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Exclusion of crediting periods of detention under measures of correction and prevention unconstitutional in part
Press Release No. 23/2012 of 17 April 2012
Order of 27 March 2012
2 BvR 2258/09
The Second Senate of the Federal Constitutional Court has held § 67.4 of the Criminal Code (Strafgesetzbuch StGB) unconstitutional to the extent that it excludes, even in cases of hardship, the crediting of a period of time spent in detention under measures of correction and prevention towards what are known as custodial sentences unrelated to the proceedings.
German criminal law has a two-track system of sanctions, characterised by parallel criminal sentences and measures of correction and prevention. A deprivation of liberty may consist either in imposing and enforcing a custodial sentence (§§ 38, 39 StGB) or in ordering a custodial measure of correction and prevention (§§ 63, 64, 66 et seq. StGB). If both a custodial sentence and a custodial measure of correction and prevention are to be served, the relationship of the two custodial orders to each other is governed by § 67 StGB. § 67.1 StGB provides that the measure of correction and prevention is enforced before the criminal sentence if there are both an order of committal to an institution under §§ 63, 64 StGB and a criminal sentence. Supplementing this, § 67.4 StGB provides that the period of enforcement of the measure of correction and prevention is credited towards the criminal sentence until two-thirds of the sentence have been served. However, this only applies if the custodial sentence and the measure of correction and prevention are imposed in the same judgment, or if further custodial sentences are capable of forming a compound sentence.
The complainant was diagnosed when he was a juvenile with a mental illness needing treatment. In the years 1992, 1993 and 2000 he received several custodial sentences. Inter alia, in the year 1993 Hanau Regional Court (Landgericht) convicted him of aggravated theft and use of force to retain stolen goods committed together with aggravated causing of bodily harm by dangerous means and awarded him a custodial sentence of three years and six months. The enforcement proceedings following this conviction and sentencing were protracted. The public prosecutor's office, which is the competent enforcement authority, repeatedly postponed the enforcement of the sentence after consultation with experts, by reason of the complainant's continuing mental illness, and therefore until mid-2004 it was impossible for any of the sentences imposed to be enforced. Finally, in June 2004, Frankfurt am Main Regional Court convicted the complainant of the theft of low-value items and intentional bodily harm, sentenced him to a total custodial sentence of six months and ordered him to be confined in a psychiatric hospital.
From 5 August 2004 to 15 January 2009, on the basis of this judgment, the complainant was detained under measures of correction and prevention. Here, his treatment was so successful that the last expert involved recommended preparations for his release. An obstacle to this was that the criminal sentences not yet served were still outstanding. The complainant therefore made a petition for clemency, which the competent authorities rejected at the end of the year 2007. The institution where the complainant was detained under the measure of correction and prevention then moved him to a secure ward on grounds of danger of absconding. With effect from 15 January 2009, on the complainant's application, the enforcement of the measure of correction and prevention was interrupted and the enforcement of the criminal sentence under the judgment of Hanau Regional Court commenced. The complainant then applied for a corrected calculation of the period of sentence, crediting the period of detention during the enforcement of the measure of correction and prevention towards the total period of enforcement. This application was refused both by the public prosecutor's office and by the courts competent for enforcement, with reference to the unambiguous provision of § 67.4 StGB.
The Second Senate of the Federal Constitutional Court granted the relief against this sought in the constitutional complaint and held that § 67.4 StGB is incompatible with Article 2.2 sentence 2 of the Basic Law (Grundgesetz - GG) to the extent that it excludes without exception the crediting of the period of enforcement of a custodial measure of correction and prevention against criminal custodial sentences unrelated to the proceedings. At the same time, under § 35 of the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht BVerfGG), the Senate ordered that until the legislature reforms the law, in cases of hardship, depending on the grounds of judgment, the period of enforcement of a measure of correction and prevention must also be credited towards criminal custodial sentences which are unrelated to the proceedings.
In essence, the decision is based on the following considerations:
1. The "personal freedom" guaranteed by Article 2.2 sentence 2 GG may only be restricted for particularly good reasons. The authorisation for the state to impose and enforce custodial criminal sentences is based on the culpable commission of the criminal offence. In contrast, committal under a measure of correction and prevention is justified by the danger caused by the person concerned and the corresponding need for security of the general public. Since the disturbance or illness for which the measure of correction and prevention is imposed is decided by fate and the danger derived from it is not a personality characteristic which the detainee can control, the detainee is subjected to a special sacrifice by the enforcement of the measure of correction and prevention. It follows from this circumstance and from human dignity, from the principle of the social welfare state and from the principle of proportionality that detention under measures of correction and prevention must especially be directed to the objective of resocialisation.
2. The state's right to punish and, following from this, the requirement that sentences which have been finally and non-appealably imposed and which are appropriate to the act and the culpability of the person involved are enforced lie in the public interest. However, the gravity of the encroachment associated with the realisation of this right must not ultimately be disproportionate to the weight of the grounds justifying it. In this connection, several encroachments which, seen in themselves, may possibly be appropriate or reasonable encroachments, may in their overall effect result in serious detriment which exceeds the degree of what is constitutionally tolerable.
Custodial criminal sentences and custodial measures of correction and prevention must therefore be put in relation to each other in such a way that the objectives of both procedures are achieved as far as possible without this causing a greater encroachment than necessary upon the right of freedom of the person concerned under Article 2.2 sentence 2 GG. Only good reasons can justify endangering therapeutic successes achieved in detention under measures of correction and prevention by a subsequent enforcement of a criminal sentence. Since a custodial prison sentence and a measure of correction and prevention are fundamentally parallel, however, Article. 2.2 sentence 2 GG does not require one to be credited against the other in all circumstances.
3. As a result of the non-crediting of periods of detention under measures of correction and prevention towards custodial criminal sentences unrelated to the proceedings of § 67.4 StGB, an accumulation of periods of detention under both systems may arise. The associated burdens may only be influenced to a limited extent by the instruments of enforcement law provided by the legislature, for they are not adequately coordinated with each other either in themselves or with regard to their mutual relation to each other and are therefore insufficient to avoid cases of hardship.
4. As a result of the application of § 67.4 StGB, the challenged decisions result in an accumulation of encroachments upon the complainant's right of freedom; in view of the unusual circumstances of the case in issue, these exceed the constitutionally acceptable degree. As a result of the failure to credit the periods of detention under measures of correction and prevention towards the custodial criminal sentences not yet served, the complainant must either suffer a subsequent enforcement of sentence lasting many years or interrupt the enforcement of measures of correction and prevention for a long period. In both cases there is a danger that the success in treatment already achieved may be completely reversed, the successful resocialisation of the complainant to be frustrated and the special sacrifice imposed on him to become meaningless.