Indefinite Sentencing in Criminal Law: Criminal in Sentencing Indefinite Budapest

CEU eTD Collection Hungary 1051 Central European University KárolyPROFESSOR: Bárd Dr. Prof. Liberty Right COURSE: to LL.M.Long THESIS Indefinite Sentencing in Criminal Law: Criminal in Sentencing Indefinite Budapest,

A Human Rights Perspective Rights AHuman

Ná dor utca9.

byLévai Marianna Klaudia

CEU eTD Collection 4. 3. 2. 1. Introduction Executive Summary Content of Table

perspective European from the leading detention judgment concerning preventive 4.1. M.v.Germany: The 3.2. The domestic case history public protection ofimprisonment for 3.1. The legal roller IPP2.2. vs.Human rights 2.1. Preventive vs.Human rights detention Imprisonment1.2 protection public (IPP) for 1.1. Preventive orSicherungsverwahrung detention The analysis and critique analysis theThe the of case of law Eur 3.2.3. Obeyingof thelaw letter vs.Ensuring rights the effectively Lords3.2.2. HouseIPP of prisoners serving for brings norelief 3.2.1. The beginning: onthe leadingIPP Divergent conclusions case of 3.1.3. Judgmentoverruled: TheKarlsruhe dialogueand between Strasbourg judgment M. the of implementation The decision: contradicting a by generated dilemma The 3.1.2. 3.1.1. T dialogue Courts in Indefinite sentencing vs.Human rights on preventive law The imprisonment detentionprotection and for public he well past behindthe

......

...... - coaster inthe ofpreventiveGerman detention system

......

...... - known M. decision atknown M.decision the domestic level ......

...... – – ...... A theoretical pers i

The U.K.The solution ...... – ......

As in the German criminal law systemcriminal As inthe German opean Court of Human Courtopean of Rights ...... pective

......

43 43 38 37 36 36 33 29 28 27 27 24 11 11 . iii

8 5 4 1

CEU eTD Collection Bibliography Conclusion 6. sentencing 5.

6.2. SayingIPP? Goodbye to 6.1 5.2. Reports ontheinstitution of imprisonmentfor public protection 5.1. Reports ontheinstitution of preventive detention IPPon outsid argument the of Application 4.2. A follow up A follow indefinite on agencies monitoring rights human of position The Judgments: Civil Imprisonment4.2.3. public p for example:4.2.2. Apositive Belgium Van Droogenbroeck v. authorization4.2.1. Expired for detention:v.Norway Eriksen 4.1.3. Afollow involved 4.1.2. The argument:ofthe theextension causalWhen maximumperiod relationship NOT is involved is period maximum the of extension the When argument: relationship causal The 4.1.1. . The developed ambiguous by Germany solution

......

...... - up: The cases corroborating thefindings ofthe M.judgment ......

......

...... rotection: James, Wells and Lee and Wells rotection: James, v.theU.K...... e the scope of preventive detention with a special focus focus special a with detention preventive of scope the e ii

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76 73 69 65 65 61 57 57 54 53 52 52 51 46 44

CEU eTD Collection comingjurisdictions offers approaches different analyze T societ to agencies law case the alongside evolving induces detention preventive pre After preventive of institution the on detention. focus special a with examining is thesis this perspectives rights human from issues serious raises individual the of rights the safeguarding or criminals in the satisfying of dilemma undesired The uncontrolled confinements terrorists ofan of potential and indefinite insanctions character. in resulted and individual the of interest suppressed the to led has security and cen for unshakeable be seemedto that theory law criminal in securitate?” pro dubio „In he scrutinized jurisdictions scrutinized he y valuable valuable .

senting the law on the institutions, t institutions, the on law the senting

underpin deductions later later h ise te researcher the issues the to the centerjudgments effective reports and findmore to of solutions. –

even if from a negative point of view of point negative a from if even

a new concept evolving throughout the past decades indicates a shift a indicates decades past the throughout evolving concept new a

(Germany, towards the thesis the towards from a gener a from .

The thesis also reveals the position of human r human of position the reveals also thesis The Executive Summary

the al aspect which is followed by followed is which aspect al U.K., ECtHR) U.K., he study first discusses the human rights problem rights human the discusses first study he terest of society to be protected from dangerous dangerous from protected be to society of terest iii

’ about concerned is

problem ,

the

provide turies. The demand for public safety safety public for demand The turies. research ,

which might warn might which

a great basis to present and present to basis great a also reveals reveals by the sphere of civil civil of sphere the by

comparative chapter comparative

their defects their ights

monit and enable and oring and s s

CEU eTD Collection al. et Smilansky Saul Statman, New; Daniel Christopher L.Lippke, Richard 3 (Appellant) Lee)(FC) (Respondent) Justice for State (2012); 57877/09 no: Application (2011); 30493/04 2 Rights Human on 1 calledgiven whichlessattention sofar. preventivehas detention been the disclose to is myintent area, this of aspects some with dealing emergedalready has literature great a Although attention dedicated by issue tothis academic the community. and international both penalties T time, an for liberty their from criminals deprive to designed are institutions ma of element thesi this law criminal of segment special a Indefinitesentences, increasing the with accords numberstandards. of human rights that way a in safeguarded and up built not if attack for surface provid therefore and lives human on impact greatest the impose to capacity the has it researchersrights human since of subjects ‘popular’ amongbeenlongthe has law Criminal

See Merkel, Grischa: Grischa: Merkel, See E.g. Michael Pösl, Kirstin Drenkhahn, Christopher Michaelson, Ben Power, Christopher Rose, Grischa Merkel, Merkel, Grischa Rose, Christopher Power, Ben Michaelson, Christopher Drenkhahn, Kirstin Pösl, Michael E.g. he emergence he .. . . emn, CR Apiain no: Application ECHR, Germany, v. M. E.g.

in someoccasions ontheb

from human rights perspectives rights human from 6587/04 (2011); (2011); 6587/04 ny European countries’ criminal countries’ European ny , 11 German11 1046 Law, Journal German Federal Constitutional Court ( Court Constitutional Federal German of human rights human of ok . emn, CR Apiain no: Application ECHR, Germany, v. Mork , ua rgt polm arising problems rights human UK House o House UK Incompatible Contrasts? Contrasts? Incompatible

national courts national v .

ae,Wlsad e v Lee and Wells James, James (FC) (Appellant) (formerly Walker and another) R (on the application of of application the (on R another) and Walker (formerly (Appellant) (FC) James f Lords, Lords, f

asis ofmerefuture predictions. however

6 May2009. 6 2

indicates the significance of the probl the of significance the indicates - 1066 (2010) 1047. at 1066 – . Introduction 1935 started to raise serious doubts doubts serious raise to started

Preventive Detention in Germany and the European Convention European the and Germany in Detention Preventive The The /4 (2009); 9/04

increasing number of of number increasing sanction sanction 1 2 BvR 2029/01, 2 BvR 571/10) 2004, 2011; 2011; 2004, 571/10) BvR 2 2029/01, BvR 2

The U.K. The

n oncin with connection in

31047/04 (2011); (2011); 31047/04 system since the 1930s. the since system

cmt v Gray EH, plcto no: Application ECHR, Germany, v. Schmitz

CR Apiain no: Application ECHR, , 3

s will focus on, has beenhas on, focus will s recent recent

a Haidn v. Germany, ECHR, ECHR, Germany, v. Haidn regarding these kinds of of kinds these regarding undetermined period of period undetermined

parti judicial decisions of of decisions judicial em and justifies the justifies and em cula 1 25119/09 57715/0 25119/09

These criminal criminal These s potential a es r punishment punishment r Secretary of of Secretary

a stable stable a 9 CEU eTD Collection terms/names. different legal under the U.K. and Germany 4 presentedgene inthe the and jurisdictions domestic ge The a are penalti that matters rights human those about analysis detailed a present to aim the Following presentation oftheprovideoverview thethesis legalwill an the has which background re p public for imprisonment beginning the At standards fiel I problem. t concerns as differences and similarities the illustrating system ana Rights Human of Court European the of viewpoint the from also thes The or cannot EC thesi this articles, most Unlike

t is t The institutions are substantially similar legal s legal similar substantially are institutions The gulation also will respectively and t ad u t te at ht h C the that fact the to due and d lyzing these lyzing HR’s decisions but will also investigate to what ex what to investigate also will but decisions HR’s also es character. ofan undetermined neral part will be followed by followedbe will part neral , and theU , and is will analyze the institution the analyze will is inevitable to include the case law of the ECtHR due to its recent activity in the relevant the in activityrecent its to due ECtHR the of law case the include to inevitable

meet the human rightsmeet requirements. the human and also hasthecompetenceand transform tocontrol domestic legislations.

jurisdictions is that Germany, which still has still which Germany, that is jurisdictions . K ,

. ,

t ral e hss wil thesis he which which

part of thepaper. rotection already rescinded the institution, can beinstitution, for an‘coupling’ interesting already rescinded the

’ on o ve wl nt ny ocnrt o te well the on concentrate only not will view of point s’ ECtHR ECtHR itoue h institution the introduce l

4 reveal the relevant comparative chaptercomparative ut a a ey nleta rl i stig p international up setting in role influential very a has ourt

rm h pit f iw f h Gra ad h U the and German the of view of point the from

in the context of the German and U and German the of context the in anctions, however they have been introduced to the legal system of of system legal the to introduced been have they however anctions,

with feedbacks given continuously to the problems problems the to continuously given feedbacks with

legal development tent this special s special this tent s

e osbe prahs o h thesis’ the to approaches possible he evolving alongside the case law of the the ofcase law the alongside evolving preventive detention preventive s

f rvnie d preventive of

(ECtHR) anction s .

. K .

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CEU eTD Collection theproblem. to solutions each of consequences the identify deductions, researcher lega different the instruments, chosen the of lens the Through

anticipate s

to see a wide horizon that will enable the thesis to make valuable valuable make to thesis the enable will that horizon wide a see to

system’s approach and even to offer various various offer to even and approach system’s l frameworks and the case law, the law, case the and frameworks l CEU eTD Collection conducted bedefinite isto servedafter aandwhich terma prison trial sentence. form third e covered not are tribunal a before heard be to prospect Those research. the of part a constitute with not does measure the of andlawfulness the challenge to opportunity decision judicial a without time of period indefinite an for terror on war of name the in detained are suspects where sense the in liberty of deprivation Therefore detention. these that highlight to are important institutions is it regulations, specific the to turning before However, on themereaim. basis oftheir time of period indeterminate an they Although countries. same the d Preventive and also relevant thebasis on ofthe caselaw. perspective general a from both chapters following the in provided analysis rights human the of indefinit T he intent of this introductory c introductory this of intent he

pre e sanctions o penal institutions that have been in existence in been have that institutions penal 1.

- of preventive detention when it is applied as a sanction by a judicial body after body judicial a by sanction a as applied is it when detention preventive of ra dtnin ae where cases detention trial

etentio The law on law The

not to be confused with other kind of measures known also as preventive preventive as also known measures of kind other with confused be to not n

f the scrutinizedjurisdictions f the (Germany)

have the have

preventive imprisonment detention protection and for public

, their presence in several criminal systems is systems criminal several in presence their ,

hapter is to present and comment on the legal rulings covering covering rulings legal the on comment and present to is hapter and

ambiguous character of depriving criminals of thei of criminals depriving of character ambiguous imprisonment for public p public for imprisonment

epe r dtie fr rvnie upss u wt a with but purposes preventive for detained are people

which isinevitable for clear understanding the for decades for ither. The thesis’ focus is limited to limited is focus thesis’ The ither. rotection (UK) rotection in different forms different in still justified still

are substantially substantially r liberty r in v in u the out having having

arious today

for for

a CEU eTD Collection 9 law, rights human European of shadow the in Germany 8 7 Germany, and States 6 105 5 sentence prison long an of the of provisions the Under in increasingrate prisoner low relatively amended 1933 in system legal German the into introduced been had detention Preventive individual the confinement of interest suppressed the to led has security present still is appearance the radical, that not though Today, Europe North the in laws and movement eugenic manifested people” of groups “certain tendenc this behind reason The centuries. for unshakeable be to seemed that theory law criminal in shift securitate?” pro dubio „In system 1.1.

Ge ü und Gewohnheitsverbrecher gefährliche gegen Gesetz Kelly, Meaghan: Meaghan: Kelly, See Braum, Stefan: Stefan: Braum, - rman Criminal Code, Section 66. Section Code, Criminal rman 108 (2004) 105 at (2004) 108 Preventive or S detention Drenkhahn, Kirstin; Morganstern, Christine; van Zyl Smit, Dirk Smit, Zyl van Christine; Morganstern, Kirstin; Drenkhahn, intentional offence intentional .

, s ega Kly ugss i te long the is suggests, Kelly Meaghan as y, 6

multiple times times multiple s

8 of potential terroristsof and potential insanc

at the beginning the at ahrgih Sceugvrarn: n ui po securitate?, pro dubio In Sicherungsverwahrung: Nachträgliche Lock them up up them Lock 39 Georgetown Journal of International Law 551 (2008) at 552 (2008) Law 551 International of Georgetown 39 Journal .

. A further condition is that the delinquent had been sentenced two times two sentenced been had delinquent the that is condition further A . for which the perpetrator perpetrator the which for .

from 1969 onwards. Although the number of detainees had been been had detainees of number the Although onwards. 1969 from 5

-- German Ciminal German –

and throw away the key: The preventive detention of sex offenders in the United the in offenders sex of detention preventive The key: the away throw and

nw ocp eovn truhu te at eae idcts a indicates decades past the throughout evolving concept new a

icherungsverwahrung , a change in change a , in the past past the in - the direction of criminal poli criminalof direction the mrcn otnn and continent American

Code

3 ofan indefinite character. tions ber Maßregeln der Besserung und Sicherung und Besserung der Maßregeln ber 5 Criminal167 Review Law

in the segregation of Japanese Americans, the Americans, Japanese of segregation the in 9 had been punished with punished been had

Sicherung - standing, enormous fear of society from from society of fear enormous standing, –

A s in the Germans in criminal law : What is in a name? Preventive detention in in detention Preventive name? a in is What . T . s verwahrung verwahrung he demand for public safety and safety public for demand he n rsle i uncontrolled in resulted and - -

n h Nz Holo Nazi the in 554 187 4 Zeitschrift für Rechtspolitik Rechtspolitik für Zeitschrift 4 cy in the 1990s resulted1990s the in cy .

(2012) at 168. at (2012)

is applicable in case in applicable is an

at 7

least t least and had been had and

as in caust wo - year CEU eTD Collection 15 14 13 12 11 10 so of idea The 2004. in force into came Code Penal German the to amendment drastic more A month beforethan six first date possible of the parole poten the indicated judgment it that reserved called sanction the of changes significant through gone has legislation The years imprisonment year offences intentional three committed had delinquent the but detention t regulation the to According d moreover that offences general the to test subjective preven and correction of measure served have must delinquent before, angerousness the perpetrator of

German Criminal Code, Section 66a. §. 66a. Section Code, Criminal German § (2). 66. Section Code, Criminal German Ibid. § (1). 66. Section Code, Criminal German Ibid. v.49 Germany M. See: - called

subtle .

14 enabled

“ at least to one year imprisonment in each case each in yearimprisonment one to least at retrospective

“ net of the law however does not end here. end not does however law the of net eiu eooi damage economic serious have have which requires which

public the ors o moe h punishment the impose to courts each each result

- ” 51. §. 51. /subsequent . 12

and ed For

an at least two yea two least at an tiality of preventive detention preventive of tiality , on the basis of the perpetrator’spro the of basis the on , he sanction is also applicable if there is no previous conviction or or conviction previous no is there if applicable also is sanction he n sros mtoa tam o pyia ijr t te victim the to injury physical or trauma emotional “serious in

ugn ti ciein h at ie seil infcne to significance special gives act the criterion this judging h ageae rsn em moe a imposed term prison aggregate the /deferred . 13

tion preventive detention was detention preventive

”

. ” 11 preventive detention in 2002. It was novel in the sense the in novel was It 2002. in detention preventive

a as sre s bss for basis a as serve also can h ms dbos atr oee i hde in hidden is however factor dubious most The r long prison sentence or detention detention or sentence prison long r 6 . The first development appeared in a new for new a in appeared development first The .

