CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 juillet 2008

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M., is a German national who was born in 1957 and is currently in Schwalmstadt Prison. He was represented before the Court by Mr B. Schroer, a lawyer practising in Marburg. The German Government (“the Government”) were represented by their Agent, Mrs   A.   Wittling-Vogel, Ministerialdirigentin , and by Mr H. Schöch, professor of criminal law. At the oral hearing on 1 July 2008 the applicant was represented by Mr B. Schroer and Mr A. Stopp, counsel, assisted by Mr   T. Schulla, adviser. The respondent Government were represented by Mrs A. Wittling-Vogel and by Mr H. Schöch, assisted by Mr M. Bornmann, public prosecutor, Mr B. Böhm, Ministerialdirigent , Mr B. Bösert, Ministerialrat , Mrs G. Launhardt, public prosecutor and Mr J. Bachmann, Governor of Schwalmstadt Prison, advisers. I.     THE CIRCUMSTANCES OF THE CASE 2.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     The applicant’s previous convictions and the order for and execution of his preventive detention 1.     The applicant’s previous convictions 3.     Since the applicant attained the age of criminal responsibility he has been convicted at least seven times and has spent only a couple of weeks outside prison. 4.     Between 1971 and 1975 he was repeatedly convicted of theft committed jointly with others and burglary. He escaped from prison four times. 5.     On 5 October 1977 the Kassel Regional Court, applying the criminal law relating to young offenders, convicted the applicant of attempted murder, robbery committed jointly with others, dangerous assault and blackmail and sentenced him to six years’ imprisonment. It found that approximately one week after his release from prison the applicant, together with an accomplice, had injured and robbed an acquaintance of his and had forced the victim, a homosexual, to sign a borrower’s note. Moreover, he had injured and attempted to kill his victim one day later when he learned that the latter had reported the robbery to the police. Having regard to a report submitted by expert D., the court found that the applicant suffered from a pathological mental disorder, with the result that his criminal responsibility was diminished (Article 21 of the Criminal Code). 6.     On 8 March 1979 the Wiesbaden Regional Court convicted the applicant of dangerous assault, sentenced him to one year and nine months’ imprisonment and ordered his subsequent placement in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 43 below). The applicant had injured a prison guard by throwing a heavy metal box at his head and stabbing him with a screwdriver after having been reprimanded. As confirmed by expert D., the applicant suffered from a serious pathological mental disorder, with the result that his criminal responsibility was diminished. 7.     On 9 January 1981 the Marburg Regional Court, on appeal, convicted the applicant of assault of a disabled fellow prisoner, following a discussion as to whether or not the cell window should remain open. Incorporating the sentence imposed by the judgment of the Wiesbaden Regional Court of 8 March 1979, it sentenced him to a cumulative sentence of two years and six months’ imprisonment. Moreover, it upheld the order for the applicant’s placement in a psychiatric hospital. In the proceedings, an expert found that there were no longer any signs that the applicant suffered from a pathological brain disorder. 2.     The preventive detention order against the applicant 8.     On 17 November 1986 the Marburg Regional Court convicted the applicant of attempted murder and robbery and sentenced him to five years’ imprisonment. It further ordered his placement in preventive detention ( Sicherungsverwahrung ) pursuant to Article 66 § 1 of the Criminal Code (see paragraphs 45-46 below). It found that when the conditions of his detention in the psychiatric hospital where he had been detained since October 1984 had been relaxed, the applicant had on 26 July 1985 robbed and attempted to murder a woman who had volunteered to spend a day with him in a city away from the hospital. Having regard to the report of a neurological and psychiatric expert, W., the court found that the applicant still suffered from a serious mental disorder which could, however, no longer be qualified as pathological and did not have to be treated medically. He therefore had not acted with diminished criminal responsibility and the preconditions for his placement in a psychiatric hospital under Article 63 of the Criminal Code were no longer met. However, he had a strong disposition to commit offences which seriously damaged his victims’ physical integrity. It was to be expected that he would commit further spontaneous acts of violence and he was dangerous to the public. Therefore, his preventive detention was necessary. 3.     Execution of the order for the applicant’s preventive detention 9.     Since 18 August 1991 the applicant, having served his full prison sentence, has been in preventive detention in Schwalmstadt Prison. 10.     On 14 January 1992 the Gießen Regional Court refused to suspend on probation the applicant’s placement in preventive detention and in a psychiatric hospital. It relied on a report submitted by expert M.