3oó Basic Rights and Liberties 7-3 Life Imprisonment Case (1977) 45BVerfGEi87 [A drug addict threatened to expose the defendant for selling forbidden dn if he failed to deliver a certain drug already ordered and allegedly paid for. an appointed time the defendant delivered the drug and then, as the adt was injecting himself with it, shot him in the back of the head three time close range. The Criminal Code as revised in 1969 prescribed a mandát penalty of life imprisonment for any person who killed another out of wani cruelty or to cover up some other criminal activity. The defendant was chan under this statute. The Verden District Court, before which the delcnd was to be tried, regarded the penalty as incompatible with the dignity clau.se Article 1, whereupon it referred the question to the Constitutional Court, 1 trial court claimed that mental deterioration would result from the knowjec that one would never be able to return to society, and that the punishm thus conflicted with the legislature's obligation to respect the human dip-to which every human being, even a criminal, is entitled. The lower cu argued that mandatory life imprisonment, offering no possibility of rear ing society, would reduce the criminal to the state of a mere object. ] Judgment of the First Senate___ A sentence of life imprisonment represents an extraordinarily severe infra ment of a person's basic rights. Of ail valid punishments in the catalogue of feri nalj penalties, this one is the most invasive of the inviolable right to persona! ť dom guaranteed by Article 2 (2).... In carrying out this penally, the state not t limits the basic right secured by Article 2 (2), but it also —depending of con i'sl the individual case—implicates numerous other rights guaranteed by the Basic I The question posed by this case is therefore of considerable gravity and impoitai Under Article 2 (2) of the Basic Law, the right of personal freedom nuj limited by an act of parliament. But parliament's freedom to introduce legislate limited by the constitution in a number of ways. In exercising its powers the legi ture must take account of both the inviolability of human dignity (Article 1 [. which is die highest value of the constitutional order, as well as constitutif principles such as equality (Article 3 [1]), the rule of law [Bjchtsstmtlicbkät], the social state (Article 20 [ij). Since the freedom of the individual is already s an important legal interest that it may only be limited on grounds that are ti compelling, any lifetime deprivation requires special scrutiny by the standard oi principle of proportionality.... C. I. 2. Life imprisonment has for ages been at the core of criminal sanctions-significance in modern times has decreased because the death penalty is now Human Dignity and Personhood 307 t penalty. The dispute over the death penalty has made life imprisonment an ive the constitutionality of which has not generally been questioned. A tial amount of older literature has examined in depth the effect and conse-i of life imprisonment on the human personality. Advocates of the death advance the argument that life imprisonment is a more cruel and inhuman ncnt than the death penalty. It was not until the furor over the death penalty ■sided diat scientists in the late 1960s began to concern themselves with the n.s of life imprisonment. Since then, the discussion of this maximum penalty diet! down. In fact, the controversy has in recent years grown more intense cientiric literature, while the courts have barely concerned themselves with le. The criminal courts have presumed that life imprisonment presents no itional problem. Only very recently did the First Senate of the Federal High >f Justice with jurisdiction over criminal cases — probably spurred on by the District Court's reference to us—venture to say: "That the threat of life «ment for murder is compatible with the Constitution conforms to the legal outlook and to our existing jurisprudence; the senate sees no occasion depart from this view." [The Federal High Court] summarily declared the itional doubt raised on appeal in this case against section 211 of the Criminal 3 be unfounded. The court regarded the penalty of life imprisonment as compatible with the Basic Law.... e Constitutional Court reviewed the arguments that led the framers of the : Law to abolish the death penalty. In their view, the court found, life :isonment under some conditions would substitute for the death penalty. íe following extract the court employed sociological analysis while assert-he need for an "objective" approach to constitutional interpretation.] termination, however, does not clearly decide the constitutional issue before ther original history nor the ideas and intentions of the framers are of deci-portance in interpreting particular provisions of the Basic Law. Since the « of the Basic Law, our understanding of the content, function, and effect of jhts has deepened. Additionally, the medical, psychological, and sociological )f life imprisonment have become better known. Current attitudes are im-in assessing the constitutionality of life imprisonment. New insights can :e and even change the evaluation of this punishment in terms of human and the principles of a constitutional state. íe constitutional principles of the Basic Law embrace the respect and protec-tiuman dignity. The free human person and his dignity are the highest values institutional order. The state in all of its forms is obliged to respect and it. This is based on the conception of man as a spiritual-moral being en-with the freedom to determine and develop himself. This freedom within the g of the Basic Law is not that of an isolated and self-regarding individual but 308 Basic Rights and Liberties rather [that] of a person related to and bound by the community. In the light of cornmunity-boundedness it cannot be "in principle unlimited." The individual n allow those limits on his freedom of action that the legislature deems necessar the interest of the community's social life; yet the autonomy of the individual ha be protected. This