sum, during the over 85 year-long period of existence of preventive detention in German criminal law, it has never been connected to medical or psychiatric treatment, indeed not even to treatment at all. On the contrary, preventive detention has always been considered as being predominantly a freedom-limiting security measure ^{^[111]} as opposed to the primarily treatment-oriented measures of Article 63 of the Criminal Code (confinement in a mental health hospital) and Article 64 (confinement for drug or alcohol treatment).

34. The epistemic turn-around operated by the Constitutional Court in May 2011, which aligned itself with the Therapy Placement Act’s strategic political choice to avoid direct confrontation with Strasbourg, was crowned by the new Article 66c in the Criminal Code introduced by the 2012 Prevention Detention (Distinction) Act. In fact, the German parliamentarians engaged first in a policy of “transubstantiating” preventive detention into a non-criminal law, a non-punitive measure of therapy placement in order to safeguard its autonomy from imprisonment and above all its retrospective applicability. Subsequently, in its judgment of 4 May 2011, the Constitutional Court based the further confinement of those who were subjected to retrospective preventive detention on the conditions set out in the Therapy Placement Act. In practice, this resulted in their continued detention, but not in their placement in therapy, which would have to be ordered by a civil court and in accordance with civil law. Furthermore, the Constitutional Court referred to a new law (the Therapy Placement Act) for the justification of the continuance of preventive detention, including detainees under the juvenile law, [112] for which it had acknowledged a violation of the principle of legitimate expectation (albeit not of the prohibition of retrospective legislation) in the very same judgment. In so doing, the Constitutional Court’s judgment produced a retrospective cure of preventive detention even though it explicitly resulted from a new perception of Sicherungsverwahrte as people of “unsound mind” and a seemingly ex nunc perspective on their dangerousness and the necessity of their future treatment.

35. While Article 316f of the Introductory Act to the Criminal Code limited retrospective preventive detention to offenders with a “mental disorder” and to a high degree of danger of committing the most serious violent or sexual offences, it is a provision not on therapeutic placement in a psychiatric hospital, but on retrospective preventive detention, closely linked to the crime committed in the past for which a conviction without an order of preventive detention had been proffered. As the distinction of cases with the triggering offence ( Anlasstat ) before or after 31 May 2013 shows, this offence – and not the offender’s mental condition – is still the relevant category for the courts’ decision.

III. The dogmatic of preventive detention (§§ 36-55)

A. Adult and young adult offenders (§§ 36-48)

(i) Back to the “purposeless majesty” of prison (§§ 36-41)

36. The preventive detention policy of the respondent State is fundamentally flawed. The distinction between guilt ( Schuld ) -based penalties applied to criminally liable persons and dangerousness ( Gefährlichkeit ) -based measures of correction and prevention applicable to non-criminally liable persons and the characterisation of preventive detention as a measure of correction and prevention, despite the fact that it is applied to criminally liable persons, does not stand the scrutiny of the basic principles of modern criminal law, namely human dignity and resocialisation.

37. The fundamental dogmatic error is that of ignoring that a prison sentence should be just as therapy- and liberty-oriented as preventive detention. [113] The principles set out in §§ 106 to 118 of the constitutional judgment of 4 May 2011 and incorporated into Article 66c of the German Criminal Code by the Prevention Detention (Distinction) Act should be applicable both to prison sentences and to preventive detention orders. The provision of individualised treatment which is based on a comprehensive needs assessment and a regularly updated plan of execution ( Vollzugsplan ) ^{^[114]} is an imperative feature of a resocialisation-oriented organisation of the prison system, [115] especially of long-term prison terms, according to the European Prison Rules and other international standards. [116] Likewise, the focus on therapeutic needs and the promotion of individual liberty, participation and motivation, as well as the goal of the treatment programme to foster the willingness of inmates to become involved in attempting to reduce their dangerousness to society so that they can be conditionally released as soon as possible, are prevailing features of the rational management of the prison system. As a rule, treatment programmes for prisoners must include progressive relaxation of the regime and authorisation of temporary prison leave.

38. In other words, the allegedly specific features of preventive detention should also be part and parcel of prison sentences. German legislation itself acknowledges this when, in connection with convicted prisoners who have been conditionally earmarked for preventive detention in their sentences, it determines that the relevant prison authorities are under a legal obligation to provide specific treatment measures to inmates while they are serving their sentence, with a view to rendering subsequent preventive detention as unnecessary as possible (Article 66c § 2 of the Criminal Code). [117] Moreover, even before the inclusion of Article 66c in the Criminal Code, the specific provisions for the execution of preventive detention were already modelled on the enforcement of prison sentences (Articles 130-135 of the Act on the Execution of Detention and the Custodial Measures of Correction and Prevention, cited above). [118] In this context, it comes as no surprise that the Karlsruhe judges consider that resocialisation applies equally to the execution of a prison sentence and to the execution of preventive detention, which “may impose certain de facto limits on the details of the distance requirement”. ^{^[119]}

39. More importantly, the distance requirement is based on the assumption that prison sentences and preventive detention have different purposes, the former being primarily a repressive reaction to blameworthy conduct with the objective of “compensating for wrongdoing” ( Schuldausgleich ), [120] and the latter being solely aimed at “the future protection of society” ( zukünftigen Sicherung der Gesellschaft ) [121] against offenders who, on the basis of their previous conduct, are deemed highly dangerous. The assumption that retribution for a wrong ( Schuldvergeltung ) or “compensation for wrongdoing” ( Schuldausgleich ) ^{^[122]} is the primary purpose of the prison sentence contradicts not only the basic principle of modern criminal law of resocialisation (positive special prevention) of offenders responsible for the culpable commission of a criminal wrong, but also its reliance on human dignity. [123]

40. Since its famous Lebach decision in 1973, [124] the Constitutional Court has reiterated that the sole purpose of a prison sentence is rehabilitation, and the right to rehabilitation is derived from the principle of human dignity and the humaneness of penalties. Contrary to its long-standing commitment to resocialisation in many other subsequent landmark judgments, [125] the hidden underlying assumption in the German constitutional case-law on preventive detention is still that of a prison sentence as a penalty with its “purposeless majesty”, in the famous words of Maurach. ^{^[126]} When the Constitutional Court acknowledged that blameworthy conduct was “the point of contact” ( Anknüpfungspunkt ) of preventive detention, but not its “ground” ( Grund ), assuming that a prison sentence has its “ground” on such conduct, [127] the metaphysical repressive function of the prison sentence re-entered by the back door and took centre stage in criminal law in Germany.

41. Worse still, this assumption diverts the public authorities from their obligation to provide the means needed for a resocialisation-driven prison system. Put another way, such an assumption dangerously imperils the principle of resocialisation of prisoners, because the full realisation of this principle in prisons would violate the distance requirement as well. Or does the distance requirement mean that the constitutional judges accept that an unconstitutional practice continues to prevail in prisons? This requirement does not fit into the modern criminal-law approach of counteracting the possible damage to the personality ( Haftschäden ) caused by any kind of long-term detention. [128] If the assumption of the “purposeless majesty” of a prison sentence is wrong, as modern criminal law tells us, the distance requirement cannot subsist and, “without the distance requirement, the institution of preventive detention is incompatible with the fundamental right to liberty of detainees under preventive detention.” [129]

(ii) The manipulation of psychiatry (§§ 42-44)

42. For a variety of reasons, the respondent State’s post- M. policy runs the risk of manipulation of psychiatry for the purposes of social repression. [130] As a matter of science, there is no correlation between psychiatric diagnosis and dangerousness, especially with regard to juveniles and young adults, whose prognosis is most uncertain. Prognosis of very serious crimes is extremely difficult due to their low base rate, and is arguably impossible in the artificial world of imprisonment, especially in the case of young people of an age conducive to resistance and with a comparatively shorter criminal biography. It is regrettable that the domestic authorities turned a blind eye to the well-documented problems of overestimating the probability of recidivism, leading to the proliferation of “false positives”. In fact, the Karlsruhe judges considered the problem of unsafe empirical evidence as a specific ground for the distance requirement and the execution of preventive detention according to this requirement, but failed to take into account that same unsafe aspect with regard to prison sentences. These problems are compounded by recent developments in psychiatry and psychology which have triggered a massive expansion of diagnoses under the category of mental disorders. [131] Many of these disorders are circular constructs in so far as it is the offence which leads to the statement of a disorder. This is especially true for anti-social disorder and sexual preference disorder.

43. In a typically Kafkaesque situation, mental disorder is in practice equated with the detainee’s dangerousness (“re-labelling”). Considering that mental illness is not a general requirement of preventive detention, which means that there are offenders with such a mental condition and offenders without it who are detained under § 66 of the Criminal Code, the latter cannot be subject to medical internment in a mental health institution. Yet the Constitutional Court’s broad interpretation of “mental disorder” ( psychische Störung ) leads to the serious risk of equating mental disorder with the detainee’s dangerousness, just for the sake of keeping him or her in detention longer. This risk of a circular reasoning – in the sense of “anyone who offends in that way has to be mentally disordered, and anyone who offends in that way and has a mental disorder must be dangerous” [132] – is aggravated by the Constitutional Court’s understanding of “mental disorder” as a legal concept based on a vague psychiatric diagnosis of antisocial disorder or deviant behaviour and the domestic authorities’ uncertain and abstract practice of categorising detainees as dangerous. [133]

44. In this context, it is plain to see that having preventive detention for convicted offenders who had been found mentally fit to stand trial and legally responsible but are mislabelled as “mentally disordered” persons only serves the purpose of prolonging their incarceration ad aeternum , and if need be, retrospectively, regardless of whether they are recoverable or not. In fact, the Constitutional Court, in its judgment of 4 May 2011, also adopted this perspective in the case of an appellant G. who had been confined in psychiatric hospitals under measures of correction and prevention (Article 63 of the Criminal Code), and whose confinement had been terminated on the grounds that the complainant was unamenable to therapy ( therapieunfähig ), the court having ordered the remainder of the custodial sentences to be executed, and subsequently his preventive detention. ^{^[134]}

(iii) Frustrating legitimate expectations (§§ 45-48)

45. The uncertainty of the domestic legal framework is compounded by the Constitutional Court’s case-law on legitimate expectations. [135] According to the Karlsruhe court, the law may be retrospective in the sense that, while its legal effects are produced only after its publication, it covers events “set in motion” ( ins Werk gesetzt ) before it enters into force, but still not completed at this moment. ^{^[136]} This is the so-called “spurious retrospectivity” ( unechte Rückwirkung ), which must be differentiated from “genuine retrospectivity” ( echte Rückwirkung ), whereby the new law changes the legal effects of events completed before its entry into force. In respect of retrospective laws in the former sense, the principles of legal certainty and protection of legitimate expectations are not given overall priority over the intention of the legislator to change the existing legal order in response to changing circumstances. The legislator may enact such retrospective laws if the importance of the purpose of the legislation for the common good outweighs the importance of the interest in protecting legitimate expectations.

46. This is exactly what the Constitutional Court concluded in the M. case, which concerned the removal of the 10-year limit with retrospective effect. In this case, the court decided that such removal only affected those who were already under preventive detention at the time of entry into force of the law, and not those whose preventive detention measure had already come to an end at that time. Furthermore, the “common weal” ( das Wohl der Allgemeinheit ) prevailed over the targeted detainees’ trust that the lawful 10-year maximum would be kept. ^{^[137]}

47. In addition to the artificiality of the argument according to which the new law did not affect the measure itself as a legal consequence of the offender’s conduct, but only its duration, the balancing exercise performed by the Karlsruhe court obviously comprises the danger that retrospective preventive detention might be misused, in practice, as a corrective action for flawed judgments, in a flagrant distortion of the principle of ne bis in idem.

48. In its judgment of 4 May 2011, the Constitutional Court not only did not clarify what situation it referred to as the point of departure from which retroactivity is discussed – the preventive detention (not yet completed), the conviction (completed) or the crime committed in the past (completed) –, but admitted that both in the case of retrospective extension of the time limit of preventive detention (Article 67d § 3 No. 1 of the Criminal Code in conjunction with Article 2 § 6), and in the case of retrospective application of preventive detention (Article 66b § 2 of the Criminal Code and section 7 § 2 of the Juvenile Courts Act), there was an encroachment upon the legitimate expectations of the targeted detainees, irrespective of whether it is assumed as a “genuine” or “spurious” case of retrospectivity [138] , and that the violation of the distance requirement gives the legitimate expectations of the targeted person a weight approaching that of an absolute protection of legitimate expectations. [139] The court conceded that in this context the protection of legitimate expectations is closely related and structurally similar to the nulla poena sine lege principle. [140] Indeed, it is incomprehensible why an offender sentenced to a prison term benefits from the full protection provided by the principle of legality, including the prohibition of retrospective lex gravior , while serving the prison sentence, but loses that protection when in preventive detention after having served his or her prison sentence and “paid” for his or her wrongdoing. Both sanctions are severe interferences with the offender’s right to liberty and should therefore be subjected to the same test of legality and the same absolute prohibition of retrospective lex gravior , regardless of his or her mental condition. Or should one assume that the Sicherungsverwahrten, especially those with a mental disorder, are less worthy of dignity and humanity?

B. Juvenile and young adult offenders (§§ 49-52)

(i) No proportionality-based policy (§ 49)

49. Preventive detention applied to juveniles and young adults was no empirically tested, proportionality-based policy choice. [141] Study of the legislative procedure speaks volumes here. There was neither an evaluation of the results of such regime when applied to adults, nor any consideration of possible less intrusive alternative measures. For juveniles, a fortiori , the Human Rights Committee’s views on preventive detention of adults should have been taken into account, as follows:

“To avoid arbitrariness, in these circumstances, the State Party should have demonstrated that the author’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention, particularly as the State Party had a continuing obligation under Article 10 paragraph 3 of the Covenant to adopt meaningful measures for the reformation, if indeed it was needed, of the author throughout the 14 years during which he was in prison.” ^{^[142]}

Furthermore, the political choice of retrospective application of preventive detention to juveniles was determined by one single case, that of the applicant. In fact, during the parliamentary hearings of the experts, Mr. Konopka, the director of the Straubing detention centre, defended the indispensability of the measure on the basis of the need to keep the applicant in detention. [143] In its decision of 9 March 2010, the Supreme Court explicitly admitted the connection between the new law and the specific case of the applicant. [144] A criminal law that is approved, in practical terms, for one single person is not just a flagrant breach of the principle of proportionality: it is an attack to the rule of law itself.

(ii) Failing the educational purpose (§ 50)

50. Worse still, the German legislator paid no attention to the specific situation of juvenile offenders, especially regarding the peculiarities of the age of adolescence, the shorter criminal career, the enhanced possibility of therapy and the risk of preventive detention potentially becoming a life sentence. This resulted in no specific instructions being provided for the execution of preventive detention regarding juveniles and young adults. [145] Furthermore, the preventive detention order imposed on juveniles remained focused on neutralisation, rather than resocialisation. Finally, the requirement of at least seven years of imprisonment seems arbitrary and inappropriate to juvenile law, in particular with regard to aggregate penalties. All in all, the policy choice is hardly compatible with the educational concept of juvenile law.

(iii) The inequality of treatment vis-a-vis adults (§§ 51-52)

51. This conclusion is reinforced by the suppression of the requirements of a “tendency” ( Hang ) to commit offences and new facts ( nova ) indicative of the offender’s dangerousness during imprisonment in the case of juveniles, which raises a serious issue of inequality vis-à-vis adult offenders. With the stated aim of increasing the accuracy of prognosis, it was established that not only new facts which arose during the time in custody could be considered, but any kind of fact, including facts that had already been known to the trial court but had at the time been assessed differently.

52. This political choice was by no means a result of humanist thinking or serious consideration of the problems related to prognosis with young people. Instead it was an obvious opportunity to get rid of the true limiting condition that could in practice obstruct the ordering of retrospective preventive detention. With respect to the law for adults, it had been the necessity of nova which, according to the case-law of the Federal Court of Justice, often led to a dismissal of retrospective preventive detention. [146] The Federal Court of Justice made clear that any fact that was considered or could have been considered by a careful trial judge could not serve as nova justifying retrospective preventive detention. ^{^[147]} The requirement of nova , as understood by the Federal Court of Justice, was at the time the only serious, effective barrier to the ordering of retrospective preventive detention for numerous prisoners. This was exactly what the legislator wanted to avoid in the case of juveniles.

C. Preliminary conclusion (§§ 53-55)

53. The endless fudging and patching-up legislative exercise regarding preventive detention was made possible by jurisprudential connivance with the “makeshift” [148] solution of the distance requirement. In reality, apart from some quantitative differences (such as cell size or doubling the minimum time for visits per month) the difference between the execution of a preventive detention order and of a prison sentence is only apparent because of the lack of effective implementation of prisoner’s rights in prison facilities. If the latter were implemented according to European standards and domestic law, that difference would diminish significantly, or even vanish. ^{^[149]} Worse still, empirical data show that in practice people in preventive detention either have no access to or do not accept therapeutic proposals. ^{^[150]} This is usually regarded as being the detainees’ fault, but in fact it is quite revealing of the quality of the porposals. [151]

54. Even if we accept, for argument’s sake, that preventive detention was imposed in the hospital-like conditions that the Government have depicted, this should not distract us from the hard reality that Sicherungsverwahrten are detained, and may remain in detention for the rest of their lives. In the case of juveniles, this can mean life-long imprisonment. As a matter of historical accuracy, one should not forget that the distance requirement was created to guarantee these detainees a “modicum of quality of life”, which shows that the underlying assumption was that these were “hopeless” people who were not amenable to therapy and who would stay behind bars for the rest of their lives. [152] At the end of the day, the Constitutional Court recognised that the encroachment made by preventive detention upon the right to liberty, “even if the distance requirement is complied with” ( selbst bei Währung des Abstandsgebotes ), is “comparable” ( vergleichbar ) to a custodial sentence with regard to the permanent deprivation of external liberty [153] and, when explaining why Federal rather than Länder legislation was competent to introduce retrospective preventive detention, referred to it as a “penalty” ( Strafe ). [154] The same applied even to therapeutic placement. ^{^[155]} In the light of the general principles of systematic interpretation of constitutional law, it is indeed hard to understand why the Constitutional Court considers penalties and measures of prevention and correction as two subject-matters of the same nature, namely criminal law ( Strafrecht ), but separates them for the purpose of the principle of legality. This selective position of the Karlsruhe judges speaks volumes about the true punitive meaning of preventive detention and therapy placement.

