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2 Oslo L. Rev. 1 (2015)

handle is hein.journals/oslo2 and id is 1 raw text is: Detention for Protection: Searching for a 'Fair Balance' between the Restrictions on Preventive Detention and the Obligation to Protect Individuals Kjetil Mujezinovi6 Larsen* Abstract The European Court of Human Rights has expressed that a State cannot rely on its positive obligations under the European Convention on Human Rights in order to justify the detention of individuals, unless the detention falls within one of the grounds listed in Article 5.1. The Court has also interpreted these grounds very narrowly, leaving little room for preventive detention. While this is ordinarily a commendable position, it may potentially be too rigid in specific situations where there is a conflict between one individual's right to liberty and other individuals' or the community's interests under Article 2 on the right to life or Article 3 on the prohibition against torture. This article inquires whether the Court should instead adopt a more flexible approach where it searches for a 'fair balance' between Article 5 and Articles 2 and 3. Keywords: Preventive detention; fair balance; positive obligations, European Convention on Human Rights 1. Introduction From 2009 onwards, the European Court of Human Rights ('the Court') handed down a series of decisions concerning the compatibility of German legislation on detention of serious criminal offenders for preventive purposes after the expiration of their original sentence with the European Convention on Human Rights ('ECHR').1 In these decisions, the Court took advantage of the opportunity to clarify a number of aspects relating to the interpretation and application of Article 5.1(c) of the Convention, which permits * Professor of Law (PhD), University of Oslo, Norwegian Centre for Human Rights. Author's e-mail: k.m.larsen@nchr.uio.no. 1 M. v. Germany Appl. no. 19359/04 (Judgment, 17 December 2009); Grosskopf v. Germany Appl. no. 24478/03 (Judgment, 21 October 2010); Haidn v. Germany Appl. no. 6587/04 (Judgment, 13 January 2011); Kallweit v. Germany Appl. no. 17792/07 (Judgment, 13 January 2011); Mautes v. Germany Appl. no. 20008/07 (Judgment, 13 January 2011); Schummer v. Germany Appl. nos. 27360/04 and 42225/07 (Judgment, 13 January 2011); Mork v. Germany Appl. nos. 31047/04 and 43386/08 (Judgment, 9 June 2011); Schmitz v. Germany Appl. no. 30493/04 (Judgment, 9 June 2011); see also cases listed infra note 3. For a praiseworthy analysis of this case law, see C. Michaelsen, 'From Strasbourg, with Love - Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights' (2012) 12 Human Rights Law Review 148-167, see also G. Merkel, 'Incompatible Contrasts? - Preventive Detention in Germany and the European Convention on Human Rights' (2010) 11 German Law Journal 1046-1066. The relevant domestic legislation has now been amended.

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