Zweispurigkeit und Vertrauensschutz

After the ECHR declared the extension of preventive detention beyond the ten year maximum period in breach of the Convention, the Constitutional Court recognised the incompatibility of retrospective measures with the doctrine of legitimate expectation. This prompted a reform of the law with effect from 1 June 2013, and the requirements of the Constitutional Court, under which retrospective preventive detention can be continued in exceptional cases, to be made transitional law.
Here, the author assesses the legal situation today, thereby focusing on the exceptional cases subject to the “grandfather clause” and the compatibility of the reformed law with the German two-track system. The applicability of art. 103 (2) Basic Law is examined first independently and then in relation to the doctrine of legitimate expectation. Lastly, a case is made for the abolition of the transitional law as well as the end of retrospective preventive detention and the Therapeutic Confinement Act (ThUG).