Wed, Jan. 20, 2016

Preventive Detention in German Law

JBL - Washington.   The European Court of Human Rights in Strasbourg backed preventive detention under German law in a decision published January 7, 2016 in Bergmann vs. Germany, application no. 23279/14. The justices ruled that national authorities may retrospectively extend the preventive detention of a dangerous offender like Mr. Bergmann.

In 2014, Bergmann alleged that the retrospective extension of his preventive detention beyond the former statutory ten-year maximum term violated his right to liberty under Article 5 of the European Convention of Human Rights and the prohibition on retroactive punishment under Article 7 of the European Convention of Human Rights.

Bergmann had been convicted of several offenses, including sexual assault, attempted rape and attempted murder. He was sentenced to several years of prison. The sentencing court ordered his preventive detention, finding that he suffered from a personality disorder with a propensity to commit serious offenses, which made him dangerous to the public when he was under the influence of alcohol. Bergmann served his sentence, and was placed in preventive detention, for which he was held in a wing of a prison. The courts responsible for the execution of sentences ordered that his preventive detention be extended, which became retroactive applications of the amended detention statute.

In a case of first impression, the justices examined the compatibility of the Convention with a convicted offender's preventive detention for therapeutic treatment purposes under the new legal framework in §66 of the Criminal Code which governs preventive detention in Germany. The Court ruled that the statute does not violate Article 5 or Article 7 of the European Convention of Human Rights. It concluded that Mr. Bergmann's preventive detention is justified under Article 5 as the detention of a person of unsound mind and that the preventive detention does not constitute a penalty under Article 7.

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