European Court of Human Rights

                                                                                                 11 January 2007

 

FIFTH SECTION

Applications nos. 6587/04 and 9643/04
by Albert HAIDN
and Frank OBERLÄNDER
against Germany
lodged on 14 February 2004 and 9 March 2004

 

Statement of Facts

THE FACTS

The first applicant, Mr Albert Haidn, is a German national who was born in 1934 and lives in Zell. He is represented before the Court by Mr J. Driendl, a lawyer practising in Bayreuth.

The second applicant, Mr Frank Oberländer, is a German national who was born in 1966 and is presently detained in Naumburg. He is represented before the Court by Mr V. Buchwald, a lawyer practising in Halle.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  Proceedings concerning the first applicant

a.  The first applicant's previous convictions

On 27 July 1994 the Freyung District Court convicted the first applicant of three counts of sexual abuse of children and sentenced him to a cumulative sentence of eight months' imprisonment suspended on probation. The first applicant was found to have sexually abused a nine‑year-old girl on three occasions in spring 1993. As confirmed by an expert, the first applicant suffered from a pathological mental disorder so that diminished criminal responsibility (section 21 of the Criminal Code) could not be excluded. On 10 December 1997 this sentence was remitted.

On 16 March 1999 the Passau Regional Court convicted the first applicant of two counts of rape and sentenced him to a cumulative sentence of three years and six months' imprisonment (two years and nine months for each count of rape). The Regional Court found that the first applicant had raped the twelve-year-old S. twice within two weeks by use of force in summer 1986. Pursuant to the findings of a psychiatric and a psychological expert, the first applicant suffered from a continuous cerebral decomposition due to which his criminal responsibility was diminished.

Pursuant to the Regional Court's finding of facts, the first applicant had an extra-marital relationship with S.'s mother A since 1980. Since then he sexually abused S., then aged seven, at least once per week. Since 1982 he had himself sexually satisfied also by P., A.'s elder daughter, then aged fourteen. These offences were time-barred when the victims informed the prosecution authorities thereof. In summer 1982 the first applicant persuaded the fifteen-year-old P. to have sexual intercourse with him in exchange for his paying the family's electricity bill. P., who had initially consented, then asked the first applicant to stop due to severe pain caused by the intercourse and resisted heavily, whereupon the first applicant raped her by use of force. The prosecution of this offence was discontinued (pursuant to section 154 § 2 of the Code of Criminal Procedure) in view of the two counts of rape the first applicant was convicted of.

The first applicant served his full sentence of three years and six months' imprisonment until 13 April 2002.

b.  The proceedings before the Bayreuth Regional Court

On 10 April 2002 the Bayreuth Regional Court, having heard the first applicant and his counsel as well as the representatives of the Bayreuth prison and two experts, ordered the first applicant's unlimited placement in prison pursuant to Articles 1 and 2 of the Bavarian Act for the Placement of Particularly Dangerous Convicts Risking Recidivism (Bavarian (Recidivists') Placement Act; see 'Relevant domestic law' below).

The Regional Court noted that the sentencing court had neither ordered the first applicant's placement in a psychiatric hospital (section 63 of the Criminal Code) nor his preventive detention (section 66 of the Criminal Code – see 'Relevant domestic law' below). The Bayreuth Health Office had also refused to place him in a psychiatric hospital pursuant to the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (see 'Relevant domestic law' below) after his having served his prison sentence. It found that due to the first applicant's conviction of two counts of rape, the requirements of section 66 § 3 of the Criminal Code were met.

The Regional Court further subscribed to the views expressed by both a psychological and a psychiatric and psychotherapeutic expert, who, in their reports dated 22 March 2002 and 1 April 2002 respectively, had found that following his conviction, there were new facts warranting the conclusion that the first applicant presently posed a serious threat to the sexual self‑determination of others. It noted that the first applicant had failed to participate in any therapeutic measure to address his sexual problems which led to his offences and, by denying his offences in prison, had de facto refused any therapy. Moreover, due to the organic personality disorder he suffered from, which led to a continuous decomposition of his personality, the first applicant was no longer able to reflect his possibly deviant sexual behaviour and to discern limits. Statistically his advancing age also increased his interest in children as substitutes.