. 15 ” retrospectively

As indicated above the trend of criminal of trend the above indicated As 10

for an intentional offence intentional an for

an born at born d th d e sanction was sanction e pensity, that he that pensity, tis mnmm f three of minimum a ttains the rvdd ht h original the that provided punished with punished

level of the Länder. the of level establishing the the establishing

ordered no later later no ordered “ “ pose . pursuant to a a to pursuant

Besides, the Besides, at least one least at

a dan a

those

ger ger the the

In m ” , CEU eTD Collection 16 which problems bepresented will in proceeding criminal a of course the to threat t that opinion the of am I the other conditionsinArticle listed 66of indica “ that provided sentence prison original the of expiration the year imprisonment include preconditions The judgment. original the in indicated not was it if even detention preventive of allowed regulation new the institution the of form previous the to comparison

German Criminal Code, Section 66b. Section Code, Criminal German ted d a limit limit a d

that the convicted person presents a significant danger to the general public general the to danger significant a presents person convicted the that

niiuls ua rgt. Obviousl rights. human individual’s in subject namely th namely subject in could entail the sanction. Besides, could Besides, entail thesanction.

he enumerated forms enumerated he

s §.

the

details throughout details at

more issues it can raise from raise can it issues more

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7 of

, h ltr snto is sanction a later the y, preven the

types of acts of types the f detention could detention tive detention detention tive ollowing chapter evidence came to light which which light to came evidence punishable

ua ihs perspective rights human const only imposedbefore be . 16 s

itute an inc an itute determined in the the in determined for the imposition imposition the for with at least one one least at with [ … reasing ]

and s ,

CEU eTD Collection Law303 ofCriminal Christopher: Rose, In: http:/ & Wales'. England 17 a attaining acts onlyspecific that provides law the Here option. an becomeIPP of application the dangerousness of requirement the except sanctions both of imposition The possibility ofparole latter the IPP and detention preventive both Although become inevitable. th up live not did endeavor the Since 2008. effectrecognizedthe legislationtotackle wastheby by problem whichthe Actamending tried in undesired This population. prison of growth enormous the in resulted it overinclusive, being aim original the of disregard the to led had thereport. in documenteventually ignoringbuilt this This rolled important away safeguards from instit the Albeit 2005. in force into came and 2003 Act Justice Criminal the by introduced was IPP psychological damages orphysical re or response a similar: somewhat is U the in development recent relatively a preventiv to opposed As 1.2 J.

Hallida Imprisonment for public p Imprisonment for public /webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.gov.uk/documents/halliday similarities similarities to eaae fro emanates ution y

hrs infcn traits significant shares et al et : Available at: Available The Halliday Report Report Halliday The start - 313 (2012) at 304. at (2012) 313

RIP the IPP: A Look Back at the Sentence of Imprisonment for Public Protection Public for Imprisonment of Sentence the at Back Look A IPP: the RIP ,

mainly reflected in the mechanism of the imposition of ofthemainly reflectedinthe mechanism imposition penalties. ih h sauoy rvso ta pocie te ey ae em fr the for terms same very the proscribes that provision statutory the with e detention the institution of imprisonment for public p public for imprisonment of institution the detention e te so the m

rotection (IPP

behind ald aldy Report Halliday called 'Making Punishments Work: A Review of the Sentencing Framework for for Framework Sentencing the of Review A Work: Punishments 'Making also . cin to action K . ih h isiuin f ie mrsnet ih the with imprisonment life of institution the with . , ’s criminal system, neverthele system, criminal ’s

namely to combat the most seri most the combat to namely

have the controversial the have epcain, h isiuins blsmn had abolishment institution’s the expectations, e ) 8 –

The U.K.The s i cesn ciiaiy leaving criminality ncreasing , 17 olution

h at hc hd en passed been had which act the

character of indefiniteness, of character that has to be met so that so met be to has that ss its object and motive and object its ss ous offenders and, by and, offenders ous - rotection (IPP) is is (IPP) rotection report itm with victims - sppu

, 76 Journal Journal 76 ,

CEU eTD Collection 18 stillis appellatebodyit the release), forto to turn beforeprisoner allowingthe expire to tariffhas dangerousness) g legal different on built not is and imprisonment another follows contrast In predict ofthe thedangerousness delinquent. interpretation this in act past The acts. future potential to connected is rather but past the in offence tried original, the with relationship strong no has therefore which sanction separate additional, an is detention preventive So perpetrator. committe act guilty the of basis the on imposed and determined is which detention, detention preventive concerns As two offenc for the new what terms which criticism heavy to subjected unreasonabl a is assumed or judge trial the by assessed be either could Dangerousness occasioned bycommission offurther by specified thehim offences” the opinion the of is court “the if IPP entail can imprisonment) years 10 least at or sentence life with (punishable level serious

Se - ction 225 of the Criminal Justice Act 2003. Act Justice ofthe Criminal 225 ction prior convic prior year long if es enumerated in a new list or the potential period of the of period potential the or list new a in enumerated es ,

ad goe t apiain I i iprat o d ta ti lgl assumption legal this that add to important is It application. its ignore and e IPP the imposition of the sanctions the following remarks have to be noted: In case of case In noted: be to have remarks following the sanctions the of imposition the

either tion for tion

IPP similarly to life imprisonment with parole, is not an auxiliary sanction which which sanction auxiliary an not is parole, with imprisonment life to similarly

the decision

was

. Although it is divided into two parts (a definite period of time called the the called time of period definite (a parts two into divided is it Although . hr i a ul rsn sentence prison full a is there

particular acts; however acts; particular imposed.

re is a significant risk to members of the public of serious harm harm serious of public the of members to risk significant a is re - maker has to consider is consider maker has to

led to t to led

he elimination of the provision the of elimination he

9 is limited to the role of suggesting or helping helping or suggesting of role the to limited is

the trial judge trial the

rcdn te xcto o preventive of execution the preceding either either a contingent, previous convictioncontingent, a might still consider the sentence sentence the consider still might .

18 tariff t tariff ons ps at n future and act (past rounds

by law provided that there that provided law by

in 2008. in hat should be a be should hat A ccording to to ccording d by the the by d t least least t

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from s h ol ad iet osqec o te at rmnl ciiy f the of activity criminal past the of consequence direct and only the is . K

a theore .

will entail serious consequences also from the point of view of the of view of point the from also consequencesserious entail will tical

, general , ua rgt ise te eate o te e the of penalties the issues rights human 10

perspective. xt of IPP of xt incomparison German toits pair. ristics of the institutions, institutions, the of ristics

the next chapter next the the united, united, the xamined xamined

’ s CEU eTD Collection Review46 Law Rights Human European 19 use its therefore and conviction a after under comes usually detention Preventive Rights. exceptio the from deducted and perspective negative a from approached concerns. without not is requirement this under cover documents somew a has everyone almost liberty About toRight liberty IPP. of context by followed be will part which first, provided be will detention problematic relationship the concerning analysis detailed a idea thesis’ the of understanding better a For 2. role ofthe from concerns criminals dangerous from society protect to chapter prove, isto th purpose thatnotwithstanding ofthis sho saying means’ the justify ends ‘the however theories, law criminal different the to according vary might law criminal in penalties of aim The

1. Stone, Richard Stone, Preventive

institution. between indefinite sentencing and human rights with a special focus on preventive preventive on focus special a with rights human and sentencing indefinite between 2. : a lot of perspectives as a consequence of which it might be w be might it which of consequence a as perspectives of lot a

Deprivation of liberty: the scope of Article 5 of the European Convention on Human Rights, Human on Convention European the of 5 Article of scope the liberty: of Deprivation detention vs.Human r detention

Indefinite

sentencing vs. s nmrtd n Art in enumerated ns

- 57 (2012) at 47. (2012) 57 ights is seemed is Art H pr ,

, uman r .

as Richard Stone Richard as 5. § 5. 11 hat clear concept however what human rights rights human what however concept clear hat

vnie eeto gvs rise gives detention eventive

uld have its limits in any jurisdictions. The The jurisdictions. any in limits its have uld . ( to be justified under this specific this under justified be to 1 of 5 ights ights )

(a) e existence of a legitimate aimaexistence legitimate of e the of the Convention the of –

A Europe t heoreti

presenting presenting points out points T he question might better be better might question he n ovnin n Human on Convention an cal p , inferences might be be might inferences , the erspective ,

since it is executed executed is it since orth rethinking the the rethinking orth

also differences in the the in differences

exception. legitimate legitimate

namely namely 1 CEU eTD Collection (2011) 20 I illusory. only is bond this that argue I still advance, in penalty the indicates judgment the cases the of most in and conviction the of result direct a is detention preventive dangerou on claimed detention undetermined additional an and conviction the between relationship any see cannot I nevertheless past, the in act guilty his of basis the on time of period certain a for imprisonment relationshi causal a is certainly there view, form basic Court Strasbourg the Unlike intheexisting rele be to considered is and investigated is imprisonment indefinite additional, the and conviction solely position, Court’s The following the in details more in chapters. presented Germany v. Haidn or Germany v. M. of cases the in as retroactivity of prohibition the as such principles against go that characteristics other i detention preventive when concerns has only but generally, penalty the the of aboutnature perspectives rights human from doubts no has Court Strasbourg the Interestingly, term ha emerged also have cases on depending variations earlier, this to referredI As though. simple that not is question The

M. v. Germany, ECHR, Application no: Application ECHR, Germany, v. M. .

built built d been extendedd beenretrospectively

of preventive detention either, when the penalty is set in the original judgment. In my my In judgment. original the in set is penalty the when either, detention preventive of upon the causal relationship reasoning in which the continuity between the the between continuity the which in reasoning relationship causal the upon vant cases.

sness. Or it might be more accurate to say that there is a relationship since since relationship a is there that say to accurate more be might it Or sness. according to which preve which to according

the t the after a change in the law law the in change a after , 20

ime when it is imposed is it when ime I do not belie not do I

19359/04 19359/04

ve the causal relationship to be to relationship causal the ve (2009); (2009); i seais hn oen i snecd to sentenced is someone when scenarios in p 12 ntive detention itself pa itself detention ntive

as a result of which of result a as Haidn v. Germany, ECHR, Application no: Application ECHR, Germany, v. Haidn

( normal, normal, deferred and deferred the institution can have more have can institution the

the the sses the test of Art of test the sses

sentence’s maximum sentence’s so strong, not in the the in not strong, so

retrospective) llusory, because a a because llusory, s paired with paired s 6587/04 6587/04 . and , 5, is 5,

CEU eTD Collection 22 21 indefinite punishments. torture, C the forecast question the on law case present the So occasions” coul and disproportionate” “grossly be to sentence the circumstances limited very in only Court the of scope the within suggestions Future be thebody’s position release future a or lackhope degrading for despite of the inhuman parole of possibility the without sentences life consider not does ECtHR the that clear the in Court the of front in times several arisen has treatment degrading inhuman, of prohibition the Although reasons. of variety a to referring this phrases ECHR The recorded among and noderogation theiuscogens from norms which allowed. is P Prohibition of eit canconviction novalidrelationship exist criminal every almost contradicts happenings past on not and predictions future on built is that conviction

oiiin of rohibition Ibid. Ibid. Kingdom, ECHR, United v. the Others Vinterand ourt will encounter an actual case in the near future, since the requirement of prohibition of of prohibition of requirement the since future, near the in case actual an encounter will ourt 89. inhuman and degrading treatment degrading and inhuman

§. law .

principl

otr i oe f h ms significant most the of one is torture torture, treatment degrading inhuman,

might be made on the basis of the mere fact that the issue of sentencing falls falls sentencing of issue the that fact mere the of basis the on made be might

ad hrfr is aiiy hl b qetoe. If questioned. be shall validity its therefore and e as regards penalti indefinite

requirement under Art under requirement

indeed indeed Application nos: Application her. . 13

s 3 and has been invoked frequently by prisoners prisoners by frequently invoked been has and 3 c

a negative answer negative a ontext of life imprisonment and imprisonment life of ontext es. seems to be a justified claim in the context of context the in claim justified a be to seems

rnils n nentoa lw since law international in principles , 21

66069/09 66069/09

d only be met in “rare and unique unique and “rare in met be only d it is still an open question wh an open isstill it ,

since the relevant test requires test relevant the since an .

d 130/10 and 3896/10 (2012). 130/10 3896/10 d and N eve rtheless it is likely that likelythat is it rtheless

there is no valid valid no is there

it has it at would become become it is is it

CEU eTD Collection Strafrechtsdogmatik fürInternationale 26 25 24 23 and rehabilitation of aim the on focus shall sentencing that implies also dignity interpretation determination position Weber’s with reasoning my foster would I infringed. dignity of indefinit concerning complaints in case the be definitely must it view my In applications. for point reference strong EC The an notturninto remain object will aand humanbeing or determination dign human to right T partBasic ofLaw the dealing rights withfundamental centers 1958 case Lüth the in interpretation own its established has Court Constitutional German The thesis ofthis the limits documents. rights human dignity human of concept The Human dignity

he Hungarian Constitutional Court Court Constitutional Hungarian he Pretty v. the United Kingdom, ECHR, Application no: 2346/02 (2002). no: 2346/02 Application ECHR, Kingdom, United Pretty v. the 64/1991. Court, Constitutional Hungarian Decisionofthe decision, Lüth Court (BvG), Constitutional GermanFederal Weber, Weber, , in which in , tHR refers to this principle as the “very essence of the Convention” the of essence “very the as principle this to refers tHR Harmut te ih o prisoners of right the ,

not subjected to other persons’ disposal persons’ other to subjected not s oehn that something as

- human dig human Michael:

ity means ity e sentences. I sentences. e

Life imprisonment and secure preventive detention: Problems and Pitfalls and Problems detention: preventive secure and imprisonment Life only will a be definitions few highlighted here. nity is explained not onlyasnot explained is nity Although

that there is a certain part of each individual’s autonomy individual’s each of part certain a is there that is present in many countries’ constitution and also and constitution countries’ many in present is

364

rehabilita serving their preventive detention sentence must be strongly strongly be must sentence detention preventive their serving argue -

371 (2006) at 368. (2006) 371 there is an ample lit ample an is there a as etbihd t on eiiin claiming definition own its established also has if autono if in n reintegration and tion 14

my or my

1 BvR400/51. 1 a right but also as a value a as also but right a ,

which is the reason why Man is able to able is Man why reason the is which any erature developed on the notion the on developed erature s elf

- other means.” other

determin upon

who . osiue pr of part a constitute

ation belong to the to belong ation es h cnet f self of concept the sees

24 25

that might create a create might that which the entire entire the which in international in , 8 8 , .

26 that and self and Zeitschrift Zeitschrift ,

In this this In due to due notion 23 “t

he he in - - CEU eTD Collection enable that circumstances such requires also reading, my in but, expectations their on count can o not principle this might expectation Legitimate agree thesecan concerns when that arise only retroactivity isalsoaffected. a with detention preventive th definitely is It sentencing. undetermined of context the in contested be might certainty legal and expectation legitimate dem a in crucial is which of observance the requirements, doctrine important r The la Rule of criminals’ life. outside inside, run long the of start new the the on impact detrimental a have for also can leave to permission plan sudden a whereas to them for unnecessary is it that feeling the have might they faint a have constantly they because so is This jail. the outside life a for prepare to unable time same the at and in settle to unable are they society prison the of part the within prisoners other Unlike dignity. of view of point the from problematic also are penalties indefinite surroundingcircumstances Moreover,the the soc into detainees back placing of instead that sanctions by insulted be to seems which reintegration ule of law of ule ietycontinue themof their depriving liberty. w prison’s walls, since walls, prison’s

principle

nly requires the legislators not to alter the law in a way that people no longer longer no people that way a in law the alter to not legislators the requires nly of domestic constitutional laws. It ser It laws. constitutional domestic of

is one of the of one is

e case as regards as case e retrospectively

lo eifigdi tebsccs fpeetv eeto since detention preventive of case basic the in infringed be also

du e to the lack of knowledge of knowledge of lack the to e three ,

preventive detention preventive

pillars of pillars extended maximum maximum extended preventive detention preventive 15

Council of Europe and also and Europe of Council ves as a basis for deriving further deriving for basis a as ves ocratic society. Some of them such as such them of Some society. ocratic detainees

how long they are going to be be to going are they long how period, hope for release and therefore therefore and release for hope

imposed retrospectively imposed

cannot live a “full” life “full” a live cannot oee I ol not would I however

an extremely an

legal legal

and and CEU eTD Collection the question into calls punishments. ofprohibition multiple definitely sentencing of method aforementioned the Accordingly, sanction reference is act criminal sancti the of all for basis legal the case first the in whereas that is distinction the behind reason The preventiveimposed. is detention also when incidents those from distinguished be shall sanctions these disqualification, driving or with coupled imprisonment as such time same the at measures and/or penalties of types more entail might act criminal one that systems legal in common quite is it Albeit term. Preventivedetenti multipleProhibition of punishments detention. certainty. of character sanctio this to t According reading extended way. simple more a in construed be also might disciple this jeopardized, la of path the leaving for decides when mind in keep canone systemwhich criminala of element stable a is preventivedetention if Even at aspecific time f expect cannot prisoners these Since all. at expectations develop to citizens ons is the very same act that hap that act same very the is ons n but also means an obstacle for those punishments that in their substance their in that punishments those for obstaclean means also but n , namely

t o the future (dangerousness) where (dangerousness) future the o

vlae twice evaluated

, I that , claim imprisonments on is special from the point of view that it is it that view of point the fromspecial is on e ed o lgl etit prohibits certainty legal for need he This interpretation indeed could indeed interpretation This

this de this

to beexecuted separatelyafter another. one once :

mand iscertainly notmet in

wfulness and therefore in this respect legal certainty is not is certainty legal respect this thereforein and wfulness pened in the past, in preventive detention preventive in past, the in pened

ih eeec t te at bhvo) and (behavior) past the to reference with

each one entails one each 16

not challenge the institution of preventive of institution the challenge only

executed following another prison followinganotherprison executed a separate b separate a

case indefinite sanctions. of

h ucran plcto o a of application uncertain the ut still homogeneous still ut

reedom to be gained be to reedom

punitive damages punitive , per se, per ,

case

s the same same the s once with with once

lack the the lack

CEU eTD Collection 27 this that entails it detainees, detention preventive for true is which missing, is element culpa the I established. be can perpetrator the of responsibility the which upon act culpable a by preceded doctrine routethis andreleva therefore has of manifestation a is principle culpa The climbed. be to have that stairs interrelating previous, some are there prison into eventually someone send to order In pyramid. a like is law Criminal principle Culpa of skin in the under societies democratic in living indeed ante is of view responsibility the delictual that say to reasonable quite is it delinquent the of trait dangerous possible preventi of sanction the Since against potentialcriminals. unacceptable liable made so the is stream this from originating view extreme An delinquent. the of propensity the upon centers hi on based be only delictum necessarily and basically “ Nagy Ferenc to According the for Responsibility delictum, f

