The implementation of youth imprisonment and constitutional law in Germany
| Published date | 01 October 2007 |
| Author | Frieder Dünkel,Dirk van Zyl Smit |
| Date | 01 October 2007 |
| DOI | 10.1177/1462474507080470 |
| Subject Matter | Articles |
The implementation of
youth imprisonment
and constitutional law
in Germany
FRIEDER DÜNKEL AND DIRK VAN ZYL SMIT
University of Greifswald, Germany and University of Nottingham, UK
Abstract
This article considers the impact that constitutional law can have on penal policy
through an analysis of current developments in the law governing youth prisons in
Germany. It sketches the emergence of constitutional guidelines for the development
of German prison law generally and then pays close attention to a recent decision of
the German Federal Constitutional Court on the constitutionality of current provisions
on the implementation of youth imprisonment. The implications of the judgment of
the Court for future German legislation in this area are outlined. Particular attention
is paid to the emphasis that the legislator is expected to place on international minimum
standards and to the role research on treatment plays in setting limits to legislative
discretion. The conclusion considers the wider implications for penal policy of combin-
ing a formal rule that constitutionally guaranteed rights of prisoners can only be
restricted by primary legislation, with substantive constitutional requirements for the
objectives of penal legislation and for how these objectives should be met. It argues
that such a rule is potentially applicable not only in Germany but also in other countries
with similar constitutional traditions.
Key Words
juvenile justice • penal policy • youth imprisonment
INTRODUCTION
In most jurisdictions penal policy makers are aware that they operate within consti-
tutional constraints and routinely take them into account when developing new laws.
Even in societies such as the United States of America, where judicial activism in protect-
ing prisoners’ rights is often criticized, there is a degree of acceptance, albeit sometimes
347
PUNISHMENT
& SOCIETY
Copyright © SAGE Publications
Los Angel es, L ondon,
New Delhi and Singapore.
www.sagepublications.com
1462-4745; Vol 9(4): 347–369
DOI: 10.1177/1462474507080470
grudging, that constitutional norms enforced by the courts should set minimum
conditions of detention (Feeley and Rubin, 1999).
The prominence of prisoners’ rights litigation in the USA in the last three decades
of the 20th century and the controversy that surrounded it should not blind one to the
fact that constitutional courts may be more interventionist than the federal courts in
the USA ever were and that such intervention will not necessarily be controversial.
Constitutional courts may actively shape new legislation by requiring the legislator to
respond positively to a range of constitutional principles that go beyond conditions of
detention and to engage directly with the purpose of a particular form of incarceration.
This is particularly true in Germany, where it is well established that the Federal
Constitutional Court may enforce the requirement that constitutionally guaranteed
rights cannot be abolished and can only be restricted by primary legislation. The
German Federal Constitutional Court has enormous prestige in Germany as the
guardian of constitutional values, which are seen as necessary and legitimate safeguards
against the dangers of populist democracy and a revival of totalitarianism. In enforcing
constitutional values the Court may review the constitutionality of legislation without
waiting for it to be put into effect. In practice it regularly intervenes in highly contro-
versial matters and, while individual decisions may be debated, the power to intervene
is rarely challenged. In February 2006, for example, the German Court struck down
§14.3 of the Aviation Security Act, which authorizes the armed forces to shoot down
aircraft that are intended to be used as weapons in crimes against human lives, on the
ground that it was incompatible with the constitutional guarantees of the rights to life
and human dignity (BVerfG (2006), 1 BvR 357/05 decision of 15 February 2006). The
use of armed force could affect persons on board an aircraft who are not participants
in a crime. The Court reasoned that if the State were to kill them as a means to save
others, they would be treated as mere objects, and would be denied the value that should
be accorded to all human beings.
The power of the German Constitutional Court to strike down legislation is
complemented by a long tradition of the Court spelling out, prospectively if necessary,
substantive requirements that such legislation must meet in order to be constitutionally
acceptable. These requirements include a constitutional duty to structure legislatively all
the organs and activities of the State in a way that enables the State to conform to the
rule of law and, as a social state, positively to give its citizens the opportunity to develop
their full human potential.
This article illustrates a recent renewal of this tradition in Germany, where the Federal
Constitutional Court was asked to consider the constitutionality of the legal provisions
governing the implementation of youth imprisonment (Jugendstrafvollzug).1Youth in
this context refers to juveniles from 14 and up to 18 years of age at the time of the
commission of their offences and young adults from 18 up to 21 years of age whose
emotional development was still that of juveniles when they committed offences.2
The article outlines the legislative stalemate that led indirectly to an application being
brought. It describes the development of the law relating to the implementation of
imprisonment generally since this increased the prospects of success of the application
and also presaged the form that the response of the Court would take. The article then
focuses on the detail of the judgment. Fairly extensive passages of the judgment are
quoted in order to convey the reasoning that led to the conclusion that a wide range
PUNISHMENT & SOCIETY 9(4)
348
To continue reading
Request your trial