Taking into consideration the experts' findings, the Regional Court found that there was a high risk that the first applicant re-offended. Not least because of his limited faculties, there was a concrete danger that reactions of his victims resulted in his committing very serious offences.

The Regional Court stated that it considered the Bavarian (Recidivists') Placement Act to be constitutional.

c.  The proceedings before the Bamberg Court of Appeal

On 3 May 2002 the Bamberg Court of Appeal dismissed the first applicant's appeal as ill-founded. Endorsing the reasons given by the Bayreuth Regional Court, it found that the first applicant was liable to be placed in prison pursuant to Article 1 of the Bavarian (Recidivists') Placement Act. In particular, as had been convincingly shown by two experts, there was a considerable risk of recidivism.

According to the Court of Appeal, the Bavarian (Recidivists') Placement Act was constitutional. It stroke a fair balance between the first applicant's interest in his liberty and the public interest in security. There was no breach of the principle of legitimate trust (Vertrauensgrundsatz), as the first applicant had been informed in writing by the prison authorities that it was necessary for him to make a therapy. The Act also did not violate the prohibition to be punished twice for the same offence, as it were not his past offences, but the risk of his re-offending in the future which were decisive for his placement. Furthermore, the Bavarian legislator had had legislative power to pass the Act in question.

2.  Proceedings concerning the second applicant

a.  The second applicant's previous convictions

On 3 August 1984 the Halle Regional Court convicted the second applicant of murder and sentenced him to fifteen years' imprisonment. The second applicant, then aged seventeen, was found to have drunk and then have broken into the home of his fiancée's sister-in-law in order to have sexual intercourse with her, even though the latter had previously rejected such a proposal. When the sister-in-law, who had been sleeping in the bedroom together with her two-year-old son, told the second applicant to leave and threatened to call the police, he killed her with a hammer. The victim's son was found spread over with blood next to his mother's corpse two days later.

On 26 August 1991 the Naumburg District Court suspended the remainder of the second applicant's prison sentence on probation.

On 26 November 1992 the Magdeburg Regional Court convicted the second applicant of attempted homicide and sentenced him to eight years' imprisonment. The court found that some two months after his release from prison, the second applicant had come to know a twenty-year-old woman in a tavern, where he had drunk, and had walked her home. When she rejected his advances, he stabbed her with a knife and throttled her with the intent to kill her. He fled when his victim's parents woke up because of her cries for help. The injuries led to damage to the victim's nerves and a walking disability.

The suspension of the remainder of the second applicant's first prison sentence on probation was subsequently repealed.

The second applicant served both of his prison sentences in full until 19 March 2002. Due to both the lack of facilities in prison and the second applicant's refusal, he did not make a consequent and long-term therapy.

b.  First placement proceedings

On 18 March 2002 the Halle Regional Court, allowing the motion brought by the Naumburg prison, ordered the second applicant's placement in prison for six months as of 19 March 2002 pursuant to section 1 of the Saxony-Anhalt Act for the Placement of Persons Particularly Risking Recidivism in order to avert Dangers for Public Security and Order (Saxony-Anhalt (Recidivists') Placement Act; see 'Relevant domestic law' below).

On 21 March 2002 the second applicant was transferred to the social‑therapeutic prison in Halle in order to enable him to make a therapy treating his personality disorder which caused his dangerousness.

