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

21 Pages Posted: 1 Apr 2012 Last revised: 23 Feb 2015

Eric S. Janus

Mitchell Hamline School of Law

Shawn Alexander

Mitchell Hamline School of Law

Leah Graf

Mitchell Hamline School of Law

Date Written: March 30, 2012

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.

Keywords: preventative detention, comparative law, Germany, European Union, Human Rights, Euopean Court of Human Rights, international law

Suggested Citation

Janus, Eric S. and Alexander, Shawn and Graf, Leah, M. v. Germany: The European Court of Human Rights Takes a Critical Look at Preventive Detention (March 30, 2012). Forthcoming, Arizona Journal of International and Comparative Law, Vol. 29, No. 3, 2013; William Mitchell Legal Studies Research Paper No. 2012-03. Available at SSRN: https://ssrn.com/abstract=2031746 or http://dx.doi.org/10.2139/ssrn.2031746

Eric S. Janus (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN Minnesota 55105-3076
United States
6126954928 (Phone)
6126954928 (Fax)

Shawn Alexander

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

Leah Graf

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

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