HEADNOTE

to the Order of the Second Senate of 8 November 2006

2 BvR 578/02, 2 BvR 796/02

1. Enforcing a sentence of life imprisonment beyond the time required on account of particularly aggravated guilt on the grounds that a criminal offender is particularly dangerous violates neither the guarantee of human dignity (Article 1(1) of the Basic Law) nor the fundamental right to liberty of the person under Article 2(2) second sentence of the Basic Law. The decision whether to suspend a life sentence must strictly adhere to the principle of proportionality in order to maintain the specific and, in principle, also realistic chance for the convicted person to regain their liberty.

FEDERAL CONSTITUTIONAL COURT

- 2 BvR 578/02 -

- 2 BvR 796/02 -

IN THE NAME OF THE PEOPLE

In the proceedings on

the constitutional complaints of

- 2 BvR 578/02 -,

- 2 BvR 796/02 -

the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President Hassemer,

Broß,

Osterloh,

Di Fabio,

Mellinghoff,

Lübbe-Wolff,

Gerhardt,

Landau

held on 8 November 2006:

1. The constitutional complaint of complainant no. 1 is rejected as unfounded.

2. a) To the extent that they did not decide on the merits of the formal complaint against court delay that is contrary to the rule of law, the Orders of the Koblenz Higher Regional Court of 22 April 2002 and of 22 July 2002 – both 2 Ws 308/02 – violate complainant no. 2’s fundamental right to effective legal protection under Article 2(1) of the Basic Law in conjunction with the principle of the rule of law (Article 20(3) of the Basic Law). They are reversed in this respect. The matter is remanded to the Koblenz Higher Regional Court for a decision on the formal complaint against court delay.

1. b) For the rest, the constitutional complaint of complainant no. 2 is rejected as unfounded.

2. 3. […]

REASONS :

A.

The constitutional complaints, which are combined for joint decision, concern the question whether the legal provisions on suspending the remainder of a life sentence and their application by the courts are compatible with the Basic Law if particularly aggravated guilt (besondere Schwere der Schuld ) no longer requires its continued enforcement (§ 57a(1) first sentence no. 3 in conjunction with § 57(1) first sentence no. 2 of the Criminal Code).

I.

The suspension of the remainder of a life sentence is governed by § 57a of the Criminal Code. […]

[…]

If fifteen years have been served and if the particularly aggravated guilt of the convicted person no longer requires continued enforcement of the life sentence, the provision requires that the conditions of § 57(1) first sentence nos. 2 and 3 of the Code of Criminal Procedure must be satisfied in order to suspend enforcement of the sentence. Following its amendment by the Prevention of Sexual Offences and Other Dangerous Criminal Offences Act of 26 January 1998 (BGBl I 1998, p. 160), § 57(1) of the Criminal Code reads as follows:

§ 57

Conditional early release – fixed-term imprisonment

(1) The court suspends enforcement of the remainder of a fixed-term sentence of imprisonment on probation if

1. two-thirds of the imposed sentence, but at least two months, have been served, and

2. this can be justified having regard to public security interests, and

3. the convicted person consents thereto.

The decision must, in particular, take into consideration the convicted person’s character, previous history, the circumstances of the offence, the significance of the legal interest at risk should the convicted person re-offend, the convicted person’s life circumstances and conduct whilst serving the sentence imposed, and the effects that such suspension is expected to have on the convicted person.

(2) (…)

II.

1. a) Complainant no. 1, born in 1940, was convicted by the competent criminal chamber of the Düsseldorf Regional Court of murder under specific aggravating circumstances [pursuant to § 211 of the Criminal Code] together with attempted rape, committed in a single crime (Tateinheit ), and sentenced to life imprisonment on 31 October 1974. […]

[…]

In an order of 16 December 1992, upheld by the Higher Regional Court on 11 May 1993, the Regional Court determined that the continued enforcement of the life sentence was no longer required on account of particularly aggravated guilt, but that the offender continued to be dangerous. The courts competent for the enforcement of sentences (Vollstreckungsgerichte ) refused to suspend the remainder of the life sentence. They held that there was a residual risk that the complainant might commit another homicide offence.

b) […]

c) […]

d) […]

e) […]

f) […]

g) […]

2. a) Complainant no. 2, who was born on 18 June 1944, is serving a life sentence imposed by a judgment of the competent criminal chamber of the Mainz Regional Court of 19 July 1972 for two counts of murder.