On 23 April 2002 the Naumburg Court of Appeal dismissed the second applicant's appeal against his placement in prison as ill-founded. In its view, the Saxony-Anhalt (Recidivists') Placement Act was constitutional. As it concerned measures aimed at preventively averting dangers, the Länder had jurisdiction to legislate. There was neither a double punishment for the same offence nor a retroactive punishment, as the convict was not placed in detention because of his past offence, but because of the danger he presently posed to others. Moreover, the said Act did not disproportionately interfere with the convicts' right to liberty.

The Court of Appeal agreed with the Halle Regional Court that the second applicant, who served a sentence for offences listed in section 66 § 3 of the Criminal Code, presently posed a serious risk for life and limb of others (section 1 of the Saxony-Anhalt (Recidivists') Placement Act). He had notably threatened to kill several members of the prison staff after his release and had refused to make a social therapy aimed at averting the risk of recidivism.

c.  The placement proceedings at issue

On 15 August 2002 the Halle Regional Court, after having held a hearing, ordered the second applicant's continued placement in prison for twelve months pursuant to sections 1 and 2 of the Saxony-Anhalt (Recidivists') Placement Act. Having regard to the reports of a psychiatric and a psychological expert as well as to numerous earlier expert opinions, the court found that the second applicant continued to pose a serious threat to life and limb of others, notably if he was again rejected by a woman. Only after a treatment of several years there was a chance that the second applicant learnt acting in a manner which would considerably reduce his dangerousness.

On 2 September 2002 the Naumburg Court of Appeal, endorsing the reasons given by the Halle Regional Court, dismissed the second applicant's appeal.

On 30 October 2002 the second applicant was retransferred from the social-therapeutic prison in Halle to the Naumburg prison as he was found totally to lack motivation to make a therapy.

On 13 August 2003 the Halle Regional Court prolonged the second applicant's placement in prison for another twelve months pursuant to sections 1 and 2 of the Saxony-Anhalt (Recidivists') Placement Act. Having consulted three experts, the court found that the second applicant had not changed his attitude so that he continued to pose a threat to life, limb, liberty and sexual self-determination of others and his release would therefore be irresponsible. Only after a therapy of several years there was a chance that the second applicant learnt acting in a manner which would considerably reduce his dangerousness.

3.  The joint proceedings before the Federal Constitutional Court

The first applicant subsequently lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Bayreuth Regional Court of 10 April 2002 and the Bamberg Court of Appeal of 3 May 2002. He argued that his detention was illegal because the Bavarian (Recidivists') Placement Act was unconstitutional, notably as the Bavarian legislator had had no power to legislate on the subject-matter in question. Moreover, the provisions of the Act violated the prohibition of punishment without law and human dignity.

On 2 October 2002 the second applicant lodged a complaint with the Federal Constitutional Court against the decisions of the Halle Regional Court dated 15 August 2002, of the Naumburg Court of Appeal dated 2 September 2002 and of the Halle Regional Court dated 13 August 2003. He notably took the view that the Saxony-Anhalt (Recidivists') Placement Act was unconstitutional because the Saxony-Anhalt legislator had no legislative power to pass the Act at issue and that, therefore, his right to liberty under the Basic Law had been breached.

a.  The Federal Constitutional Court's unanimous findings

On 10 February 2004 the Federal Constitutional Court, having held a hearing, partly allowed the applicants' constitutional complaints (nos. 2 BvR 834/02 and 2 BvR 1588/02). It found unanimously that the Bavarian (Recidivists') Placement Act and the Saxony-Anhalt (Recidivists') Placement Act were incompatible with Article 74 § 1 no. 1 read in conjunction with Articles 70 § 1 and 72 § 1 of the Basic Law (see 'Relevant domestic law' below).

According to the Federal Constitutional Court, the area covered by the Land statutes regulating the placement of criminals in detention was one subject matter of the concurrent legislative powers of the Federation as it involved criminal law within the meaning of Article 74 § 1 of the Basic Law. The term “criminal law” in connection with the question of power to legislate covered the regulation of all, even subsequent, repressive or preventive state reactions to crimes, which used the crime as a connecting factor, which was aimed exclusively at offenders and which was factually justified by the original offence. The Länder did not have power to make laws on the placement of criminals in detention because the Federation exhausted its concurrent legislative power in this area. The court therefore disagreed with the submissions of the Federal Government who had taken the view that Länder had legislative competence to regulate the subject‑matter at issue.