means that [the state] must regard every individual within ciety with equal worth. It is contrary to human dignity to make persons the n tools of the state. The principle that "each person must shape his own life" apr unreservedly to all areas of law; the intrinsic dignity of each person depends on status as an independent personality. In the area of criminal sanctions, which mands the highest degree of justice, Article i (i) determines the nature of pun ment and the relationship between guilt and atonement. The basic principle "n poena sine culpa" has the rank of a constitutional norm. Every punishment n justly relate to the severity of the offense and the guilt of the offender. Respect human dignity especially requires the prohibition of cruel, inhuman, and degrai punishments. [The state] cannot turn the offender into an object of crime pra tion to the detriment of his constitutionally protected right to social worth respect. [It] must preserve the underlying assumptions governing the indivk and the social existence of the human person. Thus Article i (i) consider tandem with the principle of the state based on social justice requires the stali guarantee that minimal existence—especially in the execution of criminal pe ties—necessary for a life worthy of a human being. If human dignity is underst* in this way, it would be intolerable for the state forcefully to deprive a persi m of freedom without at least providing him with the chance to someday regain freedom. We must never lose sight of the fact that human dignity is not dispensa [We] cannot separate our recognition of the duty to respect human dignity fron historical development. The history of criminal law shows clearly that milder p ishments have replaced those more cruel in character and that the wave of the fut is toward more humane and differentiated forms of punishment. Thus any deci; defining human dignity in concrete terms must be based on our present underst.; ing of it, and not on any claim to a conception of timeless validity. 2. If these standards are used in assessing the nature and effect of life imprii ment, then there is no violation of Article i (i)___ (aa) A sentence of life imprisonment must be supplemented, as is const tionally required, by meaningful treatment of the prisoner. Regarding those r oners under life sentences, prisons also have the duty to strive toward their resoi ization, to preserve their ability to cope with life and to counteract the nega effects of incarceration and the destructive changes in personality that accomp imprisonment. This task finds its justification in the constitution itself; it an inferred from the guarantee of the inviolability of human dignity within the n» ing of Article i (i) of the Basic Law. In enforcing this punishment in the Federal Republic, state officials are mid Human Dignity and Personhood 309 dutv not merely to incarcerate but also to rehabilitate the prisoner through appropriate treatment, a policy consistent with previous decisions of this court. The court on several occasions has rnaintained that rehabilitation is constitutionally required in any community that establishes human dignity as its centerpiece and commits itself to the principle of social justice. The [prisoner's] interest in rehabilitation flows from Article 2 (1) in tandem with Article 1. The condemned criminal must be given the chance, after atoning for his crime, to reenter society. The state is obligated within the realm of the possible to take all measures necessary for the achievement of this goal----- III. 4. (a) An assessment of the constitutionality of life imprisonment from the vantage point of Article 1(1) and the principle of the rule of law shows that a humane enforcement of life imprisonment is possible only when the prisoner is given a concrete and realistically attainable chance to regain his freedom at some later point in time; the state strikes at the very heart of human dignity if [it] treats the prisoner without regard to the development of his personality and strips him of all hope of ever earning his freedom. The legal provisions relating to the granting of pardons do not sufficiently guarantee this hope, which makes the sentence bearable in terms of human dignit}'.... A new trend was evident in the Justice Ministry's 1974 draft of the fifteenth amendment to the Criminal Code. The draft provides that offenders sentenced to life imprisonment should have their records reviewed, with their consent, after they have served a certain length of time—the draft suggests at least twelve to fifteen years. A review board would then decide whether the prisoner is likely to commit more crimes after his release. An independent parole board would render this decision subject to the approval of a superior appellate court. The foreword to the draft states, of course, that under certain conditions life imprisonment would be enforced i í necessary to protect the common good. If needed to protect the common good, [die state] should not only impose such sentences but also carry them out. Experience shows, however, that incarceration for life is not always necessary [to protect] the common good. With regard to murder, [the crime for which] a sentence of life imprisonment is most often imposed, we are dealing with a significant number of persons who in all probability will not repeat their crime. In these cases, where the social prognosis is positive, life imprisonment can hardly be justified. Moreover, the long, continuous lack of freedom is an extraordinary physical and psychological burden that could result in substantial detriment to the prisoner's personality, one good reason for introducing the possibility of release. A sentence of life imprisonment cannot be enforced humanely if the prisoner is denied a prion any and every pi wsibility of returning to freedom. Indeed, it has hardly been the rule up to now to require the prisoner to serve out his life term. Yet an individual and case-by-case determination of whether a prisoner merits parole is not a satisfactory solution. Leading officials from the various