[…]

b) The complainant had been in remand detention and subsequently served a prison sentence from June 1970 onward. In November 1997, the criminal chamber competent for the enforcement of sentences determined that the continued enforcement of the sentence was no longer required on account of particularly aggravated guilt. At the same time, it rejected the first application for suspension of the sentence. According to all experts involved in the proceedings, there was a residual risk that the complainant might commit other homicide offences.

c) […]

d) […]

e) […]

f) […]

g) […]

h) […]

III.

The complainants both filed constitutional complaints against the orders of the courts competent for the enforcement of sentences which refused to suspend the remainder of their life sentences. […]

The complainants claim a violation of their rights under Art. 1(1), Art. 2(1) and (2) first and second sentence, Art. 3(1), Art. 19(2) and (4) and Art. 103(2) and (3), Art. 104(1) as well as under Art. 2(2) second sentence in conjunction with Art. 20(3) of the Basic Law; they indirectly challenge life imprisonment as the legal consequence of § 211 of the Criminal Code as well as of § 57a(1) first sentence no. 3 and second sentence in conjunction with § 57(1) first sentence no. 2 and second sentence of the Criminal Code.

[…]

IV.

Statements on the constitutional complaints were submitted by the Federal Ministry of Justice on behalf of the Federal Government, the First, Second, Third and Fifth Criminal Division of the Federal Court of Justice, the Public Prosecutor General (Generalbundesanwalt ) and the Bavarian Ministry of Justice. […]

[…]

B.

The constitutional complaints are admissible.

[…]

C.

The provisions on the suspension of the remainder of a life sentence in cases where the enforcement of the sentence is no longer required on account of particularly aggravated guilt (§ 57a(1) first sentence no. 3 and second sentence in conjunction with § 57(1) first sentence no. 2 and second sentence of the Criminal Code) are compatible with the Basic Law if the principles of interpretation set out below are taken into account. The constitutional complaints against the challenged decisions are unfounded to the extent that they challenge the courts’ rejection of the complainants’ conditional release. The enforcement orders do not affect the complainants’ human dignity. They do not violate their right to liberty of the person, given that they satisfy both the principle of proportionality and the procedural requirements that must be observed in decisions on the suspension of a life sentence.

[…]

I.

Applicable law provides that the remainder of a life sentence be suspended at the earliest when fifteen years of the sentence have been served (§ 57a(1) first sentence no. 1 of the Criminal Code). In addition, § 57a(1) first sentence no. 2 of the Criminal Code provides that suspending the remainder of a life sentence is only permissible if its continued enforcement is not required on account of particularly aggravated guilt. With this provision, the legislator intended to provide a specific time for the possible suspension of the remainder of a sentence, taking into account the wrongfulness and culpability associated with the criminal acts that resulted in the conviction (cf. in this respect BVerfGE 86, 288 <314>). However, the legislator retained life imprisonment as such, and, even in the case of a favourable criminal prognosis, it did not intend any kind of “automatic release” (BVerfGE 86, 288 <321>). When the period of imprisonment required on account of particularly aggravated guilt has been served, a life sentence may be conditionally suspended if this can be justified in consideration of the security interests of the general public, and if the convicted person consents thereto (§ 57a(1) first sentence no. 3 in conjunction with § 57(1) first sentence nos. 2 and 3 of the Criminal Code). The circumstances listed in § 57(1) second sentence of the Criminal Code must be taken into account in the decision (§ 57a(1) second sentence of the Criminal Code). The two constitutional complaints [challenging life sentences] enforced for more than thirty years respectively show that the requirement of § 57a(1) first sentence no. 3 of the Criminal Code may result in extraordinarily long deprivation of liberty – in some cases until the end of one’s life.

The enforcement of a life sentence beyond the time required on account of particularly aggravated guilt on the grounds that the offender continues to be dangerous does not violate the guarantee of human dignity (Art. 1(1) of the Basic Law) or the fundamental right to liberty of the person (Art. 2(2) second sentence of the Basic Law).