Nagy, Ferenc: Nagy,Ferenc: stitution - called ant called ,

sanction a s .

even before the criminal act could have happened. As Nagy notes, this approach is approach this notes, Nagy As happened. have could act criminal the before even

ic n sae should state no since A m

e delictual responsibility when responsibility delictual e agyar büntetőjog általános része, általános büntetőjog agyar s past acts. The other side of the coin is the delinquent the is coin the of side other The acts. past s ,

hc i a ia sae n criminal a in stage final a is which

modern criminal law in compliance with the rule of law doctrine is doctrine law of rule the with compliance in law criminal modern

e eeto i nt ae o te c o te fedr u o the on but offender the of act the on based not is detention ve nce in the context of the thesis’ problem also. ofthetothis According thesis’problem context inthence or the delinquent; Ante delictualresponsibility -

rmnl law.” criminal e allowed be Budapest 17

someone who is expected to co to expected is who someone o rae n niie pwr o interfere to power unlimited an create to

t en ta a esns epniiiy can responsibility person’s a that means It

(2008) at 52 at (2008) procedure, - 53.

a ol b ipsd if imposed be only can - criminal law which which law criminal mmit a mmit

indefinite

crime is crime

even f

CEU eTD Collection 386 at (2008) 414 29 Rights Human Grischa: Merkel, In: Jakobs Günther 28 be definedaccurately poses legal aprohibitiononindefinite and criminaland sanctions. acts sub is relevant principle this of most demand the general, in sentences indefinite and detention preventive regards As law theory fun a is lege sine poena nulla and crimen nullum of principle The Nullum crimen/nulla poena lege sine connection usually circumstance fro desist and mind their change to “offenders” these for option an not also is it analysis this Following considerationscenario. inafuture opportunity such of deprived w contrast, In activity culpability of establishment suggests, pre of pitfall Another aimingguilt” for at retribution safekeeping of “way special

Lippke, Richard L.: Richard Lippke, See: Köhler, See: ,

he still has the opportunity to exculpate himself if he can prove the lack of free choice. free of lack the prove can he if himself exculpate to opportunity the has still he

cmitn te c wih would which act the committing m

s the is from which morefromderived. requirements be can , 11 German111046 Law , Journal

. Die hen someone is convicted on the basis of his future acts or dang or acts future his of basis the on convicted is someone hen Zum Taking this chain of logic other mitigating circumstances are also excl also are circumstances mitigating other logic of chain this Taking - 387.

Incompatible Contrasts? Contrasts? Incompatible Aufhebung

isn pre missing

No easy way out: dangerous offenders and preventive detention, detention, preventive and offenders dangerous out: way easy No 70.

playing an important factorcriminalplaying an sentencing. important in

ventive detention in the context of the culpa principle culpa the of context the in detention ventive Geburtstag

nullum crimen nullum

. der [ 29

… . 28 -

odto o fe will free of condition n taiinl ae hn ciia i pnse fr i past his for punished is criminal a when case traditional a In

]

281 Sicherungsmaßregeln ic tee icmtne defin circumstances these since collides with the guilt principle and its purpose of punishment of purpose its and principle guilt the with collides

(Pawlik/Zaczyk - 1066 (2010) at 1048. at (2010) 1048. 1066

–

Preventive Detention in Germany and the European Convention on Convention European the and Germany in Detention Preventive /nulla poena sine lege certa, which certa, lege sine poena /nulla 18

ed.,

be durch

2007).

normally which

die

Strafgerechtigkeit otherwise otherwise

dam osdrd s a as considered itely cannot be taken into into taken be cannot itely

ental doctrine in criminal in doctrine ental 27 Law and Philosop and Law 27 ut xs fr the for exist must s Lippk as ,

, e

xpects the law to to law the xpects

in: erousness, he is is he erousness,

Festschrift uded in this in uded mitigating e rightly e hy 383 hy

für

- - CEU eTD Collection 9 Workhop http://www.juridicas.unam.mx/wccl/ponencias/9/175.pdf Law, Constitutional of Association 30 character criminal most andhuman contradicts rights that principles? a of and arbitrariness against safeguards no with limits, upper no with penalty a justify indeed thebasicSo ideathese isthe prot institutions dubious behind Court. to due system legal a as abu serve prevent to must order in proportionality safeguard inevitable, is interest side’s one of infringement the Since necessarilythe other.giving upon off pu the and sentence his serving after released get tointerest individual criminal’s society,the the to risk a dangerousposes be consideredto is who inst the behind hiding interests conflicting emanate detention preventive surrounding debate The Proportionality unambiguity and certainty. is one when having Not itself. penalty the of character indefinite the to due doubts raise still might law the of quality substantial the sense, procedural a in correct is it therefore t envisage can one and definite and clear is that argue I

See e.g. BVerfGE 7, 377; BVerfGE 19, 342 and others in Tomoszek, Maxim: VIIIth Congress of the International International the of Congress VIIIth Maxim: Tomoszek, in others and 342 19, BVerfGE 377; 7, BVerfGE e.g. See enders becomes interrelated and leads to an undesired dilemma of satisfying one interest and and interest one satisfying of dilemma undesired an to leads and interrelated becomes enders

preventive detention cannot meet these criteria since even if the language of the law law the of language the if even since criteria these meet cannot detention preventive

goi

g o e re be to ng the so the

called proportionality test proportionality called esd eiiey mut t a ilto o the of violation a to amounts definitely leased

e. t sepcal a motn require important an especially is It ses.

– itution that have to be respected. Since the prisoner the Since respected. be to have that itution

rprinlt a a osiuinl rnil. vial at: Available principle. constitutional a as Proportionality 19 e osqecs f i ciia bhvo and behavior criminal his of consequences he

blic interest of being protected being of interest blic

s established by t by established

from the fact that there are two basic basic two are there that fact the from ection butc of thepublic,

he Federal Constitutional Federal he knowledge about if and and if about knowledge eti te German the in ment

a caoig for clamoring law

from dangerous dangerous from an aim this

CEU eTD Collection 33 32 Germany and States 31 totally wall prison’s the inside offender the of behavior the on based usually is the prison that argue further I and my therefore a strengthens sentences prison normal as circumstances same Moreover since happen we todetermine what are unable wouldhave either, evaluated be cannot opinion experts’ the of correctness the Besides, considerations. any giving without delinquent the of dangerousness the recording for call direct a like assignments Kelly sanctions th in element basic a T balancing. a criminals’ dangerous to respond to legislators broadc exaggerating balancing” that is answer My

he problems concerning proportionality start with the fact that risk assessment thatrisk withthe fact proportionalitystart concerning he problems See M. v M. See 557 at Ibid Kelly, Meaghan: Kelly, prisoner’s future dangerousness. Albeit Albeit dangerousness. future prisoner’s today’s emphasized emphasized today’s 32 undue starting point for predictingundue happen starting society. what point the outside prison would

rightly . .

Germany 41 Germany Although these punishments are usually imposed on the basis of an expert opinion, as opinion, expert an of basis the on imposed usually are punishments these Although

- the under executed basically is detention preventive that suggest studies empirical

564. practices.

no, and my view is also supported by Meaghan Kelly, Meaghan by supported also is view my and no,

explains Lock them up up them Lock , 39 G , 39 asting -

e process of sentencing of process e 44. §. 44. 31 eorgetown Journal of International Law 551 (2008) at 562. (2008) Law 551 International of eorgetownJournal

h rao bhn ti ted ih b te oe of role the be might trend this behind reason The i ms css th cases most in ,

environment euiy neet ae neial dominant undesirably are interests security practices have practices --

and throw away the key: The preventive detention of sex offenders in the United the in offenders sex of detention preventive The key: the away throw and ssertion that proportionality context. ssertion this within isinterfered

is not capable of providing a basis for basis a providing of capable not is

taken over people and people over taken the imposition of the penalty itself or its prol its or itself penalty the of imposition the sm eprs r asge who assigned are experts same e ,

is certainly an impossible task impossible an certainly is 20 33

which also contributes to disproportionateness to contributes also which rcte, hc necessarily which trocities, ed if the prisoners had beened ifthe prisoners released.

set up increasing demands for for demands increasing up set who who

n la to lead and , I claim this to be a a be to this claim I , is

in case of indefinite of case in

also

, the an opinion about about opinion an

result hy dee they which should be be which should

of the opinion the of ei a its as media s

in unfair unfair in ongation “skewed their m

CEU eTD Collection 155 at (2012) European the and Court Constitutional Federal this of requirement 34 the meet to impossible is it acts, future his of basis the on judged be will someone if However, is he crime the commit did delinquent the that doubt reasonable beyond convinced be to has maker procedures principle doubt reasonable beyond The reo pro reasonable doubt, indubio Beyond the future with relationship causal direct, a have to punishments allow would by but penalty indefinite jail an in serve to has criminal imposing the years of number by definite the increasing not but one, serious more a give indeed would judges, if prevented way this In cr committed the of severity the to comparison in employed also is detention preventive where cases, of s duration After the detention. preventive and perpetrator the of guiltiness the on based duration imprisonment’s first the between relationship the analyzes public, the and individual the of interests the on focusing anot from attacked be alsomight Furthermore,proportionality

imes and to other decisions whereimes and was toother decisions preventiveordered. not detention being See e.g. Michaelsen, Christopher: Christopher: Michaelsen, e.g. See preventionabuses. of 34 ,

which legal basis legal which

charged of. I realized that the number of years of definite imprisonment is strikingly low in cases in low strikingly is imprisonment definite of years of number the that realized I

161. eadn te ulies f h acsd Acrig o hs doctrine this to According accused. the of guiltiness the regarding preventive detention can easily lead to double dispro double to lead easily can detention preventive

whenever convinced that the offender deserves a more severe punishm severe more a deserves offender the that convinced whenever

is deprived of the opportunity of having a fair trial because his guiltiness his because trial fair a having of opportunity the of deprived is

would accord more more accord would uyn sm atce ta idct te rsn em i particular in terms prison the indicate that articles some tudying

Fo Srsor, ih Love’ with Strasbourg, ‘From

is related is Court of Human Right, Right, Human of Court

with 21

to the required s required the to the human rights principles and contribute and principles rights human the — rvnie eeto bfr te German the before Detention Preventive 12:1 Human Rights Law Review 148 Review Law Rights Human 12:1 her point of view which, instead of instead which, view of point her portionateness, which could be be could which portionateness, tandard of proof of tandard

the past and not with the the with not and past the . This way of sentencing sentencing of way This .

, h decision the

in criminal criminal in - ent 167

to to - ,

CEU eTD Collection 36 35 detention preventive of context the in also charges as serve can procedure criminal original the of charges the that accepts one if Even theyarerange ofa safeguardsprovision. embedded inthis divested of a not does guarantee rights human this that seems it which penalty bui pressedagainst their indefinite isdirectly themon t subjugated are they albeit dangerousness, impediment first determination the “in everyone r this phrases Convention The ECHR. the of articles invoked frequently most the among is and documents rights human many in acknowledged is trial fair a to right The Fairtrial rights be never imposed. could detention preventive and dangerousness his and acts future delinquent’s the principle aforementioned the criminal a acquitting Since dubio proreo doctrine criminal Another the criminal cases the nature legal and of their cons if even dangerousness” of probability satisfied be might that proof of standard alternative an for prescribed doctrine. acknowledged widely

ECHR, Art ECHR, §. 66. Section ofGermany, Code Criminal Therefore .

6 .

fo law law r preventive detention cases detention preventive r

noring this basic principle in criminal basicnoring this principle cases in extremely problematic. is ” principle which has a great relevance in this context is the so the is context this in relevance great a has which principle

obliging the trial judge in case of doubts to rule in fa case rule doubts to in inof the trialjudge obliging do become

35 es not demand full demand not es

can be establish be can [ Albeit the German legislation, German the Albeit … ] of any criminal charge against him” against charge criminal any of

s ,

inapplicable a close examination close a o criminal sanctions, still sanctions, criminal o . As these detainees’ these As . 22 ed, the accepted standard standard accepted the ed,

certainty but provides for a vague probability, vague a for provides but certainty

equences. since no court could ever be convinced about about convinced be ever could court no since pply to PD to pply

of Art. 6 reveals some reveals 6 Art. of

being prisoners at all at prisoners

lt. So from this point of view ofview from So point lt. this punishment is based on their on based is punishment there

familiar with familiar ,

36 are is challengeable given challengeable is

gt s eogn to belonging as ight vor of the defendant.vor of the which constitues which no and consequently consequently and

specific dubi only only this problem this - ous issue ous called

“high a charges

“ the in s ,

CEU eTD Collection ril2012.pdf http://www.law.unc.edu/documents/faculty/adversaryconference/exceptionallawsineuropewithemphasisonenemiesap inEurop 37 task difficul very a in to succeed cannot reversed is proof with lies proof of burden the procedure,criminal In normal principle.a this from deriving requirement the in andinnocence of T phases duress,crime, the ofa itselfand the role victim intent, of many other consideration into taken be can that circumstances those of speak w kept being is delinquent the of dangerousness the disprove to or act future a for witnesses find to harder d the or criminal past the Since rights. defence to connected

he most serious most he hole procedu hole Saas Claire: Claire: Saas .

e with Emphasis on “Enemies”. withon e Emphasis , at least the penalty is not connected to that, to connected not is penalty the least at ,

Preventive Detention and Criminal Justice Criminal and Detention Preventive

inside the prison walls. prison the inside re of proving is proving of re

t situation since proving something that did not happen is a is happen not did that something proving since situation t . fne oni t poe ht the that prove to council efence contradiction of the fair trial guarantees trial fair the of contradiction 37 counter

hrfr, i Therefore,

- prove his dangerousness and dangerousness his prove

the prosecutor where prosecutor the

undermined undermined tee cases these n

Available at: Available in

Furthermore, preventive detention preventive

due to the nature of what is to be assessed, assessed, be to is what of nature the to due ,

23 , Ravenna, May 11 12 (2012), DRAFT (2012), 12 11 May Ravenna, , h dlnun i assumed is delinquent the

as not only the interrogation of witnesses but the but witnesses of interrogation the only not crime in

it is quite a troublesome mission for the the for mission troublesome a quite is it as a result result a as preventive detention detention preventive

, however, , il o happen not will cases there is no crime committed in committed crime no is there the defendant can find himself himself find can defendant the in a normal case normal a in

is rooted in the presumption the in rooted is Moreover .

uly s og s he as long as guilty factors. cases the burden of of burden the cases quite –

Exceptional Law Law Exceptional

challenging challenging , it is even even is it , such as the as such not to to not

if he he if CEU eTD Collection imprison the connection indirect from the and dangerousness future detention with relationship direct the preventive it, preceding of existence remote and separate the Given punishment. the of type the influences only or sentence separate whole, a deserves it whether sentencing: dangerousn of role the of different result the understand to the is here point is crucial The dangerousness. the whole plus offence committed a as IPP contrary, the To imprisonment. term definite a namely culpable the whereas future the in a crime commit will he that likeliness the and delinquent the of propensity the on solely grounded simple: quite is reasoning The detention. preventive than rather ante Similarly, principle. still impose, for basis cases, im Most some of myarguments bevalid. cannot detention, preventive to contrast in sanction collateral a being not as IPP, of context the in which a as served detention preventiveof institution sentencing indefinite of impacts the presented Having 2.2. IPP vs. Human rights IPP rights vs.Human cannot stand its ground here, since the danger of committing a future crime is not the not is crime future a committing of danger the since here, ground its stand cannot portantly imposing

the

the legal ground legal the

- “ delictual responsibility delictual delictum ,

the ignorance of the ignoranceof the IPP. Although it does influence the judge in determinin in judge the influence does it Although IPP. ess in the context of the two sanctions and what impact they have on on have they impact what and sanctions two the of context the in ess - criminal law criminal

for its imposition is the past act and therefore satisfies the culpa culpa the satisfies therefore and act past the is imposition its for , ”

culpa principle, which wa which principle, culpa

which is built on built is which

theory, past conduct itself entails a different consequence consequence different a entails itself conduct past

basis, now I refer back to my position according to to according position my to back I refer now basis, 24

does not come alive as viv as alive come not does

as explained earlier, explained as on human rights human on the so the - called s proven s “delinquent “delinquent in general for which the which for general in

in preventivedetention in preventive detention preventive idly as in the case of of case the in as idly g which sanction to to sanction which g criminal law criminal ment with with sole sole

is ”