The Federal Constitutional Court found that the placement in prison for an indefinite duration or for indefinitely renewable intervals after an offender has served his full prison sentence constituted a particularly serious interference with the offender's right to liberty as protected by Article 2 § 2 of the Basic Law. It stressed that in order for the long-term deprivation of liberty ordered independently of a person's guilt to remain proportionate, it was necessary for it to be dependent on the prior commission of a serious offence. Moreover, the courts ordering a placement in detention had to make their prognosis of the offender's dangerousness based on a comprehensive assessment of the convict's offences and his personality.

b.  The majority's judgment on the statutes' continued applicability

The Federal Constitutional Court, by a majority of five votes to three in this respect, found that the fact that the Länder did not have power to legislate did not result in the contested statutes being void. Instead, they were merely declared incompatible with the Basic Law and the Constitutional Court ordered their continued application until 30 September 2004.

The majority argued that the Federal Constitutional Court Act did not prescribe that a statute which was found to be unconstitutional was void under all circumstances pursuant to section 95 § 3, first sentence, of the Federal Constitutional Court Act (see 'Relevant domestic law' below). The said Act also allowed a mere declaration of incompatibility with the Basic Law pursuant to section 31 § 2, third sentence, of the Federal Constitutional Court Act (see 'Relevant domestic law' below). Pursuant to the Federal Constitutional Court's case-law, the mere declaration of incompatibility and a limited continued application of the unconstitutional statute was possible if the immediate invalidity of the contested law removed the basis for protection of paramount interests related to the public good and if the result of weighing those interests against the fundamental rights affected was that the interference had to be accepted for a transitional period.

In the instant case, there was a paramount interest in protecting the public against offenders who have been found by at least two experts and courts respectively to pose currently a considerable danger to the life, physical integrity, freedom or sexual self-determination of others. In the event of the statutes being declared void, persons who were presently extremely dangerous would have to be released without the federal legislature's having made the decision imposed upon it – because it mistakenly assumed it had no power to do so – as to whether it was necessary to enact federal legislation.

This public interest could, in exceptional circumstances, outweigh the interest of the offender concerned by the unconstitutional Act in his personal liberty as guaranteed by Article 2 § 2 of the Basic Law. For the interference with the right to liberty to be proportionate, it was, however, necessary for the transitional period, during which the Federal Constitutional Court's order of continued application of the unconstitutional Acts served as the basis for the detention of the offenders concerned, to be short. Moreover, the criminal courts which had ordered placements on the basis of the impugned Acts had to examine without delay whether the placements complied with the reasons set out in its judgment.

c.  The minority's view on the statutes' continued applicability

According to the partly dissenting opinion of three judges, the unanimous finding of the Senate that the impugned Acts were unconstitutional should have led to their being declared void. As a consequence, the applicants would have had to be liberated. During the transitional period, the applicants were therefore imprisoned without a legal basis.

The minority argued that by ordering the continued application of an Act which it found to be unconstitutional, the Federal Constitutional Court took responsibilities which, pursuant to the separation of powers, were for the legislator to assume. Moreover, by ordering a continuous application of the Land statutes, it suggested to the Federal legislator to authorise subsequent preventive detention, a measure which the Federation, when reforming the provisions on preventive detention in 1998 and 2002, had deliberately chosen not to introduce. The minority of judges stressed that there were numerous other, less intrusive instruments available to the courts, police and social authorities to ward off dangers posed by dangerous convicts when released.