55. By abandoning the essential feature of the preventive detention regime, that is to say the “tendency” to commit serious offences, the legislator de-characterised the measure when applicable to juveniles. [156] Worse still, by giving up the nova requirement, he paved the way for an unlimited repressive juvenile policy, which not only treats juveniles differently, but discriminates against them, since the reasons provided for the difference of treatment do not obtain. This specific bone of contention is of particular importance in the present case, because it was raised by the applicant before the Federal Supreme Court and the Constitutional Court, which confirmed the above-mentioned policy. [157] These arguments can only be fully understood in the context of the conflicting constitutional and international law standards binding the German courts, to which I now turn.

Second part – Testing preventive detention under international law (§§ 56-129)

IV. The context of the dialogue between Strasbourg and Karlsruhe (§§ 56-89)

A. The constitutional law context (§§ 56-74)

(i) The international-law-friendliness of the Basic Law (§§ 56-59)

56. According to the Constitutional Court, the Convention ranks below the Basic Law, being assigned the rank of a Federal law [158] . In view of this hierarchical ranking, the Convention is not a direct constitutional standard of review, and a complainant therefore may not directly challenge the violation of a human right enshrined in the Convention by means of a constitutional complaint before the Constitutional Court. Nevertheless, the provisions of the Basic Law must be interpreted in an international-law-friendly manner. The Convention guarantees and the Court’s judgments serve as helpful interpretative instruments for the determination of the scope and content of fundamental rights of the Basic Law as long as they do not limit or diminish the level of fundamental rights’ protection of the Basic Law. ^{^[159]}

But unlike other international treaties, the Convention bestows on a court the power to deliver a “declaratory judgment” ( Feststellungsurteil ) [160] , which has res judicata force between the parties, but no cassation force. The State involved in the case has an obligation to restore, if possible, the situation that would have prevailed without the Convention violation found, to guarantee that domestic legal order accords with the Convention and to eliminate any domestic-law obstacle to the redress of the applicant’s situation. For the States not involved, the court’s judgment provides an “incentive” ( Anlass ) [161] to test the national legal order and orient it in the sense of Strasbourg case-law.

57. All State organs are required to have regard to the Convention and the Court’s judgments, which means that both the failure to engage with the Court’s judgments and their “schematic execution” ( schematische “ Vollstreckung ”) [162] or “unthinking enforcement” ( unreflektierten Vollzug ) ^{^[163]} against prevailing domestic law may breach fundamental rights. The duty to have regard to the Convention and to the Court’s judgments means, as a minimum, that the latter should be known and included in the decision-making process of the legislature, the competent administrative bodies and the judiciary. The aspects considered by the Court in its balancing exercise must be taken on board when the matter is considered from the point of view of constitutional law, in particular in the proportionality test, and a comparison must be carried out with the results of that balancing exercise. This is an objective obligation, which does not depend on the date of entry into force of a national law. Thus the latter is subject to Convention standards set after its entry into force.

58. In case of a Court finding of a violation, which still obtain at the moment the domestic authorities are confronted with the judgment, they should take it into account and possibly provide clear reasons for the failure to follow it. There are three possible scenarios here. Where a provision of national law has been found incompatible with the Convention, it may still be interpreted in conformity with public international law when applied in practice or be changed by the legislator. ^{^[164]} Where an administrative act has been found incompatible with the Convention, the competent administrative authority has the “possibility” ( Möglichkeit ), [165] but not the obligation, to quash it in accordance with the provisions of administrative procedural law. Where a judicial decision has been found incompatible with the Convention, the Court’s judgments do not have the effect of eliminating the res judicata of the domestic judicial decision.

59. State organs must consider the legal consequences of the Court’s judgments in the domestic legal order, bearing in mind that Strasbourg jurisprudence decides concrete individual cases argued between the applicant and the Convention party. These judgments may encounter partial national systems of law shaped by a complex system of case-law, in which conflicting human rights positions were harmonised by the construction of groups of cases and a set of ordained legal consequences. ^{^[166]} Such systems include family law, aliens’ law and personality rights. It is the task of the domestic courts to integrate a decision of the Court into the relevant partial legal area of the national legal system, because the Court’s judgments cannot undertake directly any necessary adjustments within a domestic partial legal system.

(ii) The caveat of multipolar human rights’ relations (§§ 60-61)

60. In the Karlsruhe judges’ opinion, the limits of international-law-friendly interpretation result from the Basic Law and the general principles of legal interpretation. Such international-law-friendly interpretation is not possible where it is not defensible in the light of “the recognised methods of legal interpretation” ( methodisch vertretbaren Gesetzauslegung ). [167] The judges give examples of where observing the Court’s judgment would not be a suitable interpretation, such as when it “violates statutory law established clearly to the contrary” ( gegen eindeutig entgegenstehendes Gesetzesrecht ... verstößt ) or German Constitutional provisions, in particular the fundamental rights of third parties. [168]

61. This latter limitation to the reception of the Convention can be relevant particularly in “multipolar fundamental rights relations” ( mehrpolige Grundrechtsverhältnisse ), when the plus of freedom of one fundamental rights’ subject means a minus for another fundamental rights’ subject. [169] There are three main reasons for the domestic authorities to refrain from observing the Court’s case-law in this type of relations: first, they often relate to a sensitive balancing exercise between different individual subjective legal positions whose result may change when there is a change of subjects or in the legal and factual circumstances; second, in a multipolar relation a Court decision may interfere with the subjective rights of several parties which have to be harmonised but where only one of them was able to represent him- or herself before the Court; and third, the possibility for third parties to take part in the Court proceedings is not an institutional equivalent to the rights and duties as a party to proceedings or another person involved in the original national proceedings. The specificity of multipolar human rights’ relations also means that they cannot be generalised but must be examined on a case-by-case basis. [170]

(iii) The Convention-unfriendly interpretation of preventive detention (§§ 62-74)

62. The international-law-friendly interpretation includes the duty to consider Convention guarantees and the Court’s judgments as having “at least a de facto effect as precedents” ( zumindest faktischen Präzedenzwirkung ), [171] even beyond the scope of Article 46 of the Convention. Furthermore, Court judgments which contain new aspects relevant to the interpretation of the Basic Law are “equated to legally relevant changes” ( rechtserheblichen Änderung gleichstehen ) [172] which may prevail over the final judgments of the Constitutional Court. That is why the Constitutional Court agreed to review the issue of the constitutionality of Article 67d § 3 of the Criminal Code in its judgment of 4 May 2011, even though it had already been decided by its judgment of 5 February 2004. [173]

63. Article 1 (2) of the Basic Law is not a gateway towards giving the Convention “direct constitutional status” ( unmittelbaren Verfassungsrang ), but is simply a “non-binding programmatic statement” ( unverbindlicher Programmsatz ) that Basic Law fundamental rights have incorporated human rights as a minimum. [174] According to the Karlsruhe court, the role of the Court’s decisions as an auxiliary instrument for interpretation of the Basic Law does not mean that the Basic Law and the Convention guarantees are automatically parallel. [175] It is sufficient to adopt the standards that are expressed in the Court’s case-law to the extent that would seem methodically acceptable and consistent with the standards set out in the German Constitution. ^{^[176]} Hence, a schematic alignment of the meaning of the constitutional notion of penalty with that under the Convention is not mandatory if, in substance, the minimum standards set by the Convention are complied with. ^{^[177]}

64. In its judgment of 4 May 2011, the Constitutional Court confirmed its constant case-law to the effect that the absolute ban on the retrospective application of lex gravior does not apply to preventive detention and therefore this measure of correction prevention can be applied retrospectively to convicted offenders. The interpretation of what is considered to be a punishment in Germany could not be determined by following the case-law of the Convention, but was to be decided solely in accordance with the German Constitution. [178] This argument led inter alia to the maintenance of Article 2 § 6 of the Criminal Code, [179] which allows for the retrospective imposition of measures of correction and prevention.

65. In practice, the Constitutional Court distorted the meaning and purpose of M. v. Germany ^{^[180]} insofar as M. considered the manner of execution of the preventive detention in order to reach a detainee-friendly result, namely, to enlarge the scope of application of Article 7 of the Convention and submit this measure to the fully-fledged principle of legality, including the principle of nulla poena sine lege praevia . However, the Karlsruhe court reversed the argument in order to reach a detainee-unfriendly result, namely to narrow down the scope of Article 7 and deprive the Sicherungsverwahrten of the benefit of that precise principle. This is obviously the result of the non-alignment of the Strasbourg and Karlsruhe courts on the applicability of the principle of nulla poena sine lege praevia to preventive detention.

66. At this juncture it is important to note that, one month before the Constitutional Court’s judgment of May 2011, the Court delivered an enlightening judgment in the case of Jendrowiak v. Germany , [181] which made crystal-clear that the road taken by the domestic authorities after M. v. Germany was wrong. In Jendrowiak , the Court held that the preventive detention of the applicant, who had committed numerous sexual offences and suffered from a personality disorder, “did not fall within any of the exhaustively listed permissible grounds for a deprivation of liberty under sub-paragraphs (a) to (f) of Article 5 § 1” of the Convention. [182] The language from Strasbourg could not be clearer, and yet the Constitutional Court carried on with its “result-oriented” ( ergebnisorientierten ) [183] interpretation of the Court’s judgments.

67. Contrary to the Constitutional Court’s assumption, its consideration of the Court’s value judgments in a “result-oriented” manner is not sufficient. There must be a Convention-oriented fundamental rights theory, which is something different and more demanding. [184] The Court’s judgments do not have a mere “ de facto function of orientation and guidance for the interpretation of the Convention” ( faktische Orientierungs- und Leitfunktion ), [185] as the Constitutional Court claims. All the Court’s judgments have the same legal value, binding nature and interpretative authority, which value, nature and authority are the same for all Contracting Parties to the Convention. [186] The fact that the Convention leaves it to them to decide how they should comply with the duty to observe the provisions of the Convention ^{^[187]} does not empower States to nullify or circumvent the effect of the Court’s judgments. The content of the Court’s judgments must not be “rethought” ( umgedacht ) [188] in the receiving constitutional system to such an extent that it deprives them of their meaning and purpose.

68. If the interpretation of the Basic Law fundamental rights in accordance with the Court’s judgments cannot result in the protection of the former being restricted, the Basic Law cannot be misused either to lower the level of Convention protection afforded the applicant. In their domestic systems, the Contracting Parties can go beyond the human rights protection afforded by the Court to the applicant, but they cannot, under Article 53 of the Convention, lag behind that level of protection. Such possibility would constitute a blatant distortion of Article 53 of the Convention, which in itself would cause a grave structural crisis in the Convention system. It is certainly not admissible to invoke “other constitutional interests”, such as the “safety needs of the community” ( Sicherungsbedürfnis der Allgemeinheit ) [189] , in malam partem , in order to downgrade the level of protection afforded the applicant by a final judgment of the Court.

69. Nor can the argument of possibly neglected “multi-polar fundamental rights” [190] be invoked here as an obstacle to the full reception of M. [191] in the German constitutional order, because the interests of public safety were already thoroughly debated by the parties and duly considered by the Court’s case-law on preventive detention [192] . The Court concluded as follows:

“The Court would further note that its above observations on the scope of the State authorities’ positive obligation to protect potential victims from inhuman or degrading treatment which might be caused by the applicant ... apply, a fortiori , in the context of the prohibition of retrospective penalties under Article 7 § 1, provision from which no derogation is allowed even in time of public emergency threatening the life of the nation (Article 15 §§ 1 and 2 of the Convention). The Convention thus does not oblige State authorities to protect individuals from criminal acts of the applicant by such measures which are in breach of his right under Article 7 § 1 not to have imposed upon him a heavier penalty than the one applicable at the time he committed his criminal offence.” ^{^[193]}

70. In spite of the serious misrepresentation of the meaning and purpose of M. [194] and the systemic risk put by Constitutional Court’s reasoning, the majority in the present judgment follow suit, by aligning their interpretation of Article 7 notion of “penalty” with the “minimum standards” of the domestic courts. States are narrowing down the scope of the principle of legality, and the Court is playing along, outsourcing punishment to other sanctions not covered by Article 7 such as administrative confiscation in Italy and preventive detention in Germany.

71. In Italy, the Constitutional Court still views confiscation of property connected to unlawful site development as an administrative measure, which it can then apply to statute-barred offences. [195] In Germany, the Constitutional Court still views preventive detention as a “custodial measure of correction and prevention” ( freiheitsentziehende Maßregel der Besserung und Sicherung ) which is not limited by the nulla poena sine lege praevia principle.

72. In both cases, the constitutional courts’ acceptance of the Court’s principled critique of core features of their systems of criminal sanctions is only apparent. The Court’s principled critique of confiscation as an administrative measure in Sud Fondi ^{^[196]} in 2009 and Varvara [197] in 2013 was circumvented by the Italian Constitutional Court in its judgment 49/2015, exactly in the same way as the Court’s principled critique of preventive detention in M. in 2009 [198] and its jurisprudential progeny [199] was circumvented by the German Constitutional Court in its May 2011 judgment. Paragraph 151 of the Karlsruhe judgment of 5 February 2004 is still considered as good law today, in spite of its total incompatibility with M. [200]

73. Both constitutional courts adhered to their initial positions of principle on the nature of confiscation (as being an administrative sanction) and preventive detention (as not being a Strafe ) and conceded nothing substantial to Strasbourg. The same happened with the Court’s principled critique of de facto irreducible whole life in Vinter [201] in 2013, which was circumvented by the Court of Appeal of England and Wales in its McLoughlin [202] judgment in 2014. In McLoughlin , the Court of Appeal did not budge an inch from its previous position regarding the issue of the compatibility of a whole life order with the Convention, which had been reproached by the Grand Chamber in Vinter .

74. In all three cases the Court resignedly swallowed the pill. Hutchinson [203] backtracked from Vinter and Others , GIEM and Others [204] backtracked recently from Varvara , and now Ilnseher backtracks from M . It is sad to see the beacon of human rights and of criminal law reform in Europe failing to uphold the basic principle of the rule of law and abandoning the most fundamental principles of modern criminal law. Illiberal times call for a strong, counter-majoritarian Court, not an illiberal Court. This is particularly so in the light of the teachings of international and comparative law, as it will be subsequently demonstrated.

B. The international and comparative law context (§§ 75-85)

(i) The United Nations standards (§§ 75-79)

75. The principle of legality in the field of criminal law, both in its positive (retrospectivity of lex mitior ) and negative versions (prohibition on retrospectivity of lex gravior ), is customary international law, binding on all States, and peremptory law with the effect that no other rule of international or national law may derogate from them. [205] This principle of ius cogens applies fully to preventive detention.

76. As a matter of principle, it has already been decided that the imposition of preventive detention on a convicted offender after the service of a prison sentence, even when it was feared that he might be a danger to the community in the future and for purposes of his rehabilitation, violates Article 9 § 1 of the International Covenant on Civil and Political Rights. [206] The retrospective application of such penalty, even when nominally characterised as “civil proceedings”, falls within the prohibition of Article 15 of the Covenant. [207] Furthermore, the United Nations has on several occasions voiced its concern about the number of persons in preventive detention in Germany and the duration of such detention, as well as the fact that conditions of detention have not been in line with human rights requirements in the past ^{^[208]} .

77. In the UNHRC’s view, the State Party should take the necessary steps to use the post-conviction preventive detention as a measure of last resort and create detention conditions for detainees, which are distinct from the treatment of convicted prisoners serving their sentence and only aimed at their rehabilitation and reintegration into society. The State Party should provide all legal guarantees to protect the rights of those detained, including periodic psychological assessment of their situation which can result in their release or the shortening of their period of detention.

78. The CAT considers that the State Party should take all the requisite steps to release persons in preventive detention, to reduce its duration and to limit the cases in which it is imposed, and also to take into account the provisions of the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) when devising alternative measures to preventive detention. [209]

79. Most importantly, the United Nations Working Group on Arbitrary Detention concluded that:

“27. If a prisoner has fully served the sentence imposed at the time of conviction, articles 9 and 15 of the International Covenant on Civil and Political Rights and customary international law prohibit a retrospective increase in sentence. States may not circumvent this prohibition by imposing a detention that is equivalent to penal imprisonment under any other label. Articles 9 and 15 of the Covenant and customary international law, as restated by the Human Rights Committee in its general comment No. 35 (2014) on article 9 (liberty and security of person) and in the practice of the Working Group, clearly prohibit the imposition of the new preventive detention regime of 1998, including the provisions which would allow the extension of detention after the completion of penalties (and other restrictions under domestic law).