CEU eTD Collection notes Rose Christopher As sentence. life automatic called predecessor IPP’s the to back turn to decided legislators the Howeve institution. the of death the to led eventually and IPP governing provisions the of repeal the in resulted ECtHR the and legislation en apparently happened, already has challenge the Actually otherIPP. issues cannotofwhichenough are tochallenge emergeserious thelawfulness that mean not does requirements rights human these concerning clashes of lack the Nevertheless, detected or guarantees trials fair predictions future on of lack the and for need only the isolation, total in punished and assessed is based act real perpetrator’s is penalty whole the where detention preventive to contrast in punishment, adequate the imposing for basis a as serve act committed Mo of preventive the past detention, actevaluatedseparate twice not is entail sanctions. not and does caseinlike just also sentence the of part determined a thereis AlthoughIPP ofprisoners. context t that argue further would I relationship ground conviction the and sanction the incorrect be to argument act committed the ig to ving

either

of the U.K. the of te picpe, s principles, other

among the concerns circlin among the ,

would be claim I

the principl the , than from Germany. The criticism both from the academic community community academic the from both criticism The Germany. from than

. this institution also “shares the prescriptive nature of the original original the of nature prescriptive the “shares also institution this In contrast, In he prohibition of prohibition he

more acceptable the Strasbourg Court’s argument about about argument Court’s Strasbourg the ince dangerousness is only a factor here that together with the the with together that here factor a only is dangerousness ince r it also must be noted that despite this promising development, promising this despite that noted be must also it r n therefore and es of beyond reasonable doubt and doubt reasonable beyond of es

in case of case in g around IPP. garound multiple punishment is not contested either in the in either contested not is punishment multiple than inpreventivecases.than detention 25 idn a non a finding the the

IPP I see a see I IPP

tailing a way fast way a tailing -

ilto o Art of violation much stable relationship between relationship stable much

in dubio pro reo cannot be cannot reo pro dubio in the er reaction from the from reaction er asl relationship causal .

5 n wee the where and

on the causal causal the on

IPP the

CEU eTD Collection 312. at 303 Law (2012) ofCriminal Journal 38 surrounding dilemma the for solution perfect potentially perpetrators. dangerous a as regarded be cannot therefore and met provisions”

Rose, Christopher: Christopher: Rose, 38

meaning that it leaves no choice for the sentencing judge if the statutory criteria arestatutorycriteria the if judge sentencingthe choicefor leavesno it meaningthat RIP the IPP: A Look Back at the Sentence of Imprisonment for Public Prot Public for Imprisonment of theSentence at Back Look A IPP: the RIP

ection , 76 76 ,

CEU eTD Collection Co theGerman of the decision judgmentse.g. v no: Application (2010); 24478/03 39 at the domesticthe exceptional level dialogue and developed betweenand Strasbourg. Karlsruhe This delivered by the judgments in resultingjudiciary rights human the of top the to up waytheir made also have them of some and Court Constitutional German the reached have cases of number a then Since (BvG). co constitutional a filed M as to referred individual an when 2001, to back goes detention preventive on law case the of evolution The 3.1. result ofthe relevant ECtHR’s verdicts. disclose to going is Strasbourg, to route the preceding judgments domestic the of importance the Given legalityIPP. ofpreventive andthe detention deve also has dimension practical more a ECtHR, the and courts domestic practicing. legal in pro The .

See M. v. Germany, ECHR, Application no: Application ECHR, Germany, v. M. See h Uie Kndm EH, plcto no: Application ECHR, Kingdom, United The

The legalrollerThe c hapter is going to present the legal roller legal the present to going is hapter blems induced by indefinite sentencing appear not only at the level of dogmatics but also but dogmatics of level the at only not appear sentencing indefinite byinduced blems 31047/04 (2011); (2011); 31047/04 cmt v Gray EH, plcto no: Application ECHR, Germany, v. Schmitz ECtHR. Due to a number of decisions delivered in the last couple of years by the the by years of couple last the in delivered decisions of number a to Due and assess and -

coaster of preventive detention in the German in preventivecoaster of detention system

Haidn v. Germany, ECHR, Application no: Application ECHR, v. Germany, Haidn

the national nstitutional Court nstitutional 3.

19359/04 (2009); (2009); 19359/04 Courts in d Courts in pan wt te emn Bundesverfassungsgericht German the with mplaint 39 case history of the institutions born before and before born institutions the of history case 51/9 5750, 77/9 (2012); 57877/09 57715/09, 25119/09,

27 - coaster the institution had been riding primarily primarily riding been had institution the coaster

(2 BvR 2029/01) 5 February 5 2004. BvR2029/01) (2 ialogue Grosskopf v. Germany, ECHR, Application no: no: Application ECHR, Germany, v. Grosskopf 30493/04 (2011); (2011); 30493/04

6587/04 (2011); (2011); 6587/04 ok . emn, ECHR Germany, v. Mork loped concerning the concerning loped

James, Wells and Lee James,and Wells

See also domestic domestic also See

this c this hapter hapter

as a a as

, CEU eTD Collection 154. o Court European the and Court Constitutional 43 42 Law Basic ofthe(2) German § Art.103. 41 at Available Stock 40 a the institution rendered guilt punish to intent of lack the and aim preventive purely the result, a As penalties. and measures between distinction a makes which sanctions of system track twin the invoking by th retroactivity, on prohibition the concerns As applicant’s dangerousness. to regard with standard “higher detention of expiry the after liberty to right to interest increased the Bv The all articulated intheGrundgesetz. and proportionality of principle the doctrine, law of rule the legislation, and punishment retroactive of prohibition the contradicted complaint, the to according practice, This decided cameforce. beforenew into law the sen the of extension the for allowed and detention preventive 1998 the on based was M. Code Criminal German the of Amendment as known applicant the by filed complaint constitutional The 3.

BvG, 2 BvR 2029/01, 5 February 2004. BvR2029/01, 2 BvG, 1.1. Art. 2. § (2) sentence 2 in conjunction with Art 104.1; Art. 2. § (2) sentence 2 in conj in 2 sentence (2) § 2. Art. 104.1; Art with conjunction in 2 sentence (2) § 2. Art. it Criminal Sixth Michaelsen, Christopher: Christopher: Michaelsen,

- taking and Perspectives Perspectives and taking The past behindthe past The well G however rejected the claims the rejected however G

still remains justifiable due to the safeguards built in the new law such as the required the as such law new the in built safeguards the to due justifiable remains still :

http://www.germanlawjournal.com/index.php?pageID=11&artID=267 - Law Reform Act of 1998, See also: also: See 1998, of Act Reform Law

measure and ledtothelawful Ar ignorance of

Fo Srsor, ih Love’ with Strasbourg, ‘From - 43

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- known M. decisionknown at 41

h lgl neet ne tra [ threat under interest legal the 42 f Human Right, Human f

by reasoning that even though the body acknowledges body the though even that reasoning by 40

that abolished the former10 the abolished that Krehl Christoph: Krehl 28 e German Court simply excluded its application its excluded simply Court German e

— Preventive Detention before the German Federal Federal German the before Detention Preventive 12:1 Human Rights Law Review 148 Review Law Rights Human 12:1 the domestic level

the t Reforms of the German Criminal Code Code Criminal German the of Reforms , 4 German Law Journal 421 Journal Law German 4 , .

ec eratvl ee n cases in even retroactively tence 103. § (2) of the Basic Law.of theBasic 103. §(2) 10 years period, the continued continued the period, years 10

… ]

- year maximum limit ofyear limit maximum unction with Art. 20. § (3); § 20. Art. with unction n te ro o the of proof the and

the right to liberty, to right the - 167 (2012) at (2012) 167 - 431 (2003). (2003). 431

- CEU eTD Collection 46 45 44 coming from decisions contradicting of dilemma the face to had that judiciary the for primarily challenges decision condemning came debate legal The j 3.1.2. the protection of these norms this issue, for responsible indeed is that the body a by infringed ironically rights on fundamental basic contradicts rule to legislation federal the for opportunity the give to respect this in was Court the of intent the Although basis. legal valid any without detention preventive nullification the legisfederal the and Länder the ofcompetence concerningthe issue the of aspects rights human the with deal Bundestag. examined subst the on deciding of instead decision, which Court the of scrutiny Act, Placement 2004 in detention preventive of institution the with mentioned above The yearsreleased after 10therefore and inta found ofproportionality theprinciple Bv The udgment

M. v 2002. January, 1 Actof Placement Offenders’ Dangerous Bavarian The February10 2004. BvR834/02, 2 BvG, . The The

Germany, ECHR, Applicationno: ECHR, Germany, G also added that the interest of the public outweighs the prisoners’ expectation of being of expectation prisoners’ the outweighs public the of interest the that added also G

the dilemma generatedac by

h c The

the highest judicialorgans fundamental protecting rights. uidcinl set n left and aspect jurisdictional 45

allowing for the for allowing onstitutional of the unlawful provisions but ordered the prisoners to be remained in in remained be to prisoners the ordered but provisions unlawful the of

against Germany in the the in Germany against decision was not the only one of the Bundesverfassungsgericht dealing dealing Bundesverfassungsgericht the of one only the not was decision

no ih aan n eebr 09 we te CH dlvrd a delivered ECtHR the when 2009, December in again light into .

body

retrospective 19359/04 (2009). 19359/04 ,

tough declari tough ontradicting ontradicting

the substantial question to be ruled on by the the by on ruled be to question substantial the 29

M. imposition of the sanction the of imposition

u grounded but

gteucntttoaiyo h c, i not did act, the of unconstitutionality the ng decision: The i decision: case. . 44 46

h Bvra Dneos Offenders’ Dangerous Bavarian The The judgment brought about severe severe about brought judgment The

lature. Moreover lature.

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also came under the under came also ct. , it did not call for for call not did it ,

he M. practice CEU eTD Collection 2010. 50 757 Journal Europea the with Relationship 49 48 47 A two a made legislation German the BvG, the and ECtHR the by issued decisions the of contrast incompatible apparently the by caused chaos legal the of result a As chaotic. reached the FCJ their of Senate fifth of and fourth the relief, basis of kind some the bringing of instead on However, dangerousness. prisoners detention preventive of release the decline to intend Courts Germa the for jurisdiction establishing 2010 in law new a by eliminated be to aimed was courts German the by generated uncertainty The followed the decision.to follow and ECtHR’s refused insome ha principle law of rule the in enshrined laws foreseeable and clear or expectation legitimate of requirement the Consequently, constitutional of the“European”position decisions. which law federal as Strasbourg cons from coming judgments the ranks time decision betwe relationship Code Procedure the Criminal under Strasbourg in failed cases those of retrial the allows system German the Although

BvG, 2 BvR 1481/04, October 14 2004.; Görgülü v. Germany, ECHR, Application no: Application ECHR, v. Germany, Görgülü 2004.; 14 October BvR1481/04, 2 BvG, CriminalProced German Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung und zu begleitenden Regelungen of 22 Dezember Dezember 22 of Regelungen begleitenden zu und Sicherungsverwahrung der Rechts des Neuordnung zur Gesetz See elto etie svr polm i te otx o ipeetto de o h subjugated the to due implementation of context the in problems severe entailed tellation

t etrd no oc i Jnay 2011. January, in force into entered cts ees Birgit: Peters

requires “interpretative” and benevolent approach towards the ECHR but at the same the at but ECHR the towards approach benevolent and “interpretative” requires - 772 (2012). 772 different conclusions and left the issue of predictability unresolved or even more even more or issue ofpredictabilityunresolved theand left conclusions different en the two courts rendered the picture so picture the rendered courts two the en

Germany’s Dialogue with Strasbourg: Extrapolating the Bundesverfassungsgericht’s Bundesverfassungsgericht’s the Extrapolating Strasbourg: with Dialogue Germany’s

Available at Available

ure Code Art. 359. § § (6). Art. 359. Code ure Cut f ua Rgt i te rvnie eeto Decision Detention Preventive the in Rights Human of Court n , 47

h peeet uget nw a Grüü . Germany v. Gürgülü as known judgment precedent the

http://www.germanlawjournal.com/index.php?pageID=11&artID=1438 be joadzd y h dmsi cut ta i sm cases some in that courts domestic the by jeopardized been d 49

n Supreme Court (FCJ) in cases the Higher RegionalHigher the cases in (FCJ) Court Supreme n 30 50

n o te lmtd h soe f preventive of scope the limited them of One mewhat confusing. On one hand one On confusing. mewhat

new at new 74969/01 (2004 74969/01 tempt manifested in manifested tempt , 13 German Law Law German 13 , ). 48

n the on

, the ,

CEU eTD Collection Rights Human 53 Dezember 2010. 22 S der Rechts des Neuordnung zur Gesetz of 5 Art. ThUG) 52 Degr or February 2012). (22, 2010 December Inhuman and Torture of Prevention 51 could rely anymore ona date release aa result potentialfuture as of diagnosis. retrospective The guilt. of principle wou the rule this against of goes application therefore and detention their of basis the would mind change unsound an of be to people these Declaring conviction. their of time the at acts competen legally are detainees detention Preventive retrospective ifnotworse. predecessor, months 18 challen be can decision the required, are opinions expert two lawyer, a by represented and heard be must concerned person order the that as such safeguards procedural placement created newly The public. the to threat a pose they that provided supervision is under accommodations in confined illness be can they mental diagnosed a case in and released been having after psychiatrist a by examined be can ex that ruled and further even went Act Placement Therapy The cured pose a thepublic. threatto butstill beenhas illness mental whose prisoners concern they if or 2011 before back date convictions the determination to detention

Merkel, Grischa: Merkel, Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter (Therapienunterbringungsgesetz (Therapienunterbringungsgesetz Gewalttäter gestörter psychisch Unterbringung und Therapierung zur Gesetz eot o h Gra Gvrmn o te ii t Gray are ot y h Erpa Cmite o the for Committee European the by out carried Germany to visit the on Government German the to Report ” . , 11 German111046 Law , Journal 52 ”

The proposed solution of the Bundestag, however, is at least as problematic as its as problematic as least at is however, Bundestag, the of solution proposed The “

of a person a of rms gis lf, physical life, against crimes

Incompatible Contrasts? Contrasts? Incompatible

ged on appeal and the the and appeal on ged and ld definitely open channels for abuse, since basically no prisoner prisoner no basically since abuse, for channels open definitely ld

also outlawed the retrospec the outlawed - – 1066 (2010) at (2010) 1057. 1066

ading Treatment or Punishment (CPT) from 25 November to 7 7 to November 25 from (CPT) Punishment or Treatment ading Preventive Detention in Germany and the European Convention on Convention European the and Germany in Detention Preventive 51

“ ut e sud y rgoa cvl court civil regional a by issued be must icherungsverwahrung und zu begleitenden Regelungen of Regelungen begleitenden zu und icherungsverwahrung nert, esnl reo or freedom personal integrity,

“ placement is limited to renewable periods of of periods renewable to limited is placement t people who were held responsible for their their for responsible held were who people t procedure of a civil nature includes some some includes nature civil a of procedure

tive imposition of the sentence unless unless sentence the of imposition tive - preventive detention prisoners detention eul self sexual ” 53 the ,

– -

CEU eTD Collection and 55 54 decision and releasedcondemning threemore judgments January, in 2011. M. the in articulated position its reaffirmed ECtHR the legislation, the and judiciary the of level While failnew ofStrasbourg tomeet law the shouldcertainly threshold due arbitrary toits character. the that opinion the of am I ECHR, the of (e) (1) § 5. Art. under come could detention of basis the of decisions the with compliance persons keep to target laws separate by covered area another of scope the with overlapping There order). hospital (mental hospitals psychiatric in persons ill mentally of placement the and detention) (preventive purposes preventive for prison in offenders ill over also is Act Placement Therapy the Moreover, to the mere of circumstances due prisoners any of case in arise can problems mental subsequent that fact the despite prisoners de preventive targets only it that sense the in discriminative also is Act new the Besides,

German Crimi German Kallweit v. Kallweit ness as ness

Schummer v. Schummer

Germany was struggling with the implementation of the European judgment both at the the at both judgment European the of implementation the with struggling was Germany a distinction is made in the German legal system between the placement of dangerous dangerous of placement the between system legal German the in made is distinction a

Germany, Germany, nal Code 63. §. 63. Code nal

Germany ECHR, Application no: Application ECHR,

, Application nos: Application , in detention in

the

detention as such. detention assuch.

who should who

27360/04 ECtHR. E ECtHR.