In the minority's submission, the court's order that the Länder statutes continued to apply was also incompatible with Article 104 § 1 of the Basic Law (see 'Relevant domestic law' below). According to that article, a person's liberty could only be restricted by virtue of a statute enacted by Parliament and only in compliance with the forms prescribed therein. The Federal Constitutional Court's order that the statutes continued to apply was, on the contrary, based on customary law and, being a court order, did not justify the deprivation of liberty. They stressed that section 31 § 2, second sentence, of the Federal Constitutional Court Act was only applicable to the declaration that a statute was void and not to a declaration that an unconstitutional statute continued to apply.

Lastly, the minority took the view that the court's order of continued application of the Länder statutes disregarded the prohibition to enact laws with retroactive effect. After having served the sentence passed on them by the criminal courts, the convicts had a legitimate expectation to be released.

4.  Subsequent developments

a.  The first applicant

On 16 December 2003 the Bayreuth Regional Court decided to suspend for one year the first applicant's placement in prison pursuant to its order dated 10 April 2002. It instructed him to reside in an old people's home in Zell and not to leave the home without his custodian's permission.

Having notably regard to the findings of an expert, the Regional Court found that the first applicant's placement in the psychiatric department of an old people's home sufficiently averted the dangers he posed for the sexual self-determination of others.

On 16 February 2004 the first applicant's custodian suggested to the Bayreuth Regional Court to place the first applicant in prison again as the latter had repeatedly sexually harassed several inhabitants of the old people's home.

b.  The second applicant

On 28 July 2004 the Magdeburg Regional Court ordered the second applicant's provisional placement in prison pursuant to the newly enacted federal Act on the Introduction of Subsequent Preventive Detention (see 'Relevant domestic law' below).

B.  Relevant domestic law

1.  Legislation on preventive detention of convicted offenders

a.  Federal legislation on preventive detention at the relevant time

Initially, detention of convicted prisoners in order to protect the public was solely regulated in federal legislation, notably the provisions on preventive detention (sections 66 et seq. of the Criminal Code), a so-called measure of correction and prevention (Maßregel der Besserung und Sicherung).

Pursuant to section 66 of the Criminal Code, the criminal court could, at the time of the offender's conviction, order his preventive detention under certain circumstances in addition to his prison sentence if the offender proved dangerous for the public.

Paragraph 1 of section 66 provides that the court shall order preventive detention in addition to the punishment if someone is sentenced for an intentional offence to at least two years' imprisonment and if the following further conditions are satisfied: Firstly, the perpetrator must have been sentenced already twice for intentional offences committed prior to the new offence to at least one year's imprisonment respectively. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive evaluation of the perpetrator and his deeds must reveal that, due to his disposition to commit serious offences, notably those which gravely harm their victims physically or mentally or by which grave economic damage is caused, the perpetrator presents a danger for the general public.

Pursuant to Article 1a § 1 of the Introductory Law to the Criminal Code, the provisions on preventive detention were only fully applicable to offences committed on the territory of the former German Democratic Republic after 1 August 1995.

The provisions on preventive detention have been subject to reform in 1998 and 2002.

By the Act for Combating Sexual Offences and Other Dangerous Offences (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten) of 26 January 1998, which entered into force on 31 January 1998, notably section 66 § 3 of the Criminal Code was inserted into the Criminal Code. Pursuant to that provision, preventive detention could also be ordered for certain serious offences (including murder, manslaughter and sexual abuse of children) if the perpetrator had committed two such offences punishable with at least two years' imprisonment and was sentenced to at least three years' imprisonment for these offences, even if he has not previously been convicted and detained as required in paragraph 1 of section 66. Section 66 § 3 was merely applicable to offences committed after 31 January 1998 (Article 1a § 2 of the Introductory Law to the Criminal Code).

Pursuant to section 66a of the Criminal Code, which was inserted into the Criminal Code by the Act on the Introduction of Reserved Preventive Detention (Gesetz zur Einführung der vorbehaltenen Sicherungs-verwahrung) of 21 August 2002, the court convicting the offender could also reserve a subsequent order of preventive detention if it was unclear at the time of delivery of the judgment whether the offender posed a danger for the public.