28. The Working Group notes that it is still unsatisfactory that certain detention regimes and restrictions on personal liberty that, under international law, are considered punishment are not so considered under German law, and that consequently there are different guarantees against retroactivity, including less effective remedies.” ^{^[210]}

(ii) The Council of Europe standards (§§ 80-83)

80. The CPT has been very critical of the discrepancy between the theory and the practice of preventive detention in Germany. [211] When visiting the “Unit for Secure Placement” ( Sicherungsverwahrung ) in Berlin-Tegel Prison in 2005, the CPT concluded that “[i]n theory, at least, the unit offered opportunities for a positive custodial living environment.” [212] However, the delegation got the impression that “the activities were strategies to pass time, without any real purpose. As might be expected, this appeared to be related to their indefinite Sicherungsverwahrung . Several inmates interviewed expressed a clear sense that they would never get out and one stated that the only thing he could do was prepare himself to die.” [213] According to the prison administration, staff worked according to special treatment criteria, the aim being the individual’s release from placement in Sicherungsverwahrung . Yet, the delegation observed that “in practice, staff (including the social worker) were conspicuous by their absence in this unit, thereby keeping staff-inmate contacts to a minimum. [214] ... The delegation gained the distinct impression that the staff themselves were not clear as to how to approach their work with these inmates. ... Psychological care and support appeared to be seriously inadequate.” [215]

81. In a visit to the Freiburg Prison’s separate unit for preventive detention in 2010, “the delegation observed that the conditions of detention of persons in preventive detention were scarcely better than those of sentenced prisoners ... it would appear that the general obligation to differentiate between these two groups of inmates ( Abstandsgebot ) was not effectively implemented”. [216]

82. After visiting the new Freiburg detention unit for preventive detention in 2013, the CPT stated that “it is somewhat regrettable that the entire detention unit remained rather prison-like and that the freedom of movement of inmates within the establishment and access to the outdoor exercise yard was more restricted than at Diez Prison (in particular, at weekends).” [217] In the Hohenasperg Socio-therapeutic Institution, the delegation received many complaints from inmates about the generally cramped conditions and the lack of privacy in the establishment. In the Freiburg prison, the head of the psychology service indicated that, due to the limited staff resources, it was not possible to organise individual therapy on a weekly basis, that it was not possible to reach out to those who were lacking any motivation and were unwilling to engage themselves in therapeutic measures and that it was not possible to organise milieu therapy in an effective manner ^{^[218]} . The situation appeared to be even more worrying at Diez Prison. The conclusion was telling: “the visit revealed a striking discrepancy between theory and practice. Out of 40 inmates, only 24 were receiving individual therapy and only eight were participating in group therapy. ... There can be no doubt that the existing resources for treatment measures for persons in preventive detention in Baden-Württemberg and Rhineland-Palatinate were insufficient to meet the requirements of the relevant Federal and Länder legislation, namely to have a system of programmes focused on therapeutic needs and promoting individual liberty and motivation.” At both Diez and Freiburg Prisons, the delegation observed that “a significant number of inmates were not at all motivated to engage themselves in any kind of therapeutic or recreational activity, remained idle in their rooms and refused to go into the open air for months on end.” [219]

83. Regarding the issue of what he referred to as “secured custody” ( Sicherungsverwahrung ) ^{^[220]} , the Council of Europe’s Commissioner for Human Rights called for “an extremely considerate application of secured custody. Alternative measures should also be considered before recourse to secured custody is taken.” He was concerned about the rising number of people deprived of their liberty under secured custody. Furthermore, the Commissioner was informed that persons kept under secured custody regularly experience a loss of future perspective and give up on themselves. This would appear to call for the provision of psychological or psychiatric care.

(iii) The comparative law standards (§§ 84-86)

84. The majority invoke the existence and legal classification of “comparable measures in other Contracting Parties to the Convention”, [221] in an implicit reference to the States’ discretion in the determination of this issue. Yet the majority do not go so far as to argue that the respondent State had a margin of appreciation in regard to the classification of the preventive detention as a penalty. As a matter of principle, there is no margin of appreciation in this field of law (classification of criminal offences and penalties), given that no derogation is allowed from Article 7 of the Convention. [222]

85. The majority divide the States surveyed into three groups. The first group of ten States [223] permits courts to issue protective measures to detain individuals who have some degree of mental disorder, albeit not to such a degree as to exclude their criminal responsibility, have been convicted of a serious offence and are found by the authorities to pose a risk to themselves or others. Under such systems, protective measures can be imposed in addition to the penalty assigned for the committed crime. The second group comprises sixteen States ^{^[224]} which, while sentencing such offenders, nevertheless impose measures that permit the sentence to be served in a specialised psychiatric institution. A third group includes five States [225] where individuals who commit a crime while suffering from a mental disorder which requires compulsory mental health treatment must be treated under the ordinary civil regime for the mentally ill. The focus of the research study is on the first group. Of the ten countries that make up the first category, six [226] require the sentencing court’s judgment to comprise either an order for the preventive measure itself or the possibility of adopting the measure by the end of the prison sentence, three [227] allow the measure to be imposed after the sentence and before the termination of the execution of the sentence, and one allows both, depending on the applicable regime. [228]

86. Apart from the fact that it lacks a detailed analysis of the legal and jurisprudential context of the specific domestic norms investigated, the obvious methodological problem with the majority’s survey is that the research question – “measures ... to protect the public from convicted offenders of unsound mind who risk committing further serious offences on their release” [229] – was too broad. As a result, the report covered many measures that seem to be comparable, but at closer look are not. In sum, in the thirty-two States surveyed only three (Belgium [230] , the United Kingdom [231] and Switzerland [232] ) have measures with some degree of similarity to the German one. In any event, the European consensus is certainly not in favour of retrospective preventive detention, and most certainly not in favour of such measure for juveniles. [233] A very telling fact is that in France the Constitutional Council prohibited the retrospective application of a measure of preventive detention, in view of its “liberty-restricting nature”. [234]

C. Preliminary conclusion (§§ 87-89)

87. In the 21 ^stcentury Karlsruhe judges still favour the classical dualist model of relationship between international and domestic law. If the model is tempered by a principle of public-international-law-friendliness ( Völkerrechtsfreundlichkeit ) in the domestic legal system, that friendliness has effect within the limits set by the “fundamental principles of the constitution” ( tragende Grundsätze der Verfassung ). [235] The Convention, like any other international treaty, will only be valid domestically when it is incorporated into the domestic legal system in the proper form and in conformity with substantive constitutional law and even infra-constitutional law.

88. Despite the fact that the conception of multipolar relations derives from the area of civil law, with this construction, the Constitutional Court has empowered itself to weigh in other delicate areas, like criminal law, the consequences of observing the Court’s judgments against the expected infringements of the fundamental rights of the public or potential victims. Hence, even in areas in which absolute rights on the part of the offender are to be respected, such as criminal law, human rights are subjected to a balancing exercise, which may result in the opposite of what the Constitutional Court originally set out to achieve – namely that the application of the Basic Law could only lead to a stronger protection of Convention rights, not to their weakening. This weakening is exactly what did happen after M. v. Germany . The Constitutional Court’s claim that it is competent to recalibrate, in the light of the Basic Law, the different rights and interests at stake after the Court delivered its final judgment deprived offenders in preventive detention of their Convention right to the observance of the principle of nulla poena sine lege praevia .

The United Nations and Council of Europe expert bodies have voiced strong criticism of the German solution, even after the epistemic turn-around effected in the judgment of 4 May 2011. Two years after that constitutional judgment, which severely reproached the “shortcomings” and “considerable defects” [236] of the execution of preventive detention in Germany, the CPT still concluded that the reality had not changed much. Regardless of any changes on the ground, the imposition of preventive detention, including its primary (Article 66 of the Criminal Code), deferred (Article 66a of the Criminal Code) and retrospective (Article 66b of the Criminal Code) versions, after the service of a prison sentence violates both customary international law and treaty law. Hence, the abolition of preventive detention, including its primary, deferred and retrospective versions, is the path to be taken by the German legislator in order to be in line with international law. Two risks are usually mentioned with a view to rejecting such a path. The alleged risk that it could end up aggravating the length of prison sentences is no excuse, because it could be countered with a combination of alternative penal and social therapy measures. The alleged risk that abolition would cause an increase of serious offences is nothing but scientifically unfounded, political scaremongering.

89. In comparative-law terms, the isolation of Germany is patent. No State in Europe provides for retrospective post-sentence preventive detention for adults, let alone for juveniles, held responsible for their offences by the trial court, but considered to be of unsound mind during the execution of the prison term and therefore dangerous. The majority misunderstand this fact. But their findings of the case must also be seen against the background of the Court’s minimalist understanding of the principle of legality and the current slippery slope in which the Court has embarked regarding criminal law.

V. The Strasbourg Court on a slippery slope (§§ 90-129)

A. The new illiberal criminal-law standards (§§ 90-110)

(i) The minimalist understanding of the principle of legality (§§ 90-94)

90. The Court’s case-law enshrines a common-law understanding of the legality principle protected only in a minimal fashion, in the sense that criminal law is not interpreted in an arbitrary fashion. [237] The case-law is still distant from the higher level of protection provided by the civil-law conception of the principle of legality, which includes the guarantees of lex scripta ( Gesetzlichkeitsprinzip ), lex certa ( Bestimmtheitsgebot ), lex stricta ( Analogieverbot ) and lex praevia ( Rückwirkungsverbot ).

91. Under the heading of lex certa , the Court deals with the clarity, foreseeability and accessibility requirements of criminal law. As can be seen for example in Kokkinakis, ^{^[238]} Grigoriades [239] and Flinkkilä and Others , [240] the clarity standard is often assessed at the time of conviction, under the lawfulness test of Articles 8 to 11 of the Convention, and not at the time of commission of the offence. [241] The accessibility requirement is only examined thoroughly when there are clear signs to the contrary, accessibility being assumed when the offence is included in a criminal code. [242] Furthermore, case-law has been rather undemanding on the review of the wording of the statutory provision for the purpose of assessing its foreseeability, often accepting vaguely worded offences, because the impugned statutory concepts are “matters of common knowledge and widely understood”. [243] The Court’s limited standard of protection is further loosened by the consideration of sufficiently consistent interpretative case-law at the time of the offence, which can satisfy the foreseeability requirement in case of vaguely worded offences [244] or even of common-law offences, which breach the lex scripta requirement. [245] The same philosophy had been applied to the increase of penalties consistent with a certain line of case-law on the effects of recidivism. ^{^[246]} In sum, the acceptance of multiple sources of law and case-law for the purposes of the lex certa requirement leads to legal uncertainty.

92. Under the heading of lex stricta , the Court merely rules out unreasonable interpretations. Normally, two requirements are put forward in this regard: the interpretation must be aligned with the essence of the offence and must be reasonably foreseeable. ^{^[247]} Ultimately, the two requirements overlap insofar that they end up testing the reasonableness of the domestic courts’ interpretation. ^{^[248]} Hence, there is no added value in distinguishing between the two requirements. The severity of the offence is also invoked as an element of foreseeability, considering the criminalisation of certain serious offences as “obvious”. ^{^[249]} At the end of the day, the level of protection is case-dependent and individually assessed, depending on possible legal advice and the defendant’s professional status and technical capacity. [250] In other words, the lex stricta and the lex certa requirements conflate in the same kind of subjective foreseeability test. Worse still, this standard lends itself to theoretical and practical dogmatic confusion, since it mingles issues of different nature, namely the principle of legality and the principle of guilt ( ignorantia legis non excusat , mistake of law, Verbotsirrtum ). This confusion is aggravated in the case of a blanket legal norm, which makes the punishability of the criminal offence dependent on non-criminal laws and regulations. [251]

93. With regard to the jurisprudential development of criminal law, the Court uses the same twofold test (the essence of the offence test and the foreseeability test), but normally does not allow for an overly extensive interpretation. [252] Yet in some other instances, [253] the Court has proposed a much stricter criterion, namely the strict interpretation of criminal law. [254] Between the two criteria, the Court has accepted gradual interpretative expansion of the offence [255] and of the penalty. [256] The same inconsistency can be found with regard to the Court’s standard of assessment of facts and national law in the field of criminal law. If Kononov [257] shows a higher power of review that seems to arise because no derogation is allowed to the provision at issue, in some other instances, like Khodorkovskiy , [258] a much weaker standard for the Court’s assessment is assumed.

94. The core of the Court’s protection of the principle of legality is the nullum crimen sine lege praevia . As long as the conviction and the penalty are formally based on the rules applicable at the material time, no violation of Article 7 of the Convention will be found. This also applies to continuous offences. [259] With regard to the nulla poena sine lege praevia , Maktouf and Damjanovic [260] ensured an enhanced protective approach, since the mere possibility of any heavier penalty suffices to prohibit the retrospective applicability of the law, on the basis of a concrete and global determination of the lex gravior . [261] The public interest in the protection of victims and society does not justify the retrospective application of the lex gravior . ^{^[262]}

(ii) The “erasure” of the autonomous meaning of “penalty” (§§ 95-107)

95. The applicant claims that his retrospectively ordered preventive detention, executed on the basis of the Regensburg Regional Court’s judgment of 3 August 2012 from 20 June 2013 onwards in the Straubing Prison preventive detention centre, breached and still breaches his right not to have a heavier penalty imposed than the one applicable at the time of his offence in June 1997.

96. In line with the Government, the majority set themselves the difficult task of arguing that jailing a person in a preventive detention centre after the commission of a criminal offence is nevertheless not a “penalty” for the purposes of Article 7 of the Convention. The majority do not differentiate between “nature” and “purpose” of the measure, nor they provide any methodological hint on how to differentiate the two, but they acknowledge three “purposes” pursued by the applicant’s preventive detention: a “punitive” one [263] , a “preventive” one [264] and a “therapeutic” one [265] . However, their focus on the conditions of detention reveals the implicit premise that the “nature” or “purpose” of the measure is determined by how the measure is implemented. In fact, they invoke the material and living conditions provided to those interned in the Straubing detention centre, how they can choose their own clothes, have larger cells, specialised treatment, and so on. According to the majority, the “preventive” and “therapeutic” purposes “erase” the “punitive element” of the measure to such an extent that it is no longer a penalty. [266] However, this reasoning omits some crucial legal considerations.

97. Firstly, a “preventive” purpose is not foreign to penalties, but closely linked to them. Prevention is at the core of many theories of punishment: punishment is usually said to prevent the convicted person from committing more offences while he or she is locked up (through incapacitation or negative special prevention) and afterwards (through resocialisation or positive special prevention). Similarly, punishment is said to prevent crime generally, through deterrence of would-be offenders (negative general prevention) and the signalling of norm enforcement (general positive prevention). [267] Therefore, the “preventive” purpose of a measure by no means rules out its punitive character. As the Court long ago put it in Welch , “the aims of prevention and reparation are consistent with a punitive purpose and may be seen as constituent elements of the very notion of punishment” ^{^[268]} .

98. Secondly, the “nature” and the “purpose” of preventive detention are not to be predicated on the detention conditions, but on the legal act that provided for that detention. In this regard, the majority’s understanding of preventive detention ignores the fact that in the German system, as demonstrated above, preventive detention was, in essence, a measure to incapacitate the “bad” and not a measure to treat the “mad”, and therefore lacked any specific therapeutic purpose, as Article 66b of the Criminal Code today still shows.

99. It cannot be maintained that the “nature” or “purpose” of a penalty can be changed retrospectively when the material conditions of detention improve. The misleading nature of this construction becomes very apparent if one asks about the exact time when the detention changed “nature” or “purpose”: under the majority’s reasoning, after the addition of exactly how many square meters does preventive detention cease to be punishment, according to M. v. Germany, ^{^[269]} to become an acceptable therapy placement? Of course, this rhetorical question could be further complicated: how many kitchen units, how many separate bathrooms, how many TV sets or body-building machines, how many doctors and nurses, how many visiting hours or phone calls should there be for a preventive detention unit to change nature and for detention therein to change its “purpose”? Since the detention conditions vary greatly from one preventive detention centre to another [270] , how can the preventive detention order change nature according to the part of the country and the specific centre where is it going to be implemented? Can the same preventive detention order change nature multiple times when the detained person changes from a “friendlier” centre to another less “friendly” centre and back again to the first one?

100. As regards the procedures leading to the measure, the majority acknowledge that the preventive detention was imposed by courts belonging to the “criminal justice system”. ^{^[271]} However, the majority play down the importance of this very telling circumstance, having regard to “the Government’s argument that the courts belonging to the criminal justice system were particularly experienced in assessing the necessity of confining mental-health patients who have committed criminal acts” and observing that “the criteria for the imposition of preventive detention would have been the same” irrespective of whether the measure was imposed by a civil or criminal court. [272]

As the majority note, the fact that criminal courts are responsible for applying preventive detention is a strong indicator of its criminal character. However, I would just point out that I fail to see how the Government’s argument concerning the expertise of criminal courts would do anything in their favour. Precisely, criminal courts have experience of assessing accused persons’ mental capacity for the purpose of adjudicating criminal responsibility, and not for the purpose of providing treatment. If anything, criminal courts’ expertise should add to the qualification of preventive detention as a criminal penalty rather than the contrary.

101. The final criterion which the majority use to assess the criminal character of the measure is its severity. From the outset the majority note that there is no maximum length of preventive detention, but they water down its punitive character by stressing that it has no minimum duration either, is subject to judicial review at relatively short intervals and depends to some extent on the applicant’s “cooperation in necessary therapeutic measures”. [273]

102. It is telling that the majority consider the fact that the measure is subject to periodic judicial review as some sort of “alleviating” [274] circumstance. If preventive detention were a therapeutic measure primarily aimed at the rehabilitation of inmates, judicial review would not be a graceful concession to them, but a part of the very functionality of the detention. The fact that they recognise this feature of the detention as part of the effort to reduce its severity shows to what extent even the majority cannot overlook its obvious punitive character. In addition, even assuming that the degree of adhesion of the convicted persons to a measure determines its rate of success, this rate has nothing to do with its nature, purpose or severity, for the simple reason that there may be multiple, contingently determined reasons why the individuals in question do not adhere to the measure.

103. In practice, courts regularly conclude that the institution has offered adequate treatment but the detained person has not accepted the offer. The detained person in total institutions ^{^[275]} is not on an equal footing in terms of proving whether it was due to the institution and not him or her that therapy had been insufficient. According to empirical evidence from the time before the introduction of Article 66c of the Criminal Code, the institutions regularly shifted responsibility towards the prisoners. Since no safeguard exists with regard to the burden of proof, it cannot be ruled out that this is still often the case today. In any event, the lack of credible statistical evidence cannot be used against the prisoners. ^{^[276]}

104. In sum, the majority abandon the autonomous meaning of the word “penalty” in Article 7 of the Convention, indeed they abandon the principle of autonomous interpretation of the Convention, which was crafted to avoid the Court being trapped in the intricacies of domestic law and allow it to go behind appearances. Interestingly, the majority do not recall the considerations to that respect that the Court made in M. v. Germany . [277] There, the Court said that, even though the “preventive detention” was considered a security measure in German law, the concept of “penalty” in Article 7 is autonomous in scope and it is thus for the Court to determine whether a particular measure should be qualified as a penalty, without being bound by the qualification of the measure under domestic law.