-I., who had concluded that the applicant was likely to commit offences because of his disposition to re-offend within the meaning of Article 66 of the Criminal Code, whereas it was not very probable that he would commit offences because of his psychiatric condition within the meaning of Article 63 of the Criminal Code. 11.     On 26 October 1995 the applicant took advantage of a day release to abscond, but gave himself up to the police on 17   November 1995. 12.     On 17 November 1998 the Marburg Regional Court refused to suspend on probation the applicant’s preventive detention and his placement in a psychiatric hospital, as it had previously done on 20 September 1994 and 13 November 1996. It took into consideration the fact that in the meantime the applicant, who at that time associated himself with skinheads, had assaulted and broken the nose of a fellow prisoner and had grossly insulted the governor of Schwalmstadt Prison. B.     The proceedings at issue 1.     The decision of the Marburg Regional Court 13.     On 10 April 2001 the Marburg Regional Court dismissed the applicant’s requests to suspend on probation his preventive detention as ordered by that court on 17 November 1986 and his placement in a psychiatric hospital as ordered by it on 9 January 1981. Applying Article   67e § 3 of the Criminal Code (see paragraph 52 below), it declared that no request for review of this decision would be admissible within a two-year period. 14.     Having regard to the applicant’s previous convictions and his conduct in prison, the Regional Court found that it could not be expected that the applicant, if released, would not commit further serious offences (Article 67d § 2 of the Criminal Code, see paragraph 49 below). The court had heard evidence from the applicant, who was represented by an officially appointed counsel, in person. It had further consulted Schwalmstadt Prison and the Marburg public prosecutor’s office, both of which had recommended not suspending on probation the orders for the applicant’s detention. It also agreed with the report submitted by an external expert in forensic psychiatry, K. The expert had taken the view that the applicant, who had a narcissistic personality and totally lacked empathy, but could not be regarded as suffering from a psychopathic disorder, needed to be observed for several years before it could be assumed that he was no longer dangerous to the public. 15.     The Regional Court stated that it was ordering the applicant’s preventive detention also for the period after 8 September 2001, when (after a period during which the applicant had escaped from detention had been deducted) he would have served ten years in preventive detention. There were no constitutional obstacles to such a decision. According to the court, the applicant’s continued preventive detention was authorised by Article   67d § 3 of the Criminal Code as amended in 1998 (see paragraph 49 below). In section 1a § 3 of the Introductory Act to the Criminal Code, as amended in 1998, the Article in question had been declared applicable also to prisoners whose preventive detention had been ordered prior to the change in the law (see paragraph 50 below). The Federal Constitutional Court had refused to admit a constitutional complaint in which the change in the law had indirectly been at issue. In view of the gravity of the applicant’s criminal past and possible future offences his continued preventive detention was not disproportionate. 16.     As to the order for the applicant’s placement in a psychiatric hospital, his request was premature as he was neither currently detained nor about to be detained in a psychiatric hospital. 2.     The decision of the Frankfurt am Main Court of Appeal 17.     On 26 October 2001 the Frankfurt am Main Court of Appeal, amending the decision of the Marburg Regional Court in this respect, quashed the order of 9 January 1981 for the applicant’s placement in a psychiatric hospital. Upholding the remainder of the Regional Court’s decision, it decided not to suspend on probation the applicant’s preventive detention as ordered by the Marburg Regional Court’s judgment of 17 November 1986, and ordered his continued detention also after the expiry of ten years of detention on 8 September 2001. It confirmed that a request for review of the decision would not be admissible within a two-year period. 18.     The Court of Appeal found that the order for the applicant’s placement in a psychiatric hospital was devoid of purpose. Having regard to the expert reports submitted to the criminal courts since 1985 and a new report by expert K. requested by the court itself, it was clear that the applicant no longer suffered from a serious mental disorder which should be qualified as pathological. 19.     As to the preventive detention of the applicant, who was represented by counsel, the Court of Appeal, endorsing the reasons given by the Regional Court, found that the applicant’s dangerousness necessitated his continued detention. In view of the offences he had committed and could be expected to commit on release, his continued detention was proportionate. A material change in the circumstances decisive for his detention was not to be expected within a two-year period (Article 67e § 3 of the Criminal Code). 20.     