European Court to rule on preventive detention in Germany

German authorities argue that the plaintiff known by the initial M. is a menace to society. He has committed severe crimes, including several attempted murders and was sentenced to five years in prison in 1986 before being taken into preventive detention.

The main legal issue is that at the time when M. was taken into preventive detention, this form of custody was limited to a 10-year period. But the law was changed in 1998 enabling the unlimited preventive detention of criminals still deemed dangerous, despite having served their prison sentence.

M., who is still in custody and now faces unlimited detention rather than the original 10-year period, argues that in his case this practice constitutes unlawful retroactive implementation.

The question is now whether a ruling of the European Court of Human Rights in favor of M. could force Germany not just to release him, but also to change the law and release other convicted criminals being detained under the same rules.

Jaeger used to be a judge at Germany's Constitutional Court

"No doubt, the committee of ministers would try to force Germany should this happen … not just to change the law but to also release the prisoners. I don't think Germany would keep them in custody should this turn out to be in breach of the law," Renate Jaeger, the German judge at the European court told Deutsche Welle.

European obligations

The Strasbourg-based court is made up of 47 judges from EU Council member states which have ratified the European Convention on Human Rights. This gives the court judicial leverage in sovereign EU states. The ruling would not be implemented by any administration but by a political body - that is, the Committee of Ministers of the Council of Europe, in which member states are represented by their foreign ministers.

One main problem that the European Court of Human Rights faces is that EU member states often have different national legislation.

"It is the main task of a nation's judge to make his country's legislation understandable to his colleagues. Of course we have a research department that supplies us with individual country reports on various issues. But being the 'mouthpiece' of his country's legal system the national judge participates in all cases," said Jaeger.

According to Axel Mueller-Elschner - a legal expert at the court - member states still have leeway, even if they are confronted with a negative ruling at the European Court of Human Rights.

"Under the convention, member states are obliged to implement the rulings made in Strasbourg. However, the question as to what exactly implementation means is in principle left up to the respective state which then has to decide how to enforce the ruling," Mueller-Elschner told Deutsche Welle.

Strasbourg gaining more clout

The court is also growing more confident in dealing with breaches of the Convention in EU member states, according to Mueller-Elschner.

Preventive detention applies to dangerous convicted criminals

"Over the past few years the Court has, in individual cases, suggested in more concrete terms how it believes a ruling should be implemented. For instance: the release of prisoners or the reopening of a case.

These developments are rather new and emerged about two or three years ago," Mueller-Elschner said, adding that this had triggered a more general debate as to how concrete a court should or can be with regard to the implementation of a ruling.

Germany definitely faces a dilemma if the European Court of Human Rights rules against the practice of preventive detention in the case of M.

The German judiciary will find itself in the pillory and may be forced to release criminals whom the authorities consider a threat to the public.

Currently about 500 convicted criminals are in preventive detention in German prisons, most of them are rapists and murderers.

Author: Daphne Grathwohl (nk)

Editor: Trinity Hartman