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Dr Christopher Michaelsen is a Senior Lecturer at the Faculty of Law, UNSW. Prior to joining UNSW, he served as a Human Rights Officer (Anti-Terrorism) at the OSCE Office for Democratic Institutions and Human Rights in Warsaw, Poland. Chris graduated in law from Hamburg University and holds a LLM from the University of Queensland as well as a PhD from the Australian National University. He is a member of the Gilbert + Tobin Centre of Public Law and the Australian Human Rights Centre and currently also serves as a co-rapporteur of the International Human Rights Law Committee http://www.ila-hq.org/en/committees/index.cfm/cid/1027 of the International Law Association.

Germany’s Federal Constitutional Court (FCC) and the European Court of Human Rights (ECtHR) have recently handed down several decisions on the legality of the controversial practice of detaining serious criminal offenders for preventive purposes after their original prison sentence had expired. Preventive detention, so-called Sicherungsverwahrung, has been part of German criminal law for over 80 years. Over the last decade, however, the number of preventive detention orders in Germany has increased significantly, in part due to legislative changes enacted in 1998, 2002 and 2004. The practice has increasingly raised questions in relations to its compatibility with constitutional guarantees and international human rights law, in particular the right to liberty and the prohibition of retrospective punishment. This paper will briefly introduce the history and scope of the German legislation on preventive detention. It will then review recent legal challenges to the legislative arrangements governing preventive detention and discuss the significance and impact of the decisions by the FCC and the ECtHR respectively. Finally, the paper will focus on the legislative and policy responses to those decisions.