According to the Court of Appeal, Article 67d § 3 of the Criminal Code, as amended in 1998, was constitutional. The court conceded that at the time when the applicant’s preventive detention was ordered, it would have ceased after ten years of detention at the latest. However, Article 2 § 6 of the Criminal Code (see paragraph 44 below) authorised a retrospective worsening of the applicant’s situation as far as measures of correction and prevention such as preventive detention were concerned. Such measures were not classified as penalties, but as preventive measures, and were therefore not prohibited under Article 103 § 2 of the Basic Law (see paragraph 57 below) as being retroactive criminal provisions. 21.     Likewise, the applicant’s continued preventive detention did not infringe the prohibition in principle of retrospective provisions enshrined in the rule of law. Weighty public-interest grounds, namely the protection of the public from dangerous offenders, justified the adoption of such retrospective provisions by the legislator in the present case. 3.     The decision of the Federal Constitutional Court 22.     On 26 November 2001 the applicant, represented by counsel, lodged a complaint with the Federal Constitutional Court against the decisions ordering his continued preventive detention even on completion of the ten ‑ year period. He claimed, in particular, that these decisions were based on Article 67d § 3 of the Criminal Code, as amended in 1998, under the terms of which the duration of a convicted person’s first period of preventive detention could be extended retrospectively from a maximum period of ten years to an unlimited period of time. Accordingly, this provision violated the prohibition of retrospective punishment under Article   103 § 2 of the Basic Law, the prohibition of retrospective legislation enshrined in the rule of law, the principle of proportionality and his right to liberty under Article 2 § 2, second sentence, of the Basic Law (see paragraph 53 below). Moreover, the impugned provision entailed his being refused any relaxation in his conditions of detention which would allow him to obtain a positive diagnosis to the effect that he was no longer dangerous to the public. As a consequence, it entailed life-long imprisonment without any prospect of his being released. 23.     On 5 February 2004 a panel of eight judges of the Federal Constitutional Court, having held a hearing at which it also consulted psychiatric experts and several prison governors, dismissed the applicant’s constitutional complaint (no. 2 BvR 2029/01) as ill-founded. In its thoroughly reasoned leading judgment (running to 84 pages) it held that Article 67d § 3 of the Criminal Code, read in conjunction with section 1a §   3 of the Introductory Act to the Criminal Code, as amended in 1998, was compatible with the Basic Law. (a)     Right to liberty 24.     The Federal Constitutional Court held that preventive detention based on Article 67d § 3 of the Criminal Code restricted the right to liberty as protected by Article 2 § 2 of the Basic Law in a proportionate manner. 25.     The court stressed that the longer a person was held in preventive detention, the stricter became the requirements concerning the proportionality of the deprivation of liberty. However, Article 67d § 3 of the Criminal Code took into account the increased importance of the right to liberty after ten years in custody. It set a higher standard with respect to the legal interest under threat (protecting only threats to the victims’ physical or mental integrity) and the proof of the applicant’s dangerousness (requiring a duly substantiated report by an experienced external psychiatric expert). It also made termination of detention the rule, and extension the exception, to be used as a measure of last resort. Moreover, the procedural provisions on preventive detention (Articles 67c § 1, 67d §§ 2 and 3 and Article 67e of the Criminal Code) provided for regular review to determine whether the person’s detention could be suspended or terminated. Due to the special significance which the relaxation of detention conditions had for the prognosis of future dangerousness, the court dealing with the execution of the sentence was not permitted to accept without sufficient reason a refusal by the prison authorities to relax detention conditions as a possible precursor to the termination of a detainee’s preventive detention. 26.     Preventive detention did not serve to avenge past offences but to prevent future ones. Therefore, the Länder had to ensure that a detainee was able to have his or her detention conditions improved to the full extent compatible with prison requirements. (b)     Prohibition of retrospective criminal laws 27.     The Federal Constitutional Court further held that Article 67d § 3 of the Criminal Code, taken in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code, did not violate Article 103 § 2 of the Basic Law. The absolute ban on the retrospective application of criminal laws imposed by that Article did not cover the measures of correction and prevention, such as preventive detention, provided for in the Criminal Code. 28.     Interpreting the notions of “punished” and “punishable act” in Article 103 § 2 of the Basic Law, the Federal Constitutional Court found that the Article applied only to State measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a penalty to compensate for guilt. Having regard to the genesis of the Basic Law and the purpose of Article 103 § 2, it did not apply to other State measures interfering with a person’s rights. 