Squaring the circle

In December 2009 the European Court of Human Rights (ECtHR) found in its judgment in the case of M. v. Germany that the retroactive repeal of the 10-year time limit for the first order of preventive detention violated articles 5 and 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). It took the German legislator about 1 year to reform the law on preventive detention during which the fate of preventive detainees was debated highly emotionally. Part of this reform is the Law on Therapy and Detention of Mentally Disordered Violent Offenders. It provides the possibility to further detain those persons who would have to be released following the ECtHR judgment. The key element is the very broad criterion "mental disorder" which is meant to justify the deprivation of liberty under article 5 1 lit. (e) E CHR. However, the attempt to bypass the ECtHR judgment in accordance with the E CHR is unsuccessful: the detention is a violation of article 5 ECHR.