17792/07;

and 32

otherwise ven if one supposes that this newly established newly this that supposes one if ven

42225/07. Mautes v. Mautes -

inclusive on criminals suffering from mental mental from suffering criminals on inclusive

be freed be Germany, fore it seems that the new Act is Act new the that seems it fore

ECHR, Application no: 20008/07; 20008/07; no: Application ECHR, from preventive detention in detention preventive from 54

and has the ambiguous the has and

tention

CEU eTD Collection 58 law, rights human European of shadow the in Germany 57 56 Since sentences. their of duration the decrease therefore and public the to pose people detained principles” derived 103 (Art. retroactivity of prohibition the twin traditional the on insisted BvG the play, into punishments retroactive of prohibition of principle t Whereas execution (Abstands of terms in former the from distance” marked a “keep should latter the detention preventive and institutions th follow not did body German the Nevertheless, BasicLawbeginning and a ledtothe dialogue of and between Strasbourg. Karlsruhe the of interpretation the for aids as decisions Strasbourg the deem to BvG the required approach body. constitutional the to according changes” relevant legally to the reflectedon decision newThe preventive withou detention 10 the complaints constitutional judgment second ov its down handed and in stepped BvG the legislation, and judiciary German the outgrow will implementation of problem the that seemed it When 3.1.3.

Ibid. at 175. Ibid. 4 May2011. BvR2365/09, 2 BvG, rnhh, isi; Morganstern, Kirstin; Drenkhahn, ruig t previou its erruling - trackperception Judgment o - er ii, hra te eann to oee css n ersetvl impo retrospectively on cases covered two remaining the whereas limit, year e CH qaiid rvnie eeto a a eat ad hrfr ivtd the invited therefore and penalty a as detention preventive qualified ECtHR he

found that due to the divergent objectives and grounds and objectives divergent the to due that found verruled 58 gebot), theygebot), convergent consequences. deducted

of the German sanction system and consequently excluded the operation of of operation the excluded consequentlyand system sanction German the of iig teaetc retto wt a iw o iiie h risk the minimize to view a with orientation therapeutic a aiming dcso. h jdmn o May of judgment The decision. s ,

two of them concerning the continued detention of prisoners beyond prisoners of detention continued the concerning them of two : The d t indicating potential its application

hitn; a Zl mt Dirk Smit, Zyl van Christine; M. ialogue betweenialogue Karlsruhe Strasbourg and judgment of the ECtHR the of judgment .§ ).

3 57 33 Criminal167 Review Law

nta, t eeoe svn “constitutionally seven developed it Instead, Erpa isrcin bidy Wie both While blindly. instructions European e : ht s n nm? rvnie eeto in detention Preventive name? a in is What ,

which was considered “equivalent consideredwas“equivalent which

01 a a epne o four to response a was 2011 in the original judgment. The “Völkerrechtsfreundlich” The

of a general prison sentence prison general a of

- 187 (2012) at 173 at (2012) 56

n h institution the on

- 176.

t hese sed CEU eTD Collection law rights human European of shadow the in Germany 60 59 forsecond theoffenders“ontrack”. thepreventive detention ne up set to state of the on burden number expensive an poses a also but principles threatens democratic only not institution the of model new the that argue I Consequently, giving without ECHR European deeper consideration tothe jurisprudence. ( (1) § 5. Art. under detention such of lawfulness the suppose and above mentioned Act Placement Therapy ambiguous the of application the encourage therefore and with comply violent and sex serious most the committing of danger high a requirement, distance the the of include observance preconditions The retrospectively. prolonged or ordered is detention preventive dangerous from protected being to right of individuals’ the and offenders public the of interest the between disproportionate be to balance the found body German the that fact the of spite in However, good. so far So courts: t seems there implementation of issue the of angle the From either.complained institution expectations legitimate detainees’ the of protection absolute non the Furthermore, of person) withArt. 104.§(1) (legalguarantees inconjunction Basic ofLaw. the ofdetention) (freedom 2 sentence § 2. Art. with comply not does detention preventive that ruled BvG the met, protectio legal for need the imprisonment, general from separation treatment, individualized principle, ratio ultima the in (manifested requirements these

Basic Law: Art. 2. § sentence 2 in conjunction with Art. 20. § Art.20. with in conjunction2 sentence § Art.2. Law: Basic rnhh, isi; ogntr, hitn; a Zl mt Dirk Smit, Zyl van Christine; Morganstern, Kirstin; Drenkhahn, rms and crimes h dtcin f etl disorder mental of detection the

- sa tisfaction of the dist the of tisfaction

liberty, it left a channel open to rectify the balance even if even balance the rectify to open channel a left it liberty, ance requirement also entailed the entailed also requirement ance at 179. at 34

(3). A oe a se h ecpin clearly exceptions the see can one As .

n and regular supervision) had not been been not had supervision) regular and n : ht s n nm? rvnie eeto in detention Preventive name? a in is What 60 59

o be a harmony between the two two the between harmony a be o

which was not respected by the by respected not was which

demand for the the for demand w institutions w e) of the the of e)

CEU eTD Collection no: Application 61 the newmatteruntil model alsobe of facts will challengedtheECtHR. andtime before true sti a must courts Court, the of Constitutional viewpoints German the between the reconciliation by unsown left channels the to due that, opinion the of am I bodies, the between extent certain a to agreement some is there Although language. courts the between dialogue clear a of existence the despite that see should one considerations and facts above the of light In

h Srsor Cut ecmd h Gra Cntttoa Cuts eiin n Schm in decision Court’s Constitutional German the welcomed Court Strasbourg The 30493/04 (2011); and and (2011); 30493/04

t ih rmi ucran hte te ide spe indeed they whether uncertain remain might it Mork v. Germany, ECHR, Application no: Application ECHR,v. Germany, Mork 35

l at o apn n i i ol a only is it and happen to wait ll 31047/04 (2011). 31047/04 itz v. Germany, ECHR, ECHR, Germany, v. itz

ak the same same the ak

CEU eTD Collection (Appellant) (Respondent) Toulson and Dyson CJ, (Appellant) Matravers Worth of Phillips (FC) Lee) of 63 application http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090506/james.pdf the (on R In: 2007. July 62 Secretary ofState does not worked. have could system statutory State Secretaryof the failureof establishingthe in Court Divisional the findingof the with onlyagreed the of dangerousness the is unlawful period tariff the exceeding detention a that instance first at ruled Court Divisional the Although the on decision upon whichBoard theParolecoulddecision its whether base to a reaching for evidence body enough not is there that claiming adjourned competent been had individual, the of dangerousness the Board, Parole the before hearing res a As tariff. the called detention term fixed their during courses rehabilitative any to access no had who prisoners three by 2007 in challenged been had IPP of institution The 3.2.1. critiques and issue the on judgment precedent the reveals paper the of part following The courts. domestic the by delivered decisions contradictory hiding history legal adventurous Simi 3.2.

R (Wells) v R(Wells) Wle) v (Walker) R al t peetv dtnin ipiomn fr p for imprisonment detention, preventive to larly The domesticThe “ The beginning:The Divergent case IPP the of on leading conclusions n i pbi lw duty law public his in

to , UK House of Lords, Lords, of House UK . “ the

Secretary o Secretary v Parole Board [2008] 1 AER 138 AER 1 138 [2008] Board Parole unless . .

ae (C (peln) frel Wle ad nte) (n h apiain f e) (FC) Lee) of application the (on R another) and Walker (formerly (Appellant) (FC) James Secretary of State for Justice [2008] 1 WLR 1988 1988 WLR 1 [2008] Justice for State of Secretary reasoning ofthe decis [ case the

f State for Justice (Respondent) (Respondent) Justice for State f ]

history of imprisonmenthistory of forprotection public continuation applicant, the Court of Appeal rejected this position. The position. this rejected Appeal of Court the applicant,

render theunlawful. detention 6 May 6 2009.

”

ic h dd o poie n fetv mcaim n w in mechanism effective an provide not did he since ion

63 [

– s ] However, the Court added that the error relating to the to relating error the that added Court the However,

the decision of the Divisional Court (Laws LJ and Mitting J) on 31 31 on J) Mitting and LJ Court (Laws Divisional ofthe thedecision

justifiedeffective current bya and

J) n Fbur 20. In: 2008. February 1 on LJJ) , 36 UK House of Lords, Lords, of House UK v

James (FC) (Appellant) (formerly Walker and another) another) and Walker (formerly (Appellant) (FC) James

ublic ublic –

the decision of the Court of Appeal (Lord (Lord Appeal of Court the of decision the release the detaineesrelease ornot. the p ro

tection does also have an an have also does tection My 09 Aalbe at: Available 2009. May 6 Secretary of State for Justice Justice for State of Secretary

assessment phrases significant significant phrases Appeal Court Appeal ult the listed listed the ult ” ih the hich

as to

CEU eTD Collection (Appellant) ofLee) (FC) application 65 64 runs however perception new This contrary. the to decision a is there if save public the to threat that seems it reasoning Court’s the of basis the On decisions, apparently iftheeven lawencroachments allows for uponthe serious necessary longer no and made Parole been has decision affirmative the an until ordered be can release no by that reasoned judges The Board. reached decision the from independent is State of Secretary the of failure the as finding Appeals’ of Court the upheld Lords of House the of decision The Convention. the of (4) § 5. Art. under right their violated clearly which system the of shortcomings the to Parole the that and asserted also They arbitrariness. broken is judgment original the and detention befo ECHR the of applicability direct the to due Furthermore, prisoners. the of dangerousness the to as shown been has proof no that provided expires tariff the once unlawful becomes detention Ho the also reached case The 3.2.2.

See Human Rights Act1998. Rights HumanSee Secretary of St of Secretary e h U the re House of Lords Lords of House brings relief prisoners for no serving IPP no decision can be reached until the Parole Board is convinced that the that convinced is Board Parole the until reached be can decision no

. K ate for Justice (Respondent) (Respondent) Justice for ate .

Courts ”

. This is the statutory mechanism which cannot be revised by judicial judicial by revised be cannot which mechanism statutory the is This . , 64

h dties rud ht h cua rltosi bten their between relationship causal the that argued detainees the

, s o Lrs n rn o wih h pttoes lie ta the that claimed petitioners the which of front in Lords of use U . K .

, House of Lords, Lords, of House

however v .

James (FC) (Appellant) (formerly Walker and another) R (on the the (on R another) and Walker (formerly (Appellant) (FC) James concerns the lawfulness of the detention asserting that asserting detention the of lawfulness the concerns ,

did not bring success to the prisoners. the to success bring not did 37 Board could not effectively make effectively not could Board

6 May 6 2009. the default position is that a that is position default the they

lo noe te rhbto of prohibition the invoked also

right liberty. to prisoner poses a a poses prisoner

“ decision due decision 65 detention is detention

The body The

CEU eTD Collection VanDro (2002); 67 http://ukhumanrightsblog.com/2012/09/24/when 66 even by theECtHR. protection effective/substantial offer not does and of letters the of obedience mere bythe itself It satisfies context. the to regard anypay not does Court the that fact the in roots arguments these regarding problem crucial the view my In 3. law. the of application arbitrary an for example clear a constitutes and release for safety the about convinced be cannot Board Parole the “why” question the ignores totally however approach pub the of protection the embrace “ the about convinced not is Board Parole the that ground statutory the to referring sayin by on went judges The connectionagain. mechanism causal the of rapture the rejected they judgment, re to based is decision new which on grounds the if broken be might relationship causal the that acknowledged though conviction a of result a and cases liberty to finding the corroborate To as notbepredicted apossibility could by thesentencing judge that inadvance. re and position previous the to counter nosset ih the with inconsistent

Duffy, Jim: When indefinite becomes arbitrary: James, Wells and Leev and Wells arbitrary: James, becomes indefinite Duffy,Jim: When 2.3. Weeks v the UK, ECHR, Application no: Application ECHR, UK, the v Weeks

Obeying the letter of the law vs. the letter theObeying law Ensuring of effectively rights o ge nbroe

ckv rgued that Art. 5. § (1) (a) remained intact since the detention had been a been had detention the since intact remained (a) (1) § 5. Art. that rgued

f cmeet or. They court. competent a of [ . original

Belgium, ECHR, Applicationno: ECHR, Belgium, ,

- the judges elaborated on the arguments taken by the ECtHR in right in ECtHR the by taken arguments the on elaborated judges the detain or not to release are inconsistent with the sentencing court’s court’s sentencing the with inconsistent are release to not or detain

]

lic objectives 9787/82 without the aim of rehabilitation, remained the same. the remained rehabilitation, of aim the without verses the presumption that perceived dangerousness only only dangerousness perceived that presumption the verses - indefinite

(1987); Stafford v. the UK, ECHR, Application no: no: Application ECHR, UK, the v. Stafford (1987); g that a decision not decision a that g ” priual bcue h objectives the because particularly , 38 - becomes

which aim has been declared multiple times times multiple declared been has aim which noe te eeat judgments relevant the invoked

7906/77 (1982). 7906/77 - “ arbitrary safety for release for safety

UK. Available at: Available UK. - james to free to

- wells

an ” - and

cannot be said to be be to said be cannot IPP detainee IPP 66 - lee

- v - uk/ 67 that ,

n even and

46295/99 the law the

on the the on

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CEU eTD Collection 68 butjurisdiction) doesnotsecureaeffective meaningful, sense. reviewina substantive court a by (review demand procedural a is requires provision this what argued Lords the (4), § 5. Art. on complaint the concerns As by ona different establishinga basis. violation Germany v M. in (a) (1) § 5. the criticize I Artscrutinizingwhen brokenbe to whyrelationship causal findingthe not for itself Strasbourg Court reason the particularly is This either. error this from resulting detention pro substantial the foresee not could it system, the of malfunction the foresee not 5 th result a as and happen to this wanted have should therefore life. and known for have should court executive sentencing the the Accordingly, of discretion the at be will convicted the of liberty the that sentences tha claimed they when decision their in analogously applyingLords Weeks alsoerred judgment I that thein Housethe Moreover the of opinion am of regard. inthis Convention i narrow Lords’ of House the Consequently, Court. control Rights Human the the by exercised states, be to member still is to arbitrariness granted appreciation of margin the despite under lawfulness of requirement the satisfies partially only says law the what on insistence the upon centering reasoning whole The

James, Wells and Lee v Lee and Wells James, -

the judges added judges the nterpretation . What I think is just the opposite. In my view, as the sentencing court could court sentencing the as view, myIn opposite. the just is think I What .

The U.K., ECHR, Application no: Application ECHR, U.K., The e appropriateness of the sentence itself cannot be scrutinized under Art. under scrutinized be cannot itself sentence the of appropriateness e

, ignoring the effective protection of rights, of protection effective the ignoring , , notwithstandi ,

Art. 5. The Strasbourg Court had already made it clear it made already had Court Strasbourg The 5. Art. - like body, power power body, like ng the fact that the European Court rectified its error its rectified Court European the that fact the ng 68 39

25119/09 57715/09 57877/09 (2012). (2012). 57877/09 57715/09 25119/09 t it is inherent in the judgment of life life of judgment the in inherent is it t to order release, not advisory advisory not release, order to

cannot comply with the the with comply cannot longation of the the of longation of

prevent

that ing . ,

CEU eTD Collection (Appellant) (Respondent) Justice 70 69 Whereas Noorkoiv relationship. causal the on impact an have w must detention, therefore the and issue of substantive prolongation the for basis a as serve would which of decision the ineffective, being one the is itself Board Parole the case present the In differences. the of am I does a constitute not single decisio the with relationship remotemore a has whichtreatments, in delaybreachedbyabe Boards’ Parole the if argued Lords The (a). (1) § 5. Art. in not but (4) § 5. Art. of violation a in result only can Board Parole Court to order In tariff has period elapsed. a either. therupturemere Consequently, in acausal also can connection delay ofthe result afterthe eventuate, not does down break full a substantial still can malfunction if even since challenged be also can argument This contemplated. sentence original the manner a in detention the end to way no be would there coul arbitrariness when situation namely established, extreme one only envisaged judges The whereas are blank declarations clearly notsatisfying. th in articulated rightsthe that holding obviously law case European the to regard due with again striking is position this view my In

See ECHRPreambl See (orov v (Noorkoiv) R

led to te iw ht h dly y h Sceay f tt i rfrig ae t the to cases referring in State of Secretary the by delay the that view the took already , ,

the delay the underpin its findings the House of Lords of House the findings its underpin opinion that the Court here also followed a flawed logic as it ignored some crucial some ignored it as logic flawed a followed also here Court the that opinion

House of Lords, Lords, of House .

ertr o Sae o te oe Department) Home the for State of Secretary v e; Art. 13; Art.34. Art. 13; e; .

