Is Post-Sentence Detention Incompatible with the Rule of Law?

During the past year, post-sentence detention has been analysed in two articles published in “Juridica”. Both articles have been highly critical of this new institution for Estonian criminal law. R. Maruste concludes in his article that the European Court of Human Rights has in its judgment in M. vs. Germany declared that this institution, which is used in Germany and is similar to the one provided for under Estonian penal law,violates the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In this article the author once again analyses the judgment in M. vs. Germany and the issue of whether post-sentence detention is indeed in conflict with the rule of law. In the opinion of the author, the ECHR has not, in either M. vs. Germany or Guzzardi vs. Italy, explicitly stated that post-sentence detention is not permissible under the Convention. The violation of both Article 5 and Article 7 of the European Convention on Human Rights consisted in the fact that the post-sentence detention of the applicant was extended for a period in excess of the period permissible under law in force at the time the offence was committed. The European Court of Human Rights has only found one aspect of the system to be in violation of the European Convention on Human Rights. This is also a point on which German and Estonian law differ. The judgment nevertheless provides food for thought: the European Court of Human Rights has stated that post-sentence detention must provide more than just the detention of a person. During this period, the person must be guaranteed access to support services that will allow for him or her to be released as quickly as possible.