1. Human dignity is the highest legal value within the constitutional order (cf. BVerfGE 27, 1 <6>; 30, 173 <193>; 32, 98 <108>). No one may be deprived of it (cf. BVerfGE 109, 133 <150>). Respect and protection of human dignity are among the constitutive principles of the Basic Law (cf. BVerfGE 45, 187 <227>; 87, 209 <228>; 96, 375 <398>; 102, 370 <389>; 109, 133 <149>). This means that every person has a right to be valued and respected as a person in society (sozialer Wert- und Achtungsanspruch ); this right precludes turning a person into a mere object of state action or exposing them to treatment which generally calls into question their quality as a conscious subject (cf. BVerfGE 27, 1 <6>; 45, 187 <228>; 109, 133 <149 and 150>).

The individual’s personality develops within the social community. The guarantee of Art. 1(1) of the Basic Law is based on the idea of human beings as intellectual-moral beings with the inherent aspiration to be free to determine their own being and to develop (BVerfGE 45, 187 <227>). The Basic Law resolves the tension between the individual and the community by endorsing the notion that the individual is connected to and bound by the community, insofar as the individual must accept that their fundamental rights are subject to restrictions serving interests of the common good (cf. BVerfGE 65, 1 <44>; 109, 133 <151> with further references).

a) In view of these contents of Art. 1(1) of the Basic Law, the enforcement of a life sentence is, in principle, compatible with the Basic Law, including when it serves to protect the general public.

State and society are not barred from protecting themselves against criminal offenders who are dangerous to the public, even by way of a long period of deprivation of liberty (cf. BVerfGE 45, 187 <242>).

In addition, the enforcement of a life sentence beyond the time required on account of particularly aggravated guilt does not violate the principle of nulla poena sine culpa (the punishment must be appropriate in relation to culpability), which enjoys constitutional status and is derived from Arts. 1(1) and 2(1) of the Basic Law, and from the principle of the rule of law (cf. BVerfGE 20, 323 <331>; BVerfGE 25, 269 <285>).

Insofar as the legal provisions on the suspension of the remainder of a life sentence provide that, under certain conditions, the enforcement of the sentence may continue although it is no longer required on account of particularly aggravated guilt, this does not constitute the enforcement of a sentence irrespective of culpability, which would fall short of the requirement that punishment be appropriate in relation to culpability.

It is permissible under constitutional law to enforce a sentence of life imprisonment beyond the time required on account of particularly aggravated guilt on the grounds that the convicted person continues to be dangerous, thus ruling out a suspension of the sentence. Already in its judgment of 21 June 1977 concerning the constitutionality of life imprisonment, the Federal Constitutional Court concluded that life imprisonment, as a necessary and appropriate punishment for the most serious homicide offences, does not violate the constitutional requirement that all punishment be adequate and measured (cf. BVerfGE 45, 187 <253 to 259>). Accordingly, the principle of proportionate punishment that is appropriate in relation to culpability is not violated even where a life sentence, as the punishment imposed, is enforced [without suspension] if this is necessary on the grounds that the prisoner continues to be dangerous (cf. BVerfGE 45, 187 <242>).

b) The possibility of further enforcing a life sentence irrespective of particularly aggravated guilt also does not violate constitutional law on the grounds of the potentially damaging effects of imprisonment […]

Long-term deprivation of liberty does not inevitably result in irreversible damage (cf. BVerfGE 45, 187 <237 et seq .>). Recent research, too, […] does not prove that irreversible psychological or physical damage necessarily results from long-term deprivation of liberty (cf. BVerfGE 109, 133 <153>).

aa) Nevertheless, health impairments as a result of a prolonged period of imprisonment cannot be ruled out. In order to address this problem, constitutional law mandates that a life sentence must be complemented by adequate treatment programmes (cf. BVerfGE 45, 187 <238>; 64, 261 <272>; […]). Prisons are obliged, even in respect of persons sentenced to life imprisonment, to work towards their social reintegration, to maintain their ability to cope with life and to counter the damaging effects of the deprivation of liberty (cf. BVerfGE 45, 187 <238>). The protection of human dignity imposes an obligation on the community to ensure that convicted persons are prepared for release from prison, so that after a prolonged period of deprivation of liberty, they can, at least to some extent, begin to orient themselves towards a normal life (cf. BVerfGE 35, 202 <235 and 236>; 45, 187 <238 and 239>; […]). […]

