Post-sentence preventive detention and the no punishment without law principle: legal and practical consequences of European Court of Human Rights case law (M. ./. Germany)
Project date range: 2010 – 2014
Description
In 1998, legislation that confined post-sentence preventive detention to a period not exceeding ten years was repealed in Germany. In 2010, the European Court of Human Rights (ECtHR) found that the extension of preventive detention beyond the period of ten years amounted to a retrospective extension of a penalty. The ECtHR was not convinced there was a strict separation of imprisonment sentences and post-sentence preventive detention within the prison system and held that preventive detention, as it was then implemented in Germany, was a form of criminal punishment.
Only a few prisoners were released in the first months after the judgment had become final. On the federal level, the law was reviewed in the beginning of 2011. In May 2011, the Federal Constitutional Court pronounced a preliminary verdict on post-sentence preventive detention. Revised legislation had to meet the constitutional requirement of establishing a clear difference between preventive detention and sentences of imprisonment.
The project focused on releases from post-sentence preventive detention in several phases and on their justification. The situation of ex-prisoners was described in terms of their accommodation, employment and social contacts, as well as offender management and probation. As the Federal Constitutional Court had ruled preventive detention to be ‘oriented to liberty and directed to therapeutic treatment’, aspects of treatment and measures to relax the conditions of detention were also studied.
Methods
The study subjects were defined as those 84 prisoners who had been sentenced for a crime committed before 1998 and who were in preventive detention for more than ten years as of 31 December 2010. Case files of the prison service were analysed. Probation officers involved in the supervision of ex-prisoners were surveyed by a questionnaire.
Publications
- Elz, Jutta (2014). Rückwirkungsverbot und Sicherungsverwahrung: rechtliche und praktische Konsequenzen aus dem Kammerurteil des Europäischen Gerichtshofs für Menschenrechte im Fall M. ./. Deutschland. Wiesbaden: KrimZ. (Kriminologie und Praxis (KuP); Vol. 66)
- Mandera, Anna (2014). Führungsaufsicht bei ehemaligen Sicherungsverwahrten. Folgen des Urteils des Europäischen Gerichtshofs für Menschenrechte im Fall M. ./. Deutschland (BM-Online ; Vol. 2).
Contact
Jutta Elz