M. v. Germany: The European Court of Human Rights Takes a Critical Look at Preventive Detention

Abstract

For the past two decades American courts have grappled with the constitutionality of a new generation of civil commitment laws that have dramatically expanded the use of preventive detention. Similar laws and resulting challenges have arisen in Europe, and a recent opinion by the European Court of Human Rights signals a new development in European law governing the scope of preventive detention — a new development that both mirrors and contradicts early developments in United States civil commitment jurisprudence.To provide context for American readers, this article first looks briefly at the legal landscape for preventive detention in the United States and then examines the European Court’s decision in M. v. Germany. The article continues with a comparative analysis of the American and European decisions, noting similar problems and contrasting divergent approaches as both Europe and the United States struggle to establish appropriate boundaries for the implementation of preventive detention and concludes with a brief a discussion of the recent developments in Germany since the European Court of Human Rights decided M. v. Germany.