states noted in their resolution of March 16,1972, 310 Basic Rights and Liberties that the situation would have to be corrected by a uniform and coordinated i policy [throughout the Federal Republic].... TV. The legislature does not offend the constitutional requirement of sensjb; appropriate punishment if it decides to impose life imprisonment for a nmr-wanton cruelty.... [The court next described various theories of punishment that inform t criminal law. Noting that current law adheres to the so-called unificati theory, which tries to bring all the purposes of punishment—i.e., rehabili tion, retribution, atonement, and prevention of crime—into a balanced re tionship, the court rejected the district courťs contention that life imprisc ment in and of itself effectively serves none of these purposes.] Seen as a whole, life imprisonment for murder is not a senseless or dispropon i punishment___ (c) The imposition of a life sentence does not contradict the consrjt mi-based concept of rehabilitation (positive special prevention) in the light ( practice of granting pardons and current legislation governing the criminal pr The murderer sentenced to life usually does have a chance to be released serving a certain length of time. . . . But for the criminal who remains a tlir society, the goal of rehabilitation may never be fulfilled. It is the particular pej circumstances of the criminal which may rule out successful rehabilitation than the sentence of life imprisonment itself.... V i. Article i (i) and Article 2 (i) (the dignity and responsibility of per together with the principle of the rule of law require that guilt be assessed in a with the idea of justice. [The state] must therefore tailor the threatened pun \s\ to the severity of the crime and the culpability of the offender.... 2. The issue here is whether the principle of proportionality requires a p other than life imprisonment for "murders of wanton cruelty" or for cases of rr "to conceal another crime." The question is particularly relevant here because the exception of murder and genocide, the courts are regularly granted .1 rai punishment within which the applicable court may ascertain, in accord jiio. those considerations pertaining to the award of punishment named in section the Penal Code, the extent of punishment in a concrete case. In the present ca referring court also demands a similar discretion so as not to be forced to imp» ■ mandatory sentence of life imprisonment. ... In a serious crime such as murder, substantive justice may warrant the to impose a uniform system of punishment. But clearly, the application or J system of punishment may lead to unsatisfactory results in individual case prescription of such harsh sentences would be free of constitutional doubi when the judge retains some discretion in imposing a penalty that conforms constitutional principle of proportionality. But as oral argument before this Human Dignity and Personhood 311 shown, when section 211 of the Penal Code—particularly the wanton cruelty ■ to conceal another crime provisions — is read in the light of the general section i' ■ ne Penal Code, these provisions can be interpreted in a constitutionally permissi- Ki- »'ay.. ■ ■ (c) . .Thusahteralinterpretationofsection2ii and its constituent elements ■of mandatory. Narrower interpretations permitting proportionate sentences are ■\r:missible. Expert testimony and the aforementioned brief support [this ap- '-•. ■ ich 1. It is ultimately the task of the responsible courts to adjudicate the tension ivtveen the principle of proportionality and the punitive sanction [of the law]----- '1 .■ s approach is compatible with section 211 (2) and the general purpose [behind :V statute]; the constitutionality of the decision is thus affirmed----- -1-;: life imprisonment and its aftermath. Life Imprisonment was not the first case to address the question of prisoners' rights. Already in the Prison Correspondence I case (1972), the court noted that prisoners would have to be treated in accordance with constitutional principles and that any limitation on this basic right would require an act of parliament.16 The decision in Life Imprisonment did not invalidate life imprisonment for murder as such. What the court said is that a person may nor be kept in prison for life as a matter of course. Rather, the state is obligated to consider the particular situation of each prisoner in terms of his or her capacity for rehabilitation and resocialization and in the light of the principles of human dignity, the rule of law, and the social state. (See the Lebach case [no. 8.10] for another example of the courťs application of these principles.) Soon after the decision in Life Imprisonment, parliament amended the Criminal Code by authorizing courts to suspend a life sentence when the situation warranted the offender's release from prison. Under the revised statute, courts may release an offender for a probationary period of five years if he has served fifteen years of his punishment and if "the gravity of the offenders guilt does not necessitate that he continue to serve his sentence." In determining whether or not to release a person sentenced to life imprisonment, courts must consider the personality of the offender, his behavior in prison, the circumstances of his crime, and his capacity to lead a normal life outside prison.l7 1 he War Criminal case (1986) raised the issue of whether an offender could be required to serve his life sentence merely because of the gravity of his crime.18 War Criminal involved a former member of the ss sentenced to life imprisonment in 1962 at the age of sixty-six for sending fifty persons, including children and pregnant women, to their deaths in the gas chambers of Auschwitz and Birkenau. Prison ofhcials approved his petition for release in 1982, when he was eighty-eight years old, but the Frankfurt Superior Court disallowed the release because of the gravity of the offenders crime. The Constitutional Court sustained the courťs judgment because in the circumstances of 1985, when it had decided the case, the