105. It is the exact opposite that has prevailed in the present case. Following the spirit, and even the letter, of the Constitutional Court’s May 2011 judgment the majority do not classify as a “penalty” preventive detention applicable to convicted offenders, ordered by criminal courts, aimed at prolonging the detention after the service of the prison sentence, in the same prison, on the basis of evidence obtained prior to the end of the prison term, and whose subsequent implementation was to be determined by the courts responsible for the execution of sentences, as happened in the applicant’s case.

106. As in Bergmann , ^{^[278]} the majority are “transubstantiating” preventive detention by erasing the autonomous meaning of the “penalty” concept. As in Bergmann , the majority are accepting a trade-off between the underrogable principle of legality of penalties and the quality of prison conditions and thus downgrading the level of protection of Article 7 to a mere bargaining exercise on the conditions of execution. [279]

107. The measure of confusion of the majority’s reasoning can be perceived in the way they mix law and facts and equate sentencing and enforcement of penalties, in the pivotal paragraph 207 of the judgment. It is true that the interpretation of Article 7 § 1 of the Convention proposed in the most unfortunate paragraph 207 of the judgment is limited to the “some rare cases” mentioned in the previous paragraph. There is only one, very unsatisfactory justification for the “rarity argument” to be used here by the majority: they know that they are entering uncharted, dangerous territory in paragraph 207 and want as far as possible to limit the scope of the proposed interpretation and the ensuing collateral damage caused to the basic foundational principles of modern criminal law and the principle of legality as we have known it since Anselm von Feuerbach coined in § 24 of his Lehrbuch des gemeinen in Deutschland geltenden peinlichen Rechts of 1801 the Latin expression nulla poena sine lege . The limited scope of applicability of the interpretation proposed in paragraph 207 does not detract from the fact that it constitutes a heresy in criminal law.

(iii) The catch-all construction of “person of unsound mind” (§§ 108-110)

108. The Court’s case-law is not consistent on the scope of the concept of “person of unsound mind” under Article 5 § 1 (e) of the Convention. It is telling that the draft Therapy Placement Act explicitly refers to the case-law of the Court and the Commission, such as X. v. Germany , [280] in order to argue that the concept of person of unsound mind includes people with abnormal personality features not equated to a mental illness [281] . The draft law also referred to Hutchison Reid v. the United Kingdom [282] and Morsink v. the Netherlands [283] to make the point that the criminal liability of an offender does not exclude the possibility of confinement under Article 5 § 1 (e) of the Convention, which would allow for systematic and unlimited confinement of offenders independent from the question of their criminal liability and, even more, regardless of the impossibility of clinical treatment. [284]

109. Taking advantage of this impossibility, the domestic courts decided that “mental disorder” did not have to be so serious as to exclude criminal liability (Article 20 of the Criminal Code) or diminish it (Article 21 of the same Code). [285] The applicant argues that the domestic courts’ concept of “mental disorder” is wider than the notion of “unsound mind” enshrined in Article 5 § 1 (e) of the Convention. The majority in the present judgment are undecided: on the one hand, they say that the notion of “unsound mind” “might be more restrictive” than that of “mental disorder”, [286] but on the other hand they say that the notion of “unsound mind” does not warrant a mental condition that excludes or even diminishes criminal responsibility. [287] With this convenient ambiguity, the door is wide open to establish “a disorder which can be said to amount to a true mental disorder” ^{^[288]} and “treat” dangerous offenders as “mentally ill” or “mentally disordered” persons and keep them detained for the rest of their lives, even on the basis of a detention regime that did not exist at the time of the commission of the offence.

110. In sum, although the list of grounds of detention in Article 5 § 1 must be interpreted narrowly, the majority do just the opposite: they embark on an expansive interpretation of its sub-paragraph (e), which becomes a convenient catch-all. The way to keep the “bad” behind bars until they die is to mislabel them as “mad”. This is the price to be paid to get rid of the Article 7 protection.

B. The overly repressive approach to the present case (§§ 111-127)

(i) The biased determination of the applicant’s “mental illness” (§§ 111-115)

111. The trial court decided that the applicant had had full criminal responsibility at the time of commission of the offence, in spite of the fact that there were certain elements indicating the beginning of a sexual deviation. [289] The Regensburg Regional Court found that the applicant at the relevant time was still suffering from a sexual preference disorder, namely sexual sadism, as defined by the ICD‑10. The applicant’s condition amounted to a mental disorder for the purposes of Article 1 § 1 of the Therapy Detention Act.

112. The applicant argues that he did not suffer from a mental disorder. [290] The majority state that the domestic courts have “certain discretion in particular on the merits of clinical diagnosis”. ^{^[291]} But there are limits to this hands-off approach. [292] In the present case, more than half of the experts are of the view that it was not established that the defendant suffers from a mental illness: experts S (20 April 1999), Z (6 October 1999), R (8 October 2003), F (24 November 2011) [293] and MK (27 September 2016) concluded this way, while experts O (16 January 2006), M (6 January 2006), B (15 January 2009) and K (12 December 2011) [294] concluded the opposite. Furthermore, the fact that contacts with psychologist MK were discontinued by the centre in May 2017, because MK saw no sign of any “hidden sadistic undercurrent” ( larvierte sadistische Grundströmung ) [295] in the applicant, raises serious doubts as to how independent the domestic authorities’ diagnosis is. These doubts are compounded by the fact that none of the experts heard was properly qualified for the specific case of a young adult offender. Neither expert K nor expert F nor any other expert was qualified to examine young people, as required by domestic law ^{^[296]} and constitutional case-law. [297]

113. As regards the scientific quality of the diagnosis itself, it should be noted that the soundness of such diagnosis was manifestly hindered by the fact that the alleged mental illness (sexual sadism) was established fifteen years after the criminal facts took place. In fact, the criminal division of the regional court delivered its decision on 2 August 2012 [298] while the facts occurred in 1997. [299] To complicate things even further, the applicant was a first offender. This fact is simply ignored by the majority, who wrongly assume that the applicant had a “history of offences”. [300]

114. The clinical finding by persons lacking the requisite specific expertise of a mental illness in a 19-year-old first offender fifteen years after the commission of the offence is a purely divinatory exercise of personality second-guessing. But the present case goes beyond this. The case of Mr. Ilnseher is not only a masterpiece of scientific mumbo-jumbo, it is a case of biased State exercise of punitive power. A wrong is unredressed when retribution overtakes the redresser. That is what happened with judge P.

115. The finding of the regional court that the applicant had “hidden” [301] the sadistic motives for his offence at his trial in 1999 and only admitted to them in “2005/2006” adds an even more worrying note to this case. The regional court did not consider the possibility that, in view of the diverging motives the applicant had given for his conduct, the alleged sadistic motives, which had not been established at the time of the conviction, might have been a rhetoric developed his time in prison, in view of the negative effects of the environment where the applicant had been kept and the avowedly inadequate care he had endured during his ten-year prison term (up until July 2008) and beyond that term. Instead the regional court not only assumed that the applicant had fooled the two medical experts who had examined him at that time, but also presupposed that the applicant had a duty to cooperate with the prosecution. In other words, the domestic judges ignored the sacrosanct principle nemo tenetur se ipsum accusare (“no one is bound to incriminate himself”) and drew negative inferences from his supposedly uncooperative behaviour.

In this scenario, which is already hostile to the defendant, the mounting serious doubts about the independence of the first instance court become a certainty if one considers the unfortunate, unprofessional misconduct of Judge P. The biased position of Judge P. not only weakened an already scientifically shaky case against the applicant, but it definitively tainted the lawfulness of the applicant’s detention order. The subsequent considerations will elaborate further on this issue.

(ii) The unlawfulness of the applicant’s detention order (§§ 116-121)

116. The Government accept that the preventive detention order was unlawful with regard to the period until 20 June 2013, but argue that that same order is lawful with regard to the subsequent detention. The Government defend that a measure can lose its previously punitive character during the execution of the measure on the basis of the same court order, because it would be “overly formalistic” to require a new judicial decision. [302] Criminal law is about strict formality, but the Government invite the Court to forget this axiomatic truth. Regrettably, that is exactly what the majority choose to do.

117. In spite of the fact that the Regional Court did not order, in its judgment of 3 August 2012, the execution of the applicant’s preventive detention in a particular facility, he was moved on 20 June 2013 to another prison facility. The majority are faced with an awkward question: on the one hand they have to detach the preventive detention order from the applicant’s criminal conviction for the commission of an offence with full criminal responsibility in order to justify its alleged non-punitive nature, but on the other they have to attach that same detention order to the offence, because the conviction for an offence was a precondition for the preventive detention, according to domestic law (Article 7 § 2 of the Juvenile Courts Act).

Like the domestic authorities, the majority square the circle, by achieving the miracle of “transubstantiating” the nature of the preventive detention order. The preventive detention order against the applicant is described, for the purposes of Article 5 of the Convention, as “linked to the conviction – and thus “following” the latter as it was a precondition for the preventive detention order under that provision.” ^{^[303]} For the purposes of Article 7 of the Convention, the link between the preventive detention order and the offence is “not completely severed”. ^{^[304]} Yet at the same time the majority conclude that the “punitive element of preventive detention and its connection with the criminal offence committed by the applicant was erased to such an extent in these circumstances that the measure was no longer a penalty.” [305]

118. The one-thousand-dollar question is this one: how can a “link” (or a “connection”) be “erased”, but “not completely severed”? The linguistically awkward way in which the majority express themselves is the best evidence of the fallacious nature of this line of reasoning. In Bergmann , the talk was about the “eclipse” [306] of the punitive element, now it is about the “erasure” ^{^[307]} of that element. Surprisingly, the majority even acknowledge that the “improved material conditions and care” do not change the nature of “ordinary” preventive detention, since they do not “erase the factors indicative of a penalty”. [308]

The choice of this language is an enigma for me. I am puzzled with this language which finds support neither in present day German criminal law, nor in any other domestic criminal law nor in international criminal law, but in the worst Nazi prototype of Täterstrafrecht , the draft of a Gemeinschaftsfremdengesetz , [309] which was supposed to eclipse the connection between the criminal offence and punishment for the protection of the community, since “the means of criminal law were not sufficient, because penalties and measures of correction and prevention, including preventive detention, are always connected to concrete criminal offences.” [310]

The linguistic scrabbling does not end here. The majority make an effort to get rid of the well-established term “retrospective” for the translation of the German term nachträglich , in order to give the impression that the prospective element of the preventive detention order prevails over the retrospective one. [311] The choice of the expression “subsequent prevention detention” to translate the expression nachträgliche Sicherungsverwahrung is particularly problematic because the former expression evidently overlaps with the other modality of the Sicherungsverwahrung, namely the vorbehaltene Sicherungsverwahrung (deferred preventive detention), which is also applied on the basis of a subsequent assessment of the preventive needs of the detainee. The majority do not care to distinguish and contrast the two concepts. [312] One thing is certain, however. Whatever the babble, it cannot obscure the fact that nachträgliche Sicherungsverwahrung is a post festum attack on the foundations of criminal law as it has been known and practiced for the last two hundred years, at least in democratic regimes.

119. In spite of the apparent terminological change, the majority cannot turn a blind eye to the fact that the assessment of the applicant’s dangerousness and preventive needs is “retrospective”. [313] Preventive detention cannot be judged in isolation from the legal provision which was the basis of the court decision. According to German law, a deprivation of liberty may only be ordered on the basis of a written law and only by a judge (Article 104 of the Basic Law). Thus the reasons given in the deprivation of liberty order are paramount. Furthermore, the lawfulness of the imposed measure may not be judged in isolation from the time previously spent in custody. As set out in Article 66c § 2 of the Criminal Code, there is no strict separation between the services of a prison term and of preventive detention, and hence any prior periods of detention of a convicted person are an inseparable part of the subsequent measure. The Court itself, in M. , found a link between the 10-year long detention and the conviction. [314]

120. The commission of an offence for which the applicant was found guilty is the legal basis for his punishment and for the retrospective assessment of his dangerousness, and to that extent the preventive detention order is a punitive measure, the exact same legal measure that the Government considered unlawful. I think the majority are understating the importance of this single finding.

Had there not been a criminal conviction in this case, the Court would most likely have declared the application inadmissible concerning Article 7 and the analysis would have been confined to Article 5. The retrospective preventive detention at issue in this case is only applicable to persons who have committed a criminal offence and who were found to be criminally responsible for it – a “precondition”, in the majority’s own terminology. But a State coercive measure that has the commission of a criminal offence as a “precondition” can only be a penalty. Not only is preventive detention subject to the requirement of a criminal conviction, but also the criminal offence or offences committed must be of a certain kind and gravity. According to the Juvenile Courts Act, these orders can only be directed against people sentenced to at least seven years’ imprisonment for crimes against life, physical integrity or sexual self-determination, or some other specific offences [315] . Indeed, it is telling that the majority did find Article 7 applicable to this case, and therefore the application admissible. If the applicant’s preventive detention were not a penalty under Article 7, its retroactivity would not be an Article 7 issue and the application would have been found inadmissible in this regard. Had they been consistent, the majority would have had to find the Article 7 complaint inadmissible. Once the Court acknowledges that the applicant’s preventive detention is a penalty, the retroactivity becomes simply too obvious and impossible to ignore. The majority’s reasoning is an awkward middle way: they find the Article 7 complaint admissible, but nevertheless conclude that the applicant’s preventive detention is not a penalty. More than denouncing this patent logical mistake which could arguably have impacted on the assessment of the Article 7 complaint’s admissibility, I would like to state the obvious: in a case like this, a finding of a violation of Article 7 of the Convention inexorably follows a finding of admissibility.

121. The preventive detention order is further tainted by the continuing unlawfulness resulting from the lack of independence of Judge P. No question of a lack of judicial impartiality arises when a judge has already delivered purely formal and procedural decisions in other stages of the proceedings. [316] However, serious problems with impartiality may emerge if in other phases of the proceedings a judge has already expressed an opinion on the defendant’s conduct, guilt or dangerousness [317] . In the present case, the minimum that Judge P. should have done in 2012 was to withdraw from the bench, in view of the fact that he had expressed himself both as member of the Regional Court and, to make things worse, in an unfortunate aside to the applicant’s lawyers on 22 June 2009 after delivery of the preventive detention order and before it became final. The content of this remark was not neutral: it referred to the applicant’s personality and dangerousness. To my mind, it is simply unconceivable that the same judge who had made such an inappropriate, unprofessional, biased remark on the applicant’s personality and future conduct could have become a member of the bench ordering the applicant’s retrospective detention anew on 3 August 2012. This conduct taints the lawfulness of the detention order and therefore of the entire preventive detention.

(iii) The “special sacrifice” of the applicant’s preventive detention (§§ 122-126)

122. The applicant was sentenced to a 10-year prison term on 29 October 1999, and he finished serving his penalty on 17 July 2008. [318] After being remanded in provisional preventive detention on that day, he was given a retrospective preventive detention order under Article 7 § 2 (1) of the Juvenile Courts Act on 22 June 2009. On 6 May 2011 he was again placed in provisional preventive detention, following the quashing of the previous retrospective preventive order. On 3 August 2012, a retrospective preventive detention order was imposed on him, which is still in force today. [319]

123. The applicant complains not only about the quality of the treatment provided in the new detention centre, the availability of therapeutic staff, the separation in terms of organisation between the Straubing prison and its preventive detention centre, but also about the fact that this latter facility was occupied by a majority of people not suffering from a mental disorder. [320] Without any consideration of the CPT’s critical assessments of similar detention centres mentioned above and any impartial evaluation of the Straubing preventive detention centre, the majority piously believe the Government. They side with them in the assessment of the situation on the ground. In other words, the Court dilutes the autonomous meaning of the Article 7 concept of “penalty” on the basis of untested governmental information on the functioning of the national system of preventive detention and the particular centre where the applicant is confined. [321] This choice is all the more unacceptable in the light of the international and European consensus contrary to retrospective preventive detention, as shown above.

124. The facts of this particular case are telling in this regard, because during the first period of his preventive detention the applicant received no therapeutic care whatsoever. ^{^[322]} Indeed, the majority recognise that “the Regional Court... had only generally ordered his preventive detention” (my emphasis) and therefore the same detention order covered the applicant’s preventive detention in the Straubing prison first and in the Straubing detention centre later. [323] This “generality” should have appalled the majority rather than moved them to show indulgence towards the Regional Court. That the Regional Court ordered the preventive detention in general terms shows that the therapeutic purpose of such detention was ultimately irrelevant: as long as the applicant was indeed locked up, therapeutic measures were ornamental.

In this regard, there is a huge difference between the present case and Bergmann . In the latter, the applicant was a recidivist who had been diagnosed by the trial court with a mental illness already at the time of the offence and had already been transferred into the newly-built institutions appropriate for offenders with a mental-health condition when the continuation of preventive detention was ordered under the conditions laid down in the second sentence of section 316f (2) of the Introductory Act to the Criminal Code. [324] In contrast, in the present case, the applicant was a first offender, acted with full responsibility at the time of the offence, was detained at the time of delivery of judgment by the Regional Court (3 August 2012) in conditions not complying with the Convention and was only transferred to the new centre for preventive detention two years later.

