This guest post was written by Ingrid Leijten who works as a Ph.D. fellow and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law. Her main research interest lies in the development of the ECHR and the practice of the ECtHR in relation to the Member States’ policymaking.
Recently, the Fifth Section of the Court held in the cases of Schmitz v. Germany and Mork v. Germany that the (possibly) infinite preventive detention the claimants were exposed to did not violate Article 5§1 of the Convention. What makes the decisions worth mentioning though, is the role accorded to the judgment of the Bundesverfassungsgericht (German Constitutional Court; BVerfG) of 4 May 2011—and thereby the exemplar of ‘dialogue between Strasbourg and national courts’ these cases might turn into.
It all started in 2009 with the case of M. v. Germany (app. no. 19359/04, 17 December 2009). There, the Court held that preventive detention—a ‘measure of correction and prevention’ that can under certain circumstances be ordered in addition to a prison sentence, if the offender has been shown to be dangerous to the public—fell within the reach of Articles 5 and 7 ECHR. Until 1998, in Germany the maximum duration of the first placement in preventive detention could not exceed ten years. After the relevant provision of the Criminal Code had changed and made infinite preventive detention possible, and German courts prolonged the detention also of detainees who had been convicted before 1998, the ECtHR held that this retrospective application violated the Convention. Cases following M. v. Germany (Grosskopf v. Germany, Haidn v. Gemany, Schummer v. Germany, Mautes v. Germany, Kallweit v. Germany, and Jendrowiak v. Germany) signalled the magnitude of the problem, as well as the complicated interpretative dilemmas it put forward. From M. v. Germany on, German courts were struggling with the aim of protecting society, while facing the demand of interpreting German law in such a way that Convention requirements could thereby be guaranteed.
As indicated at the beginning of this post, the Court in Schmitz v. Germany and Mork v. Germany concludes that in these cases there had not been a violation of Article 5§1 of the ECHR. Their cases involved several offences and convictions of sexual assault (Schmitz) and drug trafficking (Mork) of before and after 1998, but both claimants were ‘not detained for a period beyond the statutory maximum period, applicable at the time of [their] offence […], at the time of the domestic court decisions here at issue’ (pars. 39 and 52, respectively). Additional complaints of Schmitz and Mork under Article 7§1 ECHR were held inadmissible for a lack of victim status and a failure to exhaust domestic remedies, respectively.
In its conclusions, the Court does not depart from its earlier case law (pars. 35 and 48). What is interesting however, is the reference it makes to the judgment of the Bundesverfassungsgericht of 4 May 2011. In this judgment, all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were held incompatible with the German Grundgesetz (Basic Law). Apparently, the BVerfG was willing to listen to the desperate appeal made in Kallweit v. Germany, in which case the Court did not indicate any measures to solve the recurring problem of retrospective application of preventive detention, but urged ‘in particular the courts, to assume their responsibility for implementing and enforcing speedily the applicant’s [and other detainees’] right to liberty, a core right guaranteed by the Convention’ (par. 83).
With the judgment of 4 May 2011, the BVerfG ‘overruled’ its earlier case law in which the relevant provisions were considered in compliance with the Basic Law. This is a remarkable fact, as indeed also the ECtHR seems to have noticed. The Court stresses its enthusiastic appreciation ofGermany’s efforts to complying with the Convention by stating that
‘[i]t welcomes the Federal Constitutional Court’s approach for interpreting the provisions of the Basic Law also in the light of the Convention and this Court’s case-law, which demonstrates that court’s continuing commitment to the protection of fundamental rights not only on national, but also on European level.’ (Schmitz, par. 41; Mork, par. 54)
Was the reference to the judgment of the BVerfG necessary for substantiating the findings in the present cases? Probably not—the fact that no violation was found here could have easily been grounded on the earlier cases mentioned. The Court’s remarks can however be understood in light of the idea of ‘constitutional dialogue’, or ‘judicial dialogue’. The embracing of such dialogue can form the basis for the coexistence of various national, European, and international legal orders. As the BVerfG put it in its judgment:
‘Die Völkerrechtsfreundlichkeit des Grundgesetzes ist […] Ausdruck eines Souveränitätsverständnisses, das einer Einbindung in inter- und supranationale Zusammenhänge sowie deren Weiterentwicklung nicht nur nicht entgegensteht, sondern diese voraussetzt und erwartet. Vor diesem Hintergrund steht auch das „letzte Wort“ der deutschen Verfassung einem internationalen und europäischen Dialog der Gerichte nicht entgegen, sondern ist dessen normative Grundlage.’ (par. 89)
No doubt this ‘Freundschaftsangebot’—and the Court’s response to it—should be applauded, because it presents a hopeful forerunner of cooperation in the future. Nevertheless, as can also be inferred from German blogs here and there, next to praising the judgments, we should not think ‘dialogue’ easily solves things once and for all. This matter signals that also due to the Court’s ‘evolving’ interpretation, problematic (interpretative) differences between the levels of protection of the ECHR and national constitutions can appear anywhere, and anytime. Moreover, issues of ‘hierarchy’ remain relevant, in this case for example with regard to timing (how speedily willGermany not only change its case law, but also revert its practice; what will happen to the cases still pending in Straatsburg?). The term ‘(successful) constitutional / judicial dialogue’ is easy to apply in hindsight, when a major, or minor, issue of incompatibility has been solved in a relatively painless manner. As long as the Council of Europe’s ‘living instrument’ keeps growing however, the question of whether there truly exists some kind of ‘conversational modus’ that can always—and regardless of how the Convention develops—be relied on for solving problems, is one that will continue to be left unanswered.