(July 15, 2011) In Germany, dangerous criminals may be kept under detention after they have served their prison sentences, if there is reason to fear that they would commit further offenses after being released. This type of preventive detention is governed by sections 66, 66a, and 66b of the Penal Code (Strafgesetzbuch, repromulgated Nov. 13, 1998, BUNDESGESETZBLATT I at 3322, as amended; German Criminal Code [English translation], Ministry of Justice website (last visited July 11, 2011)), and it has led to much controversy since its original enactment in 1933 (Frieder Dünkel & Dirk van Zyl Smit, Preventive Detention of Dangerous Offenders Re-Examined, 5 GERMAN LAW JOURNAL, No. 6 (2004)).
Most recently, the Federal Constitutional Court (FCC) ruled on a case of this type of detention on June 8, 2011 (Docket No. 2 BvR 2846/09; Press Release No. 31/2011, Erfolgreiche Verfassungsbeschwerde gegen nachträgliche Anordnung der Sicherungsverwahrung (June 28, 2011) [select by date].) In this decision, the FCC held that a court order of post-punishment detention was unconstitutional, and the lower court had to reevaluate the case in the light of the FCC's prior landmark decision of May 4, 2011 (Docket No. 2 BvR 2365/09; Press Release No. 31/2011, Provisions on Preventive Detention Unconstitutional [in German] (May 4, 2011)).
In the May 4, 2011, decision, the FCC held that the current provisions of sections 66-66b of the Penal Code are unconstitutional and need to be reformed by the legislature by May 31, 2013. The current legislation falls short of a constitutional standard by allowing post-punishment detention to be like a continuation of the prison sentence, instead of providing more therapy and an expectation of future liberty. The decision has already had a major impact on the administration of justice in the German states where new facilities are being built to meet constitutional standards and detained offenders have their cases reviewed (Sicherungsverwahrung, SPIEGEL-ONLINE (last visited July 11, 2011)).
This May decision of the FCC is also remarkable for the Court's consideration of the human rights standards of the European Court of Human Rights. On December 17, 2009, the European Court of Human Rights held that the German preventive detention of offenders who had served their prison sentences violated European human rights standards for, among other reasons, being a prolongation of their imprisonment (Case of M. v Germany, App. No. 19359/04 (last visited July 12, 2011)). The FCC reiterated its often stated position that the decisions of the European Court of Human Rights serve to interpret the German Constitution, and they must be given due consideration unless they conflict with German constitutional standards.
The detention of dangerous offenders after their release from prison is the only form of preventive detention that exists in Germany. Suspected terrorists cannot be detained for preventive reasons. Their apprehension and detention is governed by the same standards of due process that apply in all pre-trial situations. Accordingly, they can be detained only if a judicial warrant indicates that there is probable cause that they have committed an offense. (See Stella Burch Elias, Rethinking “Preventive Detention” from a Comparative Perspective: Three Frameworks for Detaining Terrorist Suspects, 41 COLUMBIA HUMAN RIGHTS LAW REVIEW 98 (2009).)