29.     In particular, Article 103 § 2 of the Basic Law did not extend to measures of correction and prevention, which had always been understood as differing from penalties under the Criminal Code’s twin-track system of penalties and measures of correction and prevention. The fact that a measure was connected with unlawful conduct or entailed considerable interference with the right to liberty was not enough. Unlike penalties, preventive detention was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender. Therefore, preventive detention was not covered by Article 103 § 2, even though it was directly connected with the qualifying offence. (c)     Protection of legitimate expectations under the rule of law 30.     The Federal Constitutional Court further held, by six votes to two on this issue, that the abolition of the maximum period of detention where preventive detention was ordered for the first time and the application of the relevant provision (Article 67d § 3 of the Criminal Code read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code) to criminals who had been placed in preventive detention prior to its enactment and entry into force and who had not yet fully served their sentences, was in conformity with the protection of legitimate expectations guaranteed in a State governed by the rule of law (Article 2 § 2 read in conjunction with Article 20 § 3 of the Basic Law; see paragraph 55 below). 31.     The court stressed that Article 67d § 3 of the Criminal Code as amended did not retrospectively alter the legal consequences attaching to the offence as fixed in the final judgment of the sentencing court. It had always been the courts dealing with the execution of sentences which had jurisdiction to decide whether and how long a convicted person was held in preventive detention. 32.     Nevertheless, the maximum duration of a first period of preventive detention as laid down in the old version of Article 67d §§ 1 and 3 of the Criminal Code gave detainees reason to expect release when ten years had elapsed. However, pursuant to Article 2 § 6 of the Criminal Code (see paragraph 44 below), the ten-year maximum duration of preventive detention, like all other measures of correction and prevention, had been subject from the outset to changes in the law. 33.     Weighing the interests involved, the Federal Constitutional Court concluded that the legislator’s duty to protect members of the public against interference with their life, health and sexual integrity outweighed the detainee’s reliance on the continued application of the ten-year limit. As Article 67d § 3 of the Criminal Code was framed as an exception to the rule and in the light of the procedural guarantees which attached to it, its retrospective application was not disproportionate. (d)     Human dignity 34.     The Federal Constitutional Court further found that a person’s human dignity as enshrined in Article 1 § 1 of the Basic Law did not impose a constitutional requirement that there be a fixed maximum period for a convicted person’s preventive detention. The person’s dignity was not violated even by a long period of preventive detention if this was necessary owing to the continued danger which he or she posed. However, the aim of preventive detention had to be to rehabilitate detainees and to lay the foundations for a responsible life outside prison. Human dignity required laws and enforcement programmes which gave detainees real prospects of regaining their freedom. 35.     Preventive detention in its present form met these requirements. The courts dealing with the execution of sentences had, in particular, to examine before the end of a convicted person’s prison term (Article 67c § 1 of the Criminal Code) and subsequently at least every two years (Article 67e § 2 of the Criminal Code) whether the measure could be suspended. If ten years had been spent in preventive detention, they declared the measure terminated under Article 67d § 3 of the Criminal Code if no specific dangers remained. In practice, persons in preventive detention were released after having spent a certain length of time in prison. (e)     Removal from jurisdiction of the lawful judge 36.     Lastly, the Federal Constitutional Court found that the prohibition on being removed from the jurisdiction of the lawful judge, as guaranteed by Article 101 § 1 of the Basic Law (see paragraph 56 below), did not apply. Article 67d § 3 of the Criminal Code did not render unnecessary a court decision on the continuation of preventive detention which took into account all the circumstances of the case in issue. C.     The execution in practice of the preventive detention order against the applicant 37.     In Schwalmstadt Prison, persons in preventive detention like the applicant are placed in a separate building from prisoners serving their sentence. They have certain advantages compared with convicted offenders serving their sentence. For instance, they have the right to wear and wash their own clothes and have more pocket money. They can practise sport in a separate sports room and may stay outside in the yard for several hours every day. They may equip their more comfortable cells with additional furniture and equipment and have longer visiting hours. 38.     