“Security interest prevails”

In the view of the Federal Constitutional Court, the ruling of the Human Rights Court on subsequent preventive detention does not force the automatic release of affected offenders. In each individual case, an impact assessment must be made between the liberty interest of the person concerned and the security interest of the general public.

The urgent application of a sex offender convicted of attempted rape and murder in 1990, who demanded his immediate release, was rejected. In August 2009, the Baden-Baden Regional Court ordered that Winterkorn be placed in preventive detention because he was still "highly" dangerous.In his urgent application, the man had referred to the ruling ied on 17. The European Court of Human Rights (ECHR) has ied a legally binding ruling on the matter on December 12, 2009. The ECtHR in Strasbourg had ruled that preventive detention should not have been extended retroactively against a felon from Hesse who was sentenced in 1986. Germany had thus violated the European Convention on Human Rights. The Hessian offender had been awarded 50,000 euros in damages.It has since been disputed whether the ECtHR ruling has a direct binding effect in Germany and to what extent further offenders affected must now be released. In May, the court had rejected the immediate release of a criminal from Rhineland-Palatinate who had been in preventive detention for more than ten years.In a decision published in June, the Federal Court of Justice had spoken of a "new legal situation" following the Strasbourg ruling. The decisions of the ECHR were to be "taken into account in the interpretation of domestic German law," the decision of 12. May. In it, the Federal Court of Justice had ordered that a 61-year-old felon be released with immediate effect from a preventive detention ordered retroactively at Saarbrucken Prison.The Federal Prison Court now emphasized that the legal questions "raised by the ECtHR ruling are to be clarified in the main proceedings". The decision on the urgent appeal is expected to be ied in the fall, as a court spokeswoman said.The impact assessment necessary for an urgent application leads in the present case to the result that an immediate release of the complainant is "not required". The court emphasized that the district court had comprehensibly shown, on the basis of two psychiatric reports, that the complainant had a propensity to commit serious sexual offenses and would be highly likely to commit such acts if released. "In view of the particular seriousness of the threatened criminal acts, the security interest of the general public outweighs the interest of the complainant in regaining his personal freedom," the Verfangsgericht emphasized.

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