125. To prove the transubstantiation of Sicherungsverwahrung in the applicant’s case into something other than a “penalty”, the majority invoke the existence of individualised medical and therapeutic treatment in accordance with an individual treatment plan, even if he did not accept this offer. [325] The majority’s core argument is that treatment is now “at the heart of that form of detention” [326] . To be crystal-clear: this argument cannot be used to distinguish preventive detention orders from prison sentences for the simple and prosaic reason, already mentioned above, that the latter should also aim at treatment on the basis of an individualised treatment plan, according to the European Prison Rules [327] and the international prison standards [328] which have already been incorporated into the Court’s case-law on Article 3 of the Convention. [329]

126. Ultimately, the majority disregard the severity of the imposed measure as being decisive in itself, ^{^[330]} contradicting their facts-oriented evaluation of the detention conditions. It is notable that in a judgment that is intended to defend the “therapeutic” nature of a coercive measure there is no mention of the concrete benefits that the applicant has received and is receiving in the Straubing detention centre. If the majority truly believe that the preventive detention in the present case is indeed primarily a therapeutic measure, one would expect them to comment, at least to some extent, on how its benefits compensate its drawbacks.

For the majority, the fact that a 19-year-old first offender is still imprisoned today, having completed the service of his penalty on 17 July 2008, seems not much of a sacrifice. Nor are they much impressed by the circumstance that the applicant was 35 years old at the time of the preventive detention order and that therefore this potentially life-long imprisonment could be longer than for other offenders under the same kind of detention. But this is nothing new: the Constitutional Court itself confessed, in the applicant’s own constitutional appeal, that preventive detention was an “extremely serious” ( äußerst schwerwiegend ) encroachment upon the fundamental right to liberty which imposed on those targeted a “special sacrifice” ( Sonderopfer ) [331] in the interests of the community. Indeed, the applicant has been under retrospective preventive detention (and previously under provisional preventive detention) for ten years now as a “scapegoat” to quench the punitive needs of the community.

C. Preliminary conclusion (§§ 127-128)

127. The Court’s understanding of the principle of legality has been minimalist, based on a test of subjective foreseeability. Lex certa and lex stricta requirements under Article 7 of the Convention have provided limited protection to accused persons. The deferential approach towards domestic criminal courts leaves extensive leeway for repressive, case-dependent application of the principle of legality. The only effective realm of protection was until now the requirement of lex praevia . This no longer seems to be the case.

The retrospective conversion of a time-limited punitive security measure into a potentially life-long pseudo-medical confinement measure imposed on convicted offenders with ex nunc established “mental disorders” is an historically and dogmatically unreasonable, let us say it, abusive interpretation that not only goes beyond the nature and purpose of the measure of preventive detention, but circumvents the prohibition of nulla poena sine lege praevia guaranteed in a State governed by the rule of law. By putting its uncontested moral authority behind the political choice made by the legislator in the “Act on Therapy and Detention of Mentally Disturbed Violent Offenders”, [332] the Constitutional Court acted as a facilitator of the political majority, [333] not as a guarantor of the fundamental rights of the Basic Law read in a public-international-law-friendly manner. [334] By acquiescing to a strategy of apparent compliance with the Convention guarantees, while in substance departing from the core message of the Court that Sicherungsverwahrte have a Convention guarantee to nulla poena sine lege praevia , the Karlsruhe court chose to align itself schematically with Berlin, and not with Strasbourg.

128. The Constitutional Court decided to adapt domestic law to some extent to Article 5 § 1 (e) of the Convention, by means of a construction of detention of convicted offenders with alleged “mental disorders”. But this construction was applied only to historic cases of preventive detention, resulting for those cases in the intended result of keeping the targeted detainees in custody. The Karlsruhe judges did not apply this construction to future preventive detention cases. For the latter, the Constitutional Court only imposed the requirement of a distinction to be respected, but did not draw any connection with the necessity of a mental disorder. This is the reason why, as the applicant claimed, only a minority of the persons in preventive detention in the new Straubing centre were detained as mental health patients. Since the criteria for categorising these institutions as being institutions for mental health patients follow legal categories, and not medical ones, it is more than comprehensible to ask whether these institutions are in fact also psychiatric. The same institution cannot simultaneously be a psychiatric institution for some detainees and not for others. If for the majority of those detained in such an institution it is not reasonable to operate it as institution for mental-health patients, it would have to be ascertained whether it can be and actually is a psychiatric institution for the minority. On the contrary, if such an institution were a psychiatric institution, there would be a pressing need to justify the confinement of non-mental-health-patients (the “regular” Sicherungsverwahrten ) in this environment, because it is inappropriate to treat such detainees as if they were mental health patients. The Government failed to meet this need in the present case.

VI. Final conclusion (§§ 129-130)

129. The present case brought to my memory one afternoon of August 1995 in Freiburg-im-Breisgau. While talking with Hans-Heinrich Jescheck on the renaissance of the Feindstrafrecht , [335] he confessed that what he feared most in Europe was the misuse of criminal law by unthinking political majorities without objection by complicit courts. He regretted that Europe had not learned from History.

130. It is unsurprising that politicians play at the very edge of respect for the Convention, or even beyond this limit, and resist the Convention values and the Court’s judgments in polemic, if not plainly demagogic, moves to gain political support from this or that constituency. If human rights have a basic purpose, it is precisely to be “trump cards” that protect individuals’ fundamental rights against the oppressive actions of ill-advised majorities. This is particularly true in the case of easily disposable minorities, such as prisoners or migrants. Politicians that emerge from these majorities should comply with international human rights in general and with the Convention in particular, since every State official is bound by human rights law and the Convention contributes to promoting a “joint European development of fundamental rights” ( gemeineuropäische Grundrechtsentwicklung ). [336] This includes, of course, the members of Parliament who enacted the provisions that allow for retrospective preventive detention and approved a shameful intuitu persona law to keep Mr Ilnseher detained forever.

What is truly disheartening is that constitutional and supreme courts all over Europe are also resisting the application of the Convention values and the Court’s judgments, shifting their role from guarantors of the rule of law to facilitators of the exercise of power by politicians. [337] We have seen this happening in other countries of Europe, where docile judges make jurisprudence amenable to political majorities. Sadly, now it is the turn of the German Federal Constitutional Court and its unapologetically faithless reading of M. and its progeny in the sense of the inapplicability of the principle nulla poena sine lege praevia to preventive detention. By rubber-stamping the Karlsruhe court’s stance, against the crystal-clear and longstanding standards of customary international and treaty law and the consensus reigning in comparative law, the Court is taking one step more towards the legal periphery in Europe. While finding that the imposed preventive detention was a retrospective “penalty” in breach of Articles 7 and 5 § 1 of the Convention, I plead for the central role of the Court in the defence of modern criminal law principles and the safeguard of human rights in Europe.

[1] The International Statistical Classification of Diseases and Related Health Problems (10th Revision), the ICD-10, is issued by the World Health Organisation. The ICD is the international standard tool for classifying diseases and health conditions. It defines diseases, disorders, injuries and other related health conditions, listed in a comprehensive, hierarchical fashion.

[2] Offenders from 18 to 21 years of age at the time of the commission of the offence.

[3] Offenders from 14 to 18 years of age at the time of the commission of the offence.

[4] For reasons that I will explain below, I use the word “retrospective” with reference to nachträgliche Sicherungsverwahrung .

[5] The issue of the lawfulness of the applicant’s detention as a person “of unsound mind” under Article 5 § 1 (e) of the Convention arises because that period of preventive detention was not considered as a “penalty” for the purposes of Article 7. If that period of preventive detention were considered as a “penalty” for the purposes of Article 7, the detention would be tested under Article 5 § 1 (a) of the Convention.

[6] ^. Habitual Offenders’ and Security Measures Act ( Gesetz gegen gefährliche Gewohnheitsverbrecher und über Maßregeln der Sicherung und Besserung ), of 24 November 1933. On this law see Michael Wagner-Kern, Präventive Sicherheitsordnung. Zur Historisierung der Sicherungsverwahrung , Berlin: Berliner Wissenschaftsverlag, 2016; Christian Müller, Das Gewohnheitsverbrechergesetz vom 24. November 1933, Kriminalpolitik als Rassenpolitik , Baden-Baden: Nomos, 1997; Jörg Kinzig, Die Sicherungsverwahrung auf dem Prüfstand: Ergebnisse einer theoretischen und empirischen Bestandsaufnahme des Zustandes einer Maßregel , Freiburg: iuscrim, 1996; and Joachim Hellmer, Der Gewohnheitsverbrecher und die Sicherungsverwahrung 1934-1945 , Berlin: Duncker &Humblot, 1961.

[7] Articles 42 e, 42 f Criminal Code of the German Empire.

[8] SA stands for Sturmabteilung , which was a paramilitary force of the National Socialist Party during the Weimar Republic. After the taking of power by the Nazi Party, it became a Hilfspolizei under Göring. In 1945 the Allied Control Council prohibited and dissolved this organisation.

[9] SS stands for Schutzstaffel , which was the military force responsible for the management of the concentration and extermination camps. Although it was initially a Nazi organisation, it was merged with the regular police under Himmler. In 1945 the Allied Control Council prohibited and dissolved this organization.

[10] Gestapo stands for Geheime Staatspolizei , which was the secret political police of Hitler. In 1945 the Allied Control Council prohibited and dissolved this organization.

[11] Article 5 § 1 of the Criminal Code of the German Empire.

[12] Article 5 § 2 of the Criminal Code of the German Empire: “... so kann das Gericht die Sicherungsverwahrung des Verurteilten nachträglich anordnen, wenn die öffentliche Sicherheit es erfordert. ….”

[13] Joachim Hellmer, Der Gewohnheitsverbrecher... , cited above, p. 16.

[14] Tobias Mushoff, Strafe-Maßregel-Sicherungsverwahrung: eine kritische Untersuchung über das Verhältnis von Schuld und Prävention , Frankfurt: Lang, 2008, p.25, footnote 118.

[15] The Richterbriefe were political guidelines directed to the judges for the performance of judicial work. If they all make for grim reading, Richterbrief Nr. 4 is particularly striking: “ Stellungnahme des Reichsministers der Justiz Thierack zur „Bekämpfung Asozialer“: „Der rücksichtslose Kampf gegen das Berufs- und Gewohnheitsverbrechertum steht seit der Machtergreifung durch den Nationalsozialismus im Vordergrund der gesamten Verbrechensbekämpfung. …Bereits im Jahr der Machtübernahme wurde dem gefährlichen Gewohnheitsverbrecher durch das Gesetz vom 24. November 1933 mit der Erhöhung der Strafen (§ 20 a RStGB) und Einführung der Sicherungsverwahrung ein unerbittlicher Kampf angesagt. … Der gefährliche Gewohnheitsverbrecher, der sich stets von neuem an der Volksgemeinschaft vergreift, war schon im Frieden ein Parasit am Volkskörper; im Kriege ist er ein Schädling und Saboteur der inneren Front erster Ordnung.…Der Gesetzgeber hat daraus die erforderlichen Folgerungen gezogen und dem Richter die Mittel an die Hand gegeben, mit denen dieser den Kampf gegen den unverbesserlichen Gewohnheitsverbrecher nunmehr bis zur Vernichtung dieser Fremdkörper der Gemeinschaft fortführen kann… ”, http://www.wienerlibrary.co.uk/Search-document-collection?item=551

[16] ^. Annemarie Dax, Die Neuregelung des Vollzugs der Sicherungsverwahrung: Bestandsaufnahme sowie kritische Betrachtung der bundes- und landesrechtlichen Umsetzung des Abstandsgebots , Berlin: Duncker & Humblot, 2017, p. 38, and Tobias Mushoff, Strafe-Maßregel-Sicherungsverwahrung... , cited above, p. 25.

[17] Ibid.

[18] Christian Müller, Das Gewohnheitsverbrechergesetz... , cited above, p. 22.

[19] ^. The Council had initially recommended the suppression of the preventive detention regime, considering it as typical Nazi denial of the right to liberty, but the Cold War and the related tensions between the allied forces led to the failure of the reform. See Michael Wagner-Kern, Präventive Sicherheitsordnung …, cited above, p. 60; Jan-David Jansing, Nachträgliche Sicherungsverwahrung, Entwicklungslinien in der Dogmatik der Sicherungsverwahrung , Münster: LIT Verlag, 2004, p. 49; and Matthias Etzel, Die Aufhebung von nationalsozialistischen Gesetzen durch den Alliierten Kontrollrat (1945-1948) , Tübingen: Mohr Siebeck, 1992, p. 169.

[20] This was already how Kohlrausch criticised the draft laws on preventive detention during the Weimar Republic (Michael Wagner-Kern, Präventive Sicherheitsordnung …, cited above, p. 41). See for a renewal of this critique, Axel Dessecker, “Etikettenschwindel oder Behandlungsvollzug? Kritik der Sicherungsverwahrung und neues Recht” (2012) 33 Zeitschrift für Rechtssoziologie 265-282.

[21] J. Kinzig, Die Sicherungsverwahrung ..., cited above, p. 23.

[22] BVerfGE 2, 119.

[23] Section 7 of the Juvenile Court Act.

[24] Section 105 (1) of the Juvenile Court Act.

[25] Section 106 (2) of the Juvenile Court Act.

[26] As explained by the Constitutional Court, the introduction of that time-limit was needed to respond to the judges’ reluctance to use unlimited preventive detention, which they saw as equivalent, in practice, to a life sentence. The insufficiency of the prognosis methodology was also considered as grounds for limiting detention (BVerfGE 109, 133, § 14).

[27] BverfGE 2 BvR 41/71. Its main finding was that executing a custodial sentence breached the constitution if interferences with fundamental rights, in addition to the deprivation of liberty, lacked an explicit statutory basis.

[28] Zweiter Schriftlicher Bericht des Sonderausschusses für die Strafrechtsreform BT-Drs. 5/4095, p. 31.

[29] ^. Pollähne, in Kindhäuser, Neumann and Paeffgen (eds.), Strafgesetzbuch Nomos Kommentar , volume 1, 4. edition, Baden-Baden: Nomos, 2013, annotation 4 to § 61.

[30] The Combat of Sexual Offences and Other Dangerous Offences Act ( Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten ) of 26 January 1998, entered into force on 31 January 1998.

[31] As the Constitutional Court explained in BVerfGE, 109, 133, § 42 .

[32] Baden Württemberg (2001), Bavaria (2001), Saxony-Anhalt (2002), Thuringia (2003), Lower Saxony (2003). See also Jörg Kinzig, Die Legalbewährung gefährlicher Rückfalltäter – Zugleich ein Beitrag zur Entwicklung des Rechts der Sicherungsverwahrung , Berlin: Duncker & Humblot, 2010, p. 17-28.

[33] Bild am Sonntag , 8 July 2001.

[34] ^. The Deferred Preventive Detention Act ( Gesetz zur Einführung der vorbehaltenen Sicherungsverwahrung ), of 21 August 2002, entered into force on 28 August 2002.

[35] Section 106 of the Juvenile Courts Act in the version of the Reform of the Provisions on Offences against Sexual Self-determination and of Other Provisions Act ( Gesetz zur Änderung der Vorschriften über die Straftaten gegen die sexuelle Selbstbestimmung und zur Änderung anderer Vorschriften ), of 27 December 2003, coming into force on 1 April 2004.

[36] BVerfGE 109, 133.

[37] Ibid ., § 70.

[38] Ibid ., § 94.

[39] Ibid ., § 127.

[40] Ibid ., §§ 133, 136 and 144.

[41] Ibid ., § 151.

[42] Ibid ., § 137.

[43] Ibid ., § 126 .

[44] Ibid.

[45] BVerfGE 109, 190.

[46] ^. Bavarian Act on the Committal of Highly Dangerous Offenders particularly prone to recidivism ( Bayerisches Gesetz zur Unterbringung von besonders rückfallgefährdeten hochgefährlichen Straftätern ), of 24 December 2001.

[47] ^. Act of the Land Saxony-Anhalt on the Committal of Persons particularly prone to recidivism in order to avert serious dangers to public safety and order ( Gesetz des Landes Sachsen-Anhalt über die Unterbringung besonders rückfallgefährdeter Personen zur Abwehr erheblicher Gefahren für die öffentliche Sicherheit und Ordnung ), of 6 March 2002.

[48] BVerfGE 109, 190, § 168. Three judges joined a dissenting opinion, arguing that the impugned provisions were null and void and the persons detained under these provisions should be released immediately, since there were other less intrusive measures that could be adopted to prevent recidivism.

[49] Ibid ., § 166.

[50] Ibid ., § 167.

[51] The Retrospective Preventive Detention Act ( Gesetz zur Einführung der nachträglichen Sicherungsverwahrung ) of 23 July 2004, which entered into force on 29 July 2004, inserted Article 66b §§ 1 and 2 into the Criminal Code.

[52] BVerfGE, 2 BvR 226/06.

[53] BVerfG, 2 BvR 748/08.

[54] BVerfG, 2 BvR 2098/08.

[55] Section 7 (2) of the Juvenile Courts Act in the version of the Act on the introduction of retrospective preventive detention for convictions under the criminal law relating to young offenders ( Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht ) of 8 July 2008, which came into force on 12 July 2008. On this law see Hauke Brettel, “Nachträgliche Sicherungsverwahrung bei jugendlichen Sexualstraftätern”, in B. Bannenberg und J.-M. Jehle (eds), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe , Mönchengladbach: Forum Verlag, 2011, 309-316; Heribert Ostendorf and Sandra Petersen, “Nachträgliche Sicherungsverwahrung im Jugendstrafrecht” (2010) Zeitschrift für Rechtspolitik 245-249; Christine Graebsch, “Sicherungsverwahrung im Jugendstrafrecht” (2008) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 284-287; Jörg Kinzig, “Die Einführung der nachträglichen Sicherungsverwahrung für Jugendliche” (2008) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 245-250; and “Entwicklung, Stand und Perspektiven einer Sicherungsverwahrung für Jugendliche und Heranwachsende” (2007) Recht der Jugend und des Bildungswesens 155-166.

[56] ^. Section 7 (3) of the Juvenile Courts Act in the version of the 2008 Act mentioned previously.