However, although the issue had been raised in the course of the legislative processes, the Federal legislator did not choose to introduce a legal basis for ordering an offender's preventive detention subsequent to a sentencing court's judgment which had not ordered this measure (subsequent preventive detention – nachträgliche Sicherungsverwahrung) if it only proved after the final judgment, notably during the convict's detention, that he was dangerous for the public.

b.  Länder legislation on preventive detention at the relevant time

In view of this, several Länder parliaments passed Acts, based on their legislative competence for the preventive aversion of dangers (Gefahrenabwehr), introducing subsequent preventive detention of convicts. In doing so, the Länder were reacting to the Federation's refusal to enact corresponding legislation.

The Land Bavaria enacted the Bavarian Act for the Placement of Particularly Dangerous Convicts Risking Recidivism (Bayerisches Gesetz zur Unterbringung von besonders rückfallgefährdeten hochgefährlichen Straftätern – Bavarian (Recidivists') Placement Act) of 24 December 2001, which entered into force on 1 January 2002. Pursuant to Article 1 of that Act, the Regional Court could order a convict's placement in prison if the latter was serving a sentence for offences listed in section 66 of the Criminal Code and if facts subsequent to the offender's conviction showed that he presently posed a serious risk for life and limb or sexual self-determination of others. Article 2 of the said Act prescribed that as a rule, subsequent preventive detention was to be ordered for an indefinite period of time.

The Land Saxony-Anhalt passed the Saxony-Anhalt Act for the Placement of Persons Particularly Risking Recidivism in Order to Avert Dangers for Public Security and Order (Gesetz des Landes Sachsen-Anhalt über die Unterbringung besonders rückfallgefährdeter Personen zur Abwehr erheblicher Gefahren für die öffentliche Sicherheit und Ordnung – Saxony-Anhalt (Recidivists') Placement Act) of 6 March 2002. Section 1 of that Act authorised the Regional Court to order a convict's preventive detention on the motion of the authority of the prison in which the convict was detained under essentially the same conditions as those set out in Article 1 of the Bavarian (Recidivists') Placement Act. Pursuant to section 2 of the Saxony-Anhalt (Recidivists') Placement Act, the Regional Court may order preventive detention initially for six months and prolong the order for twelve months respectively.

c.  Federal legislation on preventive detention after the Federal Constitutional Court's judgment of 10 February 2004

On 28 July 2004 the Federal legislator promulgated the Act on the Introduction of Subsequent Preventive Detention (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung), which entered into force on 29 July 2004.

Pursuant to the newly introduced section 66 b of the Criminal Code, the court may notably order subsequent preventive detention if, following a conviction for crimes punishable with at least one year's imprisonment against life, limb, personal liberty or sexual self-determination or for offences listed in section 66 § 3, it emerged prior to the convict's release that he posed a serious threat to the public. It was necessary that an overall assessment of the convict's personality, his offences and additionally his development during detention showed that he was very likely to commit serious offences by which the victims would be severely harmed; moreover, the other conditions listed in section 66 of the Criminal Code had to be met (§ 1 of section 66 b).

The newly introduced section 66 b of the Criminal Code was applicable to persons who had been placed in detention pursuant to the Bavarian (Recidivists') Placement Act or the Saxony-Anhalt (Recidivists') Placement Act (Article 1 a of the Introductory Law to the Criminal Code, as amended).

Thereupon, the Bavarian (Recidivists') Placement Act and the Saxony‑Anhalt (Recidivists') Placement Act ceased to apply in accordance with the Federal Constitutional Court's decision of 10 February 2004.

2.  Provisions on the detention of mentally ill persons

Pursuant to Articles 1 § 1 and 5 of the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (Bayerisches Gesetz über die Unterbringung psychisch Kranker und deren Betreuung) the authorities of a town or county may order a person's placement in a psychiatric hospital if the individual concerned is mentally ill and thereby poses a severe threat to public security and order.