As to measures aimed at re-integration into society, persons held in preventive detention in Schwalmstadt Prison, like those detained in other prisons, are offered a weekly discussion group which proposes ideas for recreational activities and for structuring daily life. Furthermore, there are individual discussions to improve the detainee’s integration into the group and a residential group evening every two weeks aimed, inter alia , at motivating detainees to accept the treatment on offer. Where it is found to be indicated, detainees are offered individual therapy sessions with an external therapist or group therapy in the socio-therapeutic facility of another prison. The detainee may also request a consultation with the psychologist or social worker in charge in order to deal with crisis situations. 39.     The applicant has been receiving therapy since he was placed in preventive detention. Since the beginning of 1993 he has had therapy sessions with a psychologist in Schwalmstadt Prison. From September 2000 to March 2003 he also had regular individual therapy sessions with an external psychologist. Continuation of the completed therapy was found to be no longer indicated at that point. In addition, the applicant has been examined by psychiatrists at regular intervals in order to evaluate his dangerousness and to permit relaxation of the prison regime as appropriate. As to relaxation of the conditions of the applicant’s preventive detention, he is currently granted short periods of leave under escort ( Ausführungen ) a few times per year. He also receives regular visits (on average three times per month) from his fiancée, to whom he has been engaged since 2005. He has been working, with a short interruption, in prison and is currently working in the prison’s metal workshop, with net earnings of approximately 350 to 543 euros (EUR) per month. 40.     According to a psychiatric expert report and an additional psychological report drawn up in September 2006, the applicant had made important steps towards re-integration into society, in particular by turning away from his criminal identity, which he had developed since his childhood, and by trying to think before acting. His new relationship with his fiancée could be seen as a further positive development and would also improve his social circumstances in the event of his release from prison. However, this trend had not yet stabilised and a lack of loyalty and empathy towards others as well as a dangerous impulsiveness, which had manifested itself again when the applicant had punched a fellow detainee in the face following a dispute concerning a baking tin in 2005, persisted. The expert recommended maintaining and cautiously extending the current measures to relax the conditions of the applicant’s preventive detention. II.     RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE A.     Domestic law and practice 1.     Penalties and measures of correction and prevention 41.     The German Criminal Code distinguishes between penalties ( Strafen ) and so ‑ called measures of correction and prevention ( Maßregeln der Besserung und Sicherung ) to deal with unlawful acts. This twin-track system of sanctions, the introduction of which had been considered and discussed since the end of the 19th century, was incorporated into the Criminal Code by the Act against dangerous habitual offenders and on measures of correction and prevention (the Habitual Offenders Act – Gesetz gegen gefährliche Gewohnheitsverbrecher und über Maßregeln der Besserung und Sicherung ) of 24 November 1933. The rules on preventive detention remained in force, essentially unchanged, after 1945 and underwent several reforms enacted by the legislator from 1969 onwards. 42.     Penalties (see Articles 38 et seq. of the Criminal Code) consist mainly of prison sentences and fines. The penalty is fixed according to the defendant’s guilt (Article 46 § 1 of the Criminal Code). 43.     Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code) or a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them. They may be ordered for offenders in addition to their punishment (compare Articles 63 et seq. ). They must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants as well as to their dangerousness (Article   62 of the Criminal Code). 44.     The temporal applicability of provisions of the Criminal Code depends on whether they relate to penalties or measures of correction and prevention. The penalty is determined by the law which is in force at the time of the act (Article 2 § 1 of the Criminal Code); if the law in force on completion of the act is amended before the court’s judgment, the more lenient law applies (Article 2 § 3). On the other hand, decisions on measures of correction and prevention are based on the law in force at the time of the decision unless the law provides otherwise (Article 2 § 6). 2.     Provisions of the Criminal Code and the Code of Criminal Procedure governing preventive detention (a)     The preventive detention order 45.     The sentencing court may, at the time of the offender’s conviction, order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code). 46.     In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his disposition to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1). 47.     Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court dealing with the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a, 78b § 1 no. 1 of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person’s conduct ( Führungsaufsicht ) commences with suspension. (b)     The duration of preventive detention (i)     Provision in force prior to 31   January 1998 48.     At the time of the applicant’s offence and his conviction, Article   67d of the Criminal Code, in so far as relevant, was worded as follows: Article 67d     Duration of detention “(1) Detention in a detoxification facility may not exceed two years and the first period of preventive detention may not exceed ten years. ... (2) If there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend further execution of the detention order on probation as soon as there are justifiable reasons for testing whether the detainee can be released without committing further unlawful acts. Suspension shall automatically entail supervision of the conduct of the offender. (3) If the maximum duration has expired, the detainee shall be released. The measure shall thereby be terminated.” (ii)     Amended provision in force since 31 January 1998 49.     Article 67d of the Criminal Code was amended while the applicant was in preventive detention for the first time, by the Combating of Sexual Offences and Other Dangerous Offences Act ( Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten ) of 26 January 1998, which entered into force on 31 January 1998. The amended provision, in so far as relevant, provided: Article 67d     Duration of detention “(1) Detention in a detoxification facility may not exceed two years ... (2) If there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall automatically entail supervision of the conduct of the offender. (3) If a person has spent ten years in preventive detention, the court shall declare the measure terminated if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender.” 50.     As to the applicability ratione temporis of Article 67d of the Criminal Code as amended, the Introductory Act to the Criminal Code, in so far as relevant, reads: Section 1a     Applicability of the rules on preventive detention “(3) Article 67d of the Criminal Code, as amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998 (Federal Gazette   I, p.   160), shall apply without restriction.” 51.     With respect to the judicial examination required under Article 67d § 3 of the Criminal Code and to the subsequent decisions under Article 67d § 2, Article 463 § 3 of the Code of Criminal Procedure, as amended by the Combating of Sexual Offences and Other Dangerous Offences Act, makes it compulsory for the court dealing with the execution of sentences both to consult an expert on the question whether the convicted person is likely to commit serious offences when released and to appoint a defence counsel to represent him or her. (c)     Review of a convicted person’s preventive detention 52.     In addition to Articles 67c § 1 and 67d §§ 2 and 3 of the Criminal Code, Article 67e of the Criminal Code provides for the review of a convicted person’s preventive detention. The court may review at any time whether the further execution of the preventive detention order should be suspended on probation. It is obliged to do so within fixed time-limits (§   1 of Article 67e). For persons in preventive detention, this time-limit is two years (§ 2 of Article 67e). The court may shorten this time-limit, but may also set terms within the statutory limits for review before which an application for review shall be inadmissible (§ 3 of Article 67e). 3.     Provisions of the Basic Law and case-law of the Federal Constitutional Court 53.     Article 2 § 2, second sentence, of the Basic Law provides that the liberty of the person is inviolable. 54.     Pursuant to Article 20 § 3 of the Basic Law, the legislature is bound by the constitutional order, the executive and the judiciary by law and justice. 55.     According to the well-established case-law of the Federal Constitutional Court, Article 2 § 2 read in conjunction with Article 20 § 3 of the Basic Law protects legitimate expectations in a State governed by the rule of law. A law may be retrospective in the sense that, while its legal effects are not produced until it is published, its definition covers events “set in motion” before it is published (so-called unechte Rückwirkung ; see the decisions of the Federal Constitutional Court in the compendium of decisions of the Federal Constitutional Court ( BVerfGE ), vol. 72, pp. 200 et seq. , 242, and vol. 105, pp. 17 et seq. , 37 et seq. ). In respect of retrospective laws in that sense, the principles of legal certainty and protection of legitimate expectations are not given overall priority over the intention of the legislator to change the existing legal order to react to changing circumstances. The legislator may enact such retrospective laws if the importance of the purpose of the legislation for the common good outweighs the importance of the interest in protecting legitimate expectations (see the judgment of the Federal Constitutional Court in the instant case, pp. 70-73, with many references to its case-law). 56.     Pursuant to Article 101 § 1 of the Basic Law, no one may be removed from the jurisdiction of the lawful judge. 57.     Under Article 103 § 2 of the Basic Law, an act may be punished only if the fact of its being punishable was determined by law before the act was committed. 4.     