[57] This change was intentional, since reasons are given for it in the draft law. The draft law explains the harsher conditions in juvenile’s law as opposed to adult’s law by referring to difficulties with prognosis with respect to people of young age: “ Diese Verlagerung des Entscheidungszeitpunkts an das Ende des Vollzugs ist bei jungen Menschen im Regelfall zur Erhöhung der Prognosesicherheit geboten. Allerdings ist der neue § 7 Abs. 2 JGG, wie sein Wortlaut verdeutlicht (‘sind nach einer Verurteilung … Tatsachen erkennbar’ und nicht ‘werden nach einer Verurteilung … Tatsachen erkennbar’), auch dann anwendbar, wenn die wesentlichen die Gefährlichkeit begründenden Tatsachen bereits zum Zeitpunkt des Urteils erkennbar waren und im Jugendstrafvollzug keine erheblichen ‘neuen’ Tatsachen hervorgetreten sind .” (BT-Drs. 16/6562, p. 7).

[58] BT-Drs 16/6562.

[59] Intervention of Professor Jörg Kinzig, BT-Dr 16/6562, p. 2.

[60] ^. N. Nestler and C. Wolf, “Sicherungsverwahrung gem. § 7 Abs. 2 JGG und der Präventionsgedanke im Strafrecht - kritische Betrachtung eines legislativen Kunstgriffs” (2008) Neue Kriminalpolitik 153-159.

[61] T. Ullenbruch, “Das "Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht" - ein Unding?” (2008) Neue Juristische Wochenschrift 2609-2615.

[62] M. v. Germany , no. 19359/04, 17 December 2009. On the impact of this judgment, see Jörg Kinzig, “The ECHR and the German System of Preventive Detention: An Overview of the Current Legal Situation in Germany”, in M. Caianiello and M. Corrado (eds), Preventing danger: new paradigms in criminal justice , Durham, NC: Carolina Acad. Press., 2013, 71-95; E. Janus et al, “M. v. Germany: The European Court of Human Rights Takes a Critical Look at Preventive Detention” (2013) 29 Arizona Journal of International and Comparative Law 605-622; S. Schlickewei, “Preventive Detention Revisited Before the ECtHR: O.H. v. Germany” (2012) German Yearbook of International Law 659-669; T. Bartsch, “Aspekte der Sicherungsverwahrung im Straf- und Maßregelvollzug”, in B. Bannenberg und J.-M. Jehle (eds), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe , Mönchengladbach: Forum Verlag, 2011, 291-308; G. Merkel, “Incompatible Contrasts - Preventive Detention in Germany and the European Convention on Human Rights” (2010) German Law Journal 1046-1066; H. Müller, “Die Sicherungsverwahrung, das Grundgesetz und die Europäische Menschenrechtskonvention” (2010) Strafverteidiger 207-212; M. Möllers, “Die ‘Einkesselung’ des EGMR durch BVerfG und BGH bei der nachträglichen Anordnung der Sicherungsverwahrung” (2010) Zeitschrift für Rechtspolitik 153-156; and M. Grosse-Brömer and O. Klein, “Sicherungsverwahrung als Verfassungsauftrag” (2010) Zeitschrift für Rechtspolitik 172-175.

[63] In M. , cited above, § 128, the Court made first a principled argument (the one that, pursuant to Article 66 of the Criminal Code, “preventive detention orders may be made only against persons who have repeatedly been found guilty of criminal offences of a certain gravity”) and only mentioned the situation on the ground as an additional specifying argument (“it observes, in particular, that there appear to be no special measures, instruments or institutions in place, other than those available to ordinary long-term prisoners.”)

[64] After M. v. Germany , cited above, the Court was confronted with the question of the compatibility with the Convention of retrospective preventive detention in Kallweit v. Germany , no. 17792/07, 13 January 2011, and of the 2002 Bavarian Therapy Placement Act in Haidn v. Germany , no. 6587/04, 13 January 2011, and in both cases declared it incompatible.

[65] M. v. Germany , cited above, § 102.

[66] M. v. Germany , cited above, § 103.

[67] Reform of Preventive Detention Act ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of 22 December 2010, which entered into force on 1 January 2011. On this law see Arthur Kreuzer, “Beabsichtigte bundesgesetzliche Neuordnung des Rechts der Sicherungsverwahrung” (2011) Zeitschrift für Rechtspolitik 7-11; “Strafrecht als präventiver Opferschutz? — Plädoyer für eine einheitliche vorbehaltene Sicherungsverwahrung anstelle des dringend reformbedürftigen dreigeteilten Systems” (2010) 22 (3) Neue Kriminalpolitik 89-95; and Jörg Kinzig, “Die Neuordnung des Rechts der Sicherungsverwahrung” (2011) Neue juristische Wochenschrift 177-182.

[68] The Act on Therapy and Detention of Mentally Disturbed Violent Offenders ( Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter ) entered into force on 1 January 2011. On this law see Katrin Höffler and Cornelius Stadtland, “Mad or bad? Der Begriff ‘psychische Störung’ des ThUG im Lichte der Rechtsprechung des BVerfG und des EGMR” (2012) Strafverteidiger 239-246; Volker Dittmann, “‘Psychische Störung’ im Therapieunterbringungsgesetz (ThUG) und im Urteil des Bundesverfassungsgerichts zur Sicherungsverwahrung vom 4. Mai 2011 – Versuch einer Klärung”, in J.L. Müller et al. (eds.), Sicherungsverwahrung – wissenschaftliche Basis und Positionsbestimmung , Berlin, 2012, 27-42; and C. Morgenstern, “Krank - gestört - gefährlich: Wer fällt unter § 1 Therapieunterbringungsgesetz und Art. 5 Abs. 1 lit. e EMRK?” (2011) Zeitschrift für internationale Strafrechtsdogmatik 974-981.

[69] M. v. Germany , cited above.

[70] The draft law summarises with respect to the meaning of “ psychische Störung ” in Article 1 of Therapy Placement Act: “ Letztlich deckt der Begriff der „psychischen Störung“ ein breites Spektrum von Erscheinungsformen ab, von denen nur ein Teil in der psychiatrisch-forensischen Begutachtungspraxis als psychische Erkrankung gewertet wird .” (BT-Drs. 17/3403, p. 54). During the parliamentary hearings the expert Norbert Leygraf resumed from a psychiatrist’s perspective: “ Da eine als gefährlich eingeschätzte Gruppe bislang als psychisch gesund geltender ‘Hangtäter’ mit Mitteln des Strafrechtes nicht weiter gesichert werden kann, wird eine psychiatrisch verbrämte neue Form der Unterbringung geschaffen, um den weiteren Freiheitsentzug dieser Menschen sicherzustellen. Hierzu wird auf psychiatrische Klassifikationssysteme zurückgegriffen (ICD 10 bzw. DSM IV), obschon die genannten Diagnosemanuale gerade ausdrücklich hervorheben, dass sie als Grundlage einer gerichtlichen Entscheidung nicht hinreichend sind .”

( http://webarchiv.bundestag.de/archive/2013/1212/bundestag/ausschuesse17/a06/anhoerungen/archiv/02_Sicherungsverwahrung/04_Stellungnahmen/Stellungnahme_Leygraf.pdf , p. 5).

[71] This is in fact stated in the explanations to section 9 (2) of the Therapy Placement Act: Die Sachverständigen sollen zugleich auch Behandlungsvorschläge unterbreiten. Sollte eine Therapie des Betroffenen ausgeschlossen werden, sind in den Gutachten zumindest Vorschläge für eine Behandlung, z. B. mit Medikamenten, der psychischen Störung des Betroffenen zu unterbreiten .“ (BT-Drs. 17/3403, p. 57). Norbert Leygraf also pointed to the fact that the legislation explicitly demands from a medical expert to propose at least medical treatment even if treatment for the respective person is in principle considered to be impossible: Bei den von den Gutachtern vorzuschlagenden Behandlungen werden explizit medikamentöse Behandlungsformen genannt, die vom Gutachter sogar auch dann noch vorgeschlagen werden sollen, wenn eine Therapie des Betroffen eigentlich ausgeschlossen ist (Erläuterungen zu § 8 Abs. 2 ThUG GE) . (source cited in the previous note).

[72] For a similar problem in Kuttner v. Austria , no. 7997/08, 16 July 2015, my opinion, § 9.

[73] ^. Katrin Höffler and Johannes Kaspar, “Warum das Abstandsgebot die Probleme der Sicherungsverwahrung nicht lösen kann Zugleich ein Beitrag zu den Aporien der Zweispurigkeit des strafrechtlichen Sanktionssystems” (2012) 124 (1) Zeitschrift für die gesamte Strafrechtswissenschaft 87, 88.

[74] On the judicial response to M. see J. Kaspar, “Die Zukunft der Zweispurigkeit nach den Urteilen von Bundesverfassungsgericht und EGMR” (2015) Zeitschrift für die gesamte Strafrechtswissenschaft 654-690; C. Michaelsen, “From Strasbourg, with Love' - Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights” (2012) Human Rights Law Review 148-167; M. Payandeh and H. Sauer, “Menschenrechtskonforme Auslegung als Verfassungsmehrwert: Konvergenzen von Grundgesetz und EMRK im Urteil des Bundesverfassungsgerichts zur Sicherungsverwahrung” (2012) Juristische Ausbildung 289-298; B. Sonnen, “Verfassungswidrige Sicherungsverwahrung” (2011) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 321-324; M. Pösl, “Die Sicherungsverwahrung im Fokus von BVerfG, EGMR und BGH” (2011) Zeitschrift für das juristische Studium 132-146; A. Kreuzer and T. Bartsch, “Urteilsanmerkung zum BVerfG-Urteil” (2011) Strafverteidiger 472-480; U. Eisenberg, “Urteilsanmerkung zum BVerfG-Urteil” (2011) Strafverteidiger 480-482; Karl Nußstein, “(Kein) Anwendungsbereich des Therapieunterbringungsgesetzes nach dem Sicherungsverwahrungs-Urteil des BVerfG?” (2011) Strafverteidiger 633-635; F. Streng, “Die Zukunft der Sicherungsverwahrung nach der Entscheidung des Bundesverfassungsgerichts” (2011) Juristenzeitung 827-835; and U. Volkmann, “Fremdbestimmung - Selbstbehauptung – Befreiung” (2011) Juristenzeitung 835-842.

[75] BVerfGE 128, 326.

[76] Ibid ., §§ 95 and 119. But Article 66 of the Criminal Code in its version in force since 27 December 2003 was not declared void with retrospective effect, but remained applicable and thus a valid legal basis under domestic law, in particular, for the time preceding the Constitutional Court’s 2011 judgment. Therefore, the lawfulness of preventive detention ordered and executed in accordance with a previous version of Article 66 for the purposes of Article 5 § 1 (a) of the Convention was not called into question ( Ostermunchner v. Germany , no. 36035/04 , § 84, 22 March 2012).

[77] Ibid ., § 101

[78] Ibid .

[79] Ibid ., § 121.

[80] Ibid ., §§ 171 and 110.

[81] Ibid ., § 167. It is important to note that the court rejected the possibility of interpreting the existing provisions on preventive detention in the light of Article 5 § 1 (e) of the Convention, because the normative content of these provisions could not be changed in this way ( ibid ., § 160).

[82] Ibid ., §§ 120, 130 and 173.

[83] Ibid ., §§ 132, 143 and 151.

[84] Cases in which the offence or at least one of the offences for the commission of which preventive detention is to be imposed or deferred was committed before 1 January 2011.

[85] Ibid ., §§ 96, 97, 120, 132, 133 and 172.

[86] Ibid ., §§ 130 and 173.

[87] Ibid ., § 141.

[88] Ibid ., § 113.

[89] Ibid ., § 142.

[90] Ibid ., §§ 91 and 141.

[91] Ibid ., § 142.

[92] The Prevention Detention (Distinction) Act ( Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung ), of 5 December 2012, entered into force on 1 June 2013.

[93] Paragraph 79 of the present judgment.

[94] ^. Paragraph 77 of the present judgment. For an evaluation of this legislation see Annemarie Dax, Die Neuregelung des Vollzugs... , cited above.

[95] Article 7 (2) of the Juvenile Courts Act in the version of the Law of 5 December 2012.

[96] Article 7 (4) of the Juvenile Courts Act in the version of the Law of 5 December 2012.

[97] The draft law which later had been passed gives the following reasoning: “ Damit wird ... diese rechtlich und tatsächlich problematische Anordnungsform noch so lange fortgeführt, bis der Schutz der Bevölkerung durch den Ausbau insbesondere der vorbehaltenen Sicherungsverwahrung übernommen werden kann .” (BT-Drs. 17/9874, p. 12)

[98] Decision of the Federal Constitutional Court of 11 July 2013, BVerfGE 2 BvR 2302/11 and 2 BvR 1279/12.

[99] Ibid ., § 83.

[100] Ibid ., § 66.

[101] Ibid ., § 80.

[102] Ibid ., §§ 97-117.

[103] Report to the German Government on the visit to Germany by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 November to 2 December 2013, CPT/Inf (2014) 23, § 9.

[104] Schwabe and M. G. v. Germany , nos. 8080/08 and 8577/08, 1 December 2011.

[105] Ostendorf v. Germany , no. 15598/08, 7 March 2013.

[106] ^. Ibid , § 93. In their separate opinion joined to Ostendorf , Judges Lemmens and Jäderblom considered that purely preventive detention could be justified under Article 5 § 1 (c) of the Convention. This position as now been confirmed by the Grand Chamber in S., V. and A. v. Denmark , nos. 35553/12 and others, 22 October 2018.

[107] Bergmann v. Germany, no. 23279/14, 7 January 2016.

[108] Jörg Kinzig, “Die Ausweitung der Sicherungsverwahrung und die daraus resultierenden Probleme für eine zuverlässige Kriminalprognose”, in B. Bannenberg und J.-M. Jehle (eds.), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe , Mönchengladbach: Forum Verlag, 2011, 355-366.

[109] In the concept of von Liszt, preventive detention was not supposed to be a measure of correction and prevention, but a punishment for reasons of security, because there was no prospect of success for treatment perceived. Von Liszt compared the habitual offender to a sick limb influencing the health of the whole body, to a cancerous ulcer poisoning society (von Liszt, ‘Der Zweckgedanke im Strafrecht’ (1883) 3 Zeitschrift für die gesamte Strafrechtswissenschaft 36), in this respect anticipating National Socialist thinking and its eliminative practice (Johannes Kaspar, Die v. Liszt-Schule und der Umgang mit gefährlichen Gewohnheitsverbrechern , in Arnd Koch and Martin Löhnig (eds.), Die Schule Franz von Liszts , Tübingen: Mohr Siebeck, 2016, p. 124).

[110] In the Criminal Code there is no provision similar to that of Article 5 § 3 of the Juvenile Courts Act.

[111] ^. In the Constitutional Court’s own words: “ Dieser besondere Charakter der Sicherungsverwahrung tritt bei dauerhafter Unterbringung besonders augenfällig zutage, weil hier der Besserungszweck der Maßregel hinter ihren Sicherungszweck zurücktritt .” (BVerfGE 109, 133, § 124).

[112] Referring to Article 7 of the Juvenile Courts Act see BVerfGE 128, 326, §§ 99 and 156.

[113] The Constitutional Court expanded extensively on the “similarities” ( Ähnlichkeiten ), “functional overlaps” ( Funktionsüberschneidungen ) and “parallels” ( Parallelen ) between these two prison regimes (BVerfGE 109, 2133, §§ 157-162).

[114] This was already at the centre of the Constitutional Court’s reasoning in BVerfGE 128, 326, §§ 108 and 109.

[115] Vinter and Others v. the United Kingdom [GC] , nos. 66060/09, 130/190 and 3896/10, ECHR 2013 (extracts).

[116] See the commentary to Rule 103 of the 2006 European Prison Rules.

[117] On this provision see the critical remarks of Norbert Nedopil, “Sicherungsverwahrung und ‘psychische Störung’ aus psychiatrischer Sicht” in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0 , Baden-Baden: Nomos, 2017, 57-68.

[118] The Constitutional Court itself admits that these provisions are “rudimentary”, relating to “marginal areas” (BverfGE 128, 326, § 121).

[119] Ibid ., § 108.

[120] Ibid ., § 105.

[121] Ibid .

[122] Ibid ., § 108.

[123] It is important to recall that the Federal Constitutional Court grounded its demand for a distinction in the 2004 decision in human dignity (Article 1 § 1 of Basic Law).

[124] BverfG 35, 202.

[125] For example, BVerfGE 39, 46; and 72, 114.

[126] ^. Maurach, Strafrecht, Allgemeiner Teil , Karlsruhe: Müller Verlag, 1971, p. 77. For reasons of economy of space, I cannot delve here into the German dogmatic debate on the purposes of punishment, but I refer to my text “Ein unausrottbares Missverständnis, Bemerkungen zum strafrechtlichen Schuldbegriff von Jakobs“ (1998) 110 Zeitschrift für die Gesamte Strafrechtswissenschaft 640-657.

[127] BVerfGE 128, 326, § 104.

[128] As reflected in the Constitutional Court’s decision on life imprisonment of 21 June 1977 (1 BvL 14/76).

[129] BVerfGE 128, 326, § 130.