bb) In the Prison Act, the legislator also laid out a treatment and social reintegration concept in respect of life sentences. The provisions on the prison regime (§ 3 of the Prison Act) and on the objective of imprisonment (§ 2 first sentence of the Prison Act) apply to persons sentenced to life imprisonment, just as they apply to persons sentenced to fixed terms of imprisonment. The enforcement measures are also guided by the objective of social integration, and they must thus prepare prisoners for life in liberty. The provisions regarding the relaxation of imprisonment measures (§§ 10, 11 and 13 of the Prison Act) serve the purpose of reintegrating offenders into society. Apart from the provision on prison leave in § 13(3) of the Prison Act, the Act contains no particular provisions for persons sentenced to life imprisonment that set out different arrangements than for persons sentenced to fixed terms.

Applying the provisions of the Prison Act in conformity with the Constitution helps avoid the damaging effects of imprisonment, which is also in the public interest. Successful tests on probation considerably increase the prospects of release and may protect prisoners against resignation and depression. Therefore, even if persons are sentenced to life imprisonment, prisons are explicitly obliged to work towards their social reintegration in order to maintain prisoners’ ability to cope with life and to counteract the damaging effects of imprisonment, thus also and primarily counteracting distorting changes to their personality. […]

cc) In addition, the current legal provisions set out treatment measures in order to counter potential damage to prisoners’ physical condition to the greatest possible extent or to treat them in the specific case. […]

[…]

2. The guarantee of human dignity and the principle of the rule of law require that the convicted person have a specific and, in principle, also realistic chance of regaining liberty at a future point in time (see a below). When deciding on continued deprivation of liberty, the chance of regaining liberty must be guaranteed by strict adherence to the principle of proportionality in consideration of the fundamental right to liberty of the person under Art. 2(2) of the Basic Law (see b below). Finally, specific procedural requirements in respect of the long-term deprivation of liberty follow from the Basic Law; these must take into account the great significance of the right to liberty (see c below).

a) The possibility of enforcing a life sentence beyond the period during which particularly aggravated guilt precludes the suspension of the sentence sufficiently takes into account Arts. 1(1) and 2(2) of the Basic Law.

aa) Under Art. 1(1) of the Basic Law and the principle of the rule of law, the humane enforcement of a sentence requires that a person sentenced to life imprisonment must in principle retain a chance of regaining liberty at a future point in time (cf. BVerfGE 45, 187 <245>; 64, 261 <272>). […]

bb) The decision on the continued enforcement of a life sentence should not only take into account the inviolability of human dignity. Such a decision primarily concerns the deprivation of the prisoner’s personal liberty, and thus affects liberty of the person guaranteed under Art. 2(2) of the Basic Law (cf. BVerfGE 29, 312 <316>; 86, 288 <326>). The fundamental right to liberty under Art. 2(2) of the Basic Law enjoys high standing. It may only be restricted for particularly weighty reasons and subject to strict formal guarantees (Arts. 2(2) and 104(1) of the Basic Law; BVerfGE 86, 288 <326>). Given this particular significance, the constitutional principle of proportionality governs the sentencing to and enforcement of measures of deprivation of liberty to a particularly high degree (established case-law; cf. BVerfGE 19, 342 <349>; 20, 45 <49 and 50>; 20, 144 <148>; 29, 312 <316>; 35, 5 <9>; 36, 264 <270>; 70, 297 <311>; 90, 145 <172>; 109, 133 <156 et seq .>).

If a court rejects conditional suspension of the remainder of a sentence because the prisoner remains dangerous, this may result in deprivation of liberty for life in the individual case. However, under no circumstances may this infringe on the essence (Wesensgehalt ) (Art. 19(2) of the Basic Law) of the fundamental right to liberty of the person. The inviolable essence of a fundament right must be determined in respect of each one based on its particular significance in the overall system of fundamental rights (cf. BVerfGE 22, 180 <219>). […] In the field of criminal law and the law of criminal procedure, deprivation of liberty primarily serves to protect the general public (cf. BVerfGE 22, 180 <219>; 45, 187 <223>; 58, 208 <224 and 225>; 70, 297 <307>). According to these principles, interferences with liberty of the person are generally permissible if, taking into account the principle of proportionality, the protection of others or of the general public requires them.

b) The legal provisions on the suspension of a life sentence (§ 57a(1) first sentence no. 3 and second sentence in conjunction with § 57(1) first sentence no. 2 and second sentence of the Criminal Code) are also not objectionable under constitutional law insofar as they require that security interests of the general public be taken into account in the decision on suspending the remainder of the sentence, thus serving to protect the general public from dangerous offenders. The deprivation of liberty, potentially for life, constitutes a serious interference with the right to liberty of the person; yet this interference does not violate the guarantee that the essence of a fundamental right be protected as long as this is mandated by higher-ranking protected interests of others […].