James (FC) (Appellant) (formerly Walker and another) R (on the application of Lee) (FC) Lee) of application the (on R another) and Walker (formerly (Appellant) (FC) James emanating , if the Parole Board would Board Parole the if

basis 6 May 6 2009.

delay itself does not break the causal connection, it is less likely to to likely less is it connection, causal the break not does itself delay

ly lengthen the detention which the original sentence did not aim not did sentence original the which detention the lengthen ly

forBoard’s theParole finding from the failure of the Secretary of State of Secretary the of failure the from

e Convention have to be ensured also in the practical sense the in ensuredalso be to Conventionhavee

40 no more no

invoked t invoked

20] WR 24 In: 3284. WLR 1 [2002] be be able to function at all and therefore therefore and all at function to able he Noorkoiv case, Noorkoiv he either .

did ertr o Sae for State of Secretary ih s lal a clearly is hich

o peet the prevent not 70 d actually be be actually d

in which the which in n andn

in CEU eTD Collection 72 (Appellant) (Respondent) 71 basis for waiting any detention for justification. [ to opportunity the with applicants the providing not by detention of length the bec so is It State. of Secretary the of failure the rather but objective, consistent a nor conviction a neither confinementis continued the for basis aI as see reasoning the what aboveof basis the On law argument used formal the to returned simply and realization own his abandoned he why reason the see State of Secretary the w assessment its on dependent is Board is which regime prison the on dependent “ are prisoners that hand one on imply realities the of end the At from former its position. connec causal to opportunity of lack case Cawser the invoked also Lords of House The respect Art. aconnection 5.§(1) here proceduralonehaving the delay is indeed (a). nowith once decision effective an making from Board Parole that dependent on the structure the on dependent

Secretary of State for Justice (Respondent) (Respondent) Justice for State Secretaryof R (Cawser) v (Cawser) R ause a mainly procedural issue i.e. the lack of resources could have an enormous impact on impact enormous an have could resources of lack the i.e. issue procedural mainly a ause ]

they no longer no they , UK House of Lords, Lords, of House UK v . .

tion. However the C the However tion. Secretary of State for the Home Department Home the for State of Secretary

James (FC) (Appellant) (formerly Walker and another) R (on the application of Lee) (FC) (FC) Lee) of application the (on R another) and Walker (formerly (Appellant) (FC) James an excuse forexcuse an notruling thedetainees. of infavor

James

[ ” pose a threat a pose . Albeit I could not agree more with Lord Judge on what he said, I cannot cannot I said, he what on Judge Lord with more agree not could I Albeit .

ae at n eaiiaie ore cno la t te ijnto o the of disjunction the to lead cannot courses rehabilitative in part take

judgment Lord Judge puts an emphasis an puts Judge Lord judgment 6 May 6 2009. s

[ built ourt failed to give any reasons why it should/could not depart depart not should/could it why reasons any give to failed ourt ] ]

to the public the to by the Secretary of State of Secretary the by v

James (FC) (Appellant) (FC) James hich is hich

41 “ ” dependent

. 71 72

[2004] UKHRR 101. In: 101. UKHRR [2004]

in which the judges previously held that the that held previously judges the which in However an error an However the case has been referred to referred been has case the

[ again ” . He further adds that the Parole Parole the that adds further He .

on the realities. He claims that claims He realities. the on ]

on the structure provided by by provided structure the on can clearly not serve as a as serve not clearly can Secretary of State for Justice for State of Secretary “ it demonstrate demonstrate and in this in and

CEU eTD Collection interpretation. literal rigorous, a of instead requires principle law of rule the what exactly is which arbitrariness of I Still, detention. State of willing only is therefore and law the amend or overrule purely a on built is law to power the with judiciary the vest to wish not does the that consideration jurisdictional procedural, by articulated mechanism statutory the on rigorously insists ofthe restrict behind What to directed ownpower. is the position its Court’s aim by the view my In

the C the

am of the opinion that deciding for the applicants in no way could way no in applicants the for deciding that opinion the of am , to grant declaratory relief relief declaratory grant to , ourt’s jurisdiction. It would only ensure the effective application of the law and exclude and law the of application effective the ensure only would It jurisdiction. ourt’s

h ra ad ot motn plc hdn i te os o Lrs raoig is reasoning Lords’ of House the in hiding policy important most and real the

n rjcs o re te ees fo a eiiey arbitrary definitely a from release the order to rejects and 42

by declaring the failure of the Secretary Secretary the of failure the declaring by lead to the expenditure the to lead

body that body that CEU eTD Collection no: 73 law case Court’s the by underpinned be can factor this of importance special The case. the of outcome the in factor decisive a plays which addi an has prevent on judgment rejected a and se per delivereddetention Court the that seems it glance first at Although years. been had limit maximum the t had prisoner the consequently and abolished Meanwhile, limit. upper year ten a having indefinite though an of character detention preventive with along time of period specific a for imprisonment ECtHR. the case the of aspect detention. preventive of issue the on decided before, mentioned As perspectiveEuropean 4 whether be should subject it lega and factual different under behaves it how doctrine, influential its with scrutiny. detailed a to argument, relationship causal de the subject and law case European relevant the through institutions examined the closer bring to is chapter this of intent the problem, thesis’ the about picture full a delivering of importance the Considering .1.

See 30493/04 (2011); (2011); 30493/04 4. M. v. Germany: The leading judgmentM. leading v.Germany: preventive concerning The detention

Grosskopf v. Germany, ECHR, Application no: 24478/03 (2010); (2010); 24478/03 no: Application ECHR, Germany, v. Grosskopf The analysis and critique analysis The the cas of tional and very special element embodied in the retroactive applicability of the law the of applicability retroactive the in embodied element special very and tional As

led expla already

Mork v. Germany, ECHR, Ap ECHR, v. Germany, Mork cisive parts of the Strasbourg Court’s reasoning, centering upon the so the upon centering reasoning, Court’s Strasbourg the of parts cisive in the precious chapter precious the in

M. v. Germany is the leading case of the European Court of Human Ri Human of Court European the of case leading the Germanyis v. M.

the institution by finding a violation, the facts reveal that the case case the that reveal facts the violation, a finding by institution the

i to criticism. ned te ae ocre a pr a concerned case the , , this part of the paper paper the of part this ,

plication no: plication 73 e law of the of Humane Court European law of Rights

o remain in prison even after being detained for ten ten for detained being after even prison in remain o disclosing just the opposite po opposite the just disclosing Having the reader familiarized with the domestic the with familiarized reader the Having 43

This part will reveal how the C the how reveal will part This 31047/04 (2011); 31047/04 isoner who had been sentenced to to sentenced been had who isoner Schmitz v. Germany, ECHR, Application Application ECHR, Germany, v. Schmitz will disclose will

sition of the body in body the of sition l circumstances and circumstances l

the case as before before as case the

from the ourt operates ourt - called ghts ghts

ive CEU eTD Collection 76 at: Available In the Pr Judges, for with Rights Human on Manual A Justice: of cooperation Administration in Rights Human for Commissioner 75 74 conviction.” the of virtue by occur or upon depend and follow from, prescribe also but detention the and conviction the of context the in order chronological a requires only not indeed doctrine This “after”. word the interpretationof The measure involving offence an been has there that law the with accordance unless exist not does “conviction” “conviction word the how explaining by provision case Guzzardi the In court.” competent (a). (1) § 5. Art under prov cases this to According liberty to right in precedents the by created test a argument, Cour the of reasoning The involved 4. valuable arguments thatworth considering and decision the in role influential an having issues further upon touches not is judgment M. the that fact the Notwithstanding affirmedCourt compatibility the sanction withthe indefiniteConvention. ofthe Strasbourg the cases those In facts. the by concerned not is retroactivity of issue the where cases

M vItaly, Guzzardi 1.1. tfod . h Uie Kndm EH, plcto no: Application ECHR, Kingdom, United the v. Stafford .

v. Germany 105. §; Weeks v. the United Kingdom 42. §; Stafford v. the United Kingdom 64. §. 64. Kingdom v. the United §; Stafford 42. Kingdom v. the Weeks United §; v.105. Germany crucial part from the point of view of the causal relationship argument appears under the the under appears argument relationship causal the of view of point the from part crucial The causal relationship argument: causalThe relationship

http://www. ECHR, Applicationno ECHR,

deprivation ofdeprivation liberty”.

justiciaviva.org.pe/jurispu/relator/cap5.pdf ision a detention can be considered lawful if it is “after conviction by a by conviction “after is it if lawful considered be can detention a ision i te . uget s centering is judgment M. the in t

there is “both a finding of guilt after it has been established been has it after guilt of finding a “both is there : 7367/76 (1980), (1980), 7367/76 74

the Court had created a guide for the application of this of application the for guide a created had Court the 75 When theWhen extensionmaximum of periodis

being subjectedbeing 44

100. §. 100. ” shall be construed. Accordingly, construed. be shall ”

ternational Bar Association: Human Rights in the the in Rights Human Association: Bar ternational

46295/99 (2002) 64. §. See: Office of The High High The of Office See: §. 64. (2002) 46295/99 exclusively about preventive detention preventive about exclusively

and the imposition of a penalty a of imposition the and osecutors and Lawyers 159 Lawyers and osecutors

to criticism. to s that the “detention must result must “detention the that s

upon the causal relationship relationship causal the upon 76

i sil nlds some includes still it , This causal connection causal This

- 172 (2003) a (2003) 172

the term term the or other other or t 172. t

but

in in

CEU eTD Collection 77 detention assuch at the European level. preventive of institution the of acceptance the to led has finding which involved not is period t in satisfied be to test view my In yearsten inprison. than more serve might applicant the that chance the foresee to court sentencing the allow not did of amendment the is satisfied being as test the regard not did Court the why factor only the that importance crucial of is it however decision, M. the of context the in reasonable a Establishing resurrected ofcompetence court. tothe lack due executive ofthe [ ten the legitimateexpectationstemmed beconvicted ofhavingin ofthe released sentencingcourt the which from penalty the for limit upper an was there detention preventive of imposition the for executing d the and decision court’s sentencing only having court similar a by the between existence in still connection valid a issued find to essential been have would it competence, was detained remain to order the case making in competent only canno judgments are of execution the that about decisions courts those of decision the that noted also Court The “ lo no are conviction initial the of objectives the if broken becaneven it and time of passage the byweaker become however might continued decisionre torelease or

M v. Germany 105. § v.105. Germany M

years maximum. Consequently, the chain chain the Consequently, maximum. years ] ,

detention the real problem does arise when the Court takes the opposite position and finds the finds and position opposite the takes Court the when arise does problem real the ilto o Art of violation

[ must have must oe rvnie eeto css hr te xeso o te maximum the of extension the where cases detention preventive hose - detain

[ . are ] . () (a) (1) § 5.

broken nger “consistent” with the grounds on which a subsequent subsequent a which on grounds the with “consistent” nger ]

etention. However etention. based

”

” when this period expired which could not have been been have not could which expired period this when . 77

45 n te ruet nepnig t em t be to seems it underpinning argument the and

t be regarde be t “ ewe te rgnl ovcin n the and conviction original the between ,

at the time the sentencing court decided decided court sentencing the time the at d as convictions. Since convictions. as d

the law that that law the

in the M. the in CEU eTD Collection either. this exist not could that connection causal the therefore and conviction realized of test the meet not have does sanction would/should it detention, preventive of character the to regard due defini own its carefully more examined Court the Had institution. the view my In conviction was andthe infringed. not detention the and crimes future preventing of objectives same the had applicant the release to not decision court’s executive the and order court’s sentencing p its onaclaimingthe other thedetention conviction hand hand wasandon thatonone based boththe reasoned It met. is case, M. the to contrary test, relationship causal the since (a), (1) § 5. Art. under justifiable is detention preventive that Germany, v. Mork or Germany The Strasbourg Cou AnPreventive vs. examinationArt. under life imprisonment: 5. detention §(1) (a) is scrutinized. as and such thereforecases onlyare mereinstitution involved nospecialcircumstances the where Court’s the present to going am I section following the In involved NOT 4.1.2. ofthe periodthe extension involved. maximum isnot IContrary oftheopinionthatc Court am tothe The causal relationship argument: causalThe relationship the When extensionmaximum of periodis

however

rt has held in numerous decisions, such as Schmitz v.Germany, suchas heldinnumerous decisions, v. rt has Schmitz Grosskopf ,

the Court did not pay due attention to the special, preventive character of of character preventive special, the to attention due pay not did Court the 46

ausal relationship can also be damaged even if ausal be can damaged relationship even also if

refore the causal connection between the the between connection causal the refore

position in those preventive detention detention preventive those in position tion about conviction with conviction about tion

sto by osition CEU eTD Collection 78 preventive what Consequently, basis. different a have does imprisonments the of one that be must rationale the principle, idem in bis ne the contradict also would it and act past same the pena substantiallysimilar a impose to sensemake not would it Since time). of period specific a for (imprisonment sanction homogenous still but another entails offence past the when one the is it since act past the with relationship formal of kind some has detention preventive Albeit weaker. much is detention preventive to connection their whereas crime, the to proportionate imprisonment term to connected indeed are offence past the and guiltiness although because so is This doubts. without satisfied be can offence an of establishment the and guilt of finding a of criteria the whether ambiguous it makes imprisonment term fixed another, it that fact The complex. more is detention preventive of imposition the contrast, In imprisonment. life was which sentence single one with punished and of guilty found been had he burglary with imprisonment life about judgment Weeks the concerns as view, my In standard. this meet to able are sanctions “ satisfying of view of point the from crucial is distinction This preventive detention life but imprisonment. concern not did facts the however argument, relationship causal the on lean also po my corroborate to order In idn o guilt of finding

Weeks v. the United Kingdom United v. the Weeks

”

n te salsmn o a ofne Te or i o te pno ta both that opinion the of is Court The offence. an of establishment the and

that induces the criminal procedure, this relationship seems to be broken broken be to seems relationship this procedure, criminal the induces that ,

the Court the , ECHR, Applicationno ECHR,

sition I recall the Weeks v. the United Kingdom case, Kingdom United the v. Weeks the recall I sition

’s position cannot be challenged: the applicant was charged charged was applicant the challenged: be cannot position ’s : 9787/82 (1987). : 9787/82 47

a sanction but this sanction is the fixed the is sanction this but sanction a

the Court’s test which requires a a requires which test Court’s the 78 lty twice for for twice lty

which did which ,

the one one the follows CEU eTD Collection 80 2 BvR 571/10. 2 BvR1152/10, 2333/08, BvR 2 future.” inoffence the p solely detention preventive under detainee a of liberty of deprivation the offences, committed culpably of retribution the serves sentence prison a „While detention: 79 whether fact the of regardless (c) (1) § 5. Art. under justified be cannot detention preventive Accordingly, Court. the of law case the by created contradiction the in is challenge The cases. detention preventive of context the l sheds position which conjunction, in read be shall 5, Article under those therefore and Convention, the of provisions the jurisprudence Court’s the to According § (4) 5. Art. Preventi the past act andthe detention. between connection the break would which measure homogenous identical, still but separate a the type butcannotindependent ofthealong an constitute withthe past sanction basisfor offence offender the of dangerousness the to as concerns some are there if even and act past the on based obviously is punishment (only) the however, cases, imprisonment life In causal either. can relationship exist Art. of purposes the for “conviction” term the satisfy cannot it reality in that reveals definition the of examination thorough a and illusionary only is guilt of finding of possibility the without acts future on based is that conviction a result happ not did simply it factthat the to dueguilt of finding a entail it can moreoverneither conviction, a for basis valid a as Court the by considered not is dangerousness future However, poses tothepublic. a past the not is with connection real a has detention

Guzzardi hs oiin a e was position This ve detention: An examination Anve examination pointunder conjunction (a)with detention: in (c) point and

vItaly,

ECHR, Applicationno ECHR, xpressly affirmed by the German Constitutional Court in a decision concerning preventive preventive concerning decision a in Court Constitutional German the by affirmed xpressly 79

it is used as a preventive measure preventive a as used is it :

7367/76 (1980) 7367/76 ursues preventive objectives, namely the prevention of criminal criminal of prevention the namely objectives, preventive ursues 48 5. § (1) (a) leading to the consequence that no that consequence the to leading (a) (1) § 5.

102.§. ct but the future dangerousness the offender the dangerousness future the but ct

ight to another challenge in challenge another to ight 80

like in Guzzardi or as a as or Guzzardi in like

it can only influence only can it en. As a a As en.