[130] On these reasons see, among many others, Katrin Höffler, “Die Kriminalprognose und das Risiko” and Hauke Brettel, “‘Ist gestört, wer ständig stört?’ Zum Verhältnis von psychischer Störung und Straffälligkeit”, in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0 , Baden-Baden, Nomos, 2017, respectively, 35-56, and 245-252; Michael Alex, Nachträgliche Sicherungsverwahrung – ein rechtsstaatliches und kriminologisches Debakel , Holzkirchen: Felix-Verlag, Holzkirchen, 2013; K. Drenkhahn and C. Morgenstern, “Dabei soll es uns auf den Namen nicht ankommen - Der Streit um die Sicherungsverwahrung” (2012) Zeitschrift für die gesamte Strafrechtswissenschaft 132-203; A. Kreuzer, “Kriminalpolitische und rechtliche Aspekte der Reform des Sicherungsverwahrungsrechts”, in B. Bannenberg und J.-M. Jehle (eds), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe , Mönchengladbach: Forum Verlag, 2011, 291-308; V. Schöneburg, “Rechtsstaat und Sicherheit: Die Sicherungsverwahrung auf dem Prüfstand” (2010) Menschenrechtsmagazin 83-90; H. Ostendorf, “Jugendstrafrecht - Reform statt Abkehr” (2008) Strafverteidiger 148-153; Michael Alex, “Nachträgliche Sicherungsverwahrung - eine empirische Bilanz” (2008) Neue Kriminalpolitik 150-153; U. Eisenberg, “Nachträgliche Sicherungsverwahrung bei zur Tatzeit Jugendlichen bzw. Heranwachsenden?” (2007) Juristenzeitung 143-144.

[131] See my opinion in Kuttner , cited above.

[132] See my opinion in Kuttner , cited above.

[133] Karl Nußstein, “Das Therapieunterbringungsgesetz - Erste Erfahrungen aus der Praxis” (2011) Neue juristische Wochenschrift 1194-1197.

[134] BVerfGE 128, 326, § 64.

[135] ^. For a summary of the discussion, Monika Werndl, “Altfallproblematik und rechtsstaalicher Vertrauensschutz in Sachen Sicherungsverwahrung” in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0 , Baden-Baden: Nomos, 2017, 71-102; Karl Nußstein, “Das Therapieunterbringungsgesetz...”, cited above, p. 1194; Jörg Kinzig, “Die Neuordnung ...”, cited above, p. 177; and Arthur Kreuzer, “Beabsichtige ...”, cited above, p.10.

[136] BVerfGE 109, 133, §§ 173 and 174.

[137] Ibid ., §§ 177 and 187. This justification was later extended by the Constitutional Court’s decision of 23 August 2006 on Article 66 § 2 of the Criminal Code (BVerfGE 2 BvR 226/06, §§ 14-16), by its decision of 22 October 2008 on Article 66b § 1, sentence 2, of the Criminal Code (BVerfGE 2 BvR 226/06, §§ 26-37 ) and by its decision of 5 August 2009 on Article 66b § 3 of the Criminal Code (BVerfGE 2 BvR 2098 and 2 BvR 2633/08, §§ 22-33). This latter case is particularly interesting because in it the court admitted that “genuine” retrospective preventive detention could be compatible with the Basic Law. This position has been reviewed in the decision of 6 February 2013 (BVerfGE 2 BvR 2122/11, 2 BvR 2705/11).

[138] BVerfGE 128, 326, § 134.

[139] Ibid ., § 138.

[140] Ibid ., § 141.

[141] On this discussion see Bernd-Dieter Meyer, ‘Sicherungsverwahrung bei Jugendlichen und Heranwachsenden“, in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0 , Baden-Baden: Nomos, 2017, 217-238; Christian Laue, “Die Sicherungsverwahrung im Jugendstrafrecht”, in vorgänge (2015) 205 Zeitschrift für Bürgerrechte und Gesellschaftspolitik 43-50; Katharina Karmrodt, Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht , Berlin, LIT Verlag, 2012; Tillmann Bartsch, “Eine verpasste Chance! Zur Reform der Vorschriften über die Sicherungsverwahrung im JGG” (2013) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 182-189; Stefanie Kemme, “Sicherungsverwahrung nach Jugendstrafrecht” (2011) Praxis der Rechtspsychologie 93-114.

[142] ^.United Nations Human Rights Committee, Fardon v. Australia , (CCPR/C/98/D/1629/2007 10 May 2010) § 7.4.

[143] Mr. Konopka mentioned the case of the applicant as the first of three cases in which preventive detention would be necessary. See P r o t o k o l l der 103. Sitzung am 28. Mai 2008, Stellungnahme für den BT-Rechtsausschuss , BT-Drucksache 16/6562

http://webarchiv.bundestag.de/archive/2010/0304/bundestag/ausschuesse/a06/anhoerungen/Archiv/37_Jugendstrafrecht-Sichver/04_Stellungnahmen/Stellungnahrne_Konopka.pdf .

[144] ^. BGH 1 StR 554/09: "Vorliegend ist zudem die zeitliche Nähe des Erlasses dieses
Gesetzes zum Ende des Strafvollzugs des Verurteilten in dieser
Sache zu berücksichtigen. Der Verurteilte verbüßte die Strafe aus
der Anlassverurteilung bis 17. 7. 2008. Das Gesetz zur Einführung
der nachträglichen Sicherungsverwahrung bei Verurteilungen
nach Jugendstrafrecht (BGBl I 1212) vom 8. 7. 2008 trat
unmittelbar vorher am 12. 7. 2008 in Kraft. Diese zeitliche Nähe
lässt den Schluss zu, dass der Gesetzgeber Fallgestaltungen der
vorliegenden Art bei Erlass des Gesetzes im Blick gehabt hat und
auch diese erfassen wollte."

[145] Hauke Brettel, “Der Vollzug der Sicherungsverwahrung nach § 7 Abs. 2 JGG” (2009) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 331-335.

[146] In the 2010 law that almost abolished retrospective preventive detention for adults, the Government referred to its ineffectiveness owing to the precondition of nova as requested by the Federal Court of Justice (Bundestags-Drucksache 17/3403, p. 13).

[147] BGH NJW 2006, 384.

[148] ^. Arthur Kreuzer and Tillmann Bartsch, “Gesetzgeberische Flickschusterei und Vollzugsprobleme bei der Sicherungsverwahrung“ (2008) Forum Strafvollzug 30-33.

[149] Johnannes Kaspar, “Die Zukunft... ”, cited above; Franz Streng, “Die Zukunft... ”, cited above; and Hauke Brettel, “Nachträgliche Sicherungsverwahrung …”, cited above.

[150] T. Bartsch, “Aspekte der Sicherungsverwahrung im Straf- und Maßregelvollzug”, in B. Bannenberg und J.-M. Jehle (eds.), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe , Mönchengladbach: Forum Verlag, 2011, 291-308.

[151] As the Constitutional Court has admitted (BverfGE 128, 326, § 123).

[152] BVerfGE 109, 133, § 126.

[153] Ibid ., § 136

[154] BVerfGE 109, 190.

[155] BVerfGE 2 BvR 2302/11, 2 BvR 1279/12 (Zweiter Senat), § 59.

[156] BVerfGE 109, 133, § 152.

[157] As mentioned explicitly in BVerfGE 128, 326, § 56.

[158] BVerfGE 111, 307, § 31. On the relationship betwenn the Convention and the Basic law, Luis López Guerra, “Dialogues between the Strasbourg Court and national courts”, in Amrei Müller (ed.), Judicial dialogue and human rights , Cambridge, Cambridge University Press, 2017, p. 401-409; Andreas Paulus, “Engaging in judicial dialogue: the practice of the German Federal Constitutional Court”, in Amrei Müller (ed.), Judicial dialogue and human rights , Cambridge, Cambridge University Press, 2017, p. 258-266; Amrei Müller, “The ECtHR's engagement with German and Russian courts' decisions: encouraging effective cooperation to secure ECHR rights”, in Amrei Müller (ed.), Judicial dialogue and human rights , Cambridge, Cambridge University Press, 2017, p. 287-338; Julia Rackow, “From conflict to cooperation : the relationship between Karlsruhe and Strasbourg”, in Katja S. Ziegler et al (eds.), The UK and European human rights : a strained relationship? , Oxford, Hart, 2015, p. 379-399; Thomas Giegerich, “The Struggle by the German Courts and Legislature to Transpose the Strasbourg Case Law on Preventive Detention into German Law”, in Anja Seibert-Fohr and Mark E. Villiger (eds.), Judgments of the European Court of Human Rights : effects and implementation , Baden-Baden, Nomos, 2014, p. 207-236; Markus Ludwigs, “Kooperativer Grundrechtsschutz zwischen EuGH, BVerfG und EGMR” (2014) 41 Europäische Grundrechte Zeitschrift 273-285; Andreas Paulus, “From implementation to translation : applying the ECtHR judgments in the domestic legal orders”, in Anja Seibert-Fohr and Mark E. Villiger (eds.), Judgments of the European Court of Human Rights : effects and implementation , Baden-Baden, Nomos, 2014, p. 267-283; Andreas Vosskuhle, “Pyramid or mobile? Human rights protection by the European constitutional courts” (2014) 34 Human Rights Law Journal 1-3; Christoph Grabenwarter, “Deutschland und die Menschenrechtskonvention : eine Aussensicht“, in Sabine Leutheusser-Schnarrenberger (ed.), Vom Recht auf Menschenwürde : 60 Jahre Europäische Menschenrechtskonvention , Tübingen, Mohr Siebeck, 2013, p. 109-121; Renate Jaeger and Christiane Schmaltz, “Die deutsche Rechtsprechung und der EGMR : Kooperation oder Konfrontation?“ in Sabine Leutheusser-Schnarrenberger (ed.), Vom Recht auf Menschenwürde : 60 Jahre Europäische Menschenrechtskonvention , Tübingen, Mohr Siebeck, 2013, p.97-108; Juliane Kokott, “Zusammenwirken der Gerichte in Europa”, in von Hanno Kube (ed.), Leitgedanken des Rechts : Festschrift für Paul Kirchhof , volume 1, Heidelberg, Müller, 2013, p. 1097-1106; Hans-Jürgen Papier, “Das Bundesverfassungsgericht im Kräftefeld zwischen Karlsruhe, Luxemburg und Straßburg”, in Holger P. Hestermeyer (ed.), Coexistence, cooperation and solidarity , volume 2, 2012, p. 2041-2056; Christian Tomuschat, “The effects of the judgments of the European Court of Human Rights according to the German Constitutional Court” (2010) 11 German Law Journal 513-526; Andreas Vosskuhle, “Multilevel cooperation of the European constitutional courts: der Europäische Verfassungsgerichtsverbund” (2010) 6 European Constitutional Law Review 175-198; Oliver Klein, “Strassburger Wolken am Karlsruher Himmel: zum geänderten Verhältnis zwischen Bundesverfassungsgericht und Europäischem Gerichtshof für Menschenrechte seit 1998” (2010) 29 Neue Zeitschrift für Verwaltungsrecht 221-225; Gertrude Lübbe-Wolf, “Der Grundrechtsschutz nach der Europäischen Menschenrechtskonvention bei konfligierenden Individualrechten : Plädoyer für eine Korridor-Lösung” in Martin Hochhuth (ed.), Nachdenken über Staat und Recht : Kolloquium zum 60. Geburtstag von Dietrich Murswiek , Berlin, Duncker & Humblot, 2010, p. 193-209.

[159] Ibid ., § 32.

[160] Ibid ., § 40.

[161] Ibid ., § 39.

[162] Ibid ., § 48.

[163] Ibid ., § 68.

[164] Ibid ., § 51.

[165] Ibid .

[166] Ibid ., § 58 .

[167] Ibid ., § 47.

[168] Ibid ., § 62.

[169] Ibid ., § 50, and BVerfGE 128, 326, § 93.

[170] BVerfGE 120, 180, § 82.

[171] BVerfGE 128, 326, § 89. In the same decision, however, the Court denied that the Convention provisions had an effect of “strong precedent, extending beyond the individual case” (über den Einzellfall hinausgehende, strenge Präjudizienbindung).

[172] Ibid ., § 82.

[173] ^. Meanwhile Strasbourg had delivered the M. v. Germany judgment. On the constitutional law discussion triggered by this case, Christoph Grabenwarter, “Die deutsche Sicherungsverwahrung als Treffpunkt grundrechtlicher Parallelwelten” (2012) 39 Europäische Grundrechte Zeitschrift 507-514, and “Wirkungen eines Urteils des Europäischen Gerichtshofs für Menschenrechte - am Beispiel des Falls M gegen Deutschland” (2010) 65 Juristenzeitung 857-912; Mehrdad Payandeh and Heiko Sauer, “Menschenrechtskonforme Auslegung als Verfassungsmehrwert: Konvergenzen von Grundgesetz und EMRK im Urteil des Bundesverfassungsgerichts zur Sicherungsverwahrung” (2012) Jura 289-298; Birgit Peters, “Germany's dialogue with Strasbourg: extrapolating the Bundesverfassungsgericht's relationship with the European Court of Human Rights in the preventive detention decision” (2012) 13 German Law Journal 757-772; Bertram Schmitt, “Der Einfluss der strafrechtlichen Rechtsprechung des EGMR auf den BGH und das BVerfG : Kommentar” in Nack Jahn (ed.), Gegenwartsfragen des europäischen und deutschen Strafrechts : Referate und Diskussionen auf dem 3. Karlsruher Strafrechtsdialog am 27.Mai 2011 , Köln, Carl Heymann, 2012, p. 47-51.

[174] Ibid ., § 90.

[175] Ibid ., § 86.

[176] BVerfGE 111, 307, § 32.

[177] BVerfGE 128, 326, § 91.

[178] “ Für die gewachsene Verfassungsordnung des Grundgesetzes ist dagegen an dem Begriff der Strafe in Art. 103 GG, wie er in der Entscheidung vom 5. Februar 2004 (BVerfGE 109, 133 <167 ff.>) zum Ausdruck gekommen ist, festzuhalten. ” (BVerfGE 128, 326, § 142).

[179] BVerfGE 109, 133, § 15.

[180] M. v. Germany , cited above.

[181] Jendrowiak v. Germany , no. 30060/04, 14 April 2011.

[182] Ibid ., §§ 36-38 and 48.

[183] BVerfGE 128, 326, § 91.

[184] ^. See my separate opinion in G.I.E.M. S.r.l. and Others v. Italy (GC) , nos. 1828/06 and 2 others, 28 July 2018 , § 85.

[185] BVerfGE 128, 326, § 89.

[186] G.I.E.M. and Others , cited above, § 252, and my separate opinion, paras. 72-86.

[187] BVerfGE 128, 326, § 91.

[188] Ibid ., § 92.

[189] ^. Other than public safety, the Constitutional Court refers, very discreetly, to “constitutional identity” as an “absolute limit” (BVerfGE 128, 326, § 93), but does not use this argument in the specific case of preventive detention. It seems that preventive detention in itself does not belong to the “constitutional identity” of the Basic Law.

[190] Ibid ., § 93.

[191] M. , cited above.

[192] For example, in M. , cited above, § 82, the applicant argued precisely that “His right to lawful detention could not be balanced against public safety concerns.” and the Government rebutted the argument, by invoking the “prevention of dangers to the public” and the “preventive aim of the protection of society” ( M. , cited above, §§ 113 and 116). See also Jendrowiak , cited above, §§ 36-38; S. v. Germany , no. 3300/10, § 103, 28 June 2012; G. v. Germany , no. 65210/09, §79, 7 June 2012; B. v. Germany , no. 61272/09, § 88, 19 April 2012; Kronfeldner v. Germany , no. 21906/09, §§ 86 and 87, 19 January 2012; and O.H. v. Germany , no. 4646/08, §§ 93-94, 24 November 2011.

[193] Jendrowiack , cited above, § 48.

[194] M. , cited above.

[195] G.I.E.M. and Others , cited above.

[196] Sud Fondi S.r.l. and Others v. Italy , no. 75909/01, 20 January 2009.

[197] Varvara v. Italy , no. 17475/09, 29 October 2013.

[198] ^. M. v. Germany , cited above, was about the retrospective prolongation of preventive detention beyond the 10 year limit (Article 67 d § 3 StGB).

[199] ^. Haidn v. Germany , no. 6587/04, 13 January 2011, B. v. Germany , no. 61272/09, 19 April 2012, and S. v. Germany , no. 3300/10, 28 June 2012. This group of cases concerned retrospective preventive detention ( Nachträgliche Sicherungsverwahrung ) (Article 66b of the Criminal Code), where the sentencing court’s judgment was in fact subsequently corrected by a retrospective preventive detention order.

[200] ^. “ Für die gewachsene Verfassungsordnung des Grundgesetzes ist dagegen an dem Begriff der Strafe in Art. 103 GG, wie er in der Entscheidung vom 5. Februar 2004 (BVerfGE 109, 133 <167 ff.>) zum Ausdruck gekommen ist, festzuhalten .” (BVerfGE 128, 326, § 142).

[201] Vinter and Others v. the United Kingdom (GC) , nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts).

[202] R v. McLoughlin, R v. Newell , Court of Appeal, Criminal Division, 18 February 2014 [2014] EWCA Crim 188.

[203] ^. Hutchinson v. the United Kingdom (GC) , no. 57592/08, 17 January 2017. See my separate opinion joined to this judgment.

[204] ^. G.I.E.M. S.r.l. and Others , cited above. See my separate opinion joined to this judgment, particularly in paras. 61-63, on the Court’s current efficiency-interests-oriented approach to criminal law.

[205] See my separate opinion in Maktouf and Damjanovic v. Bosnia and Herzegovina (GC) , nos. 2312/08 and 34179/08, 18 July 2013, §§ 2-9.

[206] ^. United Nations Human Rights Committee, Fardon v. Australia (CCPR/C/98/D/1629/2007 10 May 2010).

[207] ^. Ibid .

[208] ^. United Nations Human Rights Committee concluding observations on the sixth periodic report of Germany, CCPR/C/DEU/CO/6, 2 November 2012.

[209] ^. United Nations Committee against Torture concluding observations, CAT/C/DEU/CO/5, 12 December 2011.

[210] Report of the Working Group on Arbitrary Detention, Addendum, Follow-up mission to Germany, A/HRC/30/36/Add.1, 10 July 2015.

[211] It is particularly regrettable that the majority do not give the CPT reports the same weight they were accorded in M. , cited above, § 129.

[212] Report to the German Government on its visit to Germany from 20 November to 2 December 2005 (CPT/Inf (2007) 18 of 18 April 2007, § 96).

[213] Ibid .

[214] Ibid .

[215] Ibid ., § 99.