The prognosis of the danger posed by the convicted person provides a sufficient basis upon which to decide on the deprivation of liberty beyond the time during which particularly aggravated guilt precludes an earlier release (see aa below). In such cases, however, the Basic Law requires strict adherence to the principle of proportionality; in this context, the general public’s need for security may take precedence over the convicted person’s right to liberty (see bb below). […]

aa) It is not objectionable under constitutional law if the legislator requires the suspension of a life sentence to be based on a prognosis of danger in order to achieve the desired protection. This applies irrespective of the uncertainties involved in having a prognosis serve as the basis for the long-term deprivation of liberty (cf. BVerfGE 109, 133 <157>). A perfect prediction of human behaviour is ultimately impossible, given that there are no criteria that could provide, on the basis of past and present observations of human behaviour, an absolutely reliable prognosis of a person’s likelihood to reoffend. Nevertheless, an expert opinion on the prognosis of danger posed by a convicted person is a necessary aid to the judicial decision on whether to suspend the remainder of a sentence or on relaxing imprisonment measures […].

bb) Constitutional limits in respect of the particularly serious interference arising from the potentially life-long deprivation of liberty follow, in particular, from the prohibition of excessive measures (Übermaßverbot ). […] The longer the deprivation of liberty lasts, the stricter the proportionality requirements in respect of the depriving measures (cf. on confinement in a psychiatric hospital BVerfGE 70, 297; on preventive detention BVerfGE 109, 133 <159>; […]). […]

When interpreting § 57a(1) first sentence no. 3 in conjunction with § 57(1) first sentence no. 2 of the Criminal Code, the courts and legal scholarship have sufficiently taken into account this fact […].

On the one hand, the convicted person’s general right to liberty carries great weight, given the long prison sentence that has typically been served (cf. BVerfGE 70, 297 <315>; […]). That is why the clause on the defensibility of the suspension of a sentence “having regard to public security interests” also implies that an acceptable residual risk is taken […]. To what extent a residual risk is acceptable depends not only on the legal interests threatened in case of a relapse, but also on the degree of likelihood of recidivism. Therefore, even in cases of serious violent or sexual offences, the mere hypothetical possibility of a relapse, which can never be ruled out with certainty due to the limits of any prognosis, does not rule out the suspension of a sentence from the outset […]. Rather, the decision to reject a suspension must be supported by specific facts that make the risk appear unacceptable.

On the other hand, the prognosis to be made in the context of the decision on suspension requires the suspension to be defensible in light of the recidivism that is to be expected under certain circumstances (cf. BVerfGE 86, 288 <327>). The higher the threatened legal interest ranks, the lower the risk of recidivism required. In respect of offences that carry a life sentence, such as murder under specific aggravating circumstances (§ 211 of the Criminal Code), the general public’s need for security is, by its nature, of particular significance for determining whether it is defensible to test on probation if the convicted person will not commit any further criminal offences once released from prison […]. In cases such as the one at hand, conditional release from life imprisonment can therefore only be considered under strict conditions given the nature of the offences to be feared if it fails […].

Life imprisonment, which is very onerous for the convicted persons, can thus be justified by the particularly high value placed on life and the corresponding increased need on the part of the general public for security, which must also be a decisive factor in any decision on conditional early release. When weighing the risks, the increasing length of imprisonment must be taken into account in favour of the convicted person. A certain risk of offences of merely medium or low weight does not stand in the way of a suspension of the remainder of a life sentence […]. In contrast to fixed-term imprisonment, which is followed by release notwithstanding a negative prognosis, the longer the continued enforcement of a life sentence goes on for, the more likely it would be to violate the prohibition of excessive measures, if the only offences the prisoner was expected to commit were medium-level. […]