3.  Provisions of the Basic Law

The separation of legislative powers between the Federation and the Länder is laid down in Articles 30 and 70 et seq. of the Basic Law. Pursuant to Articles 30 and 70 § 1 the Länder have the right to legislate in so far as the Basic Law does not confer legislative power on the Federation. Pursuant to Article 74 § 1 no. 1 of the Basic Law, the Federation has concurrent power to legislate (konkurrierende Gesetzgebungskompetenz) in the domain of criminal law. In domains in which the Federation and the Länder have concurrent power to legislate, the Länder are authorised to legislate as long as and in so far as the Federation has not exercised its power to legislate by enacting a law (Article 72 § 1 of the Basic Law).

Article 104 of the Basic Law governs legal guarantees in the event of deprivations of liberty. Pursuant to § 1 of Article 104, personal liberty may only be restricted pursuant to a law enacted by Parliament and only in compliance with the procedures prescribed therein.

4.  The Federal Constitutional Court Act

Pursuant to section 31 § 2, second sentence, of the Federal Constitutional Court Act, the decision of the Federal Constitutional Court on a constitutional complaint has the force of law (Gesetzeskraft) if that court declares that law to be compatible or incompatible with the Basic Law or to be void.

Section 95 § 3 of the Federal Constitutional Court Act provides that in cases in which a constitutional complaint against a law is upheld, the law has to be declared void. The same applies if a constitutional complaint against a decision is upheld as the decision quashed was based on an unconstitutional law.

Pursuant to the Federal Constitutional Court's well-established case-law, section 95 § 3 of the Federal Constitutional Court Act is, however, interpreted in a flexible manner. Instead of declaring a statute to be void ab initio, the Constitutional Court may also solely declare it to be incompatible with the provisions of the Basic Law. It proceeds in this manner notably in cases in which, by declaring a statute void, it would create a situation which would be even less compatible with the Basic Law (see, for example, the decisions of the Federal Constitutional Court, collection of the decisions of the Federal Constitutional Court (BVerfGE) vol. 92, pp. 158 et seq.,159, 186 et seq., vol. 99, pp. 216 et seq., 218-19, 243-44) or in which the protection of paramount interests related to the public good would be removed otherwise (see, for example, the decisions of the Federal Constitutional Court, collection of the decisions of the Federal Constitutional Court, vol. 33, pp. 1 et seq., 13-14, vol. 40, pp. 276 et seq., 283). In these cases, the court has occasionally decided to order the continued application of a statute found to be unconstitutional
(see, inter alia, the decisions of the Federal Constitutional Court, collection of the decisions of the Federal Constitutional Court, vol. 99, pp. 216 et seq., 219, 243-44, vol. 72, pp. 330 et seq., 333, 422; see also, among others, Schmidt-Bleibtreu in: Maunz / Schmidt-Bleibtreu / Klein / Bethge, Bundesverfassungsgerichtsgesetz, Kommentar, Munich 2006, section 95, § 32 with many references to the Federal Constitutional Court's case-law).

COMPLAINTS

Both applicants complained under Article 5 § 1 (a) of the Convention that following the end of their prison sentence they kept being detained without a legal basis. The first applicant argued that the Bavarian (Recidivists') Placement Act, the second applicant argued that the Saxony‑Anhalt (Recidivists') Placement Act was found to be unconstitutional and therefore had to be considered as void. As the impugned Acts were passed shortly before they had fully served their prison sentences, they had also been unable to adjust their conduct to them.

Invoking Article 3 of the Convention, the applicants claimed that their continued detention after having fully served their prison sentences amounted to inhuman and degrading treatment, notably due to the circumstances in which their preventive detention was ordered shortly before the end of their prison term and the uncertainty about the duration of their imprisonment.