[216] Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 November to 7 December 2010 (CPT/Inf (2012) 6), § 107.

[217] Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 November to 2 December 2013, CPT/Inf (2014) 23, § 15.

[218] Ibid ., § 17.

[219] Ibid ., § 19.

[220] Mr Thomas Hammarberg’s report on his visit to Germany from 9 to 11 and from 15 to 20 October 2006 (CommDH(2007)14 of 11 July 2007)

[221] Paragraph 210 of the judgment.

[222] I have made this point in other separate opinions, such as the one joined to Khamtokhu and Aksenchik v. Russia , nos. 60367/08 and 961/11, 24 January 2017, § 31 of my opinion.

[223] ^. Belgium, France, the Former Yugoslav Republic of Macedonia, the Netherlands, Norway, Poland, Serbia, Slovakia, Switzerland, and the United Kingdom.

[224] ^. Albania, Austria, Azerbaijan, Bulgaria, Croatia, Finland, Hungary, Latvia, Liechtenstein, Luxembourg, Montenegro, Portugal, Russia, San Marino, Slovenia, and Turkey.

[225] ^. Armenia, Estonia, Greece, Moldova, and Sweden.

[226] ^. See Article 93 of the Polish Criminal Code, Article 706-53-13 of the French Code on Criminal Procedure, Article 81 of the Serbian Criminal Code, Article 43 of the Norwegian Criminal Code, Article 37 of the Dutch Criminal Code, and Articles 63-65 of the Macedonian Criminal Code.

[227] ^. The three countries that permit the imposition of protective measures even when the sentencing court’s judgment did not provide for that possibility are also those in which the protective regime does not change according to whether the offender’s mental condition was known at the time of sentencing or only discovered thereafter (Belgium, the United Kingdom, and Switzerland).

[228] ^. Section 73 and 81 § 3 of the Slovak Criminal Code.

[229] Paragraph 98 of the judgment.

[230] Act of 5 May 2014. In Belgium, the measure may be imposed after the sentence through a special procedure that requires a two-month observation period before passing to the stage at which a court may order detention (Art. 6 of the Act of 5 May 2014). According to the Belgian Constitutional Court, such detention may take place after the completion of the sentence, provided three conditions are met: the existence of a real and permanent mental disorder must be demonstrated, the disorder must be of such a nature as to justify detention, and detention must last only as long as the disorder persists, so that the detained person has the possibility of release as soon as they are healthy (Decision no. 22/2016, B.3 and B.68.3, 18 February 2016).

[231] The “hybrid order” introduced by the Crime (Sentences) Act of 1997.

[232] Articles 59 and 64 of the Swiss Penal Code.

[233] Christian Bochmann, “Freiheitsentzug bei jugendlichen Straftätern in Europa” (2008) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 324-329; Heribert Ostendorf and Christian Bochmann, “Nachträgliche Sicherungsverwahrung bei jungen Menschen auf dem internationalen und verfassungsrechtlichen Prüfstand” (2007) Zeitschrift für Rechtspolitik 146-149.

[234] French Constitutional Court, Decision No. 2008-562 DC, 21 February 2008, §§ 9-10; and United Nations Human Rights Committee Concluding Observations on the report submitted by France (CCPR/C/FRA/CO/4), of 31 July 2008, § 16.

[235] BVerfG 2 BvR 1481/04, § 35.

[236] BVerfGE 128, 326, §§ 122-128: “The persons affected are as it were subjected to an unconstitutional deprivation of liberty in full awareness of the situation” ( Die Betroffenen werden gleichsam “sehenden Auges” einer verfassungswidrigen Freiheitsentziehung unterworfen .)

[237] Mikhel Timmerman, Legality in Europe. On the principle “nullum crimen, nulla poena sine lege” in EU law and under the ECHR , 2018; Susana Sanz-Caballero, “The principle nulla poena sine lege revisited: the retrospective application of criminal law” (2017) 28 European Journal of International Law 787; C. Peristeridou, The Principle of Legality in European Criminal Law , Cambridge: Intersentia, 2015; and K. Gallant, The Principle of Legality in International and Comparative Criminal Law , Cambridge: Cambridge University Press, 2009.

[238] Kokkinakis v. Greece, no. 14307/88, 25 May 1993.

[239] Grigoriades v. Greece , no. 24348/94, 25 November 1997.

[240] Flinkkilä and Others v. Finland , no. 25576/04, 6 April 2010.

[241] Baskaya and Okçuoglu v. Turkey , nos. 23536/94 and 24408/94, § 50, 8 July 1999.

[242] Korbely v. Hungary, no. 9174/02, §§ 60, 63 and 75, 19 September 2008.

[243] See already the separate opinion of Judge Martens in Kokkinakis , cited above, see also Ashlarba v. Georgia , no. 45554/08, §§ 37 and 40, 15 July 2014; Kuolelis, Bartosevicius and Burokevicius v. Lithuania , no. 74357/01 and others, § 121, 19 February 2008; and Grigoriades , cited above, §§ 37 and 38 .

[244] Kokkinakis , cited above, § 40; and Cantoni v. France , no. 17862/91, § 35, 11 November 1996.

[245] Dallas v. the United Kingdom , no. 38395/12, 11 February 2016.

[246] Achour v. France , no. 67335/01, §52, 29 March 2006.

[247] For example, C.R. v. the United Kingdom , no. 20190/92, § 41, 22 November 1995; S. W. v. the United Kingdom , no. 20166/92, 22 November 1995; and Radio France and Others v. France , no. 53984/00, § 20, 30 March 2004.

[248] Ibid .

[249] Ibid . Sometimes the Court refers to offences which lack social stigma (see my separate opinion in A and B v. Norway , nos. 24130/11 and 29758/11, 15 November 2016, § 29).

[250] Cantoni , cited above, § 35.

[251] Flinkkilä and Others , cited above, § 67. See my opinion in Matytsina v. Russia, no. 58428/10, 27 March 2014 .

[252] Kononov v. Latvia , no. 36376/04, § 185, 17 May 2010, and Baskaya and Okçuoglu , cited above, §§ 42-43.

[253] Dragotoniu and Militaru-Pidhorni v. Romania , nos.77193/01 and 77196/01, § 40, 24 May 2007.

[254] Koprivnikar v. Slovenia , no. 67503/13, § 56, 24 January 2017.

[255] C.R. , cited above, S.W ., cited above, and Soros v. France , no. 50425/06, § 58, 6 October 2011, and the separate opinion of Judges Villiger, Yudkivska and Nussberger.

[256] Del Rio Prada v. Spain (GC) , no. 2750/09, § 112 and 117, 21 October 2013.

[257] Kononov , cited above, § 198.

[258] Khodokorsky and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 781, 25 July 2013.

[259] Veeber v. Estonia (no. 2) , no. 45771/99, ECHR 2003 ‑ I, and Rohlena v. the Czech Republic (GC) , no. 59552/08, 27 January 2015.

[260] Maktouf and Damjanovic , cited above.

[261] Ibid ., my separate opinion, § 8. See also Rohlena , cited above, § 56.

[262] Jendrowiak , cited above, § 48.

[263] In paragraph 236 of the judgment, the majority’s recognition of some degree of erasure of the punitive element of the detention undoubtedly reveals the persistence, in their view, of at least some punitive purpose.

[264] Paragraph 226 of the judgment: “For persons detained as medical health patients, the preventive purpose pursued by the amended preventive detention regime carries decisive weight”.

[265] ^. Paragraph 222 of the judgment: “However, having regard to the setting in which preventive detention orders are executed under the new regime, the Court is satisfied that the focus of the measure now lies on the medical and therapeutic treatment of the person concerned …”.

[266] ^. Paragraph 236 of the judgment.

[267] ^. See my opinion with Judge Turkovic in Khoroshenko v. Russia (GC) , no. 41418/04, 30 June 2015, § 3.

[268] ^. Welch , cited above, § 30.

[269] 4 M. v. Germany , cited above.

[270] BVerfGE 109, 133, § 34.

[271] Paragraph 229 of the judgment.

[272] Paragraph 231 of the judgment.

[273] Paragraphs 234 and 235 of the judgment.

[274] The word used at the end of paragraph 235 of the judgment is “alleviated”.

[275] ^. I have referred already to this concept in my opinion in Lopes de Souza Fernandes v. Portugal (GC) , no. 56080/13, judgment of 19 December 2017.

[276] BVerfGE 109, 133, § 93.

[277] M. v. Germany , cited above.

[278] Bergmann , cited above.

[279] Corrado perceives the distance requirement as a “terrible way out of the dilemma, making the difference .. depend upon a gradation of conditions: a little more money, a bit longer visiting hours and it will be acceptable regulation under German law; a bit less and it will be unacceptable punishment.” (Corrado, cited above, p. 68).

[280] X. v. Germany , 12 July 1976, Nr. 7493/76, D.R. Volume 6, 182.

[281] For example, Kallweit v. Germany , no. 17792/07, 13 January 2011, and Hutchison Reid v. the United Kingdom , no. 50272/99, 20 February 2003.

[282] Hutchinson Reid v. the United Kingdom, no. 50272/ 99, 20 February 2003.

[283] Morsink v. the Netherlands , no. 48865/99, 11 Mai 2004.

[284] The relevant text of the draft law is: “ Schon die Menschenrechtskommission hatte unter diesen Begriff auch abnorme Persönlichkeitszüge gefasst, die nicht einer Geisteskrankheit gleichkommen (X./. Bundesrepublik Deutschland, Entscheidung der Europäischen Menschenrechtskommission vom 12. Juli 1976, Nr. 7493/76, D.R. Band 6, Seite 182). In einem Urteil aus dem Jahre 2003 stellte der EGMR klar, dass auch ein weiterhin abnorm aggressives und ernsthaft unverantwortliches Verhalten eines verurteilten Straftäters ausreichen kann und betonte, dass eine fehlende Behandelbarkeit im klinischen Sinne nicht zu einer Freilassung zwinge, wenn eine Gefahr für die Allgemeinheit bestehe (Hutchinson Reid ./. UK, Urteil des EGMR vom 20. Februar 2003, Nr. 50272/ 99). 2004 gelangte der EGMR zu der Feststellung, dass die strafrechtliche Verantwortlichkeit eines Straftäters eine (auch) auf Artikel 5 Absatz 1 Satz 2 Buchstabe e EMRK gestützte Unterbringung nicht ausschließe (Morsink ./. NL, Urteil des EGMR vom 11. Mai 2004, Nr. 48865/99). ” (Draft law of 26 October 2010 by the parliamentary groups of the governing parties Bundestags-Drucksache 17/3403, p. 53 f.). This same case law was cited in BVerfGE 128, 326, § 152.

[285] Paragraphs 34 and 88 of the judgment.

[286] Paragraph 150 of the judgment , as in Glien v. Germany , no. 7345/12, § 87.

[287] Paragraph 149 of the judgment.

[288] Paragraph 150 of the judgment.

[289] ^. BVerfGE 128, 326, § 51.

[290] ^. Paragraph 143 of the judgment.

[291] ^. Paragraph 155 of the judgment.

[292] ^. The Constitutional Court itself states that the benefit of the doubt should, however, be given to the detainee when there is no clear evidence of his or her dangerousness (BVerfGE 109, 133, § 111).

[293] ^. In page 77 to 79 of the expert report affirmed that it was doubtful whether the applicant still suffers from sexual sadism. In page 79, the expert concluded that the applicant posed a medium risk of future offences.

[294] This report was solely based on the file, because the applicant refused to be examined by the expert.

[295] Enclosures 10 and 11 joined to the applicant’s observations of 10 August 2017.

[296] ^. See Article 43 § 2 of the Juvenile Courts Act, in conjunction with Article 109 § 1 of the same Act.

[297] ^. The Constitutional Court itself has demanded a “specially experienced expert” for this kind of long preventive detention (BVerfGE 109, 133, § 114). See also BVerfGE 128, 326, § 99, again stressing the need for a “specially qualified medical report” precisely in the applicant’s constitutional appeal case.

[298] ^. Paragraph 34 of the judgment.

[299] ^. Paragraph 155 of the judgment.

[300] ^. Paragraph 157 of the judgment. Insisting on the applicant’s “criminal history” see paragraph 236. This is sufficient reason to consider the present judgment null and void for being based on false factual representations with a decisive influence on the findings. Rule 80 of the Rules of Court is designed precisely for these types of serious errors.

[301] Paragraph 157 of the judgment.

[302] Paragraph 190 of the judgment.

[303] Paragraph 215 of the judgment.

[304] Paragraph 227 of the judgment.

[305] ^. Paragraph 236 of the judgment, which copies the statement of the Government, see paragraph 195.

[306] Bergmann , cited above, §§ 175, 181 and 182. See also the Ilnseher chamber judgment, § 81.

[307] Paragraph 236 of the judgment.

[308] Paragraph 228 of the judgment.

[309] The draft law, which distinguished five groups of “ Gemeinschaftfremden ”, namely the “ Versager ”, the “ Tunichtgute und Schmarotzer ”, the “ Taugenichtse ”, the “ Störenfriede ” and the “ gemeinschaftfeindliche Verbrecher und Neigungsverbrecher ”, never came into effect. The Hang- und Neigungsverbrecher were precisely those that were already targeted by preventive detention.

[310] ^. See “Begründung des Entwurfs eines Gemeinschaftsfremdengesetzes”, in Schumann and Wapler, Erziehen und Strafen, Bessern und Bewahren, Entwicklungen und Diskussionen im Jugendrecht im 20. Jahrhundert , 2017, p. 113, footnote 164.

[311] Paragraph 157 of the judgment.

[312] Müller v. Germany (dec.) , no. 264/13, §§ 20, 40, 60 and 61, 10 February 2015, where the Court differentiates between retrospective and subsequent preventive detention. By using the same word, “subsequent”, for the nachträgliche preventive detention, the majority put an end to that linguistic distinction.

[313] Paragraph 105 of the judgment.

[314] M. v. Germany , cited above, § 100.

[315] Article 7(2) of the Juvenile Courts Act (Judgment, §§ 54-60).

[316] ^. The mere fact that a trial judge has made previous decisions concerning the same offence cannot be held as in itself justifying fears as to his or her impartiality (for example, Romero Martin v. Spain (dec.) , no. 32045/03, 12 June 2006 concerning pre-trial decisions; Ringeisen v. Austria , judgment of 16 July 1971, Series A no. 13, p. 40, § 97, concerning the situation of judges to whom a case was remitted after a decision had been set aside or quashed by a higher court; Thomann v. Switzerland , judgment of 10 June 1996, Reports 1996 ‑ III, pp. 815-816, §§ 35-36 concerning the retrial of an accused convicted in absentia; and Craxi III v. Italy (dec.) , no. 63226/00, 14 June 2001, concerning the situation of judges having participated in proceedings against co-offenders).

[317] Mutatis mutandis , Gómez de Liaño y Botella v. Spain , no. 21369/04, §§ 67-72, 22 July 2008.

[318] Paragraph 13 of the judgment.

[319] Paragraphs 32 and 42 of the judgment.

[320] Paragraphs 166 and 181 of the judgment.

[321] It would have been useful to consider the remarkable empirical work done by Axel Dessecker, “Empirische Erkentnisse zur Entwicklung der Sicherungsverwahrung: Bestandaufnahme und neue Daten”, in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0 , Baden-Baden: Nomos, 2017, 11-34; Nicole Ansorge, Bericht über die 5. Erhebung zur länderübergreifenden Bestandsaufnahme der Situation des Vollzugs der Sicherungsverwahrung , Hannover, Niedersächsisches Justizministerium, 2014; Jutta Elz, Rückwirkungsverbot und Sicherungsverwahrung. Rechtliche und praktische Konsequenzen aus dem Kammerurteil des Europäischen Gerichtshofs für Menschenrechte im Fall M./.Deutschland , Wiesbaden, 2014; Tillmann Bartsch, Sicherungsverwahrung: Recht, Vollzug, aktuelle Probleme , Baden-Baden, 2010.

[322] Paragraphs 44 and 45 of the judgment.

[323] Paragraph 216 of the judgment.

[324] Bergmann , cited above, §§ 14 and 34.

[325] Paragraphs 47, 81 and 221 of the judgment.

[326] Paragraph 223 of the judgment.

[327] Vinter and Others v. the United Kingdom , nos. 66069/09, 130/10 and 3896/10, § 77, 9 July 2013, referring to “sentence plans” in Rule 103 of the European Prison Rules.

[328] Ibid ., § 79, referring to Rules 24 and 62 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) on treating any physical or mental defects which might hamper rehabilitation.

[329] Murray v. the Netherlands (GC) , no. 10511/10, 26 April 2016. See also my separate opinion joined in this case, as well as the one in Tautkus v. Lithuania , no. 29474/09, 27 November 2011, and my joint opinion with Judge Turkovic, in Khoroshenko v. Russia (GC) , no. 41418/04, 30 June 2015.

[330] Paragraph 234 of the judgment.

[331] BVerfGE 128, 326, § 101.

[332] BverfGE 128, 326, §§ 130 and 173. Going admittedly beyond the petita of this case, the Constitutional Court gave its “green light” to the political choice made by the legislator in the 2011 Therapy Placement Act. Later on, this anticipated approval of the said Act was confirmed by decision of 11 July 2013 (BVerfG 2 BvR 2302/11, 2 BvR 1279/12 ( Zweiter Senat )).

[333] The image comes from Michael Bock and Sebastian Sobota, “Sicherungsverwahrung: Das Bundesverfassungsgericht als Erfüllungsgehilfe eines gehetzten Gesetzgebers?” (2012) Neue Kriminalpolitik 106.

[334] BVerfGE 111, 307, § 33.

[335] See my text “Ein unausrottbares Missverständnis...“, cited above.

[336] BVerfG 111, 307, § 62.

[337] Michael Bock and Sebastian Sobota, “Sicherungsverwahrung: Das Bundesverfassungsgericht als Erfüllungsgehilfe eines gehetzten Gesetzgebers?”, cited above.