If it is positively established that the convicted person remains dangerous, the continued enforcement of a life sentence is necessary in order to protect the general public. In addition, however, the particularly high value placed on life justifies the continued enforcement of a life sentence also where, upon satisfaction of the constitutional requirement for adequate judicial investigation of the facts, it is impossible to give a favourable prognosis of danger. Even though life imprisonment was imposed as the appropriate sentence in relation to the offender’s culpability, it is not objectionable under constitutional law that the doubts that remain in these cases with respect to a sufficiently favourable prognosis are held against the convicted person […].

cc) […]

c) The principle of proportionality also gives rise to procedural requirements in respect of particularly long periods of deprivation of liberty. Procedural safeguards must sufficiently reflect the great significance of the right to liberty (cf. BVerfGE 86, 288 <326>).

Given that the duration of a life sentence is indefinite, its continued enforcement must be reviewed regularly […]. The longer the deprivation of liberty continues, the stricter the requirements for the courts to investigate the facts […]. The conditions for suspension must be reviewed early on in order to allow time for an appropriate preparation for release. In this context, a relaxation of imprisonment measures is particularly important […]. The increasing weight of the right to liberty in case of very long periods of deprivation of liberty also affects the requirements pertaining to the substantiation of the judicial decision […]. As a rule, a public defender must be assigned to the convicted person […]. If the deprivation of liberty is essentially justified on the basis of the security interests of the general public, it is necessary to examine whether the prisoner can be granted privileges to compensate for the particular burdens of the long period of deprivation of liberty […].

[…]

II.

The legal provisions pertaining to the enforcement of a life sentence once fifteen years have been served (§ 57a(1) first sentence no. 1 of the Criminal Code) and possibly after a longer minimum period of imprisonment to be served on account of particularly aggravated guilt (§ 57a(1) first sentence no. 2 of the Criminal Code) on the basis of § 57a(1) first sentence no. 3 and second sentence in conjunction with § 57(1) first sentence no. 2 and second sentence of the Criminal Code satisfy the constitutional specificity requirements.

1. The provisions regarding the suspension of a life sentence must be measured against Art. 104(1) first sentence of the Basic Law in conjunction with the principle of the rule of law. […]

2. § 57a(1) first sentence no. 3 and second sentence in conjunction with § 57(1) first sentence no. 2 and second sentence of the Criminal Code define a sufficiently precise standard of review for the decision on suspension. The constituent elements upon which the decision on reviewing a suspension of life imprisonment is based are sufficiently specific, also with regard to the serious interference with fundamental rights that is associated with imprisonment potentially for life.

a) When reviewing criminal law provisions, the requirement of specificity serves to safeguard freedom (cf. BVerfGE 75, 329 <341>; 96, 68 <97>; 105, 135 <152 and 153>). In the context of deprivations of liberty, the Basic Law requires statutory provisions that fulfil particular formal requirements and procedural guarantees (cf. Art. 2(2) third sentence and Art. 104(1) and (2) of the Basic Law). The more serious the interference with a fundamental right that a law provides for, the stricter the requirements with respect to its specificity (cf. BVerfGE 59, 104 <114>; 75, 329 <342>; 86, 288 <311>). The degree of specificity required under constitutional law depends on the specific constituent elements and on the circumstances that result in the application of the law (cf. BVerfGE 28, 175 <183>; 86, 288 <311>). The requirement of specificity deriving from the rule of law only mandates that the legislator must draft laws as specifically as possible, taking account of the particular nature of the underlying subject matter and the purposes pursued (cf. BVerfGE 49, 168 <181>; 78, 205 <212>; 102, 254 <337>; 110, 370 <396>). It is sufficient that the constituent elements of a statutory provision can be determined by interpreting the relevant provisions by means of the recognised rules of interpretation (cf. BVerfGE 21, 209 <215>; 79, 106 <120>; 102, 254 <337>; 103, 332 <384>). […]

b) § 57a(1) first sentence no. 3 and second sentence in conjunction with § 57(1) first sentence no. 2 and second sentence of the Criminal Code, which governs suspension, satisfies these requirements. The constituent elements concerning the decision on suspending the enforcement of the remainder of a life sentence beyond the time required on account of particularly aggravated guilt are sufficiently specific.

[…]

c) The requirement of specificity does not require that legal provisions establish an absolute maximum period for enforcing a life sentence.

