Retrospective preventive detention incompatible with human rights

G v Germany [2012] ECHR 956 (7 June 2012) Summary

The European Court of Human Rights has unanimously held that Germany violated the prohibition under article 7(1) of the European Convention on Human Rights on imposing a penalty heavier than that which existed at the time of the offence, by imposing a period of retrospective preventive detention.


Mr G (the applicant) is a German national who, at the time of instituting the proceedings, was detained in Straubing Prison in Germany. In 1992 he was convicted of three counts of murder and sentenced to 15 years’ imprisonment. In addition to his prison sentence, the sentencing courts ordered the applicant’s placement in a psychiatric hospital after serving his full prison term.

In 2007, the applicant’s stay at the psychiatric hospital was terminated by the Regional Court, which held that he did not suffer from a condition diminishing his criminal responsibility. The applicant was subsequently placed in preventive detention, on the basis of article 66(3) of the German Criminal Code, which allowed a court to impose preventive detention retrospectively. The Regional Court found that a comprehensive assessment of the applicant, his offences and his development during placement in the psychiatric hospital showed it to be very likely that, if released, he would again commit serious offences resulting in considerable psychological or physical harm to the victims.

The Federal Court of Justice dismissed the applicant’s appeal, and in August 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaints against the retrospective orders for his preventive detention.

The applicant subsequently brought proceedings to review his preventive detention. At the time of proceedings he was still in preventive detention.


The European Court found that there had been a breach of article 7(1) of the Convention, and ordered that the applicant be paid non-pecuniary damages of EUR 5,000 and costs and expenses of EUR 7,140 under article 41.


The applicant contended that his preventive detention breached article 7(1) of the Convention as, at the time he committed the offences, a retrospective order for preventive detention was not possible after the judgment of the sentencing court had become final.

The State argued that the preventive detention was not a “penalty” under domestic law, as found by its Federal Constitutional Court. Furthermore, the preventive detention in the present case could not be classified as a ‘heavier’ penalty for the purposes of article 7(1) as the applicant’s detention had not been ordered for the first time after his criminal conviction; he was merely transferred from one system of detention to another given the change in psychiatric diagnosis. The State also argued that releasing the applicant would have breached its positive obligation under article 2 of the Convention to protect potential victims from further murders or sexual assaults that the applicant would most likely commit.


Under article 7(1), the preventive detention considered must be classified as a “penalty”. The European Court relied on its earlier decision in M v Germany (2009), where it found that preventive detention under the Criminal Code, when ordered following or by reference to a conviction for a criminal offence, is to be qualified as a penalty for the purpose of article 7(1). The European Court was not convinced that the conditions of the applicant’s preventive detention differed substantially from the circumstances in M v Germany.

The European Court also referred to a recent decision of the Federal Constitutional Court, whereby the Court found that the provisions of the Criminal Code on preventive detention did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment.

Once satisfied that the preventive detention was a penalty, the European Court considered whether this penalty was “heavier” than that which was applicable at the time of the offences.

The European Court rejected the State’s argument that the applicant had merely been transferred from one “measure of correction” to another, on the grounds that the Regional Court, at sentencing in 1992, expressly declined to order the applicant’s preventive detention in addition to his placement in psychiatric care.

In addressing the State’s argument that it would have breached its positive obligation under article 2 of the Convention if it had released the applicant, the European Court reiterated that the Convention neither obliges nor authorises State authorities to protect individuals from criminal acts of a person by measures in breach of that person’s rights under article 7(1).

Relevance to the Victorian Charter

This decision is relevant to sections 21 and 27 of the Charter. Section 21, the right to liberty and security of person, codifies the right of people not to be subject to arbitrary arrest or detention. More specifically, section 27 on retrospective criminal laws adopts wording almost identical to its European equivalent.

Therefore, this judgment has direct relevance to, and may be persuasive in, future consideration and interpretation of section 27 and in other cases involving retrospective detention.

The decision is available online at:

Lucinda Carter is a law graduate at DLA Piper.