superior 312 Basic Rights and Liberties court had properly weighed the factors bearing upon a decision to release light of the value of human dignity. Yet the court gave a new and liberal twist Imprisonment by emphasizing that a judicial balancing of these factors ma\ no; too heavy an emphasis on the gravity of the crime as opposed to the pcrso state of mind, and age of the offender. In War Criminal the court made clear, as it did in the seminal case, tl-imprisonment as such, assuming guilt and a punishment that fits the cri constitutionally unobjectionable. The offender, however, cannot be denied al for release, for the ultimate aim of any punishment, including life imprison m the rehabilitation and "resocialization" of the offender. Citing the Prison Fu case (1983), decided three years before War Criminal, the court observed: right to human dignity may not be denied to an offender, notwithstandir gravity and barbarity of his crime, if we are to protect the value order of the (" tution."19 Indeed, the Second Senate concluded its unanimous opinion bv i that in any subsequent proceeding involving the release of the offender in the i case after he has reached the age of eighty-nine, the court would be obliga weigh much more heavily than before the personality, age, and prison record offender. With this decision die Second Senate established the principle 1 bat offender sentenced to life imprisonment, whatever the nature of his crime, ir allowed to live in the realistic hope of regaining his freedom. NOTE: HUMAN DIGNITY AS A CONSTITUTIONAL VALUE. Both the COUTt ark mentators have characterized human dignity as an objective and subjective objective in the sense of imposing an affirmative obligation on the state ro es1 conditions necessary for the realization of dignity; subjective in the sense oť t the state from any direct interference with the negative freedom of individuals court has tended to define the concept of human dignity in personalistů: am munal terms; that is, in terms of a personhood that is not merely a project ion autonomous self but is also oriented to communication with other persoi which reveals itself in the experience of the community. As a working com German constitutionalism, however, the meaning of human dignity is best stood in the light of its application to concrete situations. What the court app be saying in the cases reprinted above—and in several of those reprinted bclc that everyone, including the state, must respect the rationality and humanít)' c vidual persons, although what is rational and humane may often depend on ar preteťs intuitive understanding of what is right and wrong in particular situ at At this juncture it is important to note that the concept of human die controversial among the justices and constitutional scholars. The controvcr rounding its meaning and application in Germany is similar to the American over the meaning and application of the substantive due-process-of-law clai Germany, unlike the United States, "dignitarian" jurisprudence often funěti limit or circumscribe specified rights in the Constitution. Mephisto, in win Human Dignity and Personhood 313 ■ of human dignity trumped freedom of the press, is a classic example of this, her example is the Tobacco Atheist case {i960),21 in which the value of human nalitv trumped a claim based on the free exercise of religion. In this case the ititurional Court sustained a decision of prison officials to deny parole to an te (an. unreconstructed Nazi) who had persuaded fellow inmates to abandon Christian beliefs in exchange for tobacco and other gifts. The inmate's be->r, said the court, conflicted with the "general order of values" under the Basic "A person who exploits the special circumstances of penal servitude and prom-.nd rewards someone with luxury goods in order to make him renounce his ■'s does not enjoy the benefit of the protection of Article4 (1) of the Basic Law." jourt added: "It follows from the Basic Law's order of values, especially from igniiyof the human being, that a misuse [ofafreedom] is especially apparent icver the dignity of another person is violated."22 Justice Wolfgang Zeidler, a former president of the Federal Constitutional ■r, was most resistant to what he had always regarded as the essential subjec-involved in this process of interpretation. As Tobacco Atheist shows, dignitarian >rudence has evolved out of the Basic Law's "general order of values," an order lues which in Zeidleťs view is presupposed, not substantiated. Phrases equiv-to "general order of values" that turn up repeatedly in constitutional cases ving the application of the principle of human dignity include "supreme basic s " "basic decisions of the Basic Law," and "unwritten elementary constitutional iples." Zeidler and odier critics see these broad terms and phrases as a kind of old" superimposed on the structure of the Constitution, a scaffold that permits ireiers to wash the structure in religious and ideological solvents of their own ;ing. In Zeidleťs view, the ritual incantation of these broad—and indeter-ni — standards of review too often leads to the triumph of general values over ve rights and liberties. "Whoever controls the [meaning of the] order of \" lie once remarked, "controls the Constitution."33 THE RIGHT TO PERSONALITY ?f: the personality clause. The Life Imprisonment case shows that the hu-1 dignity clause of Article 1 and the general personality clause of Article 2(1) interlinked. The Constitutional Court rarely speaks of the right to personality unit referring to human dignity.24 Unlike the human dignity clause, however, general right to personality is not a shorthand expression of other guaranteed rts.'B The personality right is so broad inits phrasing that almost any content Id be poured into it, and it could easily function as the first and last resort of stitutional arguments. Recognizing this, the Constitutional Court has sought to fine its reach. As a general rule, the personality clause is subordinate to those itive rights of liberty expressly mentioned in the Basic Law.26 A complainant may