Where fifteen years of a life sentence have been served and continued enforcement is not required on account of particularly aggravated guilt, the continued deprivation of liberty will be primarily based on the prognosis that the convicted person remains dangerous to a degree that justifies the continued enforcement of a life sentence. It is in the very nature of such a judicial decision, which depends on a prognosis, that its outcome in a given case cannot be determined with certainty in advance. Many different aspects must be taken into account in the assessment, which are all subject to dynamic processes. The offender’s personality usually continues to develop. It is only natural that predictions on the degree of the future danger posed by convicted persons present factual difficulties, yet this does not necessarily lead to an unconstitutional lack of specificity in the requirements laid down by the legislator. Indeed, an absolute maximum time limit for the enforcement of a life sentence would contradict the purpose of § 57a(1) first sentence no. 3 of the Criminal Code. The danger posed by a person cannot be determined in abstract and general terms by a maximum time limit. The offender does not necessarily cease posing a danger to the general public after a certain time.

III.

[…]

IV.

1. The orders challenged by complainant no. 1 meet the constitutional requirements set out above. They do not violate his human dignity, they are in accordance with the principle of proportionality and they satisfy the procedural requirements that must be observed when deciding on the suspension of a life sentence.

a) Each of the four decisions rejecting suspension that are challenged here took into account the constitutional standards set out above regarding respect for human dignity under Art. 1(1) of the Basic Law.

[…]

b) The challenged orders do not definitively deny complainant no. 1 the opportunity of ever being able to live in liberty again, and they stand up to constitutional review with regard to the prohibition of excessive measures in the context of liberty-depriving measures.

The ordinary courts plausibly held that conditional release was not tenable because the complainant’s conduct in open detention had shown that he remains dangerous. The chance to regain his liberty may be realised in the future when imprisonment no longer appears necessary to protect the higher-ranking interest of others. In particular, the complainant’s conduct in the event of potential relaxations of imprisonment measures will be of considerable significance.

aa) The outcome of the challenged orders remains within the margin of appreciation laid down in the Basic Law. The courts competent for enforcement assessed the continued danger posed by the complainant and, on the basis of new and up-to-date information, concluded that the prognosis of danger must be to his disadvantage.

[…]

bb) The ordinary courts based each of their decisions on an up-to-date and detailed opinion submitted by an external expert regarding the danger posed by the complainant. The expert opinions, prepared promptly before their decisions and by experts they knew to be experienced, provided a sufficient basis for the courts’ decisions. In the second suspension proceedings of 2005/2006, the Higher Regional Court obtained a new and up-to-date prognosis so that it had an expert opinion available on the development of the complainant’s personality since the last assessment. Independently of each other, the external experts concluded that the complainant had a tendency to react in ways that gave rise to the assumption that he remained dangerous. They substantiated this conclusion. No further measures were necessary to satisfy the requirement to investigate the facts as thoroughly as possible. The courts competent for enforcement also sufficiently observed the stricter substantiation requirements applying to cases of long-term deprivation of liberty and assigned a public defender to the complainant.

c) The next decision on suspension will have to take into account that the expert, in her last opinion of 10 May 2006, considered a relaxation of imprisonment measures to be generally tenable and even indispensable in preparation for release. The fact that the complainant has now been in closed detention for six years without any relaxations gives rise to the concern that his right to liberty is not being sufficiently respected. In the context of a relaxation of imprisonment measures, it will be possible to gain some indications for further assessing whether the complainant remains dangerous. In addition, both the prohibition of excessive measures inherent in the fundamental right to liberty, and the requirements to be observed in suspension proceedings that arise from the fact that the prognosis of danger is only valid for a limited period require the courts competent for enforcement to regularly review their decisions on suspension.

In their decisions hereafter, the courts competent for enforcement will also have to take into account that the right to respect for human dignity requires that the complainant be permitted to visit his mother, who is ill and elderly, at appropriate intervals. Direct contact to his only surviving and closest relative is an integral part of the complainant’s remaining quality of life.

2. The challenged decisions on suspending the remainder of complainant no. 2’s life sentence also satisfy the constitutional requirements (see a below). [...]

a) In their decisions, the courts competent for enforcement sufficiently reflected the increasing weight of the convicted person’s right to respect for his human dignity and of his right to a realistic chance of regaining liberty.

[…]

b) […]

c) […]

d) […]

[…]