CEU eTD Collection Rights Human of protection 83 82 81 the in change to expected is it that such is detention preventive for ground the of nature very the since challengeable is however approach This principle. founded well Court’s the of observance d preventive that basis the on (a) (1) decision” proceedings judicial of m is decision “a when which to according incorporation” of “doctrine the of view of point the from problematic also is (a) (1) § 5. Art. of application the Furthermore, detention afterconviction byeither.competent a court” th and dangerousness future with but conviction the with connection Isecondelaborated detentionaas earlier,real onthis because,usedsanction preventive as has no the institut prevent should measure a as institution provision the the of applicability of case in (a) point of applicability the In provision. same the by covered court”, competent a by conviction after detention constitute not “does measure preventive a since either, (a) (1) § 5. Art. under justified be cannot claims Court The a sanction/penalty. criminal as or measure a as employed is detention preventive if difference the on depending (a) (1) re be offences” future for tried and judge a before promptly brought be not “are detainees sanction

Guzzardi v. Italy 100. §. v.Italy 100. Guzzardi §. v.102. Germany M. . Tr S. quired by Art. 5. § (3). Interestingly, the Court reached different conclusions under Art. 5. § 5. Art. under conclusions different reached Court Interestingly,the (3). § 5. Art. by quired echsel ion as a penalty a as ion 81 .

83 ie n . . emn, u t te ak f oceees n t te at ht these that fact the to and concreteness of lack the to due Germany, v. M. in like

Lbry n Scrt o Person of Security and Liberty : Following the practice of the Court and subsuming preventive detention under 5. § 5. under detention preventive subsuming and Court the of practice the Following

, Dordrecht, M. Nijhoff (1993) 277 Nijhoff (1993) M. , Dordrecht,

has the same preventive character in substance as the measure has measure the as substance in character preventive same the has [ … ]

the supervision articulated by Art. 5. § (4) is incorporated in the the in incorporated is (4) § 5. Art. by articulated supervision the

in case of the institution institution the of case in

my view my tnin s rsl o a conviction a of result a is etention . In R. St. Macdonald et al. (eds.), (eds.), al. et Macdonald St. R. In . ,

in Guzzardi Guzzardi in however 49

82 -

344 at 320. 344 whereas as a criminal sanction it might be might it sanction criminal a as whereas ,

the factors invoked by invoked factors the

that as a m a as that s snto also sanction a as

erefore it “did not constitute not “did it erefore easure ade by a court at the close close the at court a by ade h Erpa Sse fr the for System European The ,

, preventive detention preventive

. would call for the the for call would Court for rejecting for Court is becau First

as it would it as se the the se ,

and and CEU eTD Collection 85 , ECHR theNetherlands, 84 responsib criminally not was applicant the that fact the to due that claim “convic on own definition its contradicted Court the (a) (1) § 5. Art. under also case the subsuming By judgment. approach an such for basis a provide can decision Rocha Silva the even not that opinion the on am I Nevertheless yearscorpus detention thefirstalso in of cancases. beacceptable inpreventive detention agains judgment the of logic the Following not does was it violate Art. incorporated 5.§(4)thedetention. decision which since inthe imposed applicant the by complained detention the of years three first the in review of lack (a) (1) § 5. Art. by mutually covered is case the that ruled Court The liable foraccount thecharges on ofhismental illness. criminally be to not found person a of years three of period minimum a for hospital psychiatric The ignored. be can corpus habeas when but provided be should corpus habeas when issue the regard not does it that perspective the from special is case The anglecalled for thecase Rocha Silva which vPortugal also approached be might incorporation of doctrine the surrounding problem The order)acceptinga by n hospital mental imprisonment, (life principle the to exceptions existing already the of number by or, self its ignore corpus to corpus, habeas habeas securing ignore to Court the forces either (a) point under detention preventive futu

Silva Rocha v. Portugal, ECHR, Application no: Application ECHR, v.RochaPortugal, Silva See De Wilde, Ooms and Versyp, ECHR, Application no: Application ECHR, Versyp, and Ooms Wilde, De See re therefore habeas corpus should be inevitable in preventive detention cases. So justifying So cases. detention preventive in inevitable be should corpus habeas therefore re I ru ta te Prua” eiin n tef s hgl challengeable highly a is itself in decision “Portugal” the that argue I . Application no. Application

tion” ew oneew onpreventive detention. ,

which is a precondition for precondition a is which

6301/73 (1979) 55. § 55. (1979) 6301/73 - established doctrine of inco of doctrine established 18165/91 t Portugal one might argue that the lack of habeas of lack the that argue might one Portugal t 50

2832/66; 2835/66;2899/66 2835/66;2899/66 2832/66; (1996) .

85 84

. canan illustration. serve as the application the

facts concern the detention in a a in detention the concern facts rporation and increase the the increase and rporation

and (e) and therefore the the therefore and (e) and of of (1971) 76. §; Winterwerp v. v. Winterwerp §; 76. (1971) le, his detention could detention his le, the said parag said the

from another from

raph. I raph. CEU eTD Collection 89 88 87 86 Sicherungsverwahr (nachträgliche/retrospective detention preventive of imposition retroactive the for allowing Code Criminal the of amendment new a under case each in ordered sentences court the by imposed sentence prison term fixed applicants’ the of completion the after served be to detention preventive concerned cases Both here. mentioned as named decisions more two cases detention preventive in position Court’s Strasburg the about picture full a present to order In 4.1.3. happenedcited case. inthe revie of possibility the exclude to unacceptable be would it consequence a As purposes. preventive for solely change, to expected is which dangerousness, future of basis pr Moreover, above. elaborated grounds the on case Rocha Silva the to similarly conviction as considered reg As sanctionhospital does a element. have punitive tha accepts one if with agreed be only can judgment a such that assert I Furthermore canregularout. a be only satisfied ifreview iscarried (4) § 5. Art. cases illness mental in that law case Court’s the in established clearly is it Besides, in accordance thato thereanwith the law has been the be not

German Criminal Code, Section 66b. 66b. Section Code, Criminal German no: Application ECHR, v. Germany, Haidn ECHR, v. Germany, S. Applicationno: ECHR, Kingdom, v. the United Stafford A follow rs rvnie detention, preventive ards ”

consequence of a conviction requiring a “finding of guilt after it has been established established been has it after guilt of “finding a requiring conviction a of consequence s hortly before the prisoners should have been released. The extra imprisonment was was imprisonment extra The released. been have should prisoners the before hortly eventive detention is not a punitive, retributive institution but it is imposed on the on imposed is it but institution retributive punitive, a not is detention eventive - up: The ofup: the M.cases findings judgment corroborating the

Application no: 3300/10 (2012). no: 3300/10 Application

I claim that the decision imposing the sanction cannot be be cannot sanction the imposing decision the that claim I 6587/04 (2011). 6587/04 . . Germany v. S.

46295/99 (2002) 64. §. 64. (2002) 46295/99

ffence

n Hin . Germany v. Haidn and . ”

“ responsible for the execution of execution the for responsible

w for any years as it it as years any for w

hl as be also shall t the mental the t ung) . 89

CEU eTD Collection with consistent being not applicant the by claimed was period uncovered This given. was prolongation for authorization period maximum a with reasons mental of ground the of point the from special is case The case. Norway v. Eriksen the in found be can argument own its misuses Court the how for example Another 4.2.1. Court’s c argument incases the analyze to continue I paper the of section following the In circumstances. legal and factual different under argument relationship causal the with operates Court the how show to detention c this of part previous the In IPP on focus 4.2. very considered therequirements ownisstill tobeincompliancewith ofStrasbourg. the with incompatible only institution the whereas is circumstances, unlawful other with coupled detention is it when Convention preventive that view its on insist to seems Court dete preventive of application retrospective the namely circumstance, special a implied also cases these connection, causalthe oflack the to due 5 Articleunder violation findingafor basis a as solelyserved period ca M. the to similarly and consistent be to remains Court the contrary, the To above. elaborated decisions its reversed has body the that mean not does it relationship, causal the of lack the to due cases both in violation a found Court the Although

Application of thea Application preventive argument with special of outsidethe scope detention Expired authorization for detention: authorizationfor v.Norway Expired Eriksen

to, ht e t jdmns elrn te eetos o e nafl S the So unlawful. be to detentions the declaring judgments to led that ntion,

the Convention. Interestingly, the Court, without giving any specific specific any giving without Court, the Interestingly, Convention. the oncerning than preventive sanctions other detention. hapter I already touched upon touched already I hapter

view that it concerned a security measure on on measure security a concerned it that view , although the term the although , se where the extension of the 10 year 10 the of extension the where se an institution other than preventive preventive than other institution an

had elapsed before an an before elapsed had

on its on

CEU eTD Collection Germany, and States 93 92 91 90 rightsindividual’s the against balancing skewed in results often which public the protect to aim have only not did institution Belgian the Second, measure. the by achieved be to aim the and imposition for ground the on depending forms different had but detention entail necessarily not i even conclusions divergentallows that extent an such to Germanpair its from differs execution its and Government” the of disposal reveal cases the of analysis detailed punishmen the upon touching cases in violation a finding not for criticism self in be ade the for decision DroogenbroeckVan The 4.2.2. for thedetention. Art. under also claim the examine and further move to decided they why reason the be must which argument their it”. of virtue by occur or upon depend th since conviction the with exist to ceased link causal the conviction, original the of expiry the to Due detention. the and offence the but detention that argued and realized who Repik, Judge of opinion concurring the with agree I and respect this in erred Court the that opinion the of Iam satisfied. be to test relationship causal the found reasons,

Schmitz v. Germany, Grosskopf v. Germany and Mork v. Germany v. Mork v.and Germany Grosskopf Schmitzv. Germany, v. Belgium, VanDroogenbroeck no: Application ECHR, v.Norway, Eriksen Kelly, Meaghan: Kelly, A positive A positive example:v. Belgium VanDroogenbroeck - contradiction since I subjected the German preventive detention judgments detention preventive German the subjected I since contradiction quate application of the causal relationship argument. At first glance I might seem to seem might I glance first At argument. relationship causal the of application quate Lock them up up them Lock lhuh cneto ide eitd u nt ewe te ovcin n the and conviction the between not but existed indeed connection a although

39 Georgetown 39 Journa

5. § 5. (1) (c (1) --

ECHR, Application no: 7906/77 (1982). no: 7906/77 Application ECHR,

and throw away the key: The preventive detention of sex offenders in the United the in offenders sex of detention preventive The key: the away throw and ), which unorthodox step could indeed reveal a valid justification justification valid a revealindeed could step unorthodox which ), , 91 f it regards similar institutions. First, the Belgian sanction did sanctionthe BelgianFirst, institutions. similar regards it f

s not establish not l of International Law 551 (2008) at 562. (2008) Law 551 International l of

that the Belgian institution of “placing an individual at the the at individual an “placing of institution Belgian the that 90 17391/90 (1997), Concurring Opinion of Judge Repik. ofJudge Concurring Opinion (1997), 17391/90

In my view myIn 53 ing

the violation of Art. 5, is a positive example positive a is 5, Art. of violation the the majority also perceived the weakness of weakness the perceived also majority the e „detention „detention e

did not result from, follow or or follow from, result not did

t per se. However the the However se. per t

the mistake the 92

to harsh to the 93

CEU eTD Collection abo not was it if even since case, U.K. the in circumstances similar faced court sentencing the that assert I Analogously, prison. in years ten than more for up locked be could offender the that conviction the of time the Ge the In also. case still I issue, different rela causal the concerns As violation. a establishing relationship for reasoning causal different a applied the but argument under problematic it find not did Court the measures, rehabilitative case U.K. the Although retroactivity. of issue the with coupled was detention preventive unless violation a find not did Court the cases German the in see could we As IPP. of institution U.K. the concerned that Lee indefinite on ECtHR the of judgment recent most The 4.2.3. the BelgianGerman cases. and in conclusion same the reaching on Court the with agree cannot I which of consequence circums safeguarding those lacked cases German the contrast, In violation. a finding from Court the prevented and safeguards as functioned which authorities the by showed trust” character specific the affirming of capable were that acts real on but predictions future mere on based solely not was an over crimes committed who applicant the release to attempts madeauthorities Belgianthe Third, offenders. reformthe to goal articulatedthe also but tionship doctrine, following the logic of the M. judgment despite the fact that it concerned a concerned it that fact the despite judgment M. the of logic the following doctrine, tionship “ causal link between the original conviction and the and conviction original the between link causal Imprisonment p public for istics of the measure and the execution of the sentence i.e. “the patience and and patience “the i.e. sentence the of execution the and measure the of istics rman judgment Strasbourg held Strasbourg judgment rman

claim that the causal link ceased to exist on similar grounds in the U.K. U.K. the in grounds similar on exist to ceased link causal the that claim

ut retroactivity ut also implied an additional issue namely the lack of access to to access of lack the namely issue additional an implied also rotection: Lee v.theU.K. Wellsand James,

, still ,

54 the court could not foresee that due to the lack oflack the to due that foresee not could court the

that the sen the that d over again, so in this sense the detention the sense this in so again, over d sentences is the case of James, Wells and and Wells James, of case the is sentences

[…]

detention

tencing court could not foresee at at foresee not could court tencing ” . Consequently it was the the was it Consequently .

tances as a a as tances

CEU eTD Collection 95 94 ofprohibition retroactivity been and have ofArtshould resulted7. observed in the violation princi the which of consequence a as penalty, as institution the qualify to but arbitrariness establishing to Court the lead not did case M. the in detention of condition and place the and th Accordingly, deductions. judgment striking is What sense. the properly, test relationship causal the used it had violation a finding for far that gone have not should Court the although that, opinion the of am I th of prolongation incarceration, thedetentiongoes theCourtfound arbitrary against which Art. substantial the to led circumstances the Since provided. is what and ideally required conditions the between struck be must balance fair a still one, absolute shal detention the of circumstances the purposes, rehabilitative for also but public the threaten they because on a be to has there that respect this in claimed Court The general. in (1) § 5. Art. of violation the to led which arbitrary Art. under violation a find not did Court the Although between andthe detention conviction beyond theoriginal th connection causal the breaking of capable being for enough significant circumstance this find the in I release.substantiallytheir would postpone it and partpublic the dangerto a pose longer theyno that take to opportunity the with Boar Panel the of front in demonstrating from them prevent would which provided courses rehabilitative be not will applicants the resources

M. v. Germany 128. §. v.128. Germany M. (1985). no: 8225/78 Application ECHR, U.K, v.the Ashingdane n te lc ad odtos f detention of conditions and place the and 95

but not under the scrutiny of Art. 5 but under Art. 7 and therefore reached different reached therefore and 7 Art. under but 5 Art. of scrutiny the under not but b i acrac wt ta priua am Abi ti rqieet s o an not is requirement this Albeit aim. particular that with accordance in be l

“ relationship betwee relationship ,

however e missing relationship between the ground of deprivation of liberty of deprivation of ground the between relationship missing e

that the Court used this very same argument also in the M. M. the in also argument same very this used Court the that n the ground of permitted deprivation of liberty of deprivation permitted of ground the n 55 ” .

ic IP rsnr ae o ol detained only not are prisoners IPP Since

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CEU eTD Collection 110 109 December 2012). 11 108 107 law new The met. are conditions certain it if proceedings and such in time defence of mandatory proscribes period significant a for respected not are principles declared the if detention Code the safeguard a As to Art. 66onpreventivedetention, basically reiteratingFCC sevenrequirements: some ofthe Distance 2013. June of 1 on force the of Implementation of Act Detention Preventive Federal of Law the in Requirement the adopted Bundestag the result a As constitutional decision. that law new the adopt to legislation conforms the for deadline a as 2013 May 31 set had FCC The 6.1. on theissuesraised thesis. by the th reveal to institutions the on up follow a offers paper the of part This chapters. previous the in presented been already law r human from also and bodies judicial from coming primarily existence their during challenges of number a faced have institutions examined The

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o h dsac rqieet pcfe i svn ead i te ale mentioned earlier the in demands seven in specified requirement distance the to

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110

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e Esr Robert Esser, See ntiate between old and new cases as I have referred to this in an earlier chapter. chapter. earlier an in this to referred have I as cases new and old between ntiate t. 5. § (1) (a) as the human rights body has already made it clear that the pure form of form pure the that clear it made already has body rights human the as (a) (1) § 5. t. : rmnl acin udr ua Rgt’ Pressure Rights’ Human under Sanctions Criminal As referred to this earlier, t earlier, this to referred As

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of the determined prison term. This practice had been been had practice This term. prison determined the of inal responsibility and therefore those prisoners prisoners those therefore and responsibility inal 67 hese modifications, not affected by the new Act, Act, new the by affected not modifications, hese

113

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Drenkhahn, Kirstin: Kirstin: Drenkhahn, Heger, Martin and Pohlreich, Erol: Erol: Pohlreich, and Martin Heger, . Available . at: tal disorder, despite the FCC’s attempt to clarify the notion, remained unclear. The The unclear. remained notion, the clarify to attempt FCC’s the despite disorder, tal

Secure Preventive Detention in Germany in Detention Preventive Secure http://www.theartofcrime.gr/eng/?pgtp=1&aid=1365190870#3

refer to this, to refer 115

equire the exclusion of criminal responsibility, if this would be would this if responsibility, criminal of exclusion the equire The European Court of Human Rights and German provisions on preventive preventive on provisions German and Rights Human of Court European The 114

some might respond that the fact that Strasbourg does not does Strasbourg that fact the that respond might some ll require that the cause of detention correspond to the the to correspond detention of cause the that require ll ental disorder” came forward, with the help of whichof help the with forward,ental disorder”came

puts it, comes close to qualify to close comes it, puts 68

: Incapacitation or Treatment Intervention? Intervention? Treatment or Incapacitation :

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At 323.