Rules on and practice of the execution of preventive detention orders (a)     The Execution of Sentences Act 58.     The (Federal) Execution of Sentences Act ( Strafvollzugsgesetz ) lays down rules for the execution of sentences of imprisonment in prisons and for the execution of measures of correction and prevention depriving the persons concerned of their liberty (see section 1 of the Act). Its provisions were applicable in all Länder until 31 December 2007; since then, the Länder have had the power to legislate on these issues. In so far as they have already made use of this power, the provisions of the Länder on the execution of preventive detention orders do not differ significantly from those laid down in the Execution of Sentences Act. 59.     Section 2 of the Execution of Sentences Act deals with the purpose of the execution of sentences of imprisonment. During the execution of a sentence of imprisonment the detainee should become capable henceforth of leading a socially responsible life without committing offences (purpose of the execution; first sentence). The execution of the sentence of imprisonment is also aimed at protecting the public from further offences (second sentence). 60.     Sections 129 to 135 of the Execution of Sentences Act contain special rules for the execution of preventive detention orders. Section 129 provides that the person held in preventive detention shall be detained in secure conditions for the protection of the public (first sentence). He is to be given assistance in readjusting to life outside prison (second sentence). Unless stipulated otherwise (in sections 131 to 135 of the said Act), the provisions concerning the execution of prison sentences shall apply mutatis mutandis to preventive detention (section 130 of that Act). 61.     According to section 131 of the Execution of Sentences Act, the equipment of the institutions in which persons are held in preventive detention, notably detention cells, and particular measures to promote their welfare, must be designed to help the detainee to organise his life in the institution in a reasonable manner and to protect him from damage caused by a lengthy deprivation of liberty. His personal needs are to be taken into account as far as possible. Section 132 of the said Act provides that the detainee may wear his own clothes and use his own linen and bedding, unless this is prohibited for security reasons and provided he sees to their cleaning, repair and regular changing at his own expense. Moreover, under section 133 of the said Act, the detainee is allowed to occupy himself against payment if this serves the objective of imparting, maintaining or promoting skills needed for paid employment after his or her release. He also receives pocket money. Pursuant to section 134 of the said Act, the conditions of detention may be relaxed and special leave for a period of up to one month may be granted in order to test the person’s readiness and prepare him or her for release. 62.     Section 140 § 1 of the Execution of Sentences Act provides that preventive detention is served either in separate institutions or in separate departments of a prison for the execution of sentences of imprisonment. (b)     Statistical material 63.     According to statistical material submitted by the Government, which was not contested by the applicant, the German sentencing courts made a total of 75 preventive detention orders in 2005, 42 of which concerned sexual offenders. A total of 415 persons were being held in preventive detention in Germany on 31 March 2007. In 2002, the average duration of a first period of preventive detention was between two years and three months and seven years in the different Länder . In that year, 261 persons placed in preventive detention for the first time were affected by the abolition of the maximum duration of preventive detention of ten years under Article 67d § 3 of the Criminal Code, read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code as amended in 1998. In 2008, 70 persons were still affected by that change in the law and had been in preventive detention for more than ten years. 64.     According to statistical material submitted by the Government, which was not contested by the applicant, Germany had 95 prisoners per 100,000 inhabitants in 2006, whereas there were, for example, 333 prisoners per 100,000 inhabitants in Estonia, 185 in the Czech Republic, 149 in Spain, 148 in England and Wales, 85 in France, 83 in Switzerland, 77 in Denmark and 66 in Norway. Furthermore, according to the Council of Europe Annual Penal Statistics, Survey 2006, of 12 December 2007 (PC-CP (2007)   9 prov.   2), the total number of prisoners sentenced to terms of imprisonment ranging from ten years up to and including life imprisonment on 1   September 2006 was 2,907 in Germany, 402 in Estonia, 1,435 in the Czech Republic, 3,568 in Spain, 12,049 in England and Wales, 8,620 in France, 172 in Denmark and 184 in Norway (see p. 47 of the Survey). B.     Comparative law 1.     Systems to protect the public against dangerous offenders 65.     According to the information and material before the Court, the member States of the Council of Europe have chosen different ways of shielding the public from convicted offenders who acted with full criminal responsibility at the time of the offence (as did the applicant at the relevant time), and who risk committing further serious offences on release from detention and therefore present a danger to the public. 