Which because of several serious sex offenses, applies in particular of sexual abuse of children and rape, convicted complainant with his complaint against his or her placement in preventive detention on the occasion of his recent conviction on 02.02.1990 for attempted rape and murder retrospectively according to § 66b II StGB been arranged. With regard to the interim final ruling of the ECtHR 17.12.2009, he requested that the enforcement of the measure by way of interim relief, acc. § 32 Law on the FCC to stay. The 2nd
Chamber of the Second Senate of the Federal Constitutional Court rejected the request for a temporary injunction. By the Judgement of the ECHR to secure custody of law raised questions need to be resolved 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 to a heavier, as the time for 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 the new rules of § 67 d III of the Criminal Code in accordance with Article 2 in conjunction with Article 20 II GG GG III controlled constitutional legitimate bid would, as would lead the retroactive abolition of the maximum period of preventive detention only constitutionally permissible to a spurious reaction. 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.
The resulting by the decision of the ECHR legal questions, the Federal Constitutional Court first clarified in a subsequent main proceedings because the proceedings for an interim injunction reasons that are put forward for the unconstitutionality of the challenged public authority, in principle, to be disregarded have.
The Constitutional Court may in case of dispute a state with interim measures acc. § 32 Law on the FCC to settle pending if this is necessary to avert serious harm or from another major reason for the common good urgency. Here are the episodes that would occur if a temporary restraining order was not, the constitutional complaint, but success would have against the disadvantages to consider that would follow if the requested interim measures would be adopted, the constitutional complaint would fail but success.
This impact assessment in this case leads to the conclusion that an immediate release of the complainant is not required.
If the temporary injunction not issued, the constitutional complaint, but later had success, although the complainant would arise in the meantime, through the implementation of preventive detention a grave, irreparable loss of personal freedom.
The district court, however, on the basis of two psychiatric expert's report set out to understand that the complainant had a penchant for serious sexual offenses (sexual abuse of children, rape) and therefore commit in the event of his release will most likely corresponding offenses.
Given the seriousness of the threat of crime so outweighs the security interest of the general interest of the complainant to recover his personal freedom.
Conclusion: In his previously issued orders of 22.12.2009 (2 BvR 2365/09) and 19.05.2010 (2 BvR 769/10), the Federal Constitutional Court also had requests for an interim injunction, to immediate dismissal from the respective prisons were directed, declined with the same effect assessment and justification.
The Constitutional Court's ruling in this decision that will be clarified by the Chamber Judgement of the ECHR in relation to the ruling of the Constitutional Court of 05/02/2004 (BvR 2029/01) legal issues raised in the constitutional complaint procedure. Thus, the Court reaffirmed that his line, incurred by the verdict of the ECHR rights to want to resolve in a main action.
BVerfG Dec. v. 30.06.2010 - 2 BvR 571/10
Federal Constitutional Court press release No No 49/2010 dated 07/13/2010
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