CEU eTD Collection Note 116 Minister Prime the which of conference press the at Commons, of House the to introduced was remained problems the however changes many sign first The unsolved. through gone has system the result a As country a in place governedrule principle. oflaw by the no have can which practitioners and prisoners both for system legal the crea and overcrowding to contributed system, parole and prison the on burden unmanageable an put system the that out pointed Others application. broad unexpectedly its S then the Clarke, Ken As implementation. its particularly and punishment the concerns very as beginning the from critics many phrased has lawyers practicing and academic of community The notorious sanction. Offenders of Punishment and Sentencing Aid, Legal the by stopped was institution the of coaster roller The 2012. December 3 and 2005 April U the of system sanction criminal i of sentence indeterminate The 6.2 jurisdictional issues imp practical the whereas level, federal the at framework a create only they tests the pass they if even Moreover, surface. the on be to seem they as perfect as not far are arrangements new the Consequently,

Strickland, Pat: Pat: Strickland, . Saying . Saying , at 12. Last updated: 26 April 2013. Available at: April 26 2013. Last updated: 12. at , ecretary of State noted, the sentence was “unfair between prisoner and prisoner” and prisoner between “unfair was sentence the noted, State of ecretary G ood bye toood IPP? The abolition of sentences of Imprisonment for Public Protection Protection Public for Imprisonment of sentences of abolition The lementation lementation

which create for will newthesystem dimensions from. bleed to s of the final solution arrived on 21 June 2011, when the bill of LASPO of bill the when 2011, June 21 on arrived solution final the of s

remains

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116

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LASPO, Chapter 5 of Part 2, Section 122 and Schedule 15B. and 2, 122 Section ofPart 5 Chapter LASPO, at 10. Ibid.

See: Relevant changes of LASPO: Chapter 5 of Part 3, sections 122 to 128, and in schedule 18, with transitional transitional with 18, schedule in and 128, to 122 sections 3, Part of 5 Chapter LASPO: of changes Relevant Rose, Christopher Rose,

tion. The second condition refers to a previous conviction also for a listed offence listed a for also conviction previous a to refers condition second The tion. dule 19. In: Strickland, Pat: Pat: Strickland, In: 19. dule 118

: RIP the IPP: A Look Back at the Sentence of Imprisonment for Public for Imprisonment of Sentence the at Back Look A IPP: the RIP :

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CEU eTD Collection Articles, Books:       

Sentencing EnglandFrameworkfor & Wales’. J. [Last 2013.] accessed: 16,August Available at: onpreventiveprovisions detention Erol: Pohlreich, and Martin Heger, [Last 2013.] accessed: 16,August Available at: Detention andAspects of Esser, Robert wells http://ukhumanrightsblog.com/2012/09/24/when Available at: indefinite When Duffy,Lee becomes Jim: and Wells arbitrary: James, v LawCriminal 167 Review of shadow the in Germany in detention Preventive Dirk Smit, Zyl van Christine; Morganstern, Kirstin; Drenkhahn, Treatment Intervention? Ki Drenkhahn, Zeitschrift 105 für Rechtspolitik Stefan: Braum,

Ha - lliday and

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t al: et

http://www.theartofcrime.gr/eng/?pgtp=1&aid=1365190870#3 : - http://www.theartofcrime.gr/eng/?pgtp=1&aid=1365190870#3.

v Criminal Sanctions under Human Rights’ PressureRights’ Sanctions under Human Criminal - rstin: rstin: uk/ ahrgih Sceugvrarn: n ui po securitate?, pro dubio In Sicherungsverwahrung: Nachträgliche The Halliday Report Report Halliday The

[Last accessed: 2013]. 10,June [Last eue rvnie eeto i Gray Icpctto or Incapacitation Germany: in Detention Preventive Secure

31 Behav. Sci. Law31 Behav. Sci. 312 Discrimination - 187

(2012). - 108 (2004).

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76 - .

'Making Punishments Work: A Review of the the of Review A Work: Punishments 'Making

- – indefinite 327 (2013).

uoen ua rgt law, rights human European of Human Rights and German German and Rights Human of - becomes

“Reserved” Preventive : - What is in a name? name? a in is What arbitrary

UK. .

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     

Law and L.: Richard Lippke, (2010). Conv European the and Grischa: Merkel, In: 2007). I Köhler, European Convention onHuman Rights Grischa: Merkel, [Last 2013.] accessed: 18,August Available at: - Christoph: Krehl, [Last 2013.] accessed: 29,August Available at: Law 551(2008). Germany, and States United the in offenders sex Meaghan: Kelly, Protection Public (2010). for Imprisonment deserts: Unjust Hough: Mike Jacobson, Jessica alliday h Available at: n:

ttp://webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.gov.uk/documents/h also from a Constitutional Point of View of aConstitutionalPoint also from

Festschrift -

report

Die Philosophy 383

http://www.prisonreformtrust.org.uk/Portals/0/Documents/unjustdeserts.pdf http://www.germanlawjournal.com/index.php?pageID=11&artID=267

- sppu Aufhebung

für

Lock them up them Lock noptbe Contrasts? Incompatible Reforms of the German Criminal Code Criminal German the of Reforms

[Last accessed:[Last 31May 2013.]

No easy way out: dangerous offenders and preventive detention, preventive and offenders dangerous out: way easy No üte Jakobs Günther - nin n ua Rights Human on ention

414 (2008).

der Incompatible Contrasts? Contrasts? Incompatible

-- Sicherungsmaßregeln

and throw away the key: The preventive detention of detention preventive The key: the away throw and

77 , 11 German Law, 11German 1046 Journal Zum , 4GermanLaw 421 Journal

–

70. rvnie eeto i Gray n the and Germany in Detention Preventive

39 Georgetown Journal of International of Journal Georgetown 39 Geburtstag 1 Gra Lw ora 1046 Journal Law German 11 ,

–

Preventive Detention in Germany Germany in Detention Preventive

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281

- taking and Perspectives and taking die

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- - 431 (2003). 431 Strafgerechtigkeit 1066 (2010). 1066

- 1066 ed., 27

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       

the PreventiveDecision Detention in Rights Human of Court European the with Relationship Bundesverfassungsgericht’s Birgit: Peters on Human Rights, Richard Stone, (1993). Rights Human of protection the for System European Trechsel S. Solicitors Journal P Rule, Protection Christopher: Rose, [Last 2013.] accessed: 18,August Available at: [Last 2013]. accessed: 10,June Available at: the with Judges,on Human for Rights Prosecutors an cooperation in Rights Human forAssociation: Bar International Commissioner High The of Office Nagy, Ferenc: LawHuman Rights 148 Review Right, Human of Court European the and Court Constitutional Federal German Michaelsen, Christopher:

hilip: hilip: , 76 Journal of Criminal Law ofCriminal , 76Journal 303 Lbry n Scrt o Person of Security and Liberty : http://www.germanlawjournal.com/index.php?pageID=11&artID=1438 http://www.justiciaviva.org.pe/jurispu/relator/cap5.pdf agt n h sse: h efc o aoihn IPP abolishing of effect the system: the in Caught A magyar büntetőjog általános része,büntetőjog általános A magyar : Deprivation of liberty: the scope of Article 5 of the European Convention European the of 5 Article of scope the liberty: of Deprivation

emn’ Daou wt Srsor: Extr Strasbourg: with Dialogue Germany’s

(2013). 1 EuropeanLawReview Human 46 Rights RIP the IPP: A Look Back at the Sentence of Imprisonment for Public Public for Imprisonment of Sentence the at Back Look A IPP: the RIP ‘From Strasbourg, with Love’‘From with Strasbourg,

Human Rights in the Administration of Justice: A Manual A Justice: of Administration the in Rights Human

- 167 (2012).

, 13 German Law 757 Journal , 13German 78

313 (2012). d Lawyers I R S. adnl e a. (eds.), al. et Macdonald St. R. In . Budapest (2008).

— Drrct M Nij M. Dordrecht, , 159

Preventive Det - 172 (2003). - 57 (2012) at 47. at57 (2012) - 772 (2012).

, Vol. 157 No. 07 07 No. 157 Vol. ,

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CEU eTD Collection Reports     

=COUNTRYREP&coi=&docid=4631ece62&skip=0 bin/texis/vtx/rwmain?page=to http://www.refworld.org/cgi A or Treatment Degrading or (CPT) fromPunishment 20November to2December Inhuman and Torture of Prevention the for Committee European the by out carried Germany to visit the on Government German the to Report [Last accessed: Available at: Rechtsprechung Strafrecht im 164 Till: Zimmermann, and Pitfalls Harmut Weber, [Last 2013.] accessed: 31,June Available at: Law, Workhop9 Maxi Tomoszek, [Last 2013.] accessed: 30,August Available at: Note Standard Commons Library Pat: Strickland, : vailable

at: , 8

http://www.hrr http://www.juridicas.unam.mx/wccl/pone http://www.parliament.uk/briefing ZeitschriftInternationale für Strafrechtsdogmatik

16, August 2013.] 16, August - Michael: Michael: : IIh oges f h Itrainl soito o Constitutional of Association International the of Congress VIIIth m: Pr Public for Imprisonment of sentences of abolition The –

Proportionality asaconstitutionalProportionality principle a nu Recht neue Das Life imprisonment and secure preventive detention: Problems detention: preventive secure and imprisonment Life - - strafrecht.de/hrr/archiv/13 pic&tocid=4565c2252&toid=459d2f5b2&publisher=&type

, at 12. Last, at 12. 26April 2013. updated:

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    

Germany (26 Sept Arbi on Group Working UN [Last 2013.] accessed: 31,August Available at: July 2007) by Report [Last 2013.] accessed: 31,August Available at: Germany to visit its on (CPT) Punishment or Treatment Degrading or Inhuman and Torture of Prevention the for Committee European the of report the to Government German the of Response d3b12&skip=0 bin/texis/vtx/rwmain?page=type&type=COUNTRYREP&publisher http://www.refworld.org/cgi Available at: December 7 to November 25 or Treatment from Degrading (CPT) or Punishment Inhuman and Torture of Prevention the for Committee European the by out carried Germany to visit the on Government German the to Report [Last 2013.] accessed: 31,August Available at: Germany to visit Tr Degrading or Inhuman and Torture of Prevention the for Committee European the of report the to Government German the of Response . Thomas Hammerberg on his visit to visit his on Hammerberg Thomas

http://www.refworld.org/cgi http://www.refworld.org/cgi https://wcd.coe.int/ViewDoc.jsp?id=1162763

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from 25 25 from November 2007). 2005. 20 (18, to2December April from –

5 Oct 2011) 5 Oct NovemberFebruary 2010. (22, to7December 2012). - trary Detention Statement upon conclusion of its mission to mission its of conclusion upon Statement Detention trary .

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[Last a [Last 2013.] accessed: 29,August http://www.publications.parliament.uk/ Available at: 2007 Justice [Last 2013.] accessed: 31,August Available at: December 2009). Punis or Treatment Degrading or Inhuman and Torture of Prevention the for Committee European the by out carried Kingdom United the to visit the on Kingdom United the of Government the to Report Available at: Effective Towards Sentencing(Oct. 2008). Report: Committee’s Select Justice the to response Government D=E http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews. Available at:

- 2008. (22, July 2008). [Last accessed: 31, Augustaccessed:[Last 31, 2013.] ccessed: 29, August 2013.] ccessed: 29,August Select Report: Committee’s http://www.cpt.coe.int/documents/gbr/2009

http://www.official

hment (CPT) from 18 November to 1 December 2008. (9, (9, 2008. December 1 to November 18 from (CPT) hment - documents.gov.uk/document/cm74/7476/7476.pdf

Towards EffectiveTowards Sentencing pa/cm200708/cmselect/cmjust/184/184.pdf

- 30 aspx?NewsID=11470&LangI - inf - eng.htm . Fifth Report ofFifth Session Report .

CEU eTD Collection U.K.:The Germany: ECtHR: Legal documents:          

Sixth Criminal Sixth Legal of Offenders Punishment Aid,Sentencing and Act (LASPO) Criminal ActJustice 2003. begleitendenund zu 22December Regelungen; 2010) Ne zur (Gesetz Act Placement Therapy and Protection der Besserung 24November1933) undSicherung; Regarding Measures and ( Rehabilitation Recidivists Dangerous Against Law Sicherungsverwahrung; der Recht im Abstandgebotes des Umsetzung Bundeseinheitlichen zur (Gesetz Detention Preventive of Law the in Requirement Distance the of Implementation of Act Federal German Procedure Criminal Code (Strafprocessordnung) German Code (St Criminal BasicLaw(Grundgesetz) of Germany European Human Rights on Convention (ECHR)

- Law Act Reform of1998 Gesetz gegen gefährliche Gewohnheitsverbrecher und über Maßregeln Maßregeln über und Gewohnheitsverbrecher gefährliche gegen Gesetz

11 December 2012)

rafgesetzbuch)

82 uordnung des Rechts der Sicherungsverwahrung Sicherungsverwahrung der Rechts des uordnung

CEU eTD Collection ECtHR: Cases:                   

Van Droogenbroeck no: v.Belgium, Application ECHR, Italy, v. Guzzardi Winterwerp v. the Netherlands 2899/66 (1971) no: Application ECHR, Belgium, v. Versyp and Ooms Wilde, De Ashing Stafford Application no: v.theUK, ECHR, RochaSilva Application v.Portugal,ECHR, no: Schummer v. v.Germany,Schmitz Application no: ECHR, v.Germany, (2012)S. no:3300/10 Application ECHR, Pretty Applic ECHR, v.theUnited Kingdom, Mork v.Germany, Application no: ECHR, Mautes v. M. v.Germany,Application no: ECHR, Kallweit Application no: Haidn v.Germany, ECHR, ApplicationGrosskopfECHR, no: v.Germany, Görgülü Application v.Germany,ECHR, no: ApplicationEriksen no: v.Norway, ECHR,

dane v. the U.K, ECHR, Application(1985)ECHR, no:8225/78 v.theU.K,dane v.

Germany

ECHR, ApplicationECHR, no ,

, ECHR, Application(2011)ECHR, no:20008/07 ECHR, ApplicationECHR, no: , Application nos: , , ECHR, Application no 83 19359/04 (2009) :

27360/04 7367/76 (1980)

31047/04 (2011)

6587/04 (2011)

17391/90 (1997) 46295/99

ation no: 2346/02 (2002)ation no:2346/02 17792/07 (2011) 30493/04 (2011) 74969/01 (2004 24478/03 (2011) 18165/9

and

. (2002)

6301/73 (1979) 42225/07 (2011)

1 7906/77 (1982)

(1996)

)

2832/66; 2835/66; 2835/66; 2832/66;

CEU eTD Collection Hungary: U.K.:The Germany              

2009 (Appellant) (FC) Lee) of application the (on R another) and (Respondent) Justice for State of Secretary (LawsLJon 31July and2007. Mitting J) v (Wells) R February 2008. 1 on LJJ) Toulson and Dyson CJ, Matravers Worth of Phillips (Lord Appeal of Court R Decision of theHungar (Noorkoiv)R v (Cawser)R v BvG,BvR 4May 22365/09, 2011 BvG,BvR October142004 21481/04, BvG,BvR 2 BvG, 1966 19,342, 25Oct BvG, 1958 7,377, 11June BvG,Lüth decision, Weeks vthe UK, Application ECHR, no: and 3896/10(2012) Vinter Wle) v (Walker) :

and Others v. the United Kingdom, ECHR, ECHR, Kingdom, United the v. Others and . 2029/01, 5February 2004

. .

aoe or [08 1 E 138 AER 1 [2008] Board Parole

Secretary of State forDepartmentSecretary theHome

ertr o sae o utc [08 1WR 1988 WLR 1 [2008] Justice for state of Secretary .

SecretaryforDepartment)of theHome State

1 BvR 400/51 1 BvR ian Constitutional 64/1991 Constitutional Court, ian

9787/82

v .

James (FC) (Appellant) (formerly Walker Walker (formerly (Appellant) (FC) James –

(1987)

Application nos Application h dcso o te Divisional the of decision the

[2004] UKHRR 101 [2004] ,

UK House of Lords, of House UK [2002] 1WLR[2002] 3284 : – 66069/09

h eiin f the of decision the and 130/10 and

6 May May 6 Court Court