66.     Apart from Germany, six other Convention States have adopted systems of preventive detention in respect of convicted offenders who are not considered to be of unsound mind, in other words, who acted with full criminal responsibility when committing their offence(s), and who are considered dangerous to the public as they are liable to re-offend. These include Austria (see Articles 23 et seq. and 47 et seq. of the Austrian Criminal Code, and Articles 435 et seq. of the Austrian Code of Criminal Procedure), Italy (see Articles 199 et seq. of the Italian Criminal Code), Liechtenstein (see Articles 23 et seq. and 47 of the Liechtenstein Criminal Code and Articles 345 et seq. of the Liechtenstein Code of Criminal Procedure), San Marino (see Articles 121 et seq. of the San Marinese Criminal Code), Slovakia (see Articles 81 and 82 of the Slovakian Criminal Code) and Switzerland (see Articles 56 et seq. of the Swiss Criminal Code). Preventive detention in these States is ordered, as a rule, by the sentencing courts and is generally executed after the persons concerned have served their prison sentences. The detainees’ dangerousness is reviewed on a periodic basis and they are released on probation if they are no longer dangerous to the public. 67.     As to the place and the duration of the placement, persons subject to preventive detention are placed in special institutions in Austria (see Article   23 of the Austrian Criminal Code), Liechtenstein (see Article 23 of the Liechtenstein Criminal Code), San Marino (see Articles 121 et seq. of the San Marinese Criminal Code), Slovakia (see Article 81 of the Slovakian Criminal Code) and Switzerland (see Article 64 of the Swiss Criminal Code). Even though Italian law also stipulates that preventive detention is to be served in special institutions (compare Articles 215 et seq. of the Italian Criminal Code), it appears that in practice these institutions no longer exist and that the persons concerned are kept in ordinary prisons under a special detention regime. In Italy, San Marino, Slovakia (see the express provisions of Article 82 § 2 of the Slovakian Criminal Code) and Switzerland, the applicable provisions do not fix a maximum duration of preventive detention. By contrast, in Austria and Liechtenstein, such detention may not exceed ten years (see Article 25 § 1 of both the Austrian and the Liechtenstein Criminal Codes). 68.     As regards the temporal applicability of the provisions on preventive detention, it is to be noted that in some of the States concerned they may be applied retroactively. Thus, pursuant to Article 200 of the Italian Criminal Code, a decision on preventive measures is to be based on the law in force at the time of their execution, and pursuant to Article 2 § 3 of the Slovakian Criminal Code, these decisions are to be based on the law in force at the time of the decision ordering the security measure. The San Marinese Criminal Code, likewise, does not prohibit the retroactive application of preventive measures. By contrast, retroactive application appears to be prohibited in respect of preventive detention measures pursuant to Articles 23 § 1 et seq. of both the Austrian and the Liechtenstein Criminal Codes. 69.     In the remaining Convention States, there is no system of preventive detention and the offenders’ dangerousness is taken into account both in the determination and in the execution of their sentence. On the one hand, prison sentences are increased in the light of the offenders’ dangerousness, notably in cases of recidivism. In this respect it is to be noted that, unlike the courts in the majority of the Convention States, the sentencing courts in the United Kingdom expressly distinguish between the repressive and the preventive part of a life sentence. The retributive or tariff period is fixed to reflect the punishment of the offender. Once the retributive part of the sentence has been served, a prisoner is considered as being in custody serving the preventive part of his sentence and may be released on probation if he poses no threat to society (see, inter alia , sections 269 and 277 of the Criminal Justice Act 2003 and section 28 of the Crime (Sentences) Act 1997). On the other hand, offenders’ dangerousness generally has an influence both on their conditions of detention and on their chances of benefiting from a reduction of their sentence or from release on probation. 2.     The distinction between penalties and preventive measures and its consequences 70.     As regards the distinction between penalties and preventive measures in the Convention States and the consequences drawn from the qualification of the sanction in question, it must be noted that the same type of measure may be qualified as an additional penalty in one State and as a preventive measure in another. Thus, the supervision of a person’s conduct after release, for example, is an additional penalty under Articles   131-36-1 et seq. of the French Criminal Code and a preventive measure under Articles 215 and 228 of the Italian Criminal Code. 71.     Moreover, it is to be noted in this connection that by the Act of 25   February 2008 on post-sentence preventive detention and diminished criminal responsibility due to mental deficiency ( Loi relative à la rétention de sûreté et à la déclaratio