D. The complainant is for over 10 years in preventive detention. He was convicted in 1996, serious charges including attempted trafficking, assault, false imprisonment, sexual assault and promoting prostitution, criminal court. At the same time, preventive detention was ordered. Against the order of the continuation of preventive detention, the complainant has a constitutional complaint collected and simultaneously filed an application for an interim injunction, with the aim to release him immediately. In support of his application, he relied, inter alia, that, since final 10/05/2010, Appeal Judgement of the ECHR of 17.12.2009.
According to § 32 Law on the FCC rules, the Federal Constitutional Court in case of dispute, a state with provisional interim measures, if this is necessary to avert serious harm or from another major reason for the common good urgency. Even in a proceeding on a constitutional complaint, an interim arrangement to be adopted. Here are the reasons that are argued for the unconstitutionality of the challenged public authority, in principle, to be disregarded.
is different only when the constitutional complaint proves to be a priori inadmissible or manifestly unfounded. In an open end of the constitutional complaint procedure must be the Federal Constitutional Court, however, the consequences that would result if an injunction was issued not, the constitutional complaint, but success would have against the disadvantages weigh that would follow if the requested interim measures would be adopted, the constitutional complaint, but the success would fail.
An application for the interim order remains, according to the Federal Constitutional Court, without due consideration of the necessary consequence of success.
fared no proven the interim order, the constitutional complaint, but later founded, the complainant would arise by continued detention of serious and irreparable loss of personal freedom. Personal liberty, acc. Article 2 II 2 Basic Law has, under the constitutionally guaranteed rights of particular importance.
Was the interim measures meadow, but the Constitutional Court, the constitutional complaint as unfounded later, costs would, however, also serious disadvantages. The specialized courts have affirmed the risk that the business for over 10 years in preventive detention located complainant, the 1996 criminal court been convicted was due to his propensity to commit serious crimes will be affected by what his victims emotionally or physically difficult. The specialized courts have so far off to the threat of crime of trafficking for sexual exploitation. This is a reasonable assumption to understand. In view of this, and given the seriousness of the threat of acts of the security interests of the public here outweighs the liberty right of Article 2 II 2 Basic Law of the complainant. The
by that following rejection of the request for referral to the Grand Chamber on 10/05/2010 is now final, Chamber Judgement of the ECHR of 17.12.2009 (Application No. 19359/04) to preventive detention raised legal issues to be clarified in the proceedings.
the retroactive abolition of the maximum period of preventive detention was the view of the ECHR by any condition in Article 5 paragraph 1 a), c), e) ECHR justified reasons mentioned. It would be contrary to Article 5 § 1 ECHR. Moreover, contrary to subsequent preventive detention, even for those who have committed their Anlasstat offenders before the entry into force of the law introducing the subsequent preventive detention on 29.07.2004, I of Article 7 ECHR. After all, they were with the subsequent order of preventive detention more severe than at the time the criminal offense was "punishment" imposed. Preventive detention was understood in this context as an "additional punishment" ("additional punishment"). This, the ECHR had established with their unlimited duration, which develops unique deterrent effect. The court qualified the preventive detention also recognized as one of the most difficult, if not the most severe sanction of the Criminal Code. The Constitutional Court had previously accepted the performing preventive detention no penalty because it had no sanction in character. It was also noted that would implement the new Criminal Code § 67 d III, in accordance with Article 2 in conjunction with Article 20 II GG GG III controlled constitutional legitimate bid because the retroactive abolition of the maximum preventive detention only constitutionally permissible to a spurious reaction leads. By § 67 StGB d III only person affected retroactively, against which a preventive detention has been executed at the time the law was changed already.
Conclusion: With its previously issued decision of 22.12.2009 (2 BvR 2365/09) had the Constitutional Court rejected also submit an application for an interim injunction, which was addressed on an immediate release from prison, with the same effect assessment and justification. The court also decided that the by the Chamber Judgement of the ECHR in relation to the ruling of the Constitutional Court of 05/02/2004 (BvR 2029/01) raised will be to clarify legal issues in the constitutional complaint procedure. The Constitutional Court has so
here again reiterated his line to those who want to resolve by the ruling of the ECHR rights issues arising in the main action. The immediate release of a complainant who is here made to the weighing of consequences, at least not necessary.
BVerfG v. 19.05